As the Supreme Court of India has decriminalized adult consensual homosexual sex in India, an attempt to capture ABVA’s struggle for gay rights in India in the twentieth century is in order. The struggle was unique as history was being made and there were many firsts; simultaneously foundation was being laid for the gay rights movement in India for all times to come. It was also unique as the group comprised mainly of heterosexuals at that time but who would not publicly say so because of the policy decision taken by the group not to make any member’s sexuality public as it would not have been politically correct and gay(s) in the group would have got targeted.
Formation of ABVA …
In the late eighties AIDS scare had gripped the country. ABVA (AIDS Bhedbhav Virodhi Andolan/ AIDS Anti-Discrimination Movement) came into existence in 1988-1989 though it was formally christened later as more members joined the group.
… A Word about its Members
It was an eclectic group which included a leprosy patient, a nun, a closeted gay person, social workers, doctors, lawyers, non-formal education workers, representative of women’s groups etc. They came from diverse socio-economic backgrounds and from different communities and varied age group. In 1988-89 the youngest member of the group was about 24 years and oldest was about 55 years. Some lived in slums and resettlement colonies; at least one of them was a pavement dweller, and some in posh South Delhi colonies. But what held them together was their conviction and courage to wipe out all forms of discrimination around AIDS. All had struggled and fought injustice at various levels in their personal lives (as a leprosy patient, minority community member, women) and participated in the various larger political struggles e.g. of slum dwellers. Many had worked with the victims of Sikh massacre in 1984 in Delhi and other parts of northern India.
The Revolution has to be Non-Funded
ABVA strove for equality amongst its members to begin with. It met at a public place Indian Coffee House, Mohan Singh Place, Connaught Place, New Delhi every Wednesday from 6.30 p.m. to 9 p.m. Those who could afford it would not only pay for their cup of coffee but also for those who were unemployed or could not afford a cup of coffee. ABVA functioned through a Post Box No. 5308, New Delhi-110053, India; this cost the group Rs. 150 per year. Every week mail would be collected from the post box and presented at the Wednesday meeting. ABVA was a non-funded; non-party organization. ABVA had no money to rent an office; so by rotation ABVA’s files, correspondence etc were kept in each of its member’s house/office. Anyone from anywhere in India or abroad was free to attend the meeting. In fact this meeting place had become a political pilgrimage site for activists/academicians of all hues; activists from at least 30 countries had attended ABVA meetings. Reports were brought out by collecting money through sale of advance copies!!!
But above all the group was fearless and had the courage to go against the stream at a time when even the most vocal advocates of gay rights today were unwilling to take a stand. Academicians – both homosexuals as well as heterosexuals – maintained a deathly silence on the issue, except a few.
Resisting the Draconian Law
ABVA was instrumental in stalling the Draconian AIDS (Prevention) Bill, 1989 through petitions in Parliament, public meetings, protest actions and networking both in India and abroad. As a result, the Bill was placed before a Joint Parliamentary Committee. The Bill was withdrawn in October-November 1991 following a decision made by the Union Cabinet. Had the Bill been passed the high risk groups would have been forcibly tested for HIV and those found positive would have been quarantined. Their civil liberties and democratic rights would have been flagrantly violated.
ABVA protests at All India Institute of Medical Sciences, New Delhi following refusal by doctors to conduct a delivery on an HIV+ pregnant woman; 7 August, 1991
At that time the medical establishment, including the WHO, targeted four groups of people for the spread of HIV virus, viz, women sex workers, professional blood donors, drug users and homosexual persons. Right since its inception ABVA had realized that these four targeted groups/ allegedly high risk groups need support and understanding. ABVA decided to bring out status reports on the four communities targeted and discriminated against due to HIV/AIDS. The third report in the series was on the status of homosexuality in India.
Report on the Status of Homosexuality in India
The report titled “Less Than Gay” was released in Nov-Dec 1991 at a press conference held at the Press Club of India. The response of the 25 journalists who attended the conference is telling of the times. The journalists were embarrassed and one of them actually blushed. Not a single question was asked by any one; however the coverage was very fair, front-paged in some papers. After the press conference the journalists wanted to know who amongst ABVA members were gay men or lesbian women. However, ABVA members refused to reply in view of its stated policy.
The political environment for gays in India in the early nineties is comprehensively documented by ABVA in “Less Than Gay”. Gay persons were easy prey for blackmail, extortion, verbal and physical violence, and police extortion; police drives against gay gatherings; entrapment of gay men by plain clothes policemen; gays going in railway loos were caught by railway police to extort money.
