Background and context

On 4 January 2006 national and regional newspapers reported an incident wherein four homosexual men were caught allegedly having sex in public in Lucknow and arrested under Section 377 of the Indian Penal Code (IPC). It appeared to be a case in which Section 377 was being used to target a stigmatized section of Indian society in a manner which indicated a flagrant violation of basic human rights by a moralistic state. This was not the first such incident as seen by the history of the way the UP state has dealt with matters of sexual rights. One can easily recall the arrest of NGO staff under the National Security Act in Almora in 2000, the arrest of NGO staff working on HIV/AIDS issues under Section 377 of the IPC in Lucknow in 2001, the consistent violation of the rights of individuals seeking to exercise choice in relation to marriage and the harassment of heterosexual couples in a public park in Meerut in 2005. The latest incident appeared to be yet another example of this unwanted intrusion by the state into the lives of its free citizens.

This continued history of state moralism and intolerance that should be held to public scrutiny, so that the larger public is made aware of the significant gaps between what the Constitution guarantees to its citizens and how these rights are disregarded by state machinery in its everyday functioning. This is particularly egregious in the context of the sexual rights of citizens also because of the wider prejudice against non normative sexualities be it pre martial relationships or same sex relationships.

With this context in mind a Fact Finding Team was constituted by the National Campaign for Sexuality Rights (NCSR) to determine what really happened in Lucknow and to demand remedial action. The Team consisted of Elavarthi Manohar of the National Campaign on Sexuality Rights ( NCSR), Tulika Srivastava of Association for Advocacy and Legal Initiatives (AALI), Lucknow, Jashodhara Dasgupta of Sahayog, Lucknow, Maya Sharma of Parma, Baroda, Vivek Divan a human rights lawyer from Bombay and Arvind Narrain of the Alternative Law Forum, Bangalore. The Team visited Lucknow between 9 and 11 January, 2006 and the persons the team met with included the following:

1. Alok Sinha, Principal Secretary, Ministiry of Home, Government of UP
2. R.K Tiwari, Additional Director General Police (ADG -Crime)
3. Anil Kumar Yadav, Station Officer , Gudamba Police Station
4. A.P. Singh , Head Mahazar Gudamba Police Station
5. Rajesh Sharma Advocate
6. Representatives of various social activist groups and NGOs including National Alliance of People's Movement (NAPM), Vigyan Foundation, Action Aid, Naz Foundation International (NFI), Bharosa Trust, Men's Action for Stopping Violence Against Women(MASVAW), SFR Varanasi, Health Watch UP-Bihar and Citizen's Forum for HIV/AIDS. (some of the persons were met by the full team others by some members of the team)

The Team tried to but could not meet Ashutosh Pandey, SSP Lucknow, who was unable to keep an appointment and afterwards excused himself on grounds of ill-health. The Team also tried to meet the four men who were arrested but was unable to do so. When an attempt was made to meet them in Lucknow Jail, they seemed unwilling to meet the Team as they appeared to be nervous and unsure of meeting anyone but their lawyers, which was understandable in the context of the harrowing experience they had been put through.

The Police's Case

As per an FIR lodged by the Lucknow police at Gudamba police station on 4 January 2006 at 12.40 am, they arrested 4 men, Nihal Naqvi, Pramit Bailey, Ashutosh Khanna and Pankaj Gupta, on charges of violation of Section 377 of the IPC. The four men were supposedly indulging in 'unnatural sex' in a picnic spot and were arrested at 8.30 pm on 3 January 2006. On inquiry by the police the first accused supposedly said that he met the other three persons on the internet and that they indulged in 'homosexual sex'. Apart from these three persons he allegedly gave the names and phone numbers of 13 other persons who he got in touch with in the same manner and with whom he had homosexual sex, all of whose names and mobile phone numbers were listed in the FIR. It was also stated that they were all part of an association of more than 1600 people who between themselves talked about homosexual sex and related issues. The way this group allegedly met was by using mobile phones and a white handkerchief as a mark of identification in public places.

