Sex and death

HIV spread fast in the 80s, but research and education on the topic is lacking—people have a limited understanding of how it spreads and how to prevent it. The government ignores medical advice and tries to stop the spread by jailing sick people. We hear from Siddharth Dube about how the police, as the enforcers of these rules, wield their power against gay people.

What is the personal effect of a law? How much can the government restrict a person’s fundamental rights in trying to control an epidemic?

Anand Grover believes these punitive measures violate the constitution and joins the case with Anjali. He tells the story of Dominic D’Souza, who was arrested in Goa for being HIV positive. Dominic inspired him to fight this case and that decision changed his life.

Show Notes

All clips and voices used in this podcast are owned by the original creators.

The following guests appeared in this episode:

• Siddharth Dube, author and public health official
• Anand Grover
• Jaya Sharma, queer activist and feminist
• Anjali Gopalan

References

• An indefinite sentence: a personal history of outlawed love and sex, a memoir by Siddharth Dube: https://www.siddharthdube.com/no-one-else.html
• ‘Mazhai Kaala Megam’, song from Vaazhvey Mayam, featuring Sri Devi and Kamal Hassan
• NewsX clip featuring Baba Ramdev: https://www.youtube.com/watch?v=YQ61Jc5ibZ0
• Excerpt from an interview with Arif Jafar, from the film Many People Many Desires by T Jayashree, courtesy of QAMRA
• AIDS Bhedhbav Virodhi Andolan (ABVA) blog/website: http://aidsbhedbhavvirodhiandolan.blogspot.com/
• CNA’s interview of Kiran Bedi: https://www.youtube.com/watch?v=EwB9fmP2zaA

Full transcript of Episode 2

Today, I’m speaking with Siddharth Dube. He’s an author and a public health official. In the 80s, he was working as a journalist for the Washington Post in Delhi, on foreign press credentials. He studied at Doon School, St Stephens and Harvard, he lived in an expensive part of Delhi and through his family, he was very well connected. By his own admission, a very, very privileged position.

So before I asked him about the difficulties of growing up gay in India, I wanted to get an idea of the regular parts of life. 

Siddharth Dube:
There was a sense of camaraderie with other marginalized people. You know, there were so few gay men and women that everybody was welcome and the parties were bohemian and raucous and great fun and you know, really down to earth as well. 

My only introduction to the eighties was, Sridevi and Kamal Hassan. I’m picturing disco dancing, bright lights and saris blowing in the wind. But, gay relationships on screen of course, are famously absent, so it becomes easy to think that people just kept to themselves that their lives were maybe secret, or invisible, but basically normal. Siddharth describes that feeling very differently.

Siddharth:
It was like a low-grade fever, chronic fever, which is no way to live your life, you know, because, and it came from knowing that I was criminalized. So you know, many people have this rosy notion, or halfway rosy notion like, ‘oh, people weren’t being persecuted and the law wasn’t used’, and that is just utterly inaccurate. 

I was guilty of just that. It’s very easy to assume that the problems we hear about only affect some unknown other person. When I was younger, I believed that the effect of homophobia was small. That most gay people lived their lives unnoticed—that the danger of the law was only on paper.

Siddharth:
“Even if you were privileged, you felt, I must say I felt terrified most of the time. And this is despite having, being able to live with my family in Pancsheel Park living in Jor Bagh when I moved out and lived on my own, you know, the most expensive parts of Delhi. And knowing that I had my family’s connections. But one can only imagine how terrified the average person was. Or even a middle-class person was at that point. So I do want to begin with saying that, you know, that this was not some wonderful period, that one should romanticize at all.

Even in this privileged position of his, Siddharth was not immune. And one cold night…

Siddharth:
This was in the winter of 1988… I mean, I still have chills till today…

Siddharth and his then-boyfriend get a call from the police. They’re going to get a very direct look at how law enforcement wielded Section 377 against gay men.

From ATS Studio, I’m Sindhuri Nandhakumar and this is 377; a show about a very specific law, its outsized impact on Indian society, and the movement to get rid of it.

On that night in 1988, Siddharth was called by the police, asking him to come visit the station house officer.

Siddharth:
And he told me quite bluntly that some there’d been complaints about me by my neighbors, and I was really taken aback, you know, because it’s Jor Bagh And I’m a very quiet person and you know, just my boyfriend and I lived together, but I sort of had an inkling what this was about.

Apparently, Siddharth’s neighbours had complained that he was having men over, and throwing loud parties. He was surprised by this because he and his partner mostly kept to themselves.

