India: Demand the Immediate Release of HIV/AIDS Prevention Workers Detained
Under Sodomy and Obscenity Laws
The International Gay and
Lesbian Human Rights Commission (IGLHRC), July 25, 2001
1360 Mission Street, Suite 200 San Francisco, CA 94103 USA
Telephone: +1-415-255-8680; Fax: +1-415-255-8662
Email: iglhrc@iglhrc.org
—————————— Action Alert! ——————————
India: Demand the Immediate Release of HIV/AIDS Prevention Workers Detained
Under Sodomy and Obscenity Laws
—————————— Summary ——————————
On July 7, 2001, police in the city of Lucknow in Uttar Pradesh state,
India, raided the offices of Bharosa Trust and Naz Foundation International,
two organizations promoting sexual health among men who have sex with men.
Police confiscated AIDS-education materials and arrested and detained staff of
the two organizations. The arrested persons were charged with possession of
obscene materials and with conspiracy to commit sodomy.
Section 377 of the Indian Penal Code penalizes "Whoever voluntarily
has carnal intercourse against the order of nature" with imprisonment of
up to 10 years. The present case shows the devastating effects of such a law
not merely on privacy but on basic rights to statement and association—as
well as on the right to health of vulnerable people and communities.
The International Gay and Lesbian Human Rights Commission (IGLHRC), in
cooperation with HIV/AIDS activists and advocates for the rights of sexual
minorities in India, urgently calls for letters of protest to Indian
officials. Demand the immediate and unconditional release of the prisoners;
the dropping of all charges against them; and a thorough and impartial
investigation into alleged police brutality in Lucknow and police misconduct
related to this case. Also demand trainings for police to familiarize them
with issues of sexuality and HIV/AIDS, as well as with general standards of
non-discrimination. And call for the amendment of the Indian Penal Code to end
the criminalization of consensual homosexual behavior between adults.
—————————— Action ——————————
URGENT letters of protest should be addressed to the following authorities:
Shri Atal Behari Vajpayee
Prime Minister of India
3 Race Course Road
New Delhi 110001
India
Fax: 91-11-301-9545 or 91-11-301-6857
E-mail: vajpayee@sansad.nic.in
Shri L. K. Advani
Minister of Home Affairs
Ministry of Home Affairs
North Block, Central Secretariat
New Delhi 110 001
India
Fax: 91-11-301-5750 or 91-11-301-7763
E-mail: Mhaweb@mhant.delhi.nic.in
Justice V. S. Verma
Chairperson
The National Human Rights Commission
Sardar Patel Bhavan
Sansad Marg
New Delhi 110001
India
Fax: 91-11-334-0016
E-mail: nhrc@ren.nic.in
National AIDS Control Organisation
Ministry of Health & Family Welfare
Government of India, 9th Floor
Chandralok Building, 36, Janpath,
New Delhi 110 001
India
E-mail: asec-jvr@hub.nic.in
Smt Sonia Gandhi
Leader of the Opposition
10 Janpath
New Delhi 110001
India
Fax: 91-11-301-8651
E-mail: soniagandhi@sansad.nic.in
[Note: represented India and presented a paper at the recent United Nations
General Assembly on HIV/AIDS]
The Hon. Raj Nath Singh
Chief Minister
Government of Uttar Pradash
5 Khalidas Marg
Lucknow, Uttar Pradesh
India
Fax: 91-522-230-002
Gen. Mahesh Chandra Dewedy
Director-General of Police
Uttar Pradesh State Police Department
1 Tilak Marg
Lucknow, Uttar Pradesh
India
Fax: 91-522-206-120
E-mail: go to <http://www.uppolice.org/upp.php3?id=con_email>
Permanent Mission of India to the United Nations
The Hon. Karmalesh Sharma, Ambassador
Mr. Asith Bhattacharjee, Counsellor
Fax: 1-212-490-9656
E-Mail: india@un.int, indiaun@prodigy.net
Please send a copy of letters to: Nazfoundint@hotmail.com
Letters may be routed to IGLHRC at 1-415-255-8662 for international faxing
to India.
—————————— Sample Letter ——————————
Dear . . .
