ON THE THIRD ANNIVERSARY OF GAY SEX JUDGEMENT: ABVA’s tryst with activists, lawyers & judges before, during and after its anti-sodomy law petition was filed

by

P. S. Sahni

In April 1994 ABVA filed a Civil Writ Petition no. 1784 of 1994 titled AIDS Bhedbhav Virodhi Andolan vs. Union of India and others in the Delhi High Court (DHC) asking for striking down inter alia entire Section 377, IPC. The petition was filed through ABVA member Shobha Aggarwal. ABVA was firm in its decision to annex its full report “Less than Gay” with the petition as also in its demand for full repeal of S. 377 IPC. Given below is an account of ABVA’s tryst with activists, lawyers, judges, before, during and after its writ petition was filed.

 

·        In 1991 while ABVA was preparing the report ‘Less than Gay’, it wrote to 80-odd prominent citizens and organizations from different walks of life in Delhi. Reminders were also sent. Only 19 replies were received. An appointment was sought with Manushi – a journal about Women and Society. When a two member ABVA team went at the appointed time, we were in for a shock as the editor, Madhu Kishwar made herself unavailable. So we wrote in their register about our visit and not getting any response returned back. No reply was received by Manushi to our questionnaire.

 

·        During the 2^nd Asia Pacific AIDS Conference of 1992 at a session inter-alia on homosexuality wherein Anand Grover from Lawyers Collective was one of the chairpersons and rapporteur – Shobha Aggarwal and P. S. Sahni raised the issue of repeal of S. 377, IPC and suggested that house pass a resolution for repeal of S.377, IPC. Anand Grover refused. Despite his refusal Shobha & P.S. Sahni stood up during the session and asked all participants in favour of the resolution to raise their hands. The resolution was passed. Anand Grover, who was the rapporteur for the session did not include the resolution in the minutes of the session. ABVA members were shocked when he did not report it in the plenary session which was held every evening.

 

·        The day ‘Less than Gay’ was publicly released at the Press Club of India, New Delhi in November 1991 ABVA had sent a petition to the Parliament urging it to address the Gay Manifesto wherein a Charter of Demand has been enlisted. Right through 2014 till date we have been petitioning members of Parliament including Sonia Gandhi, Rahul Gandhi and people occupying public offices like Kiran Bedi on LGBTQIA issues. It is the Parliament alone which can get the Gay Manifesto debated and implemented. Unfortunately till date Parliament has stonewalled all attempts to let the issue be debated.

 

·        In 1994 after filing the writ petition in the Delhi High Court, 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 – including Mr. R.K. Jain; Mr. Rajeev Dhavan; Ms. Indira Jaisingh; Mr. Kapil Sibal, Mr. Soli Sorabjee. One of them suggested that we don’t affix the ABVA’s report “Less Than Gay” with the petition (perhaps the judges may not take kindly to it!); another suggested that we should limit our prayer to supply of condoms to jail inmates and not ask for striking down of Section 377, IPC (perhaps too radical for conservative judiciary)!! One of them just heard us out; another appreciated our work without volunteering his services. Mr. Rajeev Dhavan got us information on how S. 377 came about in British India and was kind enough to talk to six-seven ABVA members for over an hour. Mr. Sorabjee got us relevant case material from U.K.

 

·        In 1994 ABVA shared copy of the writ petition filed in DHC with the gay community through Saleem Kidwai (now since deceased). They agreed with the strategy and the demand for a full repeal of S. 377, IPC. ABVA’s strategy for the case was to emphasize that if gay people stood criminalized through section 377, IPC, the gay community would be hard pressed to cooperate in national anti-AIDS campaign launched by the Govt. of India. ABVA produced press clippings to emphasize that same-sex activity was happening in Tihar jail, Delhi but condoms were not being kept in the jail dispensary. ABVA’s prayer was for striking down of full section 377 IPC and provision of condoms in Tihar jail. Ironically the same strategy was used by other NGOs but with a diluted prayer for partial repeal of S. 377, IPC. No gay person volunteered to be involved in ABVA’s case; consequently no victim participated in court proceedings. The same mistake was made by these NGOs when they took up the case. So in the 21^st century NGOs used the template originally painstakingly prepared by ABVA; however for about a decade and the half these NGOs replicated ABVA’s mistake of not having an LGBT victim member as a petitioner.

 

·        Navtej Singh and Ashok Row Kavi had attended ABVA meetings in early 1990s. Additionally ABVA had interacted with Ashok Row Kavi and other LGBT members like Giti Thadani at the International AIDS Conference in Delhi in 1992. But ABVA did not solicit them for intervening in the case as gay people who are victimized. This was the ethics followed in ABVA. On their own these activists didn’t volunteer.

