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 2nd 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 21st 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/