As per the press reports immediately following the alleged incident, the following things were clear. Photographs of the four men along with their names and occupations were released to the media. It was clear that the men were put before the media and expected to reveal private details. The tenor of the media coverage was sensational with salacious headlines like '4 members of International homosexual club held' (Dainik Jagran, 5.1.06), 'Gay Club running on Net unearthed- 4 arrested'(Times of India) and 'Cops bust gay racket.' ( Hindustan Times , 5.1.06).

The effect of the police action combined with sensational media coverage was to deny the men the right to a fair and free trail as the police in collusion with the media judged them and pronounced them guilty even before commencement of the judicial process. This process violated the right which every accused has to the maintenance of his confidentiality and his rights to privacy and dignity. No accused, howsoever heinous the offence, should be subject to the inhuman and degrading process of having his privacy being invaded in so callous a manner. The effect of this kind of conduct on the person concerned as well as his family can not even be imagined. The family is forced to undergo a trial by not only the media but also by neighbours, community and wider society all of whom are now vastly titillated by the sex spectacle produced by the police for the public consumption.

This Report uses the word 'produced' with full knowledge of its implications as was clearly revealed in the course of the Fact Finding Investigation. A meeting with the lawyers of one the men and the family members of one of the men revealed that the narrative of the FIR was a complete fabrication.

The Facts

As per the information gathered, it was clear that none of the men involved were having public sex, much less present at the alleged spot of the crime. In fact what transpired was that the police under the supervision of the SSP arrested one of the men, Nihal, on the evening of 3 January 06 at his home. Thereafter names and mobile numbers of the other men mentioned in the FIR were forcibly obtained from him. He was then arrested at 11.30 pm. On the following day (4 January) at 10.30 am he was forced to call the other men and request them to meet him at Classic Restaurant, Mahanagar, Lucknow on pretexts such as ill health and the need to fix up a business appointment. It appears that two people responded to the call only because Nihal had had a heart attack earlier so they were worried that their friend was having another attack. It also came to the teams knowledge that one of the men left the house in a hurry wearing only his bathroom slippers without taking any warm clothing.

The others were arrested by the police, on their arrival at the restaurant. It is important to note that the FIR was lodged on the previous night, 12.40 am, a full 10 hours before the entrapment at the restaurant. Further, at the time of the alleged arrest (at 8.30 pm on 3 January) at the picnic spot, one of the men was actually watching a movie with his family. Additionally, there is nothing to corroborate the police story other than the complainant, himself a police officer. Also, as per the FIR there was no member of the public who could testify as a witness to the alleged incident. It is also highly unlikely that there is any medical evidence or evidence based on the examination of clothes which were worn during the alleged act, though the possibility of doctoring and producing false evidence can never be ruled out.

The police have violated the law with impunity to concoct their story. The team was told that all four men were beaten and asked to sign on blank sheets of paper. It was also clear that the only reason the first person arrested, Nihal, called his friends was because he was beaten and forced to make the calls.

The story put out by the police in the FIR is a completely false one with the entire process being a sex spectacle put on by the police. This matter, of course, has very serious implications for the trial as it unfolds and should be followed closely so that this perverse desire of the police for free and cheap publicity at the cost of innocent people whose lives are being irreparably damaged is not allowed to persist or recur.

Implications of the Lucknow arrests

Be that as it may, moving beyond the concocted nature of the arrests, this action raises many serious questions about the perception of homosexuality as 'unnatural' by sections of the state which empowers it to unleash state brutality at the merest sign of deviance from the heterosexual norm. In fact the 'Operation Majnu' incident also throws into stark relief the grotesque forms that moral policing can take even in the case of consensual heterosexual intimacy.

