The arrests that sparked a crusade against S.377
By 1999, the second phase of the central government’s National Aids Control Programme (NACP) was launched with World Bank credit support of $191 million.Updated: Sep 06, 2019 03:08 IST
On a sultry August afternoon, Arif Jafar is in Lucknow’s Manyawar Shri Kanshiram Ji Green Eco Garden. Built on a large tract of land, the garden is known for its life-size metallic sculptures of lions, giraffes, elephants, and palm trees whose bronzed leaves stay still. An arboretum with a rocky pathway cuts through the Mirzapuri sand stone-covered ground. Guards, domestic workers and college students take shelter from the heat under frangipani trees. Pointing to the entire stretch of the arboretum, Jafar says, this was the part where the under-trials were housed. There, he says, pointing to his left some distance away, was where the convicts were jailed.
The eco garden, built during former Uttar Pradesh chief minister Mayawati’s regime, is where the Lucknow jail once stood. It was famous for, among others, housing Mahatma Gandhi. However, in the Lesbian, Gay, Bisexual and Transgender (LGBT) communities, it is also known for housing four gay men, including Arif Jafar and Sudhees Kumar, all of whom were employees of the Naz Foundation International, in July 2001. They were arrested under Sections 292 (sale of obscene books), 109 (punishment for abetment), and 60 of the Copyright Act, Sections 3 and 4 of the Indecent Representation of Women (Prohibition) Act, and Section 377 of the Indian Penal Code, and kept in jail for 47 days.
Lucknow, a fast-growing city, with a third of the population between the ages of 18 to 30, is known for its chikan embroidery as much as for its Awadhi cuisine. Back in the 1990s, it was also one of the few cities where queer support groups emerged. Jafar formed one of the earliest, Friends India, in 1991. He worked with men who have sex with men — in the parlance of HIV/AIDS prevention organisations, this network is referred to as ‘MSM’ — creating networks of support among those vulnerable to the HIV virus and encouraging the use of condoms.
By 1999, the second phase of the central government’s National Aids Control Programme (NACP) was launched with World Bank credit support of $191 million. Certain key policy initiatives of NACP II included the adoption of a National AIDS Prevention and Control Policy in 2002, and the scaling up of targeted intervention programmes for high-risk groups, including MSMs.
Naz Foundation International (NFI), founded by a UK-based gay activist of Indian origin, Shivananda Khan, helped set up several community-run organisations in the field of HIV/AIDS prevention in South Asian countries, including Nepal, Pakistan and Bangladesh. Jafar worked with Khan in the 1990s, and was part of NFI when it set up a regional liaison office in Lucknow in 2000.
“Those of us working with the MSM network thought that we were safe because Section 377 clearly stated that you have to be caught in the act to be arrested,” said Jafar. Section 377, which was read down by a constitution bench of the Supreme Court in 2018, criminalised “carnal intercourse against the order of nature”.
So, on July 6, 2001, when NFI’s outreach worker was arrested while distributing condoms at the bustling Charbagh railway station, the chilling effect was felt almost immediately. What sealed it was the raid in the NFI office the following day, in which three persons including Jafar and Sudhees Kumar (48) were arrested.
“We didn’t know why he had been arrested. We thought it was some minor issue, and we were in office waiting for him to be released,” Jafar said. “It was a Saturday, and we were making plans of going out,” said Kumar, who worked the computers in the office.
Two jeeps stopped outside the office, and as the police filed in, they began to seize everything they could lay their hands on: HIV/AIDS literature, dildos, condom boxes, video cassettes. “It was as if the whole station was waiting for us. As soon as we got down from the jeep, the officer waiting at the gate slapped Arif hard,” Kumar said.
A changed landscape
In place of the police station building where Jafar and Kumar were taken now stands a multi-level parking lot that has come up around older landmarks of the central Hazratganj market. Megha Nandi, 24, and her friend (who does not wish to be named), are scoping out the wide clearing in front of the parking lot as a possible venue for a queer fest on September 6, to celebrate one year of the Supreme Court judgment that decriminalised homosexuality. “Is this much space enough, you think?” Nandi’s friend asked. The fest will include food stalls and “human libraries”: people from the LGBT community who will narrate different histories of the movement to visitors.