The Gay Manifesto
ABVA had a broad futuristic vision and in “Less Than Gay” it asked for repeal of all discriminatory legislation singling out homosexual acts by consenting adults in private – Section 377 of the Indian Penal Code (IPC), and the relevant sections of the Army, Navy and Air Force Acts, 1950. Its Charter of Demands in 1991 included demand to recognize right to privacy as a fundamental right. The third demand in its sixteen point Charter of Demands read:
“Recognize the right to privacy as a fundamental part of the citizen’s right to life and liberty, including the right to his or her sexual orientation.”
Cover of the report Less Than Gay
This demand was accepted and recognized by the Supreme Court of India in 2017 only – twenty six years after the group had formulated and raised the issue of privacy.
At that time the mainstream media was itself not immune to homophobia and in fact ‘Sunday’ magazine, then edited by Vir Sanghvi, dubbed “Less Than Gay” as pornographic. ABVA filed a complaint at the Press Council of India where hearing took place after 18 months. The chairperson was Justice R.S. Sarkaria. The decision was rendered in ABVA’s favour on 24 January, 1994. ‘Sunday’ magazine was directed to publish prominently a full page rejoinder sent by ABVA and this was complied with.
India’s First Mass Protest at Police Headquarters on Gay Issues
Police repression of gay people was rampant. In 1992, 18 people were arrested from the Central Park, Connaught Place, New Delhi on the ground that they were about to indulge in homosexual acts; when a delegation of ABVA members went to the local police station an official informed them that they had received written complaints from residents of the adjoining area about the ‘menace of homosexuals’ in the park during evening hours. This park historically was the cruising point for gays since 1940s. ABVA decided to protest the next day at that very park with all of the 18 members participating in it and leafleting. The idea was to show resistance exactly where harassment and arrests were made by the police.
This was followed by a mass protest demonstration on 11 August, 1992 at Police Headquarters, New Delhi. It was attended by over 500 people from different organizations. Civil liberties and democratic rights group also participated. A memo was handed over to the Police Commissioner of Delhi.
The Politics of Sexuality
In 1992, ABVA organized a day-long seminar (bilingual – Hindi & English) on the ‘Politics of Sexuality’ at Indian Social Institute, New Delhi. Around 125 people participated with everyone contributing equally towards the expenses incurred. The auditorium was provided free of cost. There was a unanimous opinion that no media persons were to be invited for coverage; however one journalist from mainstream media was invited to speak about the harassment he had faced just for sensitively writing on the issue of homosexuality in the newspaper where he worked. Other speakers included a one-time married lesbian from Himachal Pradesh; a representative from ABVA; a lesbian researcher, Giti Thadani; a representative from Bombay Dost. A women’s group questioned the very title of the report on homosexuality – Less Than Gay –as being male oriented!
Internationalising the Issue
The second Asia Pacific AIDS conference was organized in Delhi from 8-12 November, 1992. ABVA had to put pressure on the organizers and threaten them with protests outside the venue if it did not get entry. The Conference was an “expensive jamboree” in a five star hotel. But ABVA members refused all facilities and carried their own lunch packets which they ate in a public park opposite the hotel and conducted its protests inside the hotel! ABVA members wore black T-shirts with slogans painted on the back especially for the conference. Phyllida Brown covering the conference wrote in New Scientist in its 21 November, 1992 issue:
“The unexpected stars of the conference were a group from Delhi called AIDS Bhedbhav Virodhi Andolan (ABVA) – the AIDS Anti-Discrimination Movement …
The group staged several loud protests during the conference, drowning out doctors who tried to justify mandatory testing of ‘risk groups’. They also launched a ‘charter of demands’ calling for the release of all HIV-positive people from jail, the establishment of a commission to document all violations of human rights for infected people, and the decriminalisation of homosexuality and prostitution.
The charter also called for India’s government to prosecute doctors who refuse to treat HIV-positive people. Although such refusals are against the Indian code of medical ethics, they are regularly reported.
ABVA’s charter says police policy should be reformed to stop them harassing gay people, prostitutes and professional blood donors. Instead, they have argued, the police should concentrate on the drug barons and on the blood-bank managers.”
ABVA members wearing black T-shirts addressing the press at the Ashoka hotel, New Delhi during the Second Asia Pacific AIDS conference, November 1992
At the same conference during one of the sessions co-chaired by Anand Grover, ABVA members made a sustained demand to the members as also the chair to let a resolution be passed for repeal of Section 377, IPC; those in the house included foreign members/doctors as well as the Indian counterparts. ABVA’s strategy was to get the issue to be internationalized since foreign media personnel were covering the conference. One of ABVA members stood up and asked the house to pass the resolution; the house by raising of hands passed the resolution but the will of the house was subverted by the resolution not being included in the minutes of the session/resolutions passed presented at the plenary meeting in the evening!!!