In relation to the present incident efforts were made to contact and meet the various state authorities who must own responsibility for these actions. As mentioned earlier, the SSP Ashutosh Pandey could not be contacted in spite of best efforts. The interviews by the Fact Finding Team with the ADG (Crime) and the Home Secretary indicated the deep-rooted nature of homophobia within the state machinery and its fundamental resistance to treating all individuals, regardless of sexual orientation, as individuals with the basic right to live with dignity. The ADG Crime was even surprised that this was a human rights issue and asked the Team whether it approved of same- sex relationships. He further noted that he was only enforcing social norms by enforcing Sec 377. The Home Secretary was of the opinion that the affected parties were urban middle class people and commented on the fact that NGO's focused on their alleged human rights violation instead of focusing on the rights of poor people. Both the ADG and the Home Secretary were unaware of the way this prosecution ran counter to the Government of India's policy with respect to providing an "enabling environment that reduces vulnerability of men having sex with men (MSM)." ( National AIDS Control Policy(NACP 2 para 7.5) By and large the state officials were clear that regardless of the AIDS crisis or the policy statement of NACO, the 'on book' law was section 377 was and would take its course and that as far as the Police were concerned, they were just implementing the IPC impartially.

The problem with this arbitrary police action is that it flows from the fundamentally flawed colonial heritage of Section 377. It is tragic that when this archaic law has been deleted in England the country of its origin, it continues to be implemented with fervour by the Indian state.

Its conduct in the present incident makes it clear that the Lucknow police, which is meant to be a protector of citizens, has acted illegally and completely disregarded citizens rights. The authorities who comprise the UP State have chosen to flagrantly disregard the fact that the Constitution gives rights to all individuals regardless of presumed sexual orientation. The sudden and arbitrary arrest of the four men under Section 377 is violative of the basic human right to live with dignity, the right to equality and the right to freedom of expression. We hold that the state has no right to intervene in the lives of consenting adults who have a fundamental right to express their personality without fear and dignity under the Indian Constitution.

The state response is in effect a clear attempt to terrorize the sexual minority population, clamp down on the very _expression of anything outside heterosexuality and is fundamentally dissonant with any tolerant pretensions the government might have. It is unacceptable that in a context where gays, lesbians, bisexuals, hijras, kothis and other sexual minorities are being increasingly vocal and articulate about rights, the UP State is attempting to push UP back to the dark ages, wherein individual autonomy was a casualty of the authoritarian State. In fact the arrests have sent shock waves through the sexual minority population throughout India and driven sexual minorities underground in Lucknow.

In fact, we regretfully note that in this case, Section 377 has been used to cater to the homophobia apparently rampant in the entire bureaucracy in the state, especially the Police. This is clearly professional misconduct, as the state officials have used the law to give vent to their personal agenda rather that serve the 'public good'.

The UP State authorities have to realize that implementing Section 377 in today's context is a fundamentally regressive step as o There is an all India movement to repeal Section 377, which is an unacceptable intrusion into the intimate lives of individuals. The movement is based on the Constitutional premise of the right to equality, dignity, liberty and _expression and the country is beginning to understand that the state has no role in intervening in the lives of consenting adults.

• It is not illegal to be homosexual/bisexual in this country and the state should not play a role in moral policing.
• The position of the UP police is at dissonance with HIV/AIDS interventions wherein the government through its various AIDS interventions actually promotes the use of condoms for penetrative sex between consenting adult men.
• It showcases UP to a global audience as upholding fundamentally archaic positions at odds with well accepted human rights positions.

Our Demands

Based on the above we demand:

• Withdrawal of prosecution against the four men and release them immediately
• Immediate suspension pending inquiry of the SSP Ashutosh Pandey, Anil Kumar Yadav (SHO Gudamba Police) and other police personnel for their illegal actions
• An immediate stop to moral policing and protection of the rights of all individuals including sexual minorities.
• A halt to extra-legal measures used by the Lucknow police in implementing the law
• Responsible and ethical media reporting which protects the dignity and privacy of all people
• Repeal of Section 377 of the Indian Penal Code

Lucknow, U.P.

11 January 06

For more details contact:

1. Elavarthi Manohar
2. Jashodhara Dasgupta
3. Arvind Narrain
4. Tulika Srivastava

Dieser Beitrag gehört zum Schwerpunkt: Queer South Asia .