India: Gays as refugees in their own land | Rajeev Dhavan

Mail Today, 13 January 2014

by Rajeev Dhavan

ON January 3, 2014, it was reported that the United States ( U. S.) granted asylum to a gay couple, Jagdish Kumar and Sukwinder who fled India in June 2012 because of pressure on Jagdish to marry a girl. They did not try and sneak into the U. S. but surrendered to the U. S. immigration authorities asking for asylum at the Mexican border. The case was supported by an NGO called Immigration Equality which specialises in gay and lesbian cases. The U. S. judge was doubly convinced following India’s Supreme Court judgement re- criminalizing same- sex behaviour which was brought to the attention of the U. S. judge.

This has important implications for India’s gays and lesbians of same- sex orientation.

Status

India and Pakistan are not signatories to the U. N. convention on Refugees 1951, but are on its Executive Committee. We are not concerned with this clever ploy by these nations. In any case, gays are hardly going to ask for asylum in India given the Supreme Court’s catastrophic judgement of December 2013. Or in Pakistan.

But other countries do accord refugee status to same- sex oriented people.

Under the Convention of 1951 two elements concern us. A refugee must have ( a) a well- founded fear of persecution, ( b) on grounds of race, religion nationality, membership of social group or political opinion. We are concerned with the definition of the term ‘ social group.’ Different interpretations have been given to this phrase. In 1985, the UNHCR Conclusion 30 treated women and girls as a social group under refugee law. In 1993, UNHCR Conclusion 73, required victims of sexual violence to be sympathetically treated.

This has to be read with other U. N. Conventions of Women and Children of 1979, 1993 and the Beijing Declaration 1995.

But are we concerned whether homosexuals are a ‘ social group’? One definition is those who face harsh or human treatment are a group ( UNHCR Conclusion 39 concerning women). But this ‘ treatment of victimised group’ test requires evidence to show group treatment.

There was further clarification to treat women and children as a group on the basis of social perception. The UNHCR Handbook ( 1992) defines particular social group as normally of similar social backgrounds, habits or social status.

The U. S. view in Acosta ( 1995) includes “ a group of persons all of whom share a common characteristic†is clumsy but was accepted in Toboso– Alfonso 1990 as including sexual orientation. But in Sanchez– Trufillo ( 1986) a more limited approach was to determine the group’s cohesiveness. The proposed test of 2,000 of “ common immutable characteristic†is narrower still. But in America ‘ sex orientation’ is a recognised ‘ group’ under refugee law.

Recognition

In 1995, New Zealand included sex orientation as a group, following the US Acosta common protected characteristics test. In France in Ourbih ( 1998), transsexuals, and in Djellal ( 1999) homosexuals were recognised as a refugee social group. In Germany, an Iranian homosexual was recognised as a refugee.

The Dutch gave protection to homosexuals but on a different basis of persecuted category. In U. K, after Islam and Shah ( 1999), the test is the protected characteristics test, indicating an individual cannot leave the group without renouncing fundamental rights. Canada’s ‘ Ward’ test ( 1993) would certainly apply to homosexuals even though the test needs fixing. Equally, Australia’s Applicant A ( 1997) applied the externally perceived test to homosexuals.

These various jurisdictions are potential countries offering asylum for persecuted Indian homosexuals. In all these jurisdictions, homosexuals from India would qualify as a “ social group†that comes under refugee law. The next step is to show that the “ well- founded fear of persecution.†In India this is obvious because of Section 377 of the Indian Penal Code ( IPC) and the interpretation given in the Naz Foundation case ( 2013).

This, by itself, may be enough.

Dossier

But I would also suggest that Naz or other groups keep a general dossier on social and state persecution of homosexuals because Justice Singhvi’s assertion that homosexuals are a microscopic minority with only 200 reported cases seems to downplay the existence of homosexuals in India. In some countries only State and Political persecution is the test, but in a lot of countries social persecution from civil society is included as a well- founded fear of persecution.

Individuals should also keep some record of how they are ostracised, rejected, discriminated, attacked and therefore persecuted.

This total dossier should be placed on a website ( names anonymized, but available).

Indian cynics may say Jagdish and Sukhwinder deliberately went the Mexico route and the refugee candour shown at the border was a ploy. But their story was real enough. Pressure was being put on Jagdish in India to marry. Whatever the route, forcing heterosexual marriage on a homosexual is certainly persecution.

He left India with his gay partner because they could not live in peace in India and would have been forced to give up their natural and fundamental rights.

Such sacrifices are onerous under refugee and human rights law.

It is a sad statement for any society, state or nation to tell citizens and people living there that they cannot live without persecution in their own countries and society. But India could further not allow foreign homosexuals here as well. These could be the unfortunate consequences of the Naz case that is to project India as a khap panchayat. Our politicians ( except proponents of Hindutva) claim they will change the law. Given a possible voting backlash, will they?

The writer is a Supreme Court lawyer.