Thursday, 6 June 2019

Press Council of India Censures The Hindu; Terms Its (Then) Editor Neither Honest Nor Wise On Complaint by AIDS Bhedbhav Virodhi Andolan

by

Shobha Aggarwal

Decades of our work at ABVA, AIDS Bhedbhav Virodhi Andolan (AIDS Anti-Discrimination Movement of India) was sought to be subverted and our reputation tarnished through an article published in The Hindu. We decided to fight back and filed a complaint at the Press Council of India (PCI). The decision on our complaint was passed on 29.05.2019 by the PCI whose present Chairman is Justice Chandramauli Kumar Prasad, a former judge of the Supreme Court of India.
The decision in our complaint is being reproduced verbatim:

“This complaint dated 25.9.2018 has been filed by Ms Shobha Agarwal, Member, AIDS Bhedbhav Virodhi Andolan (ABVA), New Delhi against ‘The Hindu’ for allegedly publishing a factually incorrect and defamatory article against ABVA in its Sunday Magazine, Delhi Edition, issue dated July 15, 2018 captioned “It’s been a long, long time” by Vidya Krishnan, which the complainant alleges have subverted the collective work of the organization.

The alleged impugned news item gives an overview of the development of LGBTQ rights movement in India over the last 25 years and how it gained its momentum. The article under its sub-heading ‘Brave and Prescient’ states that Mr Siddarth Gautam, an LGBTQ right activist, played the pivotal role in filing of the PIL challenging the Constitutional validity of Section 377, IPC for LGBTQ rights for the first time in India and somehow gave all credits to Mr Gautam for giving momentum to the LGBTQ rights movement in India by calling him the first champion of gay rights in India and a co-founder of ABVA organisation. The article also published that Mr Gautam authored a ground breaking pamphlet titled ‘less than gay - a citizens report on the discrimination faced by the community in India. Further, the news article states that after the death of Mr Siddarth Gautam, which happened after few months of publication of the report, ABVA failed to follow through the PIL petition and it got dismissed in 2001.

The complainant alleges that the facts presented in the article are inaccurate and subverts the collective work of ABVA. The petition challenging the Constitutional validity of Section 377, IPC was filed by ABVA titled - AIDS Bhedbhav Virodhi Andolan Vs. Union of India & Others through its Member Ms. Shobha Agarwal, Advocate, after the death of Mr Siddarth Gautam in 1992 and the petition was filed in 1994. Also, Siddarth Gautam's contribution to Gay Rights was only on account of him being one of the co-authors of the Report 'less than gay'. Therefore, Mr Gautam's contribution to the report Less Than Gay was not different from any other co-author of the Report. The Report being called as a pamphlet is again inaccurate as it is a 93 pages Report which cannot be termed as a pamphlet. The complainant further submitted that, the first protest on the issue of gay rights in India was organized by ABVA on August 1992 which the author/reporter of the article has referred to as ineffective and is reflected in the quote 'nothing came of it'. It undermines the work of ABVA and the day 11th August 1992 is still cherished by the LGBTQI groups in India.

The complainant states that the respondent newspaper has published an article that is factually inadequate and ABVA was never contacted before to verify the facts presented in the report. It also alleges that the reporter of the article Ms. Krishna was biased, prejudiced and uninformed about the correct facts of the LGBTQ rights movement in India and her conduct was in complete violation of journalistic ethics. The complainant submitted that a letter dated 10th September 2018 was sent to the Editor of The Hindu and a phone call was also made to the author/reporter of the alleged impugned article to which Ms. Krishnan has apologised but the newspaper has not published the clarification as yet. The complainant appeals that an independent inquiry be held in the matter and the guilty newspaper and journalist may be punished and The Hindu be directed to publish a rejoinder in full and with prominence in the matter.

Written Statement

A Show Cause Notice dated 15.10.2018 has  been  issued to  the  respondent. The respondent vide written statement dated December 26, 2018 submits that  Ms. Krishnan the author/reporter  of the impugned  news item/article  has ceased to be in the employees list by the Hindu as on October 5, 2018 and she was also not authorised to deal with such a complaint on her own. And soon after the receiving of the copy of the complaint which The Hindu found to be legitimate, action has been initiated in the matter and a clarification/ corrections as desired by the complainant has already been published by The Hindu and is up on its website acknowledging the crucial role ABVA played in the publication of the report Less than Gay.  Other desired amendments to the article were also made. The editor of The Hindu also informed the same to the complainant. Therefore, the respondent newspaper has requested for the dismissal of the complaint.

A copy of the written statement received from the respondent was forwarded to the complainant on 31.12.2018.

