India: Sodomy and obscenity charges formally filed in trial of 'Lucknow Four'
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.
The four men, charged with possession of obscene materials and conspiracy to commit sodomy following police raids on their offices, had been detained for almost six weeks. The Bharosa Trust and Naz Foundation International request your continued support to fight for the right to offer life-saving education and training on HIV/AIDS prevention to men who have sex with men in India.
Advocates for the "Lucknow Four" express deep gratitude for the outpouring of support from allies in Lucknow, Mumbai, Bangalore, Pune, and elsewhere in India, as well as HIV/AIDS, civil liberties, and human rights activists and organizations from around the world.
It is important, however, to emphasize that the trial of these HIV/AIDS human rights defenders continues. So too does the campaign for the repeal of Section 377 in the Indian Penal Code, which criminalizes "carnal intercourse against the order of nature." Letters of protest are still urged to 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.
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 also 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 expression 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.
Advocates for the "Lucknow Four" express deep gratitude for the outpouring of support from allies in Lucknow, Mumbai, Bangalore, Pune, and elsewhere in India, as well as HIV/AIDS, civil liberties, and human rights activists and organizations from around the world.
It is important, however, to emphasize that the trial of these HIV/AIDS human rights defenders continues. So too does the campaign for the repeal of Section 377 in the Indian Penal Code, which criminalizes "carnal intercourse against the order of nature." Letters of protest are still urged to 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.
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 also 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 expression 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.
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 expression, 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 expression 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.
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 expression, 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 expression 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.
Source:
The Naz Foundation and Bharosa Trust
Posted by:
lucknow@nfi.net
Created by:
The Naz Foundation and Bharosa Trust
