Section 377 and Refugee Status Determination

The impact of section 377 of the Indian Penal Code is not measurable solely by reference to formal prosecutions resulting in reported decisions. As the Delhi High Court found in Naz Foundation v Government of NCT of India (“Naz Foundation”), the criminalisation of same-sex sexual conduct, even where not enforced, serve to ‘entrenc[h] stigma and encourag[e] discrimination in different spheres of life’, exposing India’s LGBTQ community to ‘harassment, blackmail, extortion and discrimination’ (Naz Foundation at [50]). The Supreme Court’s consideration of these issues (and of the impact of s 377 on personal autonomy and privacy in general) on appeal in Koushal v Naz Foundation (“Koushal”) was notoriously cursory, as explored by Sheikh and Narrain.[1]

The complex interplay between formal criminalisation, a lack of reported prosecutions and societal stigma is reflected both in the sharp disparity between Naz Foundation and Koushal’s treatment of s 377 and to diverse, unpredictable outcomes for LGBTQ Indians applying for asylum in other nations (on the basis of feared persecution due to their sexual orientation or gender identity). The current UK ‘country guidance decisions’ for same-sex oriented men and lesbians from India (respectively), MD and AR and NH, are both relatively optimistic with regard to the prospects for same-sex oriented men and women to ‘reasonably’ relocate within India to escape risks of harm in their home areas; these findings depend to a significant degree upon the view that risks of harm predominantly arise from non-state actors (for example, family members) rather than deriving in any large measure from state conduct.[2] In Australia, by contrast, LGBTQ Indians have been recognised as refugees (albeit in the circumstances of individual cases) before Naz Foundation; between Naz Foundation and Koushal; and since Koushal. This post briefly considers these decisions in terms of how foreign decision-makers have engaged with the nature and operation of s 377.

An application for asylum by a person already present in Australia ordinarily begins with an application for a protection visa. If this application is refused by Australia’s Department of Immigration, an applicant will ordinarily have a right of appeal to the Administrative Appeals Tribunal (“AAT”). Decisions by the Department are not published; less than half of the decisions of the AAT (or of the Refugee Review Tribunal [“RRT”], which previously reviewed protection visa refusals) are published on AustLII, the Australian Legal Information Institute.

On a rough count, there are 19 published decisions of the AAT and RRT (“the Tribunals”) on AustLII regarding applications for asylum by LGBTQ Indians. (All of these decisions relate to individuals identifying, or fearing that they will be perceived, as gay, lesbian or bisexual.) Of these, the Tribunals affirmed the decisions under review (that is, found that the applicants were not owed protection) in 8 cases and found that the applicants possessed well-founded fears of persecution (on the basis of their sexual orientation or gender identity) in 11 cases. In all but one of the ‘affirmed’ decisions, the Tribunals found that the applicants had fabricated their claim to be homosexual or bisexual (and to fear harm on that basis); in the one exception (from 2001), the RRT accepted that the applicant was a lesbian but found that she could settle in one of several major cities without being subjected to discrimination because of her sexual orientation. Of the 11 ‘remitted’ decisions, 3 pre-date 2009; 7 were decided after Naz Foundation but before Koushal; and one was decided after Koushal.

Prior to Naz Foundation, RRT decisions frequently considered s 377 as a relevant factor in whether applicants would face a real chance of persecution if removed to India – reiterating in multiple decisions that ‘s 377 of the Indian Penal Code is still operative, and the harassment and repression of homosexual men continues to those who are not prepared to practice their sexuality in complete secrecy’. This was accepted even in light of acknowledgments that Article 377 cases rarely make it to court’, with the Tribunal considering instead abuses committed by police under the auspices of the law even absent formal prosecution. Decisions regarding the effects of s 377 continued even after Naz Foundation, with the RRT (despite noting the Delhi High Court’s decision in that case) warning (at [113]) that section 377 of the Indian Penal Code is still operative and at any time could be used and enforced against the applicant’. (It is unclear whether this was a use of stock language from decisions predating Naz Foundation or an assertion that Naz Foundation would only be followed within Delhi. Less controversial, as a matter of jurisprudence, would be the RRT’s warning in that same case that Naz Foundation ‘is unlikely to have any immediate impact either now or in the reasonably foreseeable future as to how Indians generally and Latin Catholics in Kerala, the applicant’s home state, specifically, regard homosexuality’.)

