India: Sodomy, Obscenity Charges Formally Filed in Trial of 'Lucknow Four'

Call for Letters of Protest Renewed

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 detention 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 FRON NAZ FOUNDATION INTERNATIONAL

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
E-mail: go to http://www.uppolice.org/upp.php3?id=con_email
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,