I am writing to express outrage regarding the recent arrests and detention
of HIV/AIDS prevention workers employed by Bharosa Trust and Naz Foundation
International, non-governmental organizations promoting sexual health among
the population of men who have sex with men, in Lucknow, Uttar Pradesh. I am
writing to demand the immediate release of the detained employees, the
dropping of all charges against them, and the resumption of the life-saving
work of these organizations. In addition, I urge a thorough and impartial
investigation of reported incidents of police brutality against sexual
minorities as well as police misconduct related to this case. Lucknow and
Uttar Pradesh state must institute trainings to sensitize police to issues of
sexuality and sexual conduct, in order to prevent discriminatory or abusive
behavior. Finally, India must amend or abrogate Section 377 of the national
Penal Code to decriminalize consensual sexual relations between adults.
On July 7, 2001, police in Lucknow raided the offices of Bharosa Trust and
the Naz Foundation, seizing HIV/AIDS prevention material, including
educational brochures, videos, and condoms. The Senior Superintendent of
Police concluded that both agencies were running "gay clubs" and
spreading gay culture throughout Lucknow. Police arrested the Director of the
Naz Foundation International (NFI) office, who also serves as acting Director
of Bharosa Trust, along with all the staff of Bharosa and two additional staff
of NFI. All staff were charged with conspiring to commit "unnatural
sexual acts" under Section 377 of the Indian Penal Code (IPC), read with
Sections 120b (conspiracy) and 109 (abetment) of IPC. They were also charged
under Section 292 of the Indian Penal Code (sale of obscene books), Section 3
and 4 of the Indecent Representation of Women (Prohibition) Act, 1986
(prohibition of advertisements or publication containing indecent
representation of women), and Section 60 of the Copyright Act, 1957 (remedies
in the groundless threat of legal proceedings). The arraignment and initial
bail hearing took place without the formal presentation of a police report.
These staff were engaged in legitimate HIV/AIDS interventions among
populations of men who have sex with men. Their work saves lives: it must not
remain suspended. Both Bharosa Trust and Naz Foundation International are
recognized by the Uttar Pradesh State AIDS Control Society as well as the
National AIDS Control Organization (NACO), which has made the highly
vulnerable population of men who have sex with men a public focus of its
national project implementation plan. The use of police force to raid agencies
and arrest staff engaging in government-sanctioned HIV/AIDS prevention
activities—the conflation of this educational activity with abetting,
spreading, and conspiring to commit sodomy—reflects ignorance and prejudice
masquerading as enforcement of the law. The charges related to possessing
obscene materials are unfounded: the Behavior Change Communication (BCC)
materials confiscated by the police in both offices are designed and used
solely for the promotion of safer sex and the prevention of HIV/AIDS. Thus
these materials are clearly covered under the exception enumerated in Section
292 of the IPC relating to "possession for educational purposes."
Finally, Sections 377 and 292 of the IPC cannot override the rights to health
and life, enshrined in Article 21 of the Constitution. India has the second
highest number of people living with HIV (3.7 million, according to the United
Nations) in the world. Invoking these laws to prevent HIV/AIDS interventions
with any recognized high-risk group puts those lives at risk. It violates
fundamental rights and is unconstitutional.
It is also crucial to recognize that the continued existence and
enforcement of Section 377 of the Indian Penal Code violate international
human rights law. Section 377 stigmatizes an already-vulnerable population: it
encourages police brutality toward men who have sex with men and gay men in
public areas, as well as the intimidation of lesbians and women who have sex
with women. In 1994, the United Nations Human Rights Committee affirmed in its
decision Toonen v Australia that the criminalization of same-sex sexual
relations between consenting adults violates Articles 2 (equal protection) and
17 (right to privacy) of the International Covenant on Civil and Political
Rights (ICCPR). India ratified the ICCPR in 1979, and is bound by its
provisions. We urge you to bring the Indian Penal Code toward conformity with
international law by supporting proposals by the Indian Law Commission (172nd
report) to eliminate Section 377 altogether, while making IPC provisions on
rape gender-neutral in order to criminalize sexual abuse of male children and
male-male rape. Only this will adequately protect the right to bodily
integrity of vulnerable individuals, while ensuring the rights to privacy and
non-discrimination for consenting adults.
