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India: Repeal Colonial-Era Sodomy Law

India: Repeal Colonial-Era Sodomy Law

Entrapment, Arrests Harm AIDS Prevention Efforts

(Delhi, January 11, 2006) – New arrests of gay men in Lucknow, India—the scene of a case in 2001 that drew worldwide protests—show that India’s colonial-era sodomy law continues to threaten human rights and encourage the spread of HIV, Human Rights Watch said today in a letter to Prime Minister Dr. Manmohan Singh.

On January 4, Lucknow police arrested four men on charges of operating a “gay racket” on the Internet, as well as of engaging in “unnatural” sex. Police claim they seized the men while having a picnic in a public place, and accused them of belonging to an “international gay club” centered around the Internet website, on which gay men can place personals and engage in Internet chat. Reports received by Human Rights Watch indicate that undercover police, posing as gay on the website, entrapped one man, then forced him to call others and arrange a meeting where they were arrested.

“Lucknow police have a shameful record of harassing gay men as well as non-governmental organizations that work with them,” said Scott Long, director of Human Rights Watch’s Lesbian, Gay, Bisexual, and Transgender Rights Program. “They are able to do so because India’s government clings to the criminalization of homosexual conduct, which only prevents people from coming forward for HIV/AIDS testing, information, and services.”

In July 2001, Lucknow police, apparently spurred by an informer, raided the local offices of two nongovernmental organizations (NGOs) working on HIV/AIDS prevention, the Naz Foundation International (NFI) and Bharosa Trust. Four staff members were jailed for 47 days in deplorable conditions, accused of running a gay “sex racket.” Police declared the HIV/AIDS-related information materials seized in the raided offices “obscene.” They charged the men under India’s sodomy law, criminal conspiracy, aiding and abetting a crime and the sale of obscene materials. After international condemnation of the detention of the “Lucknow Four,” the case was eventually dropped.

In a 2002 report, Epidemic of Abuse, Human Rights Watch documented how India’s sodomy law has been used to harass HIV/AIDS prevention efforts, as well as sex workers, men who have sex with men, and other groups at risk of the disease. Section 377 of the Indian Penal Code, titled “Of Unnatural Offences,” punishes “carnal intercourse against the order of nature” with up to ten years’ imprisonment. It was introduced by British rulers in the nineteenth century.

A challenge to section 377’s constitutionality was brought was brought before the Delhi High Court in 2001 by the Naz Foundation India, asking the court to declare the law should no longer apply to consenting adults. In response, the then government stated that “The purpose of section 377 of IPC is to provide a healthy environment in the society by criminalising unnatural sexual activities.” The case ended indecisively, and litigation is still pending.

“Section 377 strikes at the basic right to privacy,” said Long. “This case shows how it is used against rights to free expression and to meeting in a public place. It casts a pall over public health efforts.”

Human Rights Watch said that India’s constitution protects the right to equality, freedoms of speech and assembly and right to personal liberty. The International Covenant on Civil and Political Rights (ICCPR), to which India acceded in 1979, guarantees freedom from discrimination. In the case of Toonen v. Australia in 1994, the United Nations Human Rights Committee held these protections against discrimination in all areas of rights should be understood to include sexual orientation.

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