Counter comments of the Complainant

In response to reply received from the respondent newspaper, the complainant, vide letter dated 10.01.2019, has filed its written statement stating that the written statement of the respondent is silent on many crucial issues and obfuscates the true position. The complainant states that irrespective of receiving letter asking for correction sent to the Readers' Editor of The Hindu, by the complainant, the respondent did not take any action until it received the show-cause notice of Press Council of India and after which the editor of The Hindu made a call to pressurise her to withdraw the complaint by saying that an online corrected version will be published. She further stated that even the corrected version does not do any justice and she feels that she has been harassed by the editor to withdraw the complaint. No apology has been published by The Hindu for the delay and damage it has done to the organisation’s name.  The complainant further stated that the inaccurate report was published in both online and print version so the corrected version with an apology must be published in the same. Therefore, the complainant has requested the Council to take necessary action in the matter.

A  copy  of  the  counter  comments  was  forwarded  to  the  respondent  on 16.1.2019 for information.

Report of the Inquiry Committee

The matter came up for hearing before the Inquiry Committee on 13.2.2019 at New Delhi. Ms. Shobha Aggarwal, complainant, along with Dr. P.S. Sahni, Member ABVA, appeared in person. S. Ramanujam, Regional Manager, The Hindu represented the respondent Editor.

The Inquiry Committee has heard Ms. Shobha Agarwal, the complainant and Mr. S. Ramanujam for the respondent. It is the allegation of the complainant that the petition challenging the Constitutional validity of Section 377, IPC was filed by ABVA through its member, Ms. Shobha Agarwal, Advocate. It has been pointed out that Mr. Siddarth Gautam died in the year 1992 and the petition was filed in the year 1994 and therefore, the impugned story stating that Mr. Gautam filed the PIL, is wrong. The complainant's grievance further is that, a report which consists of 93 pages has been described as pamphlet and further it is not the report by Mr. Gautam and he was only one of the co-authors amongst seven authors who contributed to the report. The complainant has termed the story by the reporter, Ms. Krishnan as biased, prejudiced and uninformed. It has been emphasised by the complainant that the author of the article, Ms. Krishnan has telephonically apologised but the newspaper has not published the clarification as yet.

Written statement has been filed by the respondent, inter alia, stating that soon after the receiving of the complaint, the respondent found the same to be legitimate. Action has been initiated and a clarification/ correction as desired by the complainant has been published by "the Hindu" and is up on its website acknowledging the crucial role that the ABVA played in the publication of the report and other desired amendment to the article was made. When the matter was heard on 13th February 2019, the only grievance that the complainant made was that, the corrections which have been made in the online edition be published in the print edition of the respondent newspaper with an expression of regret.

Mr. S. Ramanujam, who represented "the Hindu" on the said day pleaded for adjournment of the case so as to seek instructions from the editor of the newspaper. The Inquiry Committee acceded to the plea of the respondent and accordingly adjourned the case to 14th February 2019. When the matter was taken up on 14th February 2019, Mr. Ramanujam produced before the Inquiry Committee the written submission signed by the editor of the newspaper. In paragraph 9 of the said written submission, it has been stated as follows:

“With due respect, Sir, I feel the demand for an apology or a rejoinder is unjustified and I am not inclined to accept this, given the circumstances. However, I do apologise for the PCI's show cause notice having gotten misplaced, which led to the delay in submitting a reply to us (dated December 26, 2018)”

The Inquiry Committee has bestowed its consideration to the rival submission and is of the opinion that refusal to publish the correction in the print edition of the newspaper shows nothing but an act of arrogance of the Editor of the newspaper. It is an admitted position that the impugned news story was published in the print edition of the respondent "The Hindu". When the respondent has chosen to make corrections in the online edition, the Inquiry Committee does not find any justification not to do so in the print edition when the errors and omissions are one and the same. Clause 13 of Norms of Journalistic Conduct reads as follows:

“When any factual error or mistake is detected or confirmed, the newspaper should suo-motu publish the correction promptly with due prominence and with apology or expression of regrets in a case of serious lapse.”

The Norms of Journalistic Conduct provides for correction promptly with apology or expression of regret suo-motu.

What to talk about suo-motu, newspaper has refused to publish it even when it was brought to its notice.

All those, who write, are bound to make mistakes and for that purpose one keeps erasers but erasers are kept by those who are willing to correct their mistakes. In the opinion of the Inquiry Committee, the editor of "The Hindu" has forgotten this basic principle and without any justification is unwilling to publish the correction in the print edition of the newspaper. Those who say sorry, when they are wrong are honest, those who say sorry when in doubt are wise. In the opinion of the Inquiry Committee, the respondent editor is neither honest nor wise.

