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.
4. For
People Like Us, ABVA March 1999 (Copies available on request)
Shobha Aggarwal
is a member of ABVA and can be contacted at: aidsbhedbhavvirodhiandolan@gmail.com
2.
http://www.sacw.net/article13888.html