Siddharth:
I mean, it’s 30 odd years from then, but I remember him looking at me with this complete hatred. And I thought to myself, Oh my God, this guy has mistaken me for somebody else. I mean, I don’t know him. Why is he looking at me like this? And then he started yelling and ‘Mr. Dubey I know you’re a homo. And go back to America. You can’t live in this country like that.’

Siddharth was taken aback. He was suddenly very afraid. What he thought was a simple misunderstanding had rapidly gotten worse. His fear turned to anger.

Siddharth:
And at that point, I lost my temper, and I banged his table and I said, ‘you arrest me and see what I’ll do to you.’All hell broke loose after that, you know, he called in these other policemen and he said ‘lock them up.’

To make matters worse, Siddharth’s boyfriend was diabetic and needed his insulin shot. But the officers weren’t being very understanding.

Siddharth:
I never had such bad hours or moments in my life and, you know, as a gay man I’d already had as a feminine gay man I should emphasise, as a girly boy, I’d already had many bad moments in my life at Doon school and as a child, you know, being, sexually assaulted. But none of those was anything as terrifying as these few hours because I thought my boyfriend was going to die.

They finally let the boyfriend go home, and using a lot of the connections that his family had, Siddharth also made it home safely. 

There’s just one big detail missing: 377. It wasn’t mentioned once through the whole ordeal—that means it wouldn’t officially be traced, it wouldn’t show up in statistics. For Siddharth, the night solidified the reality of being a gay man in India—the law was invisible, and yet had a very real effect on everyday life.

*

In sharp contrast, one area where the law was very visible: HIV. This was another big fear of the gay community because of its high incidence among gay men.

For Siddharth, coming of age in the 80s meant living with that daily fear:

Siddharth:
For me, sex and death were mixed up together… sex and really severe illness and leading to death were inextricably intertwined. And so all my years in the US, I was neurotically careful, and with good reason, you know, because it was not even clear, for years, till about 1983 I would say, the exact means by which HIV was spread. It was still not clear how you could protect yourself.

In 1986, HIV was discovered in India. It wasn’t very well understood yet, and even until the 2000s, there wasn’t a viable cure. Getting it was a death sentence. So there was a lot of fear and misinformation around it. It was primarily associated with gay men and sex workers, and seen as a “Western disease.”

States that relied on tourism were especially concerned and they were trying to use the law to contain its spread. Goa passed one such law.

Anand Grover:
In Goa, there was a law passed called the Goa public Health Amendment Act. under that amendment, if you were suspected of being HIV positive, then you could be forcibly tested without consent And if you’re found to be HIV positive, then you were incarcerated.

That’s Anand Grover. He’s a founding lawyer at the Lawyer’s Collective, a human-rights legal-aid organisation. Anand worked with Anjali during the fight against 377, but in the eighties, he’s only just realising the extent of this problem.

Under this new law, the Goa police had arrested a young man named Dominic D’Souza. Siddharth also remembers hearing about the incident. All the fear… from his own arrest came rushing back.

Siddharth:
That was February 1989. And I remember so distinctly just, you know, all the feelings I’ve had of just those few hours of being held in a, not even a cell but room, you know, an office room in the police station… all the fear I’d felt and I thought, ‘Oh my God, this poor man, he’s being held in solitary confinement. He has guards outside.’

Dominic was a theatre person. Very active in his local community. He… had gone to a nearby hospital, as he regularly did, to donate blood. Without his knowledge, the hospital had tested his blood for HIV and found he was positive. Instead of telling Dominic about his status and helping him with treatment, the hospital called the police — the law… required them to. He was immediately arrested and placed in solitary confinement, in an abandoned tuberculosis sanatorium. Dominic’s mother, Lucy, and a doctor named Ishwar Gilada, reached out to Anand Grover to help fight the case.

Anand Grover:
And I was very keen because Goa was a beautiful place…nice beaches, good food. You know, I would go to Goa, stay in a three-star hotel, lovely swimming pool, good food and especially there was a hotel, where I used to stay, with prawn pappad, which is a very good delicacy.

Anand was, shall we say, a bit oblivious to HIV at the time.

Anand:
He asked me about whether I knew what HIV was, and frankly, I had no idea at all. So, my first reaction was, ‘Oh, but that is CIA propaganda.’

But the more he learnt about the virus, he realized that the law wasn’t actually achieving what it set out to do.

Although the letter of the law said someone with HIV could be imprisoned, that would not be helping the AIDS crisis. A quarantine is a sensible thing to do when a disease can be spread through airborne transmission—Covid-19 is an example of that. But HIV isn’t spread that way. Confinement would simply be imprisoning sick people, creating more panic, and doing nothing to actually stop the disease.

Dominic’s mother, Lucy D’Souza, decided to take legal action in the Bombay High Court. Anand argued that the law violated the right to equal protection, the right to freedom of movement and the right to life and personal liberty. These are guaranteed by Articles 14, 19 and 21 of the Constitution.

