Feb 11, 2018 | News
On 10 February 2018, the ICJ, in partnership with the National Law University, Delhi (NLU), organized a judicial dialogue on transformative jurisprudence on privacy and discrimination.
Participants included judges from the Supreme Court of India, the High Court of Delhi, and the District Courts of Delhi; ICJ Commissioners: Justice Ajit Prakash Shah, from India, who made the event possible through his support, Justice Kalyan Shrestha, from Nepal, Justice Adolfo Azcuna, from the Philippines; a Commissioner of Thailand’s National Human Rights Commission; and lawyers and activists from India. The judicial dialogue examined the relationship between the right to privacy, the principle of non-discrimination, and the right to equality before the law, in the context of one’s sexual orientation and/or gender identity, as well as in light of the jurisprudence of the Indian Courts.
It pursued the ICJ’s larger goal of addressing the need for sustained, ongoing engagement with the Indian judiciary on LGBTI rights, to facilitate better access to justice for the LGBTI community, with the help of a sensitized judiciary.
The discussions lent support to domestic advocacy efforts directed at other State and non-State actors to get them to better address and reduce discriminatory treatment and homophobic and transphobic attitudes towards LGBTI communities by challenging discriminatory laws and practices.
The dialogue underscored the different facets of the dynamic right of privacy in relation to the human rights of disenfranchised communities, and discussed sexual orientation and gender identity as essential attributes of one’s identity deserving of and entitled to protection.
The conversation touched upon emergent challenges in the privacy debate, in light of technological advances, critiquing the Indian Government’s unique identification project whereby the Government’s programme of issuing a 12-digit unique identity number to all Indian residents based on their biometric and demographic data, and which will be needed to access government and private sector services, is currently being contested in the Supreme Court on account of privacy concerns.
The speakers emphasized the importance of the right to be forgotten and the right to limit one’s audience as essential to a right to privacy, given the increasing importance of the internet.
The speakers also highlighted the need for the judiciary to uphold fundamental rights enumerated in the constitution instead of pandering to populist beliefs and mores
There was unanimous agreement among the judges and the extended legal community that Section 377, Indian Penal Code, which criminalizes “voluntary carnal intercourse against the order of nature” needs to be struck down, to facilitate progress in developing a rights framework for sexual minorities.
There was criticism of other discriminatory laws, including draft legislation, such as the current Indian Transgender Persons (Protection of Rights) Bill, 2016 for its denial of an individual’s right to self-identify one’s gender.
The speakers reiterated the need for a comprehensive effort from the Indian judiciary, and other State actors with a focus on judicial training and sensitization, as well as police reform, to ensure that India is able to fulfill its international and constitutional obligations to respect, protect, and fulfill the rights of the LGBTI community.
A common theme was the importance of comparative and international law in the development of Indian jurisprudence.
The speakers discussed the ‘Yogyakarta Principles on the Application of International Law in Relation to Issues of Sexual Orientation and Gender Identity’ at length, and the growing prominence of these Principles in Indian jurisprudence, as reflected in the Puttuswamy and National Legal Services Authority v. Union of India judgments, both of which quoted the Yogyakarta Principles extensively.
The dialogue focused on the role of the judiciary, the need for sensitization regarding the human rights violations of the LGBTI community among the judiciary in India and South and South East Asia and, in that context, the importance of judicial dialogues.
ICJ Commissioner Justice Shrestha emphasized that South Asian judges have typically played a more important role than the legislature in advancing human rights.
He discussed the importance of judicial creativity in providing remedies, and emphasized that training programs must include best practices and that judicial training programs must be imparted regularly.
The dialogue stressed the importance of judicial trainings highlighting the role that Justice Cameron and Justice Kirby, both former ICJ Commissioners, have played in raising awareness about the relationship between human rights and issues of sexuality, HIV/AIDS and gender identity in India.
It reiterated the importance of judges being in touch with people’s lived realities, and thus the importance of encouraging judiciary’s interaction with the LGBTI community.
For more information: maitreyi.gupta(a)icj.org
Dec 8, 2017 | News
From 5 to 8 December 2017, the ICJ co-hosted two workshops – the first one for lawyers with the UN Office of the High Commissioner for Human Rights (OHCHR) and the second one for authorities in Thailand – on the investigation of potentially unlawful deaths and enforced disappearance.
The first workshop’s attendees included 17 lawyers and academics from Thailand and eight lawyers from India.
Participants in the second workshop included 26 participants from Thailand’s Ministry of Justice, Department of Special Investigation (DSI), Royal Thai Police, Office of the Attorney-General, Ministry of Defence, Ministry of Interior, Southern Border Province Administration Centre and the National Human Rights Commission of Thailand.
The first event commenced with opening remarks by OHCHR Human Rights Officer and Thailand team coordinator, Imesh Pokharel, and Frederick Rawski, the ICJ’s Regional Director for Asia and the Pacific.
Aem-on Siang-Yai, Director of the Office of Rights and Freedoms Protection from the Rights and Liberties Protection Department of Thailand’s Ministry of Justice made additional opening remarks in the second event.
