LGBTQIA+ Community Finds Beacon of Hope in Indian Courts

Lesbian couple in India | Photo courtesy: Special arrangement 

Arif Jafar, the Managing Director of Bharosa Trust, faced arrest in 2001 under Section 377. Even before the formal recording of his arrest, police officers assaulted him for promoting homosexuality. He subsequently became one of the individuals challenging India's top court to review the 2013 decision under which homosexuality was considered a crime. Following this, the court overturned the law in 2018, decriminalising homosexuality. Today, the judiciary is continuing to emerge as a groundbreaking force, strengthening and affirming the rights of the LGBTQIA+ community.

Also Read: How Does India Treat Members Of LGBTQIA Community?

“In July 2001, when I was arrested on charges of promoting homosexuality, the lower courts rejected our bail plea. They categorically stated, even in the lower courts, that these people are a curse on our society and they cannot be let out in the open. But when we went to the high court, the bail was immediately granted to us, and the court noted that Section 377 didn't apply in our case. We were booked under Section 377, and one of the basic requirements of Section 377 was that a person should be found having sex with another male or an animal. That was not what happened in our case, and that is why the court granted us bail. Since then, the way the judiciary looks at our community has changed, and the courts have become a beacon of hope to the members of the LGBTQIA+ community."

The struggle of lesbian couple Sumayya and Afeefa

“The Kerala High Court has protected the lesbian couple Sumayya and Afeefa not once, but twice. In India, while governments are turning their backs on the LGBTQIA+ community, the courts have been providing a glimmer of hope to thousands of members of the community,” says Gargi Harithakam, Secretary of the Vanaja Collective.

Gargi Harithakam, Secretary of the Vanaja Collective speaks to The Probe's Sweekriti Agrawal

Based out of Kerala, Gargi's Vanaja Collective has been working for the LGBTQIA+ communities, marginalised groups and people from the disabled communities. Gargi goes on, “In January 2023, the lesbian couple Sumayya and Afeefa approached us for help as they wanted to live together. They eloped on January 27 and were produced before the Malappuram magistrates court on January 29. The court gave them a favourable verdict, affirming their right to live together, and they began living in Ernakulam. On May 30, Afeefa's father tracked their address and the entire family reached the location. Subsequently, Afeefa was kidnapped by her family. Immediately, Sumayya filed a missing person’s complaint at a nearby police station, but the police refused to even register the case saying that parents can never kidnap a child. They didn't even consider that the person in question was an adult. It was only after a lot of pressure and persuasion that the police finally registered the case”.

Also Read: LGBTQIA Rights: Can Government Institutionalise Stereotypes?

Later, on June 5, Sumayya filed a habeas corpus petition in the High Court of Kerala. The court promptly ordered that Afeefa be produced on June 9. On that day, the lawyer representing Afeefa requested a 10-day extension, citing that Afeefa was receiving treatment. She was eventually produced before the court on June 19, where she stated that she wanted to stay with her parents. However, on June 24, a troubling twist occurred when Afeefa sent messages to Sumayya, revealing that she was undergoing forced conversion therapy. She also indicated that she had been coerced by her family into making false statements in court. Afeefa's alarming messages included a plea to Sumayya that if she did not hear from her for a span of 5 to 6 hours, immediate assistance should be sent, signalling that she was in grave danger.

“Sumayya sent screenshots of her message to Vanaja Collective, and we promptly sent a complaint to the Women’s Protection Officer of Malappuram and to the ASP of Kondotty, stating that Afeefa’s life was in danger. We provided them with the proof, and Afeefa was rescued the next day. In front of the police and the officers from the woman and child welfare department, Afeefa's parents left with the girl in the car. We managed to capture a video of the incident, and after airing it on local media, it became a huge issue. Kerala ministers then started calling the Kondotty police station, and finally, that night itself, Afeefa was produced before the police station, where she stated that she wanted to go with Sumayya. The couple is now staying together, but threats continue to surround them. These girls are with us, and we are considering relocating them safely somewhere. We are also exploring employment options and opportunities for higher education for them,” narrates Gargi. 

Lesbian couple Sumayya and Afeefa | Photo courtesy: Social media

Gargi asserts that Afeefa endured a particularly cruel form of conversion therapy, where she was continually drugged. When she requested police protection, she was instead injected with sedatives, awakening two days later to find herself heavily medicated. Gargi states that even today the family is determined to stop the relationship between the lesbian couple. The couple approached Vanaja Collective for assistance, inspired by the help provided to another lesbian couple Adhila and Noora by the same organisation. Adhila and Noora were also protected by the court when their families and society shunned them.

The curious case of lesbian couple Adhila and Noora 

Adhila Nasarin and Fathima Noora became a focal point of attention in Kerala last year when they were reunited by a court order after being torn apart by their families. The couple had gone to the Kerala High Court to fight against their families' resistance to their relationship, and the court reunited the duo on May 31 last year. Like in the case of Sumayya and Afeefa, even in this case, one of the girls was abducted by her own family and was subjected to forced conversion therapy.

