Next step in Section 377 challenge

Advice - Rights and Laws, Feb '16
By Kaushik Gupta

Reader queries

When the Honourable Supreme Court of India took up the Section 377, Indian Penal Code curative petition on February 2, 2016, why couldn't they hear out the arguments of the petitioners on that day itself? Why did they have to defer it again?

MN, Barasat

Taking on Section 377 persecution

Advice - Rights and Laws, Dec '15
By Kaushik Gupta

Reader queries

I’m a writer and need help for an article on legal issues concerning lesbian, gay, bisexual and transgender people. I heard of an incident before 2009, that is, when the legal status of homosexuality was the same as today after the December 11, 2013 verdict of the Supreme Court of India on Section 377, Indian Penal Code. At that time, a young lesbian couple was dragged by their parents to a District Magistrate. The two women, both adults, were living in a flat, away from their parents, and both were pursuing respective jobs. Their parents took the help of cops to catch them and despite their unwillingness, the District Magistrate forced them to return to their parental homes.

Tackling blackmail around Section 377

Advice - Rights and Laws, Jul '15
By Kaushik Gupta

Reader queries

My friend is a bisexual man and has been a victim of blackmail by someone known to him. The blackmailer threatened to expose my friend's sexual relations with another man to my friend's parents and had to be paid money to keep quiet. Is there any law at all that can be used to protect my friend from this blackmailer?

Anonymous, Kolkata

Insight into incitement

Advice - Rights and Laws, Apr '15
By Kaushik Gupta

Reader queries

While striking down Section 66A of the Information Technology Act, 2000 on March 24, 2015, the Supreme Court said that freedom of speech and expression has three components – discussion, advocacy of a cause and incitement, and that only incitement should be punishable. But how does one differentiate between the three? And if Section 66A is gone, how will incitement be dealt with?

Anonymous, Kolkata

More on gender change legalities

Advice - Rights and Laws, Jan '15
By Kaushik Gupta

See also Gender Change Legalities in the August 2014 issue of Varta.

Reader queries

I have a transgender friend. After the Supreme Court judgment, she wants to change all her identity documents right from the birth certificate onwards and step out as a whole new person. Please advise how she can proceed.

Anonymous, Howrah

Gay couples and surrogacy

Advice - Rights and Laws, Dec '14
By Kaushik Gupta

Reader queries

We are a gay couple and want to have a child through surrogacy? Is this possible? What are the legal implications?

Anonymous, Kolkata

The first issue that needs to be addressed here is that Indian law, unfortunately, does not yet recognize the concept of a ‘gay couple’. Marriage can take place only between a male and a female. Two men can choose to identify as a gay couple but the law only understands and recognizes a heterosexual married couple.

Act now for child protection

Advice - Rights and Laws, Nov '14
By Kaushik Gupta

Reader queries

My neighbours have employed a very young Nepali girl as a maid. She seems sad all the time and cries a lot. I suspect something wrong. Could it be that she has been forced or tricked into this job? If so, what can one do about it legally?

AB, West Bengal

Gender change legalities

Advice - Rights and Laws, Aug '14
By Kaushik Gupta

Reader queries

I am a female-to-male transgender person living in Kolkata. I am a central government employee. I wish to legally change my gender from the existing female to male. In view of the Supreme Court judgement of April 15, 2014, what are the steps to be taken by me for the same?

ST, Kolkata

Sharing property: Queer partner rights

Advice - Rights and Laws, Jul '14
By Kaushik Gupta

Reader queries

I am a man and in a relationship with another man. My boy friend has made me a 100% nominee for his flat, of which he is the sole owner. The building society has registered me as a nominee in their books. What are my rights and privileges and can I stay along with him? Can the society object to or question my stay? If yes, what explanation can I give on legal grounds?

SMK, Mumbai

Intimate partner violence

Advice - Rights and Laws, Jun '14
By Kaushik Gupta

Intimate dreams and relationships can be disrupted by partner violence. A look at the legal remedies available

Reader queries

I am researching intimate partner violence in the context of men in sexual and romantic relationships with other men. If a man is beaten up by a same-sex intimate partner, under what section of the Indian Penal Code (IPC) can the culprit be punished?

Sameer, Kolkata

No stopping living together

Advice - Rights and Laws, May '14
By Kaushik Gupta

Reader queries

My age is 23 years old and my partner is 22 years old. I want to spend my life with my partner. But I can’t see the way forward. If our families don’t support us, what should I do so that I can live with my partner and not face any problem? Please help me.

AG

Curious about curative petitions

Advice - Rights and Laws, Apr '14
By Kaushik Gupta

After the Supreme Court rejected in January this year all review petitions filed against its December 2013 verdict on Section 377, Indian Penal Code (IPC), it is the turn of curative petitions. As per the Supreme Court practice and procedure, even after the dismissal of a review petition, the Supreme Court may entertain a curative petition to reconsider its own judgment or order to cure a gross miscarriage of justice. Here’s a look at what the curative petitions in the matter of Section 377 say.

Burning questions

Advice - Rights and Laws, Mar '14
By Kaushik Gupta

Reader queries

Wouldn't criticizing the decision of a court of law publicly amount to contempt of court?