Anand:
And after that, Dominic and I became quite good friends.

Anand fought the case pro bono. By now, Dominic had been released from the TB sanatorium and was placed under house arrest. But the trial didn’t look hopeful. The State defended Dominic’s confinement by presenting outdated evidence about the effectiveness of isolation. Some of the reports they used had been published before HIV was even discovered.

Finally, when the verdict was announced, the judges ruled against Dominic. They said “public interest” took precedence over personal liberty. Dominic himself was still freed, and maybe that was the court’s tacit admission that the law didn’t make sense. It… set into motion a bigger discussion that eventually resulted in the law being amended.

The experience came to define Dominic’s life. He saw the impact an individual could have and became an activist.

Anand:
So Dominic and I and other people then launched a campaign to make sure that it is not replicated elsewhere in India, because that was the government’s view, Government of India, that the Goa law should be replicated all over India. And that would have been a disaster. 

If the law had spread, HIV positive people would have been shunned and stigmatised even more. And that wouldn’t have helped one bit with prevention.

Dominic formed a coalition of HIV positive people. One that provided counselling services and led awareness campaigns. He saw how important it was that people didn’t feel alone in their battle. And he wanted to put a human face on the disease. In his will, Dominic wrote that the newspaper announcement of his death should state that he died of HIV.

His work had a big impact on many people. The Bollywood film, My Brother Nikhil, was inspired by his life. He didn’t talk very openly about being gay, but his story helped raise awareness about the risks of the virus among gay populations. Here’s Siddharth, talking about Dominic’s legacy.

Siddharth:
The thing with crises in all of us is that when you have a crisis, if you’re fortunate and you have support, and you can rise up to being the person and the hero that you want to be. And that was certainly the case with Dominic. And that was certainly the case with so many gay men and so many sex workers and injection drug users. Many of them got up and fought,  they said they were going to die anyway. And they were going to fight to make life better for other people. So they became the most incredible fighters. It was a disease that really transformed people. 

*

In 1992, Anand and Dominic met for the last time in a Mumbai hospital.

Anand:
And I actually stopped over and lo and behold, Dominic, who was a very good looking person, suddenly, in a few months after I’d seen him, had become skin and bones and that was, you know, very difficult for me to swallow.

So he kept on asking me about my work and what I was doing, how I was, you know — a person, literally on his deathbed is not talking about himself, but asking me, who was hale and hearty then, and he asked me what I was doing. And I told him generally what I was doing in terms of legal practice. 

Then he asked me how many cases I was doing for people living with HIV. And literally, we were doing two-three cases, a month, you know, not many cases… Then he actually extracted a promise for me. Which was that he asked me that I always keep on doing HIV cases, and I without blinking my eyelids, I just said, ‘Yes, of course, I would do it.’ And I didn’t know that my promise would actually change my life very quickly. 

Dominic’s influence on Anand’s life continues to this day. 

Siddharth:
And so, you know, Dominic became a fighter for everybody’s rights. And I know he influenced Anand Grover hugely. Anand has said so himself and said how inspired he was by Dominic.

Even though Anand didn’t win Dominic’s case, he and his colleagues at The Lawyers’ Collective started arguing more cases on behalf of HIV+ positive people, with more success. It was quickly becoming clear that it was possible to use the courts to advance their rights

Lawyer’s Collective set up a dedicated HIV/AIDS unit, and word about their work began to spread. Gay men started reaching out to them and coming into the office. 

Anand Grover:
Well, in our office, as I said, gay men started coming. And the stories we heard were basically about how they were being blackmailed by their family members, by the persons they were in a relationship with. And even by the police, more by the police and employment situation wherever they found themselves to be, they will not be out.  They were actually in the closet. 

There were a gamut of laws that discriminated against queer men, but one law, in particular, kept making a frequent appearance. Section 377 of the Indian Penal Code. 377 criminalised people, it created space for discrimination. And in the face of a dangerous disease, it swapped medical attention for imprisonment or the risk of it at least. By extension, it also stopped activists from raising awareness and educating people about condom usage and public health risks. Anjali Gopalan, the public health activist, kept running into this side of the problem.

Anjali Gopalan:
One of the biggest problems we faced was outreach workers would constantly get hauled into police stations, saying that you’re promoting an illegal activity by giving out condoms and talking about these issues publicly, so we were getting increasingly frustrated, but still hadn’t really thought of how we should try and deal with this barrier.

All roads pointed to 377.

Anand:
We felt that 377 was the root of evil, of all evil amongst the gay community, which is extended in you know, it actually encompassed the larger LGBTQI community as we call it now.