 

·        In 1994 Soli Sorabjee wrote an edit page piece in the ‘Times of India’ dealing with AIDS, human rights and the superior courts. Two ABVA members Manoj Pande and P.S. Sahni went to his office and requested the staff for a meeting with Soli Sorabjee. When we finally got an audience with Mr. Soli Sorabjee, he was hesitant to talk with us and asked us to send our lawyer to meet him. We told him of our writ petition in the Delhi High Court (DHC) in one or two sentences. As highly qualified and experienced activists we were definitely put off by his attitude. When such lawyers write pieces in the newspapers they sound so accessible but our experience was otherwise. The fact is that both of us ABVA activists were in the forefront of the movement and had already read up everything that was available pertaining to our writ petition. Political history of ant-colonial movement in India is replete with examples where revolutionaries/ movement leaders would comment that lawyers should respect their views after giving them a patient hearing; and that lawyers should confine themselves to law and constitution. Eventually Soli Sorabjee appeared for one hearing in the entire proceedings till the case got admitted after a year-long period. Thereafter he never appeared.

 

·        Indira Jaisingh, as a senior advocate, had appeared for the case at one hearing on 26 April, 1994. However for another hearing she telephonically informed about her inability to be present in court. P. S. Sahni went to her residence-cum-office and respectfully took the case file back from her and attempted overnight to arrange for another lawyer to be present in court. Ironically her close associate Anand Grover filed a writ petition on the same issue in DHC in 2001.

 

·        Dr. S. Muralidhar had interacted with ABVA members on several occasions. He had additionally appeared on behalf of ABVA in the DHC on 26.5.1994 and 13.7.1994. Later he was a judge in a division bench hearing a petition on behalf of a heavily foreign funded NGO. It was brought to his notice by Janak Raj Jai, lawyer that he ought to recuse. It is pertinent to point out that ABVA’s petition was filed in response to Janak Raj Jai’s petition in 1994 and both were clubbed together. P.S. Sahni and others in ABVA feel that S. Muralidhar violated judicial ethics in refusing to recuse. It needs to be pointed out that lawyer S. Muralidhar – as he then was – appeared in two hearings and at other times would send only the junior. But after the case got admitted in 1995 both of them never made any appearance.

 

·        Rajesh Talwar left for a Commonwealth Scholarship of a year’s duration for U.K. perhaps courtesy Soli Sorabjee with whom Rajesh had been in contact for the ABVA case. P.S. Sahni requested Rajesh to prepare a draft of the final arguments for the case to which he said that he would not in be in a position to do so. Thereafter he left for U.K. and ceased to be associated with the case. Rajesh Talwar had appeared several times till the case got admitted.

 

·        Lawyers Soli Sorabjee, Indira Jaisingh, S. Muralidhar, Rajesh Talwar appeared till the case got formally admitted in early 1995; after that none appeared or participated in court proceedings or followed up the court proceedings or got back to ABVA.

 

·        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? Is it mandated to fight for gay rights? The court was informed that ABVA stood for safe sex. ABVA members in full strength would attend the hearings and observed that the attitude of the judges and their tone and tenor would be different when say Mr. Soli Sorabjee & Indira Jaisingh made their appearances. ABVA members strongly felt that whatever the age of the lawyer the judiciary should not make a distinction in its pronouncements because that gives a feeling of bias. We at ABVA felt like a fish out of water in such courtroom environment.

 

·        How can gay sex be equated with free sex? ABVA debated such finer points in its weekly meetings and concluded that the best course for it is to use the writ petition as a campaign material for the repeal of S. 377, IPC. ABVA also wrote to 100 odd activists’ groups in India to flood high courts all over India with similar petitions. However, none came forward. ABVA was not oblivious to the fact that just a handful of gay people had gone public about their sexuality till the end of the last century. But participating in final arguments of the case after a decade of ‘Less than Gay’ being published and with not one LGBTQIA member volunteering to be a petitioner in our case was not acceptable either to us or for that matter even to the courts. After all human rights of individuals can be violated but not of any organization like ABVA.

 

·        Shobha Aggarwal had done extensive research on Public Interest Litigation by studying their outcome during the period 1982 to 2000 and had concluded by the year 2000 that PILs fail to provide justice to those who need it most. She had documented the well laid down principle of natural justice getting violated in PILs. In 2005, she brought out a report titled “The Public Interest Litigation Hoax – Truth Before the Nation; A Citizen’s Report on how PIL fails to provide justice to those who need it most”. She had shared her research findings with ABVA members on several occasions and ABVA was convinced about her path breaking findings. We also knew that since 1980 heavily funded NGOs and equally slick lawyers have dominated court proceedings through their PILs and the corporate press would highlight the proceedings putting a dozen odd lawyers in India – out of over one million lawyers –in public limelight. Funded NGOs and PILs have together harmed movements and andolans in India. Out of conviction that PIL subverts movements, ABVA has not filed a single PIL in this century. ABVA observed that in the last decade of the last century following the publication of ‘Less than Gay’ a sort of cottage industry of NGOs mushroomed around the issue of LGBT community. It is ironic that while ABVA was one of the pillars of Campaign for Lesbian Rights (CALERI) and participated in all its leafleting program in 1998, even in 1999 requests were being received by ABVA from Humsafar Trust – an offshoot of Bombay Dost – requesting us to conduct a fact-finding enquiry in Orissa where two lesbians had attempted suicide!! ABVA sent a fact-finding team and documented the same in its Report ‘For People Like Us’. The truth of the matter is that till the end of the last century the LGBT community was comfortable in social, cultural gatherings but street politics was anathema to it. The fight for rights in courts for a gay or lesbian then seemed an uphill task. Both Ashok Row Kavi and Navtej Singh Johar took three to four decades to affix their names to court battles.