Accordingly, the Inquiry Committee has no option than to Censure the respondent newspaper. A copy of this order be forwarded to the Director General, DAVP, District Magistrate, Chennai, Director, Information & Public Relations Department, Chennai for information & appropriate action.

Held
The Press Council on consideration of records of the case and report of the Inquiry Committee accepts reasons, findings and adopts the report of the Committee and decides to Censure the respondent newspaper with the above direction.”

Binu Mathew, editor, Countercurrents.org has constantly been asking readers: Are you fed up with the mainstream media? Need an alternative insight? The answer to both questions is always a yes!

Post Script: Mr. Mukund Padmanabhan was the editor of The Hindu during the relevant period.

Thursday, 9 May 2019

ANONYMOUS COMMENTS WILL NOT BE PUBLISHED

ABVA has decided that henceforth comments sent anonymously will not be published. Existing ones are being deleted.

Monday, 4 March 2019

Most LGBTQ are Cyberbullied. Here’s How to Stay Safe Online


We at vpnMentor conducted a survey in which we asked 695 LGBTQ+ people worldwide about their experiences online as they relate to their sexual orientation and gender identity. The results – referenced throughout this article – illuminated the unique challenges faced by the LGBTQ+ community.
Here are some of our key findings:+
  • 73% of all respondents in all categories of gender identity and sexual orientation have been personally attacked or harassed online.
  • 50% of all respondents in all categories of gender identity and sexual orientation have suffered sexual harassment online.
  • When it comes to sexual orientation, asexual people feel the least safe online, and gay men the safest.
  • When it comes to gender identity, transgender women feel the least safe online, and cisgender men the safest.
  • Transgender women are the most likely to be outed against their will online, while cisgender men are least likely.
+For complete results, see the appendix.
As experts in the field of cybersecurity, it is our mission to provide practical strategies for coping with adversity, bigotry, and abuse on the web, which is why we created this guide.
Whether you are part of the LGBTQ+ community or are an ally, we hope you find this guide helpful.

Read the full guide here:

Thursday, 31 January 2019

India Breaks Free?

A London based magazine History Today in its February, 2019 issue documents inter alia ABVA's role in the repeal of Section 377 IPC. 


India Breaks Free?

India’s decision to decriminalise homosexuality is presented as the country shaking off the last vestiges of colonialism. The reality is not so simple.
Illustration by Ben Jones.Illustration by Ben Jones.On 6 September 2018, India, the world’s largest democracy, finally decriminalised homosexuality. This historic judgment was passed after years of courtroom battles, long and arduous campaigns and protests, organised by millions of citizens, organisations and activists. The moment was widely celebrated.
For the first time, Indian citizens who identify as part of the LGBT community ceased to be outlawed. Initial reactions in the media reflected the populist idea that India had finally managed to break free of the shackles of colonialism. Within the first Indian Penal Code (1860), which came into force in January 1862, was Section 377, on ‘Unnatural Offences’. Based on the English Buggery Act (1533), it stated: ‘Whoever has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or … for a term which may extend to ten years, and shall also be liable to fine.’
‘History owes an apology to those who have been persecuted and socially ostracised because of Section 377’, noted Indu Malhotra, one of the five judges delivering the verdict in September. The partial repeal (rape will, of course, continue to be an offence, as will carnal intercourse with children and bestiality) was, however, only obtained after a prolonged and arduous battle against prejudice, illiteracy and the indifference of Indian lawmakers of all parties. In the years since India’s independence, no policymakers have endeavoured to remove the law, despite the fact that it violated the fundamental right to equality, upheld by the Constitution, effected in January 1950: ‘The state shall not deny to any person equality before the law [on grounds] of religion, race, caste, sex, place of birth ...’

Ancient precedents

It is easy to understand why the decriminalisation of homosexuality might be seen as a return to India’s pre-colonial values. There are countless references to homosexuality and third-gender (those who are neither ‘male’ or ‘female’, either biologically or in presentation) in ancient Indian texts and epics. The Sanskrit epic the Mahabharata includes the tale of Shikhandi, born female, who later becomes male, though a eunuch. In the Ramayana (which, with the Mahabharata, forms the Hindu Mahakavyas, ‘epics’), describes Hanuman witnessing women kissing and also King Bhagirath’s birth from the union of two women. Ancient medical texts, such as Charaka Samhita, explain the reasons for different sexual behaviours and genders. Perhaps the most familiar Hindu depiction of third-gender is embodied by Ardhanarishvara, the androgynous form of the male Shiva and female Parvati, split down the middle equally, in which form Shiva pursues Vishnu – who has taken the form of a female enchantress.
These ancient texts were written when the region now known as India was under the sacrificial religion Brahmanism, essentially created by the upper caste (the priests) in the Vedic and post-Vedic periods (c.1500-500 BC). Hinduism, derived from Brahmanism, generally accepted the third-gender as natural. From the 12th century onwards, Muslim conquests failed to impact the entire Indian subcontinent and many regions continued to follow their traditional beliefs. Homosexuality was not frowned upon among the ruling classes – Muslim rulers such as Alauddin Khalji allegedly had male harems – although it was not as common among the people.

