Nov 21, 2019 | News
The Upper House of Parliament must revise the Transgender Persons (Protection of Rights) Bill, 2019, which was passed by the Lower House of Parliament on 5 August 2019.
The Bill does not adequately protect the rights of transgender people, and fails to comply with India’s constitutional and international human rights obligations, the ICJ said today.
The Government introduced the Transgender Persons (Protection of Rights) Bill, 2019, before the Parliament on 19 July 2019. It was passed by the Lok Sabha (the Lower House of Parliament) on 5 August, 2019, despite a lack of consultation with the transgender community and serious weaknesses in the Bill, which would be in violation of the Supreme Court’s NALSA judgment.
“If the Upper House of Parliament adopts the Bill in its current form, without any amendments, it will miss an important opportunity to introduce a law that respects, protects and fulfills the human rights of transgender people as required by the Supreme Court’s decision in NALSA v. UOI and India’s international obligations,” said Frederick Rawski, ICJ Asia Pacific Director.
The current draft, fails to address key concerns that have been repeatedly raised by the transgender community and human rights organizations.
Critically, the Bill appears to continue to mandate sex reassignment surgery for transgender people. This requirement would contravene the Supreme Court’s judgment in NALSA v. UOI, which guarantees the right to self-identification without the need for medical intervention. Further, the Bill does not make provision for affirmative action in employment or education despite the Supreme Court’s mandate in NALSA v. UOI.
Moreover, the Bill sets out lighter sentences for several criminal offences, such as “sexual abuse” and “physical abuse”, when they are committed against transgender people. In addition, the Bill does not adequately define these offences and retains provisions that could be used in a discriminatory manner to target transgender people for criminal prosecution. It also fails to address the lack of an effective mechanism to enforce the legal prohibition against discrimination on the ground of gender identity.
The ICJ has recommended the deletion of provisions that mandate sex reassignment surgery and that set out lighter sentences for criminal offences against transgender people. In addition, the ICJ recommends the inclusion of provisions addressing affirmative action for transgender persons in education and employment.
“We urge the Upper House of Parliament to address these deficiencies before passing the Bill into law, in accordance with India’s constitutional and international law obligations, and to ensure meaningful consultation with the transgender community” Rawski said.
Contact
Maitreyi Gupta (Delhi), ICJ International Legal Adviser for India, e: maitreyi.gupta(a)icj.org, t: +91 7756028369
Read also
ICJ 2019 Report on India Living with Dignity: Sexual Orientation and Gender Identity-Based Human Rights Violations in Housing, Work, and Public Spaces in India. The Report details human rights violations suffered by LGBTQ persons in their family homes, workplaces, and public spaces including streets, public toilets, public transport and shopping centres.
ICJ Briefing Paper on India: Legal and Jurisprudential Developments on Transgender Rights, SAATHII Vistaara Coalition. The paper analyses in detail the domestic judicial developments on transgender rights as well as the legislative process undertaken until the Transgender Persons (Protection of Rights) Bill, 2018 was passed on 17 December 2018.
ICJ Briefing Paper on The Transgender Persons (Protection of Rights) Bill, 2016, analyzes the 2016 Bill, its shortcomings, and India’s international obligations, as it is the basis of the 2018 Bill.
ICJ Briefing Paper on Implementation of NALSA Judgment discusses the 2014 April NALSA decision that affirmed that transgender people have the right to decide their self-identified gender. The paper analyses the responsibilities placed on Indian authorities, gaps in implementation, and India’s relevant international law obligations.
Sep 27, 2019 | Advocacy, Non-legal submissions
Today, at the close of the 42nd regular session of the UN Human Rights Council in Geneva, the ICJ and other NGOs highlighted key acheivements and failures.
The joint civil society statement, delivered by International Service for Human Rights (ISHR) on behalf of the group, read as follows (not all text could be read aloud due to time limits):
“The Council reaffirmed that reprisals can never be justified. Council members rejected attempts to weaken the text including attempts to delete the references to the roles of the Assistant Secretary-General and the Human Rights Council Presidents. The resolution listed key trends such as the patterns of reprisals, increasing self-censorship, the use of national security arguments and counter-terrorism strategies by States as justification for blocking access to the UN, acknowledged the specific risks to individuals in vulnerable situations or belonging to marginalized groups, and called on the UN to implement gender-responsive policies to end reprisals. The Council called on States to combat impunity and to report back to it on how they are preventing reprisals, both online and offline. The Bahamas and the Maldives responded to this call during the interactive dialogue and we encourage more States to follow their good practice. We also encourage States to follow the good practice of Germany and Costa Rica in raising specific cases of reprisals. The Council also welcomed the role of the Assistant Secretary-General and invited the General Assembly to step up its efforts to address reprisals and ensure a coherent system-wide response.
We welcome the creation of a Fact-Finding Mission (FFM) on Venezuela as an important step towards accountability for the grave human rights violations documented by the High Commissioner. We urge Venezuela to cooperate with the FFM and to honor the commitments they have made during this session, including by allowing OHCHR unfettered access to all regions and detention centers and implementing their recommendations. Cooperation and constructive engagement and measures for international accountability and justice should be seen as complementary and mutually reinforcing.