During the United Nations General Assembly on AIDS (UNGASS) in New York
last month, the Indian delegation expressly recognized homosexuals as a
marginalized community critically affected by the epidemic—a community
deserving to have their needs supported and, most importantly, their voices
heard. The Indian position eloquently affirmed the universality of human
rights, and the urgency of ending discrimination. The Uttar Pradesh police
have defied both. The discrepancy between the State's affirmations and its
agents' actions is profoundly disturbing.
The rights violated by these police and judicial actions—the right to
non-discrimination, the right to privacy, the right to freedom of association,
the right to freedom of statement, and the right to health—are all
Fundamental Rights guaranteed by the Constitution of India. These cannot be
taken away by an act of the state, an enactment of parliament, or an order of
the judiciary.
Thank you for your concern for human rights of all people in India. I look
forward to your written response informing me of your intended course of
action.
Sincerely,
—————————— Background ——————————
On July 6, police in Lucknow, Uttar Pradesh, India conducted a raid on a
public park reportedly frequented by men who have sex with men. During the
raid, they arrested—among others—an on-duty outreach worker employed by
Bharosa Trust, a local sexual health organization for men who have sex with
men. Following these park arrests, on July 7, police reportedly raided and
closed the offices of Bharosa Trust, a local sexual health organization for
men who have sex with men, and the Naz Foundation International (NFI) Liaison
office in Lucknow, an international development agency providing technical
support for the promotion of male sexual and reproductive health in South
Asia.
HIV/AIDS prevention materials were seized and confiscated from these
offices—including brochures and videos stored in a resource and information
library, and intended for internal training use rather than for public
distribution. Senior Superintendent of Police B. B. Bakshi stated that both
agencies were running gay clubs that violated Indian values and ethics, and
that they were spreading gay culture throughout Lucknow. Police officials also
stated that they were running a "call boy racket," yet no evidence
has been produced to substantiate this claim.
Police arrested the Director of the NFI office, who also currently serves
as acting Executive Director of Bharosa Trust, along with all the staff of
Bharosa Trust and two additional staff of NFI, under multiple charges. These
included conspiring to commit sodomy under Section 377 (read with Sections
120b and 109) of the Indian Penal Code. Section 377 of the Indian Penal Code
punishes "carnal intercourse against the order of nature with any man,
woman, or animal" with up to ten years imprisonment, with the explanation
that penetration is necessary to constitute this offence. Section 120b
provides for punishment of criminal conspiracy, the collusion of two or more
people to commit a crime, while Section 109 outlines the consequences of
abetment, the act of instigating another person to commit a crime.
The arrested workers were also charged under Section 292 of the Indian
Penal Code (sale of obscene books), Section 3 and 4 of the Indecent
Representation of Women (Prohibition) Act, 1986 (prohibition of advertisements
or publication containing indecent representation of women), and Section 60 of
the Copyright Act, 1957 (remedies in the groundless threat of legal
proceedings). According to a lawyer representing the accused, police told the
court that the men had been arrested for "watching films at televisions
screen showing men sodomy with each other" [sic]. On July 11, the Chief
Judicial Magistrate in Lucknow refused the initial bail request of the
arrested employees of Bharosa Trust and Naz Foundation International. An order
of the court called the accused "a group of persons indulging in these
activities . . . and polluting the entire society by encouraging the young
persons and abating [sic] them to committing the offence of sodomy." The
next day, the police disclosed that they had sealed the offices of Naz
Foundation International but not of Bharosa Trust, so the Bharosa offices were
re-occupied. The arrest, charge, and initial bail proceedings allegedly took
place without the formal presentation of a police report. Only on July 20 did
police present a case diary to the Sessions Court; the accompanying medical
report clearly states that no case of sodomy was detected in the medical
examination. Nonetheless, on July 21, the Court of the Sessions Judge in
Lucknow again rejected the bail applications related to these cases. The
detained HIV/AIDS workers have appealed this decision to the High Court. As
they await a hearing there, however, they face at least two more weeks of
incarceration.
The brutal and arbitrary actions of police in this case not only violate
international norms: they also flout the public pronouncements of the Indian
government, which has voiced its commitment to progressive, inclusive, and
rights-based responses to HIV/AIDS. At the United Nations General Assembly
Special Session on HIV/AIDS, in June 2001, India opposed attempts by members
of the Organization of Islamic Conference (OIC) to prohibit the International
Gay and Lesbian Human Rights Commission (IGLHRC) from speaking at a roundtable
on human rights. In response to the OIC's invocation of religious opposition
to homosexuality, the Indian representative stated in a General Assembly
debate, "We recognize homosexuals are at risk and believe their voice
must be heard."