They also met Ashok Row Kavi of Bombay Dost during the conference; he had earlier attended the ABVA meeting and had written about ABVA’s work in his magazine. Yet it was only in 2018 that he jumped into the legal battle in Supreme Court!!! Ironically Navtej Singh Johar, too, had met members of ABVA at the weekly meetings in mid-nineties. It was in 2016 only that he filed a petition in the Supreme Court!!
ABVA’s Legal Struggle for Striking Down Section 377, IPC as Unconstitutional
The writ petition of 1994 for striking down Section 377 of the Indian Penal Code was filed by ABVA through its member Ms. Shobha Aggarwal, advocate in the Delhi High Court. No LGBTQ person volunteered to be part of the case in spite of the best efforts put by ABVA and byShobha Aggarwal personally over the next seven years.
The petition arose out of a public controversy over the refusal of authorities to make condoms available to inmates of Tihar jail, Delhi. ABVA in its petition had made the following prayers:
- to declare that Section 377 of the Indian Penal Code is unconstitutional and void as being hit by the provisions of Articles 13,14 and 21 and 25 of the Constitution of India.
- to direct the implementation of the Government’s National AIDS Program.
- to declare that all action and proceedings purporting to have been done or taken by the respondents and each of them under the said unconstitutional and void law are wholly un-authorised by law, illegal and void and not binding on the jail inmates;
- to restrain the respondents from segregating or isolating prisoners with a certain sexual orientation or those suffering from AIDS or from commencing prosecution against those prisoners who are suspected to have participated in consensual anal intercourse.
- to direct the respondents to immediately make condoms available at the dispensary within Tihar Jail, where prisoners can freely obtain them without fear that they will be persecuted on account of their sexual orientation.
- to direct that only disposable syringes be used in the dispensary within Tihar Jail.
- to direct the jail authorities to regularly consult with the National AIDS Control Organisation, namely the Respondent No. 6.
- may pass any other writ, direction or order as this Hon’ble Court deems fit and proper in the circumstances of this case.
ABVA: ‘A Bunch of Sodomisers’
On a day to day basis, the barometer of public response to our work on gay rights issue was the reaction of the regular coffee house visitors. It may be recalled that the coffee house where ABVA had its weekly meetings boasts of visitors like members of Parliament; journalists; trade unionists; revolutionaries; theatre activists; social workers; activists of all hues. Not one amongst them congratulated them on their efforts; not one came forward to support; they were subjected to a vilification campaign by being dubbed as a bunch of sodomizers. Since most of the ABVA members were single, the smear campaign stuck as unmarried single persons were assumed to be either gays or lesbians. ABVA became a four letter word in more sense than one. The members were oath bound not to contradict this as it would send a message that being gay or lesbian is something to be despised.
After the petition was filed, some newspapers like the Hindustan Times front paged the court proceedings in 1994-95. Others like Economic Times and Pioneer even editorially supported their prayer of striking down of Section 377, IPC. However there was no social media or 24X7 T.V. channels then.
Homophobic Attitude of Judges
During the court proceedings it was obvious that the judges had a homophobic attitude. Their queries on a typical hearing would include – Is ABVA for free sex? What is its Constitution? Is it a registered body? Are you mandated to fight for gay rights? The court was informed that ABVA stood for safe sex.
ABVA Campaigns Amongst Senior Advocates
After filing the writ petition ABVA members had split into small groups to gather support from the handful of Senior Advocates/ constitutional lawyers on the issue. They met in all about eight of them. Some of them suggested not to affix the ABVA’s report “Less Than Gay” with the petition; few suggested that they limit their prayer to supply of condoms to jail inmates and not ask for striking down of Section 377, IPC. One of them just heard them out; another appreciated the work without volunteering his services.
ABVA also wrote to 100 odd activists groups in India to flood high courts all over India with similar petitions. However, none came forward.
A lawyer, Mr. S. Muralidhar and his wife Ms. Usha Ramanathan attended ABVA’s meetings; Muralidhar later appeared in Delhi High Court in ABVA’s 377 petition! Muralidhar was briefed at the office of Himalaya Sewa Sangh, New Delhi by Dr. P.S. Sahni and Manoj Pande about the case before one of the hearings. While S. Muralidhar was sitting on a charpoy, Manoj and Dr. Sahni were squatting on the floor. ABVA sees this as its contribution to sensitizing S. Muralidhar who in later years became a judge of the Delhi High Court.
