Just days after the Indian Supreme Court reinstated the ban on “sex against the order of nature” in the Indian Penal Code, a gay couple received political asylum in the United States. Until now their request for parole had been turned down three times.

For six months, Jagdish Kumar and Sukhwinder Sukhwinder were locked up in an immigration detention facility in the United States. The two had arrived at the Texas border with Mexico without visas and applied for political asylum as a gay couple in June, 2013 after fleeing India.

On December 20th, just days after the Indian Supreme Court reinstated the ban on “sex against the order of nature” in the Indian Penal Code, the duo received political asylum in the United States, reports Sunita Sohrabji for India West.

Clement Lee, staff attorney with the group Immigration Equality, told India West that the Indian Supreme Court’s decision was critical in deciding Kumar and Sukhwinder’s asylum pleas in their favour. He predicted that the Supreme Court decision was “the beginning of a shift of political asylum cases from India.”

One of the reasons Justices Singhvi and Mukhopadhyaya gave for keeping Section 377 on the books was the lack of cases of 377-related prosecution. They wrote:

While reading down Section 377 IPC, the Division Bench of the High Court overlooked that a miniscule [sic] fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 IPC (para 43).



The Supreme Court was effectively saying Section 377 was rarely used, so LGBT Indians’ fears were largely overblown. The Court did not find enough documentary abuse of discrimination to uphold the Delhi High Court’s ruling. But it inadvertently has now provided asylum seekers the documentary evidence they need to apply for refuge. Section 377 is no longer just a sleeping law, an anachronistic relic from another age. It now has been resuscitated by the highest court in India.

That “official” seal of disapproval is important especially for an immigration judge. As Sohrabji reports, Kumar and Sukhwinder had a horror story of their own which was completely unrelated to the legal reality of Section 377. Kumar, who comes from Haryana, was afraid his family would kill him if he did not marry a woman. An uncle who had not married had been beaten several times by family members and even had to be hospitalized. Kumar eventually succumbed to his family’s pressures and got married to a woman when he was 21 and moved to Chandigarh where he met Sukhwinder. (Read the full story here). The group DreamActivist.org which had campaigned for Kumar’s release claims Kumar “fled India after it became clear that both he and his partner were in danger. Several times Kumar was attacked by government officials, he has scars all over his body to prove it.” DreamActivist came up with a list of 32 Indian nationals held at the El Paso Detention Center along with Kumar who they said passed the “credible fear” test. Almost all the others are Sikhs claiming political asylum.

It’s likely that social stigma rather than Section 377 was the specific reason for the way Kumar’s family reacted to his sexuality. But as Lee mentions, it was the reinstatement of Section 377 that helped swing the case in their favour. Until now, despite having relatives who had volunteered to take the couple in, the government had reportedly denied their request for parole three times according to the Windy City Times.

Unsurprisingly, immigration activists are trying to use this Supreme Court ruling to bolster their cases. Prerna Lal writes on Huffington Post:

Now that being gay is illegal in India, perhaps the U.S. should stop detaining gay, Indian asylum seekers such as Kumar, and work to parole them. If you already live in the U.S. and fear for your life as an LGBT person in India, please see a competent immigration attorney or contact Immigration Equality in the U.S. For asylum cases already adjudicated or under adjudication, please see a legal professional about filing a motion to reopen and/or changed country conditions reports.



Given that the United States State Department has become much more forthright about LGBT issues after Hillary Clinton took an unequivocal stance on it, it’s likely cases like Kumar’s will get a more favorable hearing. The Supreme Court has by its action given that a further push. While Section 377 has been used by asylum seekers successfully before, it has also been tricky in part because the last few years have seen the growth of a fairly robust LGBT movement especially in urban India.

The Delhi High Court read down Section 377 in part because of the increasingly visible and vocal LGBT community in India. Even while Section 377 was on the books, it did not deter the formation of support groups all over the country, the publication of gay and lesbian magazines and newsletters. While there were stories of lesbian suicides and gay men pressured into marriages or blackmailed by police, groups in India were at pains to assert that the LGBT movement in India was alive and well despite the antiquated law. Now the law cannot be dismissed as just antiquated any more even if it is still not enforced with any greater vigour.

In an interview with DNA, Mumbai-based gay couple Deepak Kashyap and Jerry Johnson said they were “shocked, baffled and numbed” by the court ruling. Johnson said, “It is shameful that a country like India will have to face the ignominy of seeing many seek asylum citing persecution on the basis of their sexual orientation.”

For some the persecution will be real. For others it will be more of a convenient excuse. But either way, whether the Supreme Court realized it or not, the law, as reinstated by it, will become an important piece of evidence.