PRELIMINARY REPORT OF THE FACT FINDING TEAM ON THE ARREST OF FOUR
MEN IN LUCKNOW UNDER IPC 377[1].
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.
o It is not illegal to be homosexual/bisexual in this country
and the state should not play a role in moral policing.
o 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.
o 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 - [EMAIL PROTECTED]
2. Jashodhara Dasgupta - [EMAIL PROTECTED]
3. Arvind Narrain [EMAIL PROTECTED]
4. Tulika Srivastava [EMAIL PROTECTED]
---------------------------------
[1] Sec 377 of IPC criminalizes what it calls carnal
intercourse against the order of nature and is used to target non-
procreative sex.
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