Ironically, he was the judge who along with Justice A.P. Shah passed the judgement in 2009 decriminalizing adult consensual homosexual sex!!
The petition was dismissed in 2001.
Protests Post ‘Fire’
The protest demonstration held at Regal theatre, New Delhi against the ban on the film ‘Fire’ (which depicted a lesbian relationship) led to the formation of CALERI (Campaign for Lesbian Rights) in 1998. ABVA had been a very active member of CALERI which functioned for a year and campaigned on lesbian issues and brought out a report called ‘Lesbian Emergence’. The CALERI meetings were also held at the same Indian Coffee House where the weekly ABVA meetings were regularly held. Leaf-letting in different parts of the city and protesting in public were the mainstay of this campaign. The irony was that no member of CALERI – which had a handful of lesbian women as members including one who had authored a book on lesbian writing from India in 1999, Ashwini Sukthankar – was willing to release the report through a press conference! A senior ABVA member, Dr. P.S. Sahni was repeatedly urged to release this report. He declined since the policy in ABVA was to encourage people from the sexual minorities to take leadership roles.
During the CALERI campaign a request was received by ABVA from an activist based in Cuttack, Orissa asking for intervention to rescue a lesbian whose life was in danger. In spite of repeated requests to CALERI members to volunteer to do the fact finding, none agreed. It was left to two ABVA members, Arun Bhandari & Jagdish Bhardwaje (now since deceased) to undertake a fact-finding mission to Orissa. The fact finding report brought out in 1999 by ABVA titled ‘For People Like Us’ detailed the tragic tale of two lesbians, Mamta and Monalisa who wanted to marry and stay together. Mamta’s father Mr. Dhruba Charan Mohanty wrote a letter to ABVA:
“Thank you for your sincere cooperation and understanding. My daughter Mamta and her friend Monalisa were fast friends and thereby unable to withstand each other’s separation. Moreover four days before (i.e. 6.10.1998) the incident of suicidal attempt, they sought the help of Court for a Notarial Certificate of Partnership Deed. On 10.10.1998 both of them left behind a suicide note. The final result was death of Monalisa and rescue of Mamta…”
Personal Efforts by me
I was involved in women’s movement since 1981, more particularly against sexual harassment of women in Delhi University colleges; and also what had then come to be known as bride burning on the issue of dowry.
It was easy for me to mingle with LGBTQ members as since mid-eighties I have had the occasion to be in touch with closeted gays; one of them was an LLB student in Delhi University while I was pursuing my legal studies. From 1983 to 1986 I had worked with Barry John on remedial drama; at that time Barry John was the only known gay person in Delhi. My interactions with gay friends/persons encouraged me to volunteer my name for the ABVA petition filed in the Delhi High Court in 1994.
I spent a lot of time for the next seven years with closeted gays/groups. My house had become an adda (meeting point) for gays and lesbians to assemble and socialize. A well-known architect, a Delhi University history teacher, Saleem Kidwai and a Punjabi writer; the co-editor of Manushi magazine (now since defunct), Ms. Ruth Vanita (who in June 2000 had entered into a lesbian marriage in USA), a woman advocate in Delhi would frequently visit my house. Since none had gone public about their sexuality till 2000, there was no question of any one of them joining the legal battle through ABVA’s petition. An attempt was made to start a group by the name of DARE (Document, Archive, Research, Education center for gays and lesbians). The group did not survive for long as I had a principled stand against working on funded projects. From 1994 to 2001, I attended social gatherings of mixed groups or where only gays and lesbians participated. The social space which got cultivated was conducive for people of diverse sexualities to interact. However, such gatherings were mainly social-cultural groupings; political formations were to come much later.
Police Raid at Red-Light District in New Delhi
After its formation ABVA started running a free dispensary in a Kotha (brothel house) at Delhi’s G.B. Road. Members contributed Rs. 50/- per month for purchase of common medicines. Condoms – obtained free from government hospital – were made available at this dispensary. In 1990, the Delhi Police under the supervision of Deputy Commissioner of Police, Amod Kant arrested 112 women in prostitution and their children on the charge of being ‘neglected juveniles’, under Juvenile Justice Act, 1986. Even after the Juvenile Welfare Board pronounced that none of them were neglected juveniles, the State went in appeal. The appeal was dismissed in March 1995. For five years I was attending the court regularly as lawyer for these victims. At times I had to wait in the court room for the whole day. In the first two years more than two hours on every hearing were spent on taking attendance of the women & their children; and warrants of arrests were issued against anyone who was not present. Children had to miss school for attending the court. They were made to stand outside the court room in a line like prisoners while the attendance was taken. The attitude of the judges and the court staff towards the accused was that of a priest towards a sinner. They were granted exemption from appearance only after I had an argument with one of the presiding judges. The case passed through several judges. Not a single one was willing to apply his/her mind to my application for summary dismissal of appeal filed by the police as no appeal was legally allowed under the Act against the order of acquittal by the Juvenile Justice Board. One of the judges who sat on the case – without passing any order for years – was later elevated to Delhi High Court! It took full five years for a judge to dismiss the State’s appeal against the order of acquittal of the women and children.
