India: Lucknow Four Freed

UPDATE

On August 16 and 17, in two separate hearings, the Lucknow bench of the Allahabad High Court granted bail to four arrested HIV/AIDS workers from Naz Foundation International and Bharosa Trust. 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.

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.

See IGLHRC's original action alert in this case for information on the case: "India: Demand the Immediate Release of HIV/AIDS Prevention Workers Detained Under Sodomy and Obscenity Laws," July 25, 2001

ACTION

Letters of protest should continue to 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
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
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 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 dropping of all charges 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, 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, 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.

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.

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,

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