For Anand, the straw that broke the camel’s back was the arrest of a group of NGO workers in Lucknow. This was 2001. The men were working in the public health sector, with MSM populations—that’s men who have sex with men. Their offices were raided, and the educational material they had on hand (condoms, dildos, books about sex) were… all confiscated. They were booked under 377.

Arif Jafar was one of those employees:

Arif Jafar:
We have a small resource center at Lucknow, and that research centre is basically meant for researchers and scholars. Unhonein resource centre se jo hai kuch books vagera zabhd kar li, and after seizing the book, they said this is pornography. 

Hum log ko jis sections mein book kiya gaya tha woh 377 (120B): conspiracy to promote homosexuality, Section 292: possession and sale of obscene material. 

The police even asked Arif about his connections to Pakistan (he didn’t have any). And the media had a field day with the story. They ran sensational articles with headlines like: “Gay Sex Racket Busted.”

Anand Grover:
I remember that at that time, during the Bharosa period, when Arif and others were in jail, in custody, there was a lot of fear amongst the gay community around the country, and in fact, it was quite bad. 

And people felt that this would lead to many more arrests around the country. 

And it was a very scary period for the gay community. And I had lived through the emergency. So 75-77, and I knew that, you know, if you’re a person who fears… and you actually get gripped by this psychosis of fear, then you’re unable to do anything. And a large number of people were actually gripped with the sense of insecurity and fear. 

This institutional denial… of homosexuality and the risks of HIV… were not recent. In fact, Anand and Anjali weren’t even the first people to go to the courts, to ask for 377 to be removed. A volunteer collective called AIDS Bhedhbav Virodhi Andolan (ABVA), had filed a petition against the law in 1994. The group has long fought for the rights of HIV positive people. Queer activist and feminist Jaya Sharma remembers attending their meetings.

Jaya Sharma:
Not that I was a member, but I kind of tagged along with a friend Sidhartha Gautham, to ABVA meetings, and it was so striking in terms of the membership. So there was a nun. There was somebody who worked with sex workers at the community level, there was a professional blood donor, there were lawyers and doctors and one self-identified gay man. 

ABVA’s petition in 1994 was sparked by, you guessed it, the police. By the high-ranking Inspector General of Delhi’s Tihar Jail. The current Lt. Gov. of Puducherry: Ms. Kiran Bedi.

News anchor:
She is the first woman who joined India’s police force and became the highest-ranking police officer. She was then appointed Civilian Police Advisor to the UN Peacekeeping Operations. She’s also founded two NGOs and a recipient of the prestigious Ramon Magsaysay Award, also known as the Asian Nobel Prize…

In the early 90s, Ms Bedi refused to allow condoms to be distributed among male inmates at Tihar Jail. Even though it was recommended as a preventative measure against HIV. She said there was no need because there were no homosexual practices among the prisoners.

ABVA’s petition languished in the legal system and never actually went to trial. But one thing was clear: 377 was getting in the way of HIV prevention. 

Fast forward to 2001. After the arrests in Lucknow, Anand Grover realized that a Public Interest Litigation would be the best way to move forward. A PIL is simply a case being fought for the interest of the public. Unlike… most direct cases, it means the person asking for the case, doesn’t need to be the one who was wronged. Anand felt the best person for the job… might be Anjali.

Anand:
And we were working with them on a number of issues in Delhi. So our colleagues in the Delhi office would actually also work with them.  So, it happened that when I met Anjali, I broached this subject with her whether she would be willing to be the petitioner. And she agreed. 

Anjali was also considering the legal route.

Anjali:
At that point, I felt very strongly that we had no choice but to go down the legal route. I think for me, it was very clear at that time. And therefore, it was good that the Lawyers’ Collective was also thinking along the same lines. And we were able to come together on that.

They filed a petition together. In the Delhi High Court in 2001. Asking for Section 377 to not be applied to consenting adults because it would obstruct HIV prevention. 

But what is it about the law that actually makes gay sex a crime? We’ve talked a lot about 377, but not yet what it actually says and where it came from. Before we get into all the drama that ensued from the case itself, it might be a good idea to look at the law. For that, we’ll have to go back to the 19th century. And we’ll have to meet a precocious British gent: Thomas Babington Macaulay. 

Actor (recreation):
It is, I believe, no exaggeration to say that all the historical information which has been collected from all the books written in the Sanskrit language is less valuable than what may be found in the most paltry abridgments used at preparatory schools in England.

We must at present do our best to form a class who may be interpreters between us and the millions whom we govern – a class of persons Indian in blood and colour, but English in tastes, in opinions, in morals and in intellect.

That Babington. That’s on our next episode.