Sodomy, Obscenity Charges Formally Filed in Trial of ‘Lucknow Four’: Call
for Letters of Protest Renewed
The International Gay and Lesbian Human Rights Commission
(IGLHRC)
Action Alert Update
India
Update
In mid-November, police in Lucknow, India formally filed charges of
conspiracy to commit sodomy and possession of obscene materials in the ongoing
trial of four HIV/AIDS workers from Naz Foundation International and Bharosa
Trust. Arrested in early July during police raids on their offices and a
public outreach venue, the "Lucknow Four" faced almost six weeks of
detainment before being released on bail on August 16 and 17.
In the wake of these recent developments, advocates for the "Lucknow
Four" renew their urgent request for letters of protest. Please demand
the dropping of all charges against the "Lucknow Four"; a thorough
and impartial investigation into alleged police brutality in Lucknow and
police misconduct related to this case; sensitivity trainings for police to
familiarize them with issues of sexuality and HIV/AIDS, as well as with
general standards of non-discrimination; and the amendment of the Indian Penal
Code to end the criminalization of consensual homosexual behavior between
adults.
Below are an update from Naz Foundation International; a list of addresses for
letters of protest; a sample letter; and resources for further information.
Update From Naz Foundation Internaitonal
Lucknow Update
November 2001
Dear Friends,
It has been some time that Arif Jafar, Director of our Regional Liaison Office
in Lucknow, and the rest of our colleagues who were jailed by the Lucknow
police have been released on bail. During their incarceration we received
immeasurable support from all of you and that support was immensely helpful to
us in keeping up our morale and in encouraging us to continue with the work
that we do with the highly vulnerable population of MSM in trying to save
lives from the scourge of HIV and AIDS.
Because of the catching up that we had to do after they were released, we were
kept on our toes, not to mention that some very important conferences like the
6th International Congress on AIDS in Asia and the Pacific (ICAAP) in
Melbourne and the 1st National Meeting on Male Sexual and Reproductive Health
in Bangladesh, organised by Bandhu Social Welfare Society (to which we were
providing technical assistance), were in the offing that kept us engaged. All
this has prevented us from getting back to you sooner with an update on what
is happening in Lucknow and we do apologise for this delay.
The current situation is that the Lucknow police have gone ahead and filed a
charge sheet against the four of our staff in the magistrate’s court. They
have been charged under the same sections that were mentioned in the First
Information Report (FIR), namely, Section 377 of the IPC read with Sections
120B and 109 of the IPC [conspiracy to commit carnal intercourse against the
order of nature and abetment of carnal intercourse against the order of
nature], Section 292 of IPC [Obscenity], Section 3 and 4 of the Indecent
Representations of Women’s Act, and Section 60 of the Copyrights Act.
The fact that before, during and after the arrests, we had given full
information to the police on the context in which we did HIV/AIDS intervention
work with men who have sex with men (MSM) under the national policy of
targeted interventions has been totally ignored by the police. However, our
lawyers have perused the charge sheet and believe that there are a lot of
factual and legal errors and misrepresentations in the same. We are in the
process of finalising the next course of action on the legal front, but there
is a high probability that we shall be filing for a discharge. We are hopeful
of succeeding in the courts, and repose faith in the justice system and
believe that ultimately justice shall be done. We do not think the Indian
Judiciary will punish us for trying to save lives by following policy formed
by the government of the country.
Next we must state that the support of all our friends has never waned through
this whole process and with their help and support and with the hard work that
all our staff have put in this past few months, our office in Lucknow that was
opened after a court order on the 14th September 2001, is now fully
functional, up and running. We have a Resource Centre in the office that has a
very wide collection of materials on male sexualities and reproductive health
issues, and we would urge any one who needs any form of help with regards to
such materials to please feel at ease to approach us for the same or to visit
us at our office. Please also contact us for any other help that we may be in
a position to render to you.
Apart from all those whom we must thank for their overt support, and
especially to Lok Prakash and Aditya Bondyopadhyay in India for their
coordination and support work particularly in Lucknow itself, we must also
thank some of the friends and supporters who have rendered valuable help and
support from the background, even if they could not come to the fore or make
overt statement or take public positions, given the constraints of their
offices and positions. At the same time Shivananda, who was working from our
London office at the time of the arrests, was able to coordinate an
international response, obtaining encouraging support from a range of British
political leaders, individuals, as well as from international NGOs and human
rights organisations, and we must thank them also.
Since Arif’s release we have met with many esteemed persons who have all
extended their full support. In this context we must mention the names of Mr.
JVR Prasada Rao [Director National AIDS Control Organisation], Ms. Neelam
Kapoor [Deputy Director NACO] Mrs. Sonia Gandhi [India’s Representative to
the UNGASS, MP and leader of the Opposition], Mr. David Miller [Country
Representative UNAIDS], Mr. K Pradeep [UNAIDS], Mr. Tim Marteneau [Health
Sector Group, DFID, India], Mr. Shale Ahmed [Executive Director of Bandhu
Social Welfare Society, Dhaka], Ms. Shabana Azmi [MP and HIV/AIDS activist],
to name a few. We are grateful to all of them for the support that they have
extended to us personally, and to the work that we do.
To end this mail we must add that NFI was represented in strength at the 6th
ICAAP in Melbourne, where we were moved by the huge support that was exhibited
to us by all and sundry from all over the globe who were present there, and we
feel that their support is a source of strength to us and a constant reminder
to our persecutors that ultimately good work done in good faith for the cause
of saving lives is recognised and valued and that mere persecution coming from
misplaced and myopic viewpoints shall not be enough to deter us from our
chosen field of work.
Thanking everyone again for their support and wishing them all the best for
the coming holiday season.
Shivananda Khan
Executive Director
Arif Jafar
Director, Regional Liaison Office
Naz Foundation International
Action
Follow-up 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
The Hon. Raj Nath Singh
Chief Minister
Government of Uttar Pradash
5 Khalidas Marg
Lucknow, Uttar Pradesh
India
Fax: 91-522-230-002
R. K. Pandit
Director-General of Police
Uttar Pradesh State Police Department
1 Tilak Marg
Lucknow, Uttar Pradesh
India
Fax: 91-522-206-120
Associate Directorate General—Human Rights
Mr. S. S. Bannerji
Opp. PICUP Bhawan
Gomti Nagar
Lucknow, Uttar Pradesh
India
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
Sample Letter
Dear ,
I am writing to express outrage regarding the ongoing trial 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 demand the
immediate dropping of all charges, including conspiracy to commit sodomy and
possession of obscene materials, in this case. 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. 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. In mid-November, all staff were formally 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).
These staff were engaged in legitimate, life-saving HIV/AIDS interventions
among populations of men who have sex with men. 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.
The continued existence and enforcement of Section 377 of the Indian Penal
Code violate international human rights law. 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.
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 Information
For additional details about the case, please see IGLHRC’s two previous
action alerts:
"India: Demand the Immediate Release of HIV/AIDS Prevention Workers
Detained Under Sodomy and Obscenity Laws", July 25, 2001
http://www.iglhrc.org/world/s_asia/India2001Jul_2.html
"India: Lucknow Four Freed!: Bail Granted to HIV/AIDS Prevention Workers
Arrested Under Sodomy and Obscenity Charges; Trial to Continue", August
17, 2001
http://www.iglhrc.org.world/w_asia/India2001Aug_2.html
Naz Foundation International can be contacted by e-mail at: Nazfoundint@hotmail.com
About IGLHRC
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is to protect and advance the human rights of all people and communities
subject to discrimination or abuse on the basis of sexual orientation, gender
identity, or HIV status.
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