In both workshops, Kingsley Abbott, Senior International Legal Adviser for Southeast Asia at the ICJ provided an introduction to the revised Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016), which was launched in Thailand on 25 May 2017; ICJ Practitioners Guide No 9 – Enforced Disappearance and Extrajudicial Execution: Investigation and Sanction (2015, in English, Spanish and Thai); and the international legal framework governing investigations into unlawful deaths, noting that Thailand has legal obligations including under its Constitution and the International Covenant on Civil and Political Rights (ICCPR), to which it is a State Party, to respect, protect and fulfil the right to life.
These obligations entail a duty to ensure investigations into potentially unlawful deaths are independent, impartial, effective, thorough and transparent.
Sean Buckley of OSACO Group, former New Zealand Police Detective and now an independent, international, investigative specialist with more than 20 years of investigations experience including more than seven years with the United Nations (including at the Special Tribunal for Lebanon and the United Nations High Commissioner for Refugees), provided in both events a technical training on a range of topics relevant to investigations using the revised Minnesota Protocol as a guide.
Kingsley Abbott was a member of the Forensics and Legal Working Groups which assisted with the revision of the Minnesota Protocol, while Sean Buckley was a member of the Advisory Panel.
The workshops focused on investigation techniques of potentially unlawful deaths, including controlling the crime scene, preserving the security of evidence and ensuring the safety of all parties involved in investigations, including witnesses, investigators and family members of victims.
The workshops also covered witness identification and interview techniques, collection of DNA evidence, drafting of investigation reports and crime file management.
Sean Buckley shared with participants different means of international assistance available for investigations of potentially unlawful deaths.
The Workshop also covered the collection and potential use of telecommunications evidence.
Sean Buckley and Imesh Pokharel presented on the interview and protection of witnesses.
Thailand and India are both state parties to the ICCPR.
Contact
Kingsley Abbott, ICJ Senior International Legal Adviser for Southeast Asia, kingsley.abbott(a)icj.org
Sep 21, 2017 | Advocacy, Non-legal submissions
Speaking at the UN today, the ICJ called on India to reconsider its refusal to accept recommendations for decriminalisation of consensusal same-sex relations, abolition of the death penalty, and ensuring accountability for human rights violations.
The oral statement was made during the consideration by the UN Human Rights Council of the outcome of India’s Universal Periodic Review (UPR) process. It read as follows:
“The International Commission of Jurists (ICJ) regrets that India has not supported recommendations related to decriminalizing consensual same-sex relations, abolishing the death penalty, and combatting impunity for serious human rights violations.
The ICJ has documented how by allowing the criminalization of consensual same-sex relations, section 377 of the Indian Penal Code has facilitated numerous human rights violations, including violations of the principle of non-discrimination and the rights to equality before the law and equal protection of the law, liberty and security of person, freedom of expression, health, and privacy. Section 377 has also perpetuated homophobic and transphobic attitudes in India, leading to discrimination and violence against LGBT individuals.
The Government has also failed to take steps to combat impunity for serious human rights violations such as extrajudicial killings, enforced disappearances, and torture and other ill treatment, which are facilitated by laws such as the Armed Forces Special Powers Act (AFSPA) and other national security and public safety legislation. Despite repeated commitments to do so, India has also not enacted legislation to recognize torture as a distinct, autonomous offence in its penal code.
The ICJ therefore urges the Government to reconsider, accept and implement UPR recommendations to:
- Decriminalize consensual same-sex sexual relations (161.71, 161.76, 161.77, 161.78, 161.79);
- Enact legislation consistent with the Supreme Court’s recognition of the rights of transgender persons and international human rights standards (161.80);
- Repeal AFSPA and other state and central level laws that similarly violate international human rights law (161.97, 161.248, 161.249);
- Become a party to the CAT; OPCAT; the Second OP to the ICCPR; the ICPPED and other international instruments (161.13, 161.15, 161.29, 161.30, 161.31); and
- Establish a moratorium on the use of the death penalty, with a view towards its abolition (161.104 – 161.115).”
Sep 13, 2017 | Advocacy, News
As proceedings resume in India v. Pakistan (Jadhav case) before the International Court of Justice (ICJ), the ICJ has published a briefing paper to clarify the key issues and relevant laws raised in the case in a Question and Answer format.
The case concerns Pakistan’s failure to allow for consular access to an Indian national detained on charges of serious crimes.
India has alleged “egregious violations of the Vienna Convention on Consular Relations (VCCR)” by Pakistan in connection with the detention, trial and conviction of Indian national Kulbhushan Sudhir Jadhav.
Pakistani authorities arrested Jadhav on 3 March 2016.
India was informed of the arrest on 25 March 2016. On 10 April 2017, Pakistan’s military announced Jadhav had been convicted and sentenced to death by a military court for “espionage and sabotage activities against Pakistan.”
India’s requests for consular access, made at least sixteen times starting from 25 March 2016, were either denied by Pakistan or made conditional upon India’s assistance in the investigation against Jadhav.
