On Thursday afternoon, when the Supreme Court partially struck down Section 377 of the IPC decriminalising consensual sex between adults of same-gender, Kerala rejoiced with the rest of the country to celebrate the landmark order. In several cities across the state, queer groups and LGBTIQ communities sang, danced, cut cakes and waved the rainbow flag.
If one were to go by the 2016 report of the National Crime Records Bureau (NCRB), Kerala peculiarly stood second in the country, right behind Uttar Pradesh, in the recording of Section 377 cases by the police. In that year, the Kerala Police recorded 207 cases in which Section 377 was charged with an equal number of victims. Only Uttar Pradesh stood ahead of Kerala with 999 cases. However, in terms of crime rate, Kerala, with 0.6%, stood second behind the National Capital Territory of Delhi which accounted for 0.8% of the cases in the country.
According to Section 377 of the IPC, “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”
So does this mean cases were recorded against people in Kerala for having ‘sex against the order of nature’? Top police officers begged to differ, giving their own explanation for the high number of cases.
A senior police officer in the state crime records bureau attributed the high number of cases to the application of the said section in Protection of Children from Sexual Offences (POCSO) Act cases. Section 377 is often applied to strengthen the charges against the accused in POCSO cases, he said.
“When atrocities are committed against minors especially by same-sex offenders, section 377 is also applied. That’s general. There are a lot of cases that get reported about abuse at religious institutions. Organisations like Childline are very active. There’s intervention by child welfare committees as well. Otherwise, the number of cases with respect to homosexuality or gay or lesbian sex is minor,” he said.
“Also our state’s people are literate and socially aware. They are sensitised when compared to other states. There’s always high reporting of cases,” he justified.
Alexander Jacob, former DGP in charge of prisons in Kerala, supported this view as well.
“This is something the Kerala Police does differently from other state police forces. You see, POCSO cases are difficult to prove as testimonies of children are often complicated. Kerala has the highest number of convictions in POCSO cases in the country. The investigating officers add section 377 too to strengthen the case along with POCSO provisions so that the accused don’t escape,” said Jacob, who handles the prisons department towards the fag end of the previous Congress-led administration.
“Often, officers from the same batch discuss as to how the case could be bolstered. It’s never on the orders of superiors,” he said. “In other states, conviction rate rarely goes above 30%. In Kerala, the conviction rate has touched 65%, more than double that of the next best state in India. Here in Kerala, if a case doesn’t get investigated or solved, the public quickly turns against the police. In northern India, nobody cares if the accused go scot-free unless it’s a political case.”
Rajashree R, a board member at LGBTIQ+ collective ‘Queerala’, said it could be true that section 377 is applied in POCSO cases, but argued that the police routinely uses the draconian law to threaten transsexual women and transgenders for getting involved in sex work.
“Police usually quote Section 377 to target transwomen and gender non-conforming persons who may be involved in sex work. Arrests are rare, but they always threaten to use it especially with male activists, because according to the law, the sex has to involve ‘penetration.’ The law was always used as an instrument to target us and our activism. Now (with the SC ruling), that threat has gone away,” she said.