India: Reports of Police Raids, Sodomy Arrests

For Immediate Release: July 16, 2001

SAN FRANCISCO - The International Gay and Lesbian Human Rights Commission (IGLHRC) is gravely concerned about recent reports of police raids of sexual health agencies serving men who have sex with men and arrest of HIV prevention staff in Uttar Pradesh, India. The raid reportedly took place in the city of Lucknow, Uttar Pradesh on July 7. The subsequent arrests invoked Article 377 of the Indian Penal Code, which prohibits "carnal intercourse against the order of nature." IGLHRC is concerned for the safety of those arrested as well as for the threat that this police action represents to all sexual minorities and HIV/AIDS prevention efforts in India.

"Article 377 should be abrogated," stated Daniel Lee, IGLHRC's Asia/Pacific Regional Program Officer. "As long as it remains on the books the threat of another raid hangs like a dark cloud over all sexual minorities in India," he added.

"After South Africa, India is the country with the largest population of people with HIV in the world," added Karyn Kaplan, IGLHRC's HIV Program Officer. "India can ill-afford to hamper sex education and HIV-prevention efforts."

The reported raid contradicts India's public acknowledgement at the United Nations General Assembly Special Session on HIV/AIDS (UNGASS) that lesbians and gay men constitute a marginalized community, vulnerable to HIV infection.

"The reports of this raid are very troublesome. We will continue to monitor the situation, in coordination with Indian activists," concluded Lee.

IGLHRC is a US-based non-profit, non-governmental organization that works 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.

BACKGROUND

The International Gay and Lesbian Human Rights Commission is gravely concerned about alleged reports of police raids on organizations promoting sexual health among men who have sex with men, and arrests of staff under charges of conspiracy to commit "unnatural offenses" in the city of Lucknow, Uttar Pradesh, India.

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. Police allegedly 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, with the charge of 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.

After the seizure of HIV/AIDS prevention material--including brochures and videos stored in a resource and information library that were intended for internal training use rather than for public distribution, as well as condoms, lubricant, and a dildo--from these offices, Senior Superintendent of Police B. B. Bakshi concluded that both agencies were running gay clubs that cut against the grain of Indian values and ethnics, and argued that they were spreading gay culture throughout Lucknow.

On July 11, the Chief Judicial Magistrate in Lucknow reportedly refused the bail of the arrested employees of Bharosa Trust and Naz Foundation International. The arrest, charge, and bail proceedings allegedly took place without the formal presentation of a case diary. Neither evidence of physical penetration nor a victim have been offered by the police to support the charge of sodomy. Only on July 12 did police present a report to the Chief Judicial Magistrate; it stated that police sealed the offices of Naz Foundation International but not of Bharosa Trust, so the offices of the latter have been reoccupied.

IGLHRC is deeply disturbed that the existence of Section 377 in the Indian Penal Code constitutes a violation of international human rights law. Indian activists have decried a sordid pattern whereby Section 377 has been used as a backdrop for police brutality toward men who have sex with men and gay men in public areas, as well as intimidate lesbian and bisexual 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.

Meanwhile, the life-saving HIV/AIDS prevention work of these organizations remain suspended. Both Bharosa Trust and Naz Foundation International are recognized by and have collaborated with 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. IGLHRC decries the hypocrisy that underlies the usage of police force to raid agencies and arrest staff engaging in government-sanctioned HIV/AIDS prevention activities, as well as the confiscation of materials used for this purpose--and calls for an immediate release of the detained workers.

India's vote to allow the participation of IGLHRC in the United Nations General Assembly on AIDS (UNGASS) roundtable discussions in New York last month is indeed encouraging. The Indian government, the official representative emphasized, recognizes lesbians and gays as a marginalized community that is also critically affected in the context of HIV/AIDS--and, in accordance, conducts support programs addressing the health risks of this community. IGLHRC applauds this statement, which upholds as a human rights issue the question of access to HIV/AIDS interventions for vulnerable populations, as well as formally recognizes lesbians and gays as a marginalized group. However, the discrepancy between the words of this progressive international stance and the recent actions of the Uttar Pradesh state police prove profoundly disturbing.

IGLHRC also shares the grave concern, voiced many many activists in India, that all groups identified or working with lesbians, gays, bisexuals, transgenders, men who have sex with men, kothis, hijras, or other socially stigmatized groups, could be targeted in a similar vein. Likewise, this police action sets the precedent for crackdowns by state agencies on HIV/AIDS interventions with other high-risk populations, such as drug users and sex workers, who may be regarded as falling under the pale of criminality under the law.

Daniel Lee (IGLHRC's Program Officer for Asia and the Pacific) and Karyn Kaplan (IGLHRC's HIV Program Officer) are closely monitoring the situation, and will continue to explore and coordinate responses with activists and advocates in India.

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