 

·        The Delhi High Court dismissed ABVA’s petition in early 2001. Thereafter Anand Grover filed a writ petition in the DHC asking for partial repeal of S. 377, IPC (what a climb down it was my fellow LGBT members!). ABVA’s position stays unwavering – asking for full repeal of S.377. At a meeting within the DHC premises Anand Grover in the presence of Anjali Deshpande, a freelance journalist suggested that ABVA’s petition could be clubbed/taken up with his petition. Apparently he was not aware that ABVA’s petition had been rejected; there was some confusion even at the level of the court bureaucracy. But ABVA refused to be solicited. How could ABVA join hands with a petition which had toned down ABVA’s demand for a full repeal of S. 377, IPC?

 

·        A petition on behalf of Ashok Row Kavi and others was filed on 27.04.2018 – barely few months before the final arguments – only after the Supreme Court made public its intention to hear the final arguments in Navtej Singh Johar’s case which was filed in 2016. Johar was nowhere in the gay rights movement till 2016; even then he made it clear that he would not be the “poster boy” for the cause.

 

·        P. S. Sahni had got involved in a writ petition dealing with rehabilitation of leprosy patients in 1986. Lawyers Kapila Hingorani & Nirmal Hingorani fought the case before Supreme Court from 1986 onwards for years without charging a single rupee. These two lawyers fought the case relentlessly. In 1989 P S Sahni was checked by the security people thrice as he was entering the court no. 1 i.e. the court of the Chief Justice of India. At the third attempt on checking he walked out of the court premises and told the lawyers concerned that an apology is in order for checking a Sikh social activist thrice while all others were checked only once. P. S. Sahni had already attended dozens of hearings in the case. He made it clear that unless a written apology is offered he would not assist the court in the case. What followed was an oral apology much later by Justice Kuldeep Singh which was not acceptable to P. S. Sahni and he withdrew from helping in the case thereafter. The point is that if a Sikh social activist is being discriminated against right at the entrance of the court room of CJI what trust would the judiciary generate while dealing with the writ petition regarding discrimination faced by the leprosy patients all over the country?

 

·        During the freedom movement many revolutionaries including Shaheed Bhagat Singh used the court proceedings for a while to campaign on an issue and withdrew once it was abundantly clear that the judges and the courts then have nothing to offer by way of justice.

 

·        After ten years of campaign with ‘Less than Gay’ we at ABVA had come to a similar conclusion. No self-respecting activist could take it any longer with the rampant homophobic attitude of the judges. True, much later in 2018 the constitution bench which heard Navtej Singh Johar’s petition had already made up its mind to partially repeal S. 377 IPC.

 

·        The Supreme Court judgement of 2018 ignored ABVA’s pioneering movement for full repeal of S. 377, IPC. The lawyers and activists before the Supreme Court did not bring forth the contributions of ABVA to the movement. The same observation can be made about the Delhi High Court 2009 judgement. However Justice S. Muralidhar was aware of ABVA’s role from 1988 onwards; he had appeared for ABVA; he was aware of ‘Less than Gay’ (which was annexed with the petition); yet the judgement turns a blind eye to this crucial movement of the twentieth century. In fact lawyer Janak Raj Jai’s request for recusal of Justice S. Muralidhar perhaps created a dilemma. If the movement was to be brought on record in the DHC judgement then Justice S. Muralidhar would have had no option but to recuse from the case. ABVA felt that having a ‘converted’ judge to be part of the Bench could at best result in a pyrrhic victory by way of partial repeal of S. 377, IPC.

 

·        Anyone going through the above piece with the seriousness that it deserves would likely conclude that it was politically correct to abstain from court proceedings during the final argument in 2001. History bears testimony that it took the judges another 17 years to sensitize themselves on the issue. Meanwhile ABVA’s demand of Right to Privacy (as enshrined in Gay Manifesto 1991) got conceded in Puttuswamy’s petition in 2017; while transgender people got the third sex status in 2014 in NALSA’s case.

 

ABVA has tried to document lesser known facts for posterity. No offence is intended to anyone. The faith in judiciary got restored. The collective efforts of all concerned (individuals and organizations) – of about three decades – resulted in the Supreme Court’s judgement of 2018.

 

P. S. Sahni is a member of ABVA. This article is being written to mark the third anniversary of gay sex judgement of the Supreme Court of India which fell on 6 September, 2021.

First published in Countercurrents.org on 17.09.2021. See link: https://countercurrents.org/2021/09/abvas-tryst-with-activists-lawyers-judges-before-during-and-after-its-anti-sodomy-law-petition-was-filed/