The net result has been that the police has refrained from indulging in a repeat performance of such brutal raids in later years. The spontaneous public protests by the women concerned after their arrest, and the debate that ensued in the media followed by the protracted legal battle has had a salutary effect on the powers that be.
Finally the LGBTQ Persons Moved the Supreme Court in 2016 to 2018
As an offshoot of the Aadhar case a nine judge Constitution Bench of the Supreme Court of India on 24 August, 2017 ruled that “the right to privacy is protected as an intrinsic part of the right to life and personal liberty” and is a fundamental right. This paved the way for a favourable judgement on Section 377, IPC. It needs to be reiterated that right since 1991 ABVA had been demanding right to privacy as a fundamental right.
As some LGBTQ persons finally filed writ petitions from 2016 to 2018 in the Supreme Court of India, the latter listened to these people whose fundamental rights are being violated; after all fundamental rights of organizations approaching the court through writ petitions can never be violated. The LGBTQ petitioners amongst gays include a Sikh, a Muslim and a Hindu as also a lesbian – the right antidote to a fascist communal regime at the Centre.
Mighty Indian State Decides Not to Contest!
The central government finally put the onus of deciding the fate of Section 377, IPC the Supreme Court and informed the apex court that it would not contest the batch of petitions seeking to decriminalize homosexuality. “So far as the constitutional validity of Section 377 to the extent it applies to ‘consensual acts of adults in private’ is concerned, the Union of India would leave the said question to the wisdom of this Hon’ble Court,” read a three-page affidavit filed on behalf of the centre.
A complete somersault by the mighty Indian State from its original strong denunciation and non-acceptance of homosexuality to a total surrender to the forces of change.
Supreme Court Judges Turn Gay Rights Activists Overnight
During the course of the hearings the judges of the Constitution Bench made the following statements as reported in the media:
- that the court only intended to get out of the “mess” created by the 2013 judgement which had recriminalized gay sex
- this community feels inhibited to go for medical aid due to prejudices against them
- because of family pressures, societal pressures etc. they are forced to marry
- it is not human beings alone who indulge in homosexual acts, many animals also show homosexual behavior
- it is not an aberration but a variation
- our focus is not only on the sexual act, but the relationship between two consenting adults and the manifestation of their rights under Articles 14 and 21 … we are dwelling on the nature of relationship and not marriage … we want the relationship to be protected under fundamental rights and to not suffer moral policing
- the cause of sexually transmitted diseases is not sexual intercourse, but unprotected sexual intercourse. A village woman may get the disease from her husband, who is a migrant worker. This way would you now want to make sexual intercourse itself a crime?
- if the ‘order of nature’ should mean only act that results in procreation, will sex that does not lead to reproduction be against the ‘order of nature’
- if you licence prostitution, you control it. If you kick it under the carpet owing to some Victorian-era morality, it will only lead to health concerns. All prohibition is wrong; the whole object of fundamental rights is to give court power to strike down laws which a majoritarian government, swung by votes, will not repeal.
- we don’t wait for majoritarian governments to repeal laws. If a law is unconstitutional, it is the duty of the court to strike it down.
I had been present in the Delhi High Court hearings in our case during 1994-95. I made a conscious effort to attend the Supreme Court hearings of the present cases in July 2018. During the course of the hearing spread over four days it appeared that the judges had made up their mind on the issue and were actually educating the lawyers on what same-sex love was all about. Not that any substantive arguments were really needed as the judges seemed already convinced.
It appeared that the judges of the Supreme Court had overnight turned activist supporting the cause of repeal of Section 377, IPC. Truly the idea whose time has come. As the wag would say ‘the judges have come out of the closet!’
[Author’s note: This article has major inputs from Dr. P.S. Sahni, a founder member of ABVA and now also the senior-most. As ABVA completes 30 years of its existence, six of its members have passed away. This article is dedicated to them.]
