Prime Minister Dr. Manmohan Singh
South Block, Raisina Hill,
New Delhi,India -110 011.
January 10, 2006
Dear Prime Minister Singh:
Human Rights Watch writes to protest the arbitrary actions of police in Lucknow who have, apparently through entrapment, arrested four men on charges of homosexual conduct under section 377 of the Indian Penal Code (IPC). In your capacity as chairperson of India’s National AIDS Council, these events should bring to mind previous incidents in which Section 377 has been used to harass HIV/AIDS outreach workers and non-governmental organizations (NGOs) engaged in vital efforts to halt the spread of the epidemic. Section 377 not only violates the basic human right to privacy; used as it clearly is to restrict freedoms of expression and association for marginalized groups—including groups at risk of HIV/AIDS—it is also a continuing threat to public health. This unfortunate incident shows vividly and urgently why it is incumbent on your government to ensure its immediate repeal.
Reports Human Rights Watch has received from an attorney connected to the case indicate that undercover police agents, logging on to the website and pretending to be gay men, in fact entrapped one of the victims into meeting, then arrested him. In custody, he was threatened until he agreed to call several acquaintances and arrange a meeting in person, at which the police arrested them as well.
Senior superintendent of police in Lucknow, Ashutosh Pandey, has reportedly threatened further arrests. The police’s First Information Report (FIR) on the case indicates that officers obtained eleven other names from the man first arrested. Press reports have suggested that police have obtained the mobile telephone numbers or identifying information of eighteen to forty other gay men in Lucknow, and that hundreds of other men in India who had logged onto the website may be in danger of detention. This raises the possibility of a full-scale witch-hunt.
You are undoubtedly aware that in July 2001, the arrest of four staff members from two organizations working against HIV/AIDS among men who have sex with men in Lucknow drew international attention protest and condemnation. Staff members of Naz Foundation International (NFI)'s Lucknow office and of Bharosa Trust were jailed for forty-seven days in deplorable conditions after police raided their offices--spurred apparently by the testimony of an informer-- and accused both of running a gay "sex racket." Police pronounced the HIV/AIDS-related information materials seized in the raided offices as legally "obscene.” They were charged under Section 377 of the IPC, as well as with criminal conspiracy, aiding and abetting a crime, and the sale of obscene materials. Both NFI and Bharosa Trust are registered NGOs, and both were recognized by the Uttar Pradesh State AIDS Control Society for their HIV/AIDS prevention work with men who have sex with men. Friends of the defendants, as well as an attorney working on their behalf, were also harassed by police before their eventual release.
The new arrests reveal that the repressive attitudes of the Lucknow police have not changed in the intervening four years. Their arbitrary interventions are enabled b y the continuing criminalization of homosexual conduct under section 377. That provision, entitled "Of Unnatural Offences," states that "[w]hoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation-Penetration is sufficient to constitute the carnal intercourse necessary to the offence.” The comment on this section in the IPC notes that the intent of the section is "to punish the offence of sodomy, buggery and bestiality." The punishment of “sodomy” is a relic of the British colonial era. In a 2002 report , Epidemic of Abuse, detailing how the provision has been used to harass HIV/AIDS prevention efforts, as well as groups at risk of the disease, Human Rights Watch has noted the government’s hypocrisy in keeping section 377 on the books, with its inevitable consequences for outreach work targeting men who have sex with men, while ostensibly recognizing the importance of HIV/AIDS outreach to this population. These latest arrests again bring that hypocrisy home.
Section 377 violates protections in India’s constitution for the rights to equality and to personal liberty. A challenge to its constitutionality on these grounds was heard before the High Court in Delhi in 2003, asking the court to find it should no longer apply to consenting adults. The government’s response to the petition defended the provision, stating that “The purpose of section 377 of IPC is to provide a healthy environment in the society by criminalising unnatural sexual activities.” The present cases belie these claims. The provision also contravenes India’s commitments under international law. The International Covenant on Civil and Political Rights (ICCPR), to which India acceded in 1979, protects freedom of expression and assembly.—both of which are at stake in these men’s freedoms to communicate over the Internet or meet in public. The Covenant also protects the right to privacy, and guarantees freedom from discrimination. In the case of Toonen v Australia in 1994, the United Nations Human Rights Committee held that the protections of the ICCPR against discrimination in all areas of rights should be understood to include sexual orientation.
We urge you to see that these men are released immediately and that charges against them are dropped. We urge you as well to fully investigate the actions of the Lucknow police in these arrests, and to discipline appropriately those responsible for abuse. Finally, Human Rights Watch calls on your government to express its clear support both for the repeal of section 377 in parliament, and for the ongoing case contesting its constitutionality.
Lesbian, Gay, Bisexual, and Transgender Rights Program
Human Rights Watch
350 Fifth Avenue, 34th Floor
New York, NY 10118 USA
tel. +1 (212) 216-1297
fax +1 (212) 216-1876