Police, prosecutors, and judges in Lucknow want those voices silenced.
India must choose.
—————————— International Law
——————————
India's obligation to remedy these abuses is clear in international law:
— Discrimination based on status is barred by the Universal Declaration
of Human Rights (UDHR) in its Articles 1 and 2, and by the International
Covenant on Civil and Political Rights (ICCPR) in its Articles 2 and 26. These
provisions do not expressly mention "sexual orientation": however,
the United Nations Human Rights Committee held in the 1994 case Toonen v
Australia that the ICCPR's anti-discrimination provisions should be understood
to include sexual orientation as a protected status.
— The right to privacy is protected by the UDHR (Article 12) and the
ICCPR (Article 17). The United Nations Human Rights Committee in Toonen v
Australia also held that laws criminalizing consensual, adult homosexual
behavior—such as Section 377 of the IPC—violate Article 17 of the ICCPR.
— The rights to freedom of statement, assembly, and association are
protected by the UDHR in its Articles 19 and 20 and by the ICCPR in its
Articles 19, 21, 22. The right to freedom of statement specifically includes
"freedom to seek, receive, and impart information and ideas of all kinds,
regardless of frontiers, either orally, in writing or in print, in the form of
art, or through any other media of his choice" (ICCPR 19.2).
— The right to the highest attainable standard of health is protected in
the International Convention on Economic, Social, and Cultural Rights (ICESCR)
in its Article 14. In its General Comment on Article 14, the UN Committee on
Economic, Social, and Cultural Rights has identified "information
accessibility" as a core element of that right, including "the right
to seek, receive and impart information and ideas concerning health
issues." States must refrain "from censoring, withholding or
intentionally misrepresenting health-related information, including sexual
education and information, as well as from preventing people's participation
in health-related matters." The Committee also observes that "the
Covenant proscribes any discrimination in access to health care and underlying
determinants of health, as well as to means and entitlements for their
procurement, on the grounds of race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth,
physical or mental disability, health status (including HIV/AIDS), sexual
orientation and civil, political, social or other status, which has the
intention or effect of nullifying or impairing the equal enjoyment or exercise
of the right to health" (emphasis added).
— The actions of Bharosa Trust and the Naz Foundation, in defending
vulnerable groups, are the acts of human rights defenders. The United Nations
Declaration on Human Rights Defenders affirms that everyone has the right
(inter alia) "To form, join and participate in non-governmental
organizations, associations or groups;" and "To communicate with
non-governmental or intergovernmental organizations" (Article 5.b, c). It
also affirms the universal right of individuals and groups "To know,
seek, obtain, receive and hold information about all human rights and
fundamental freedoms, including having access to information as to how those
rights and freedoms are given effect in domestic legislative, judicial or
administrative systems;" to "publish, impart or disseminate to
others views, information and knowledge on all human rights and fundamental
freedoms;" and "To study, discuss, form and hold opinions on the
observance, both in law and in practice, of all human rights and fundamental
freedoms and, through these and other appropriate means, to draw public
attention to those matters" (Article 6). It also affirms that
"Everyone has the right, individually and in association with others, to
develop and discuss new human rights ideas and principles and to advocate
their acceptance" (Article 7).
India ratified both the ICCPR and ICESCR in 1979. The Universal Declaration
of Human Rights is considered part of customary international law, and binding
on all member States of the United Nations.
—————————— Additional Information
——————————
For the details of the India Law Commission's recommendations to Parliament
and the Supreme Court to reform the rape laws and repeal the sodomy law in the
Indian Penal Code, see: http://www.nic.in/lawcom/rapelaws.htm#chapter3
For more information about the criminalization and decriminalization of
sodomy around the world, see the IGLHRC fact sheet, "Sodomy Fact Sheet: A
Global Overview," at: http://www.iglhrc.org/news/factsheets/sodomy.html
For more information about international human rights precedents such as
the 1994 Toonen v. Australia decision by the United Nations Human Rights
Committee, see the IGLHRC fact sheet, "International Jurisprudence and
Policy Precedents Regarding Sexual Orientation," at: http://www.iglhrc.org/news/factsheets/990430-intljuris.html
# End #
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