For 43-year-old Yadavendra Singh, who moved to Lucknow in 2016 and helped organise the Pride, the changes in the city’s attitude are noticeable in small details: a film he shot on trans persons in a local cafe didn’t attract any attention; LGBT parties take place in pubs; Singh has also held conversations with students in city colleges. “Post-judgment, we’ve conducted at least eight sessions with college students, including those from Lucknow University affiliated colleges, on LGBT issues.”
Starting this semester, the syllabus of Lucknow University’s department of sociology included the case law of Section 377 in a paper titled Law and Society.
Lucknow’s incipient LGBT community received a fillip in 2017, when the first Pride parade was held in Hazratganj. As members of the community walked down the street, with colourful masks and to the beat of drums, Nandi remembered feeling “energised”. “I felt empowered to be myself,” she said.
Yet, despite these changes, incidents of violence continue. “Since the judgment, four people I know have faced blackmail. One friend was beaten up by extortionists,” said Singh. Members of the community are often targeted and threatened with being taken to the police or outed to their families or at the workplace.
“Corporates may be happy to put the rainbow in their tagline, but when you approach them for funds and resources, they’re not willing to pay,” Singh said. He offered the example of the Awadh Queer Literature Festival, first held in Lucknow earlier this year, where he drew a blank despite approaching many corporations for sponsorship.
For some, the nature of community support takes on a different shape. “Parties happen now, but what about conversations with families, where people are being oppressed?” asked Kumar, one of the four NFI employees arrested in 2001.
Outrage over arrests
“I was in a lot of trauma. It took me 18 years to finally narrate my story,” Jafar said. His narrative was published in HT in February 2018. His testimony eventually went on to become a writ petition — one of the many that the Supreme Court heard in July 2018 — challenging Section 377. In it, he recounted his time in the prison: being made to eat in the same plate with which he cleaned the drains; being beaten inside the lock-up; and how they were not given water for the first 10 days of their arrest.
The arrests were greeted with outrage among sections of civil society. Non-governmental organisations, including the All India Democratic Women’s Association, held demonstrations; Khan wrote letters to several Indian and British politicians and diplomats; Amnesty International released a statement condemning the arrests. Local and national papers, however, denounced the four as part of a “gay sex racket” that the police had busted. Rajesh Kumar, a local lawyer, took up the case, though he had never fought any involving Section 377 before — he managed to get the section dropped soon after the arrests. Former additional solicitor general of India, Indira Jaising, helped the four get bail.
“This case received so much media attention, it almost seemed as if Arif and others were single-handedly spreading homosexuality across the country and as though no man-woman relationship was safe anymore,” Rajesh Kumar recounted.
Even today, 18 years on, they show up in court, and receive another hearing date. The charges were framed only 10 years ago, and the trial is yet to begin.
A legal battle
In 2001, shortly after the arrests, Lawyers Collective, a legal organisation based in New Delhi and led by Anand Grover, filed a Public Interest Litigation on behalf of Naz Foundation India Trust (in short, Naz). Run by Anjali Gopalan, Naz oversaw intervention programmes with MSM population, as well as offered care to children living with HIV/AIDS.
“We asked for a reading down of the law, because it was being used to harass not only outreach workers, who were doing the job that the government was supposed to do, but also the communities they worked with. We were saying remove consenting adults from its purview,” said Gopalan.
In the first decade of the millennium, the LGBT movement was also beginning to take shape across the country, even as the Lawyers Collective held consultations with community members and activists. The Naz petition led to the community’s first legal victory: In 2009, the Delhi high court overturned Section 377, and decriminalized homosexuality.
But, the case against the NFI workers continued.
Walking in the eco garden, we pass a young couple being scolded by the garden’s guards, who have caught them in an embrace. “Is this what your parents sent you to college for?” one asked, as the young man and woman stood an arm’s distance from each other.
“The fight against Section 377 was ultimately for such a society where it didn’t matter if two men or two women held hands and walked. Love should be what matters, at the end,” Jafar said.