We welcome the renewal and strengthening of the mandate of the Group of Eminent Experts on Yemen, sending a clear message to parties to the conflict – and to victims – that accountability is at the center of the mandate, and providing a crucial and much-needed deterrent to further violations and abuses. States should support the recommendations made by the GEE in their recent report, including prohibiting the authorization of transfers of, and refraining from providing, arms that could be used in the conflict to such parties; and clarifying the GEE’s role to collect and preserve evidence of abuses.
We welcome the renewal of the mandate of the Special Rapporteur on Cambodia, but regret that calls to strengthen the mandate of the OHCHR to monitor and report on the situation have been ignored. We regret that the resolution fails to accurately depict the continuing crackdowns on civil society and the severity and scale of recent attacks on the political opposition.
We welcome the renewal of the mandate of the Commission of Inquiry on Burundi. Its work is vital as the country heads towards elections in 2020. The Burundian Government should desist from denial and insults, and should cooperate with the Commission and other UN bodies and mechanisms.
We welcome that the EU and OIC have jointly presented a resolution on Myanmar requesting the High Commissioner to report on the implementation of the recommendations of the Fact-Finding Mission at HRC 45. However, the international community needs to take stronger action to ensure accountability for and cessation of grave international crimes, in particular by referring Myanmar to the ICC and imposing a global arms embargo – and by acting on the FFM’s reports, including those on economic interests of the military and on sexual and gender-based violence in Myanmar and the gendered impact of its ethnic conflicts.
The joint EU/OIC resolution on Myanmar welcomes the FFM report on the military’s economic interests, which identifies companies contributing to abuses. The High Commissioner, however, has still not transmitted the database of companies facilitating Israel’s illegal settlements more than 2 and a half years after its mandated release. The High Commissioner pledged in March to fulfil the mandate “within the coming months”. The ongoing unexplained and unprecedented delays have become a matter of credibility, for both the High Commissioner and the HRC. Mr. President, we request that you confer with the High Commissioner and advise as soon as possible when this important Council mandate will be fulfilled.
‘Cautious optimism’ best defines our approach to Sudan. While this year’s resolution, which welcomes the peaceful popular uprising, renews the Independent Expert’s mandate, supports the opening of an OHCHR country office, and highlights the role and needs of civil society, is an improvement on 2018, significant challenges remain. Ensuring accountability for the perpetrators of grave human rights and humanitarian law violations should be a central priority for the new Government, and the Council should assist in this regard.
We regret the lack of Council action on Kashmir and urge the Council, as well as India and Pakistan, to act on all the recommendations in the report of the UN High Commissioner for Human Rights.
On terrorism and human rights, we are deeply disappointed that Mexico and other States have partially acquiesced in attempts by Egypt to dilute or distract the work of the Special Rapporteur on counter-terrorism away from its appropriate focus on human rights violations while countering terrorism and human rights of victims of terrorism. We regret that States have asked the Special Rapporteur to spend the limited time and resources of the mandate, to comment on the overbroad concept of the “effects” of terrorism, by which Egypt and some other States seem primarily to mean macroeconomic, industrial, and investment impacts, rather than the human rights of individual victims. The length to which States seem willing to put the existing Special Rapporteur’s mandate at risk, in the name of protecting it, while failing even to incorporate stronger consensus text on human rights issues included in the most recent merged parallel resolution at the General Assembly, suggests that the merger of the previous Mexican and Egyptian thematic resolutions no longer holds any real promise of positive results for human rights.
We welcome the adoption of the resolution on the question of the death penalty, which is an important reflection of the movement towards the international abolition of this cruel punishment. Significantly, this resolution reiterates and affirms the position of international law that the abolition of the death penalty is an irrevocable commitment and that an absolute prohibition exists to guard against its reintroduction. We also welcome the acknowledgement of the ‘most serious crimes’ threshold that acts to restrict the death penalty, in States that have yet to abolish it, only to crimes of extreme gravity; this resolution plainly identifies that criminal conduct that does not result directly and intentionally in death can never meet the threshold test and can never serve as a basis for the use of the death penalty. We are very pleased to acknowledge that the adoption of this resolution is complimentary to the General Assembly’s resolution calling for an international moratorium on the death penalty and, together, they serve to illustrate the advancing global commitment to abolition.
We welcome the Council’s renewed attention to the protection of the right to privacy in the digital age: fully integrating human rights into the design, development and deployment of Artificial Intelligence, machine learning technologies, automated decision-making, and biometric systems, is essential to safeguard not only the right to privacy, but also to freedom of expression, peaceful assembly, and association, and economic social and cultural rights.
On human rights in the administration of justice, we welcome the focus in this year’s resolution on concrete measures to prevent and respond to violence, death and serious injury in situations of deprivation of liberty, which illustrates the potential of thematic resolutions to set out specific practical, legal and policy steps that can be drawn on by governments, civil society, and other stakeholders to have real positive impact at the national level.
We commend Australia for its leadership on Saudi Arabia, as well as the other States who stood up for women’s rights activists and accountability. We urge more States to live up to their commitment to defend civil society and sign the statement in the coming 2 weeks.
We appreciate the attention paid by