India alleges that denial of consular access breaches Pakistan’s obligations under Article 36(1) of the VCCR, to which both States are parties.
In May 2017, the ICJ accepted India’s request for provisional measures and directed Pakistan to “take all measures at its disposal” to ensure Jadhav is not executed pending the final decision of the Court.
India is due to file its written memorial with supporting documents today, 13 September.
Pakistan will have three months to file a counter-memorial.
The ICJ will then decide on dates for oral hearing of arguments.
Following the hearings, the Court will deliberate and issue a judgment.
While the case at issue is limited to denial of consular access under the VCCR, it engages other critical fair trial concerns that arise in military trials in Pakistan.
The International Commission of Jurists has documented how Pakistani military courts are not independent and the proceedings before them fall far short of national and international fair trial standards.
Judges of military courts are part of the executive branch of the State and continue to be subjected to military command; the right to appeal to civilian courts is not available; the right to a public hearing is not guaranteed; and a duly reasoned, written judgment, including the essential findings, evidence and legal reasoning, is denied.
The case also underscores one of inherent problems of the death penalty: that fair trial violations that lead to the execution of a person are inherently irreparable.
The International Commission of Jurists considers the death penalty a violation of the right to life and cruel, inhuman or degrading punishment and notes that a large majority of States, in repeated UN resolutions, have called on retentionist states to declare a moratorium on the practice with a view to abolition.
Contact:
Frederick Rawski (Bangkok), ICJ Asia Pacific Regional Director, e: frederick.rawski@icj.org
Reema Omer (London), ICJ International Legal Adviser, South Asia t: +447889565691; e: reema.omer(a)icj.org
Download the Q&A:
India-ICJ Q&A Jadhav case-Advocacy-2017-ENG (in PDF)
Aug 24, 2017 | News
Today, the Indian Supreme Court delivered a landmark judgment declaring the right to privacy an intrinsic part of the right to life and liberty under Article 21 of India’s Constitution.
The ICJ welcomed a momentous and courageous judgment, where the Supreme Court took an expansive view of the right to privacy, and held that, at its core, privacy includes “the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation…”
As such, this judgment is an important step towards scrapping laws criminalizing same-sex activity in the country, the ICJ said.
“The judgment is a testament to the inspiring work of human rights activists and lawyers in India, who have shown the potential of the law to affirm human rights and equality,” said Frederick Rawski, ICJ’s Asia Director.
“The ruling could have far-reaching implications for a number of cases -including with respect to the criminalization of consensual same-sex relations – where laws, policy and practices have been challenged on the basis that they violate the right to privacy,” he added.
The judgment clarified that the right to privacy is not spatially bound and exists beyond four walls as it “attaches to the person” and is not “lost or surrendered merely because the individual is in a public place.”
Significantly, in explaining the ambit of the right to privacy, the Supreme Court held that sexual orientation is “an essential component of identity” and “equal protection demands protection of the identity of every individual without discrimination.”
The Court also highlighted that laws criminalizing same-sex activity have a “chilling effect on the exercise of the right”, posing “a grave danger to the unhindered fulfillment of one’s sexual orientation, as an element of privacy and dignity.”
Section 377 of the Indian Penal Code criminalizes voluntary “carnal intercourse against the order of nature with any man, woman or animal” and prescribes a range of penalties including life imprisonment.
In Naz Foundation v. Govt. of NCT of Delhi, the Delhi High Court in 2009 read down the application of section 377, holding, among other things, that insofar as it criminalizes consensual sexual acts, it violates Articles 21 (right to life and liberty), 14 (equal protection of the law) and 15 of the Constitution (freedom from discrimination) of the Indian Constitution.
However, in Suresh Kumar Koushal in December 2013, the Supreme Court reversed the 2009 Delhi High Court ruling, effectively recriminalizing homosexuality.
The petitioners challenged the ruling in Koushal, and in February 2016, the Indian Supreme Court referred a “curative petition” to a five-judge bench of the Supreme Court for consideration.
In today’s judgment, the Supreme Court questioned the rationale in Koushal, and expressed disagreement with the manner in which Koushal dealt with the “privacy–dignity based claims of LGBT persons.”
It also found the reasoning in Koushal flawed and unsustainable for being discriminatory towards LGBT persons by calling them “a miniscule fraction of the country’s population” and making that the basis for denying their right to privacy.
However, the Court held that since a challenge to section 377 is pending before a larger bench, its constitutional validity would be decided in the appropriate proceedings.
“The Supreme Court’s judgment is indeed historic, but the real test of its impact will be whether the right to privacy it affirms is given effect in its true spirit in individual cases, so as to ensure that laws, policies and practices meet India’s obligations under the Constitution as well as international standards,” added Rawski.
Contact:
Frederick Rawski (Bangkok), ICJ Asia Pacific Regional Director, e: frederick.rawski(a)icj.org
Ajita Banerjie, ICJ Consultant in Delhi, t: +918447784157; e: ajita.banerjie(a)icj.org
India-Privacy & section 377-News-web stories-2017-ENG (full story in PDF)