Anonymous, Kolkata

It will not be contempt if the criticism is fair and not derogatory. It depends on the manner and context in which such criticism is made. It is also important to use restrained language. There should not be use of un-parliamentary words or an attempt to malign the judiciary. A fair criticism of a judgment will not be deemed to be contempt. A person shall not be guilty of contempt of court for publishing any fair comment on the merits of any case, which has been heard and finally decided. The Fundamental Right to Freedom of Speech and Expression includes in its ambit the right to fairly criticize a judgment of a court of law.

Legal reviews and cures

Advice - Rights and Laws, Feb '14
By Kaushik Gupta

In the furore caused by the Supreme Court reinstating Section 377 of the Indian Penal Code on December 11, 2013 and then rejecting all review petitions filed against its verdict on January 28, 2014, several legal terms have become almost common parlance. Here’s a closer look at some of them.

Section 377 in our lives

Advice - Rights and Laws, Jan '14
By Kaushik Gupta

The Supreme Court’s verdict on Section 377 of the Indian Penal Code on December 11, 2013 turned many lives upside down. It created a situation of immense confusion about personal security among lesbian, gay, bisexual, transgender and other queer people. But rather than panic, it would be better to look at facts carefully and take informed decisions.

Sexual harassment

Advice - Rights and Laws, Dec '13
By Kaushik Gupta

Reader queries

What is sexual harassment?

Kishore, Kolkata

The law relating to sexual harassment is new in India. It was brought into effect on February 3, 2013. The offender necessarily has to be a man and the sufferer of such a crime, a woman (unfortunately, till date, the law of the land, by the term ‘woman’, understands only biological women). If the man makes an unwelcome and explicit physical contact or an advance with explicit sexual overtures, or demands or requests sexual favours, or shows pornography to a woman against her will, or makes sexually coloured remarks, then he will be guilty of the offence of sexual harassment. The first offence is bailable but if he commits the same crime again after the first conviction then the same is non-bailable.

FIR basics

Advice - Rights and Laws, Nov '13
By Kaushik Gupta

Reader queries

When and how to file an FIR?

Anonymous, Kolkata

A First Information Report or an FIR can be lodged in case of a cognizable offence. In the Indian Code of Criminal Procedure, 1973, there is the description of two kinds of offences: cognizable and non-cognizable. It is usually the more serious offences that are cognizable and in which the police can arrest an accused without a court issued warrant. You can check the list at www.lawzonline.com/bareacts/Criminal-procedure-code/firstschedule-Code-of-criminal-procedure.htm.

An FIR can be oral or written. If it is oral, then the police must write it down, read it out to you and make you sign it. If it is written, the police can still jot down the contents of it in their FIR book and should give you an acknowledgment of receipt of the same. The police, under Section 154(2) of the Code of Criminal Procedure, 1973, are duty bound to supply a free copy of the formal FIR to the maker.

Photo credit: Kaushik Gupta

When you are writing the FIR, make sure you give the specific details of ‘who, when, where and how’. That is, who committed the offence, when it was committed (date and time), where it was committed (the specific location), and how it was committed. Without these specifications the FIR will be vague and devoid of material particulars. If the details are not known, you must state why they are not known.

What to do if the police don’t take a complaint or act on it?
Anonymous, Diamond Harbour

If the police refuse to take your complaint and/or register an FIR, you can straightaway go to the nearest post office and send a copy of the written complaint with your signature in original by way of registered post with acknowledgement due card, more commonly known as AD Card. The complaint should be addressed to the Officer in Charge of the concerned police station. Mark a copy to the concerned Deputy Commissioner of Police, if within Kolkata, or to the Superintendent of Police, if in a particular district of Bengal.

If the police still do not act, then you have the right to approach a lawyer through whom you can file a complaint under Section 156(3) of the Code of Criminal Procedure, 1973 before the concerned magistrate, who will pass a judicial order directing the Officer in Charge of the police station in question to draw up an FIR and initiate an inquiry.

If, after registration of the FIR, the police do not act, you can again approach the concerned magistrate and pray for a direction upon the Officer in Charge to submit a report regarding the status of investigation. You can, alternatively, file a case under Section 200 of the Code of Criminal Procedure, 1973 where you will have to produce the witnesses and lead evidence, if you have the details with you.

Kaushik Gupta is a lawyer by profession, a photographer by passion, and happy to answer your queries on legal matters around gender and sexuality. Write in your queries to vartablog@gmail.com, and they will be answered with due respect to confidentiality.

Rights and wrongs

Advice - Rights and Laws, Oct '13
By Kaushik Gupta

Reader queries

What is a right and what are its different forms?

Kishore Kumar, Kolkata

A right can be defined as an interest protected by law or, in some cases, by social conventions. Now, definitions always seem more confusing to me. In trying to understand what a right is, I will have to first figure out what is an interest. I tell you, this is where the lawyers make all the money!

A right, in simple words, means something which I am permitted to do or not do and if any one tries to stop me from doing something or forces me to do something, such a person can be prevented from encroaching upon my rights and can also be punished by law. There are several forms of rights, namely, Fundamental, Constitutional and Legal.