Once again, the couple's story drew a lot of attention when they posed for a wedding photoshoot. The couple are among several queer couples who have participated in such photoshoots in recent years.

Also Read: Shock Treatment, Black Magic, Violence: Ban Conversion Therapy On LGBTQIA+ community

Though India decriminalised homosexuality in 2018, members of the LGBTQIA+ community in the country are still fighting for their rights to marry, adopt, and lead a normal life. In May this year, the Supreme Court reserved its verdict on same-sex marriages. Advocate Aneesh Kalarikkal, who represented Adhila and Noora and later also represented Sumayya and Afeefa, says he is shocked at the similarities in both cases, as well as the apathy displayed by the system and society. He states that it was only the court that intervened to protect the lesbian couples in both instances.

Lesbian couple | Adhila and Noora

"It is the courts that are the only hope for the members of the LGBTQIA+ community. The magistrate recorded Sumayya and Afeefa's statements, in which both expressed their desire to be together, insisting that nothing could separate them. Based on this, the magistrate granted them liberty, and they started living together in Ernakulam. Despite this, Afeefa was kidnapped by her family. When she was again produced before the court, she exhibited suspicious behaviour. Later, we got to know that she was drugged. She was subjected to conversion therapy. The girls are even today under significant political and family pressure.

Aneesh says that though Sumayya and Afeefa's case is similar to Adhila and Noora's, the former's case is more complex and convoluted. "In Sumayya and Afeefa's case, we have seen that there has been tremendous political pressure. They were also discriminated against by the police. The real issue in our country is that while people have individual sexual orientations, society has not caught up with this understanding, and the government is also doing nothing to take a stand or create awareness. It's a sorry state of affairs. The judiciary is the only beacon of hope."

When Transgender Individuals Are Subjected to Mob Lynching 

Anil, a transgender person who works with an IT firm in Hyderabad and the founder of the Mobbera Foundation - which works for the LGBTQIA+ community - has been a victim of conversion therapy.

“When I started the foundation and was still working for the LGBTQ community, my parents found out about my activity. They hospitalised me and I was subjected to physical and verbal abuse. When they took me to a psychiatrist in a famous Hyderabad hospital, they asked me to sign a bond stating that the hospital management was not responsible for anything that happened to me during the shock treatment that was going to be administered on me. My parents agreed to this, but I wasn't ready, and for that reason, I was abused and assaulted. My phone was taken away, and I was subjected to constant physical abuse. So, I ran away,” narrates Anil.

Transgender rights activist Anil | Photo courtesy: Special arrangement 

What Anil reveals next is deeply shocking. “Honour killings are taking place within the LGBTQ community. If parents discover their child in a relationship that they don't approve of, they might go to the extreme of killing the child rather than allowing them to live with their partner. After escaping from my parents, I returned home a few days later to check on my mother's health, as she had been hospitalised. There, I was ambushed, and around 40 people subjected me to mob lynching. I survived two murder attempts during this incident. Throughout this entire ordeal, no one came to my aid except for one uncle and a member of my community who took me to a lawyer. We eventually appealed to the Telangana High Court, where the judge granted us police protection for three months."

In Anil’s situation, it was the judiciary that provided rescue, but he highlights that most queer persons cannot afford to seek justice through the courts due to the costs involved. Additionally, he emphasises that finding queer-affirmative lawyers is a challenging task. Tinesh Chopade, the Associate Director of Advocacy for the Humsafar Trust, has been leading the fight for LGBTQIA rights. He believes that the judiciary is the sole beacon of hope, and members of the queer community are relying on the Supreme Court for a favorable verdict in the same-sex marriage case.

Also Read: LGBTQIA Rights: The Fight For Queer-Friendly Workplaces in India

“The courts are our only hope. In the past, there have been several instances where even government officials and parliamentarians, who frame our laws, demonstrated limited knowledge and understanding of different gender identities and sexual orientations. For the LGBTQIA community in India today, turning to the judiciary is the only path forward. We do conduct many sensitisation workshops, but we face genuine challenges on the ground. For instance, it can be extremely difficult for a trans person to inherit property from their biological family after transitioning genders. By engaging in conversations with college students, we hope to better prepare them for the future. That's how we try to bridge the gap with efforts like sensitisation workshops,” asserts Tinesh.

Tinesh’s Trust has been dedicated to advancing equal rights for the LGBTQIA+ community. A prominent example of this commitment is their 18-year-long struggle to overturn Section 377. Another substantial achievement is their role along with numerous other community members in the passage of the Transgender Persons (Protection of Rights) Act of 2019. Today, Tinesh and his team are focusing on advocating for marriage equality. As one of the petitioners in the Supreme Court, they are working towards presenting an accurate narrative in the top court.

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