Who’s to blame?

The law criminalising homosexuality found itself a place in the Indian Penal Code (IPC) under the pretext of protecting family values and morality. Even though instances of convictions for homosexuality have been rare – with perhaps only 120-170 cases in the last 150 years – as a result of the law, gay and lesbian people have had to live as second-class citizens, facing harassment and prejudice, as ‘unconvicted felons’. This attitude has systematically driven sexual minorities, especially transgender people, to the fringes of society. Post-independence, India, with its apparent secular but Hindu-aligned ideologies, has striven to accuse either its colonial past or former Muslim rulers of actively stigmatising homosexuality, transforming it into something ‘unnatural’. Despite this, there has been little desire to change these attitudes and negligible public dialogue on the subject. Gay people remained largely invisible in the eyes of both the law and government. Only in the late 20th century, with the establishment of several gay rights organisations, did homosexuality start to be widely discussed and debated. India began to acknowledge the existence of gays only after sexual health became a matter of concern for the Indian government in the late 1980s.
The Stonewall riots of 1969 mark the origin of the modern gay rights movement in the US. India witnessed its first such protest in 1991 with the publication of Less than Gay, which described itself as a ‘A citizens’ report on the status of homosexuality in India’. It was prepared by seven members of the group AIDS Bhedbhav Virodhi Andolan (AIDS Anti-Discrimination Movement, or ABVA). The group began with 14 members, including doctors, lawyers and activists, who had been associated with social welfare activities in India for decades. They became the first organised group in India to work for people affected by HIV. They also started to work towards legalising homosexuality, filing a petition in 1994 challenging the legality of Section 377. The ABVA and its activities reached many people, bolstered by the Naz Foundation, an NGO dedicated to working on issues such as HIV/AIDS, as well as smaller LGBT groups, which came together, mobilising people for gay rights. The success of the movement does not, however, veil the fact that, since independence, India has continued to support and bolster Section 377.

Homophobic politicians

Two historians of gender and sexuality, Ruth Vanita and Saleem Kidwai, in their book, Same-Sex Love in India: Readings from Literature (2000), called not just for the decriminalisation of homosexuals, but ‘full and complete acceptance, not tolerance and not sympathy’. Only that, they argued, would enable homosexuals to emerge from the shadows and lead a dignified life. For this to happen, it is imperative for India to acknowledge its social conservatism – the result of caste, class and religious discrimination, Western influence and a low rate of literacy – rather than simply blaming the colonial past for taking such a long time to repeal this law.
The sovereign Republic of India took nearly 70 years to guarantee a fundamental right to a huge percentage of its citizens. In 2015, India was one of 43 countries that voted – unsuccessfully – against equal benefits for same-sex partners working at the United Nations. Anjali Gopalan, director of the Naz Foundation, who filed the Public Interest Litigation against Section 377 in 2001, said: ‘This shows how homophobic the politicians in our country are.’ Across political parties, ministers and political leaders either dodged questions on gay rights or referred to homosexuality as unnatural and undesirable.

Victorious dissenters

The first sign of change was seen in July 2009, with a verdict delivered by the Delhi High Court, which decriminalised homosexuality among consenting adults. The decision, while extolled, also faced significant stricture. In 2012, the Supreme Court of India overturned the decision, saying that a ‘minuscule fraction of the country’s population constitute LGBT community’, and left it for Parliament to decide. In 2016, five petitions were filed in the Supreme Court, which argued that ‘rights to sexuality, sexual autonomy, choice of sexual partner, life, privacy, dignity and equality, along with the other fundamental rights … are violated by Section 377’. In August 2017, the Supreme Court declared that the right to privacy should be considered a fundamental right. Following this, the verdict of 6 September 2018 finally bore fruit.
The repeal of Section 377 can be attributed to the show of dissent by the Indian people. The popular sentiment in India, at least in the urban sphere, for the past two years was against 377, mainly because of the work of activists in garnering support across the country and across religions. From a handful of people in the first protest in the early 1990s, thousands took to the streets to celebrate the verdict in 2018. The repeal cannot, however, be seen as a long-awaited ‘casting off’ of the vestiges of colonial law and attitudes. The attitudes against which India’s LGBT activists have had to fight were perpetuated and entrenched at all levels of Indian society long after independence. To blame only colonialism is to absolve independent India of any responsibility for the treatment of its citizens. Now that the law gives them equality, will society follow suit?
Arnab Chakraborty is a PhD candidate at the University of York.
This article has been reproduced from History Today for educational and non-commercial purposes. See the link below for original article:

Tuesday, 25 December 2018

ABVA's Reports


ABVA is in the process of digitizing its Citizens’ Reports brought out over the years. Following reports have already been digitized and can be read here:


2.     THE BLOOD OF THE PROFESSIONALS, 1991
(A Report on the Exploitation of Professional Blood Donors by the Blood Banking System in India)

3.     LESS THAN GAY, 1991
(A Citizens’ Report on the Status of Homosexuality in India)

4.     THIS SUGAR IS BITTER, 1992
(A Citizens Report on the Status of Chemical Dependents and HIV Infection in India)

5.     VICTIMS’ VERSION, 1993.
(A citizens’ report on violence committed primarily against the Muslims of Seelampur, Delhi on 11 Dec 1992)

6.     HARD TIMES FOR POSITIVE TRAVEL, 1993
(A Citizens Report on the Status of Travellers with HIV/AIDS)

Monday, 24 December 2018

Reminiscing ABVA’s Struggle for Gay Rights in the Twentieth Century – A Brief History of That Time


Reminiscing ABVA’s Struggle for Gay Rights in the Twentieth Century 
- A Brief History of That Time
by
Shobha Aggarwal



ABVA organizes the first ever gay rights protest in India at Police Head Quarters, New Delhi; 11 August, 1992

As the Supreme Court of India is on the verge of decriminalizing 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.

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. (See: ABVA Members – their Struggles and Commitments Prior to Christening of ABVA)

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 costed 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, excepting 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. It’s 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.”

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!!!
We also met Ashok Row Kavi of Bombay Dost during the conference; he had earlier  attended our 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 our 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 by me 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:
a)     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.
b)    to direct the implementation of the Government's National AIDS Program.
c)     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;
d)    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.
e)     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.
f)      to direct that only disposable syringes be used in the dispensary within Tihar Jail.
g)     to direct the jail authorities to regularly consult with the National AIDS Control Organisation, namely the Respondent No. 6.
h)    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 us on our efforts; not one came forward to support us; we 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. We were oath bound not to contradict this as it would send a message that being gay or lesbian is something to be despised.

After we filed the petition some newspapers like the Hindustan Times front paged the court proceedings in 1994-95. Others like Economic Times and Pioneer even editorially supported our 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. We met in all about eight of them. Some of them suggested that we don’t affix the ABVA’s report “Less Than Gay” with the petition; few suggested that we should limit our prayer to supply of condoms to jail inmates and not ask for striking down of Section 377, IPC. One of them just heard us out; another appreciated our 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 our 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!!

Our 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 paves 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 is more inclined to listen 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.]

References:
1.     Less Than Gay: A Citizen's Report on the Status of Homosexuality in India; ABVA, Nov-Dec 1991.
2.     Doctors and activists clash over AIDS in Asia, by Phyllida Brown; New Scientist, 21.11.1992
3.     To be a mother (or a Child) on G.B. Road, A report by ABVA; The Lawyers Collective, Vol. 10 - No. 6, 1995.
4.     For People Like Us, ABVA March 1999 (Copies available on request)
5.     SC ruling on Sec 377, 'A wonderful opportunity for a fresh beginning', by Ashley Tellis; Hindustan Times, 12.12.2013
6.     Gay Manifesto & International Human Rights Day; Co-Written by Shobha Aggarwal & Dr. P.S. Sahni; Countercurrents.org, December 10, 2016
7.     Was 1992 a Turning Point for Homosexuals in Contemporary India?  Tan, N. Sexuality & Culture (2018).
8.     Rainbow at the end of the road: Queer resistance to Section 377, by Dipanita Nath; The Indian Express, 05.08.2018
9.     These activists helped bring India to the brink of a landmark ruling on gay rights, By Shashank Bengali and Parth M.N.; Los Angeles Times, 10.08.2018

Shobha Aggarwal is a member of ABVA and can be contacted at: aidsbhedbhavvirodhiandolan@gmail.com

2. http://www.sacw.net/article13888.html