Even after Naz Foundation, the RRT accepted that state officials continued to harass and discriminate against gay and lesbian Indians – noting in 2012 that homosexuals… face physical attacks, rape, and blackmail, and that some police committed crimes against homosexuals and used the threat of arrest to coerce victims not to report the incidents’ (at [86]), and in April 2013 that India [cannot] be said to provide a reasonably effective and impartial police force in relation to crimes against homosexuals’ (at [32]). The RRT proved willing to accept that treatment of this kind was not contingent upon formal criminalisation, as in 1200247 [2012] at [158]:
[T]he Tribunal accepts that the negative attitude of the general public towards homosexuals is still reflected in the police force and in other state agencies, as well as in government itself, and that private persecution of homosexuals could be condoned by the police such that it takes on an official quality.

In 1414394 [2016], the only published decision since Koushal in which either of the Tribunals accepted that the applicant genuinely feared harm on the basis of their sexual orientation, the AAT considered at length (at [66]-[70]) the reasoning and aftermath of Koushal, including citing articles by Gowthaman Ranganathan and Akila R.S. and noting (albeit not by name) the subsequent decisions in National Legal Services Authority v Union of India and Kirankumar Devmani v State of Gujarat. The AAT found (at [89]) that s 377 has been rarely used and there are few reports of cases where the police have not provided effective protection’. The AAT nonetheless accepted that the applicant would be at risk of harm from his family in Punjab (his home state); that the police in Punjab would not provide an adequate degree of effective protection to him; and, having regard to his personal circumstances (in particular, his display of symptoms consistent with Acute Stress Disorder and Post Traumatic Stress Disorder), that it would be unreasonable for him to relocate within India in order to escape risks of persecution in Punjab.

Individual members of the Tribunals hear and decide applications. Unlike in the UK, there is no formal mechanism for ensuring consistency between how individual Tribunal members perceive the circumstances of LGBTQ people in India (although some consistency is created by frequent reference to the same sources of country information). Only a small sample of the Tribunals’ decisions are publicly available (with even smaller sample sizes for each era examined above). Nonetheless, interesting trends emerge from the limited data available. Prior to 2009 (and Naz Foundation), the RRT frequently had regard to the persecutory effects of s 377 even in the course of acknowledging a lack of formal reported prosecutions. Even after Naz Foundation, the RRT did not find that an end to formal criminalisation would represent any significant shift in state practices (even in the course of citing observers like the Alternative Law Forum which noted the role of s 377 in prompting and legitimising state abuses).

It is concerning that the one published decision since Koushal in which an Indian seeking asylum on the basis of sexual orientation was accepted as credible nonetheless reflects a shift (paralleling that in Koushal itself) towards regarding formal prosecutions resulting in reported decisions as the sole measurable form of ‘use’ of section 377, regarding an absence of evidence of abuses of this particular variety as evidence of a lack of abuses under the section as a whole. It is to be hoped that, even before Koushal is overturned and s 377 once more regarded as unconstitutional, the notion that state abuses do not solely occur through formal channels but can result from arbitrary, untrammelled licence on the part of state officials (encouraged but not necessarily formally sanctioned by criminalisation) – asserted by civil society groups and granted some measure of recognition in Naz Foundation’s assertions as to the far-reaching effect of s 377 beyond formal prosecutions – will be recognised and acted upon, both in India and abroad.

[1] I have discussed these issues in more detail in my paper Koushal v Naz Foundation and the Lessons of International Refugee Law, available on SSRN and soon to be published in Gender, Human Rights and Law volume 4, edited by Sarasu Thomas.
[2] I have criticised the UK Upper Tribunal’s approach in this regard in a paper to be presented at December’s LASSNET conference.

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