The ICJ is profoundly concerned at the judgment of 11 December 2013 of the Supreme Court of India, which effectively recriminalizes consensual same-sex sexual conduct between adults in private.
The decision by India’s highest court in Suresh Kumar Koushal and another v NAZ Foundation and others overturned the 2009 decision of the Delhi High Court.
That earlier judgment had held section 377 of the Indian Penal Code to be unconstitutional to the extent that it violated the rights to equality before the law, non-discrimination, life and personal liberty guaranteed by the Indian Constitution.
Section 377 criminalized certain consensual sexual acts in private between adults that are particularly associated with same-sex conduct.
The 2009 High Court’s ruling had the effect of decriminalizing such conduct between adults in private in India.
Its decision was based on an in-depth analysis of India’s obligations under international human rights law and standards, as well as international comparative law.
The High Court had examined the scope of the rights to equality, non-discrimination and personal liberty under the Indian Constitution and determined Section 377 to be unconstitutional.
Section 377, which was enacted in 1860, is a historical relic from colonial times bequeathed to India under the British empire; it made it an offence to voluntarily have “carnal intercourse against the order of nature” with any man, woman or animal.
Those convicted are liable to imprisonment for up to 10 years or for life and a fine.
The Supreme Court decision of 11 December reversed the High Court’s courageous and much celebrated decision.
Purporting to uphold the separation of powers, the judgment of the Supreme Court overturned the High Court by ruling that it acted in excess of its judicial review jurisdiction by failing to exercise restraint and to accord the necessary deference to the Indian legislature in its review of the constitutionality of section 377.
The Court effectively holds that the provision is not inconsistent with human rights and India’s obligations under international human right law, and that it is up to the Indian Parliament to amend or repealed it.
The ICJ is deeply troubled by the reasoning of the Supreme Court judgment.
It would appear to constitute an abdication of the essential role of the judiciary in safeguarding human rights.
In this case, the Court failed to uphold and protect the rights to equality and non-discrimination; equality before the law and equal protection of the law; dignity; privacy; freedom of expression and association; family life; and the highest attainable standard of health.
The judgment is inconsistent with India’s obligations under international human rights law.
The judgment also disconcertingly dismisses without apparent reason the wealth of evidence before the court documenting how the criminalization of same-sex sexual conduct leads directly to human rights violations.
The ICJ today called on the Government of Sri Lanka to reconsider its rejection of key UPR recommendations on accountability and judicial independence and integrity.
In an Interactive Dialogue to consider the adoption of the outcome document on the Universal Periodic Review of Sri Lanka, the ICJ pointed to the urgent need for the Government to fully implement its legal obligations and commitment to initiate credible and independent actions to ensure justice, equity, accountability and reconciliation. Also pointing to the impeachment of the Chief Justice of Sri Lanka and attacks against the judiciary, the ICJ urged the Government to accept recommendations to strengthen and ensure judicial independence and the integrity of the judiciary.
The statement was made during the Human Rights Council’s 22nd regular session (25 February to 22 March 2013) under Item 6 (Universal Periodic Review), following the review of Sri Lanka in by the Council’s Working Group on the UPR.
The ICJ today called on the Government of Pakistan to reconsider its rejection of UPR recommendations on the death penalty and enforced disappearances.
Expressing deep regret over recent events in Pakistan reversing a de facto moratorium on the imposition of the death penalty in the country, the ICJ called on the Government to accept UPR recommendations to adopt an official moratorium with a view to abolishing the death penalty in law. The ICJ also called on Pakistan to accede to the Second Optional Protocol to the ICCPR and to ratify the International Convention for the Protection of All Persons from Enforced Disappearances.
The statement was made during an Interactive Dialogue on the adoption of the UPR of Pakistan (Item 6 of the Council’s agenda) during the 22nd regular session of the Human Rights Council (25 February to 22 March 2013).
In an interactive dialogue with representatives of its government, the ICJ called on India to accept recommendations to expedite the ratification of the UN Convention against Torture and its Optional Protocol. Watch the webcast.
The ICJ delivered its statement today during the adoption by the UN Human Rights Council of the Universal Periodic Review outcome document on India, during the course of the 21st regular session of the Council.
In an interactive dialogue with representatives of its government, the ICJ and the FIDH called on Indonesia to act on its expressed commitment to combat impunity in the country and immediately and effectively resolve all cases of enforced disappearances. Watch the webcast.
The ICJ delivered its statement today during the adoption by the UN Human Rights Council of the Universal Periodic Review outcome document on Indonesia, during the course of the 21st regular session of the Council.
Under the second cycle of the Universal Periodic Review (UPR) mechanism, the UN Human Rights Council Working Group on the UPR will be undertaking a review of Pakistan during its 14th session.
In a submission to the Working Group, the ICJ has focused on the discrete issues of:
independence of the judiciary;
business and human rights, concerning safety and security for miners;
protection of the rights of the child; and
Pakistan’s party status to international human rights instruments and its cooperation with the UN treaty bodies and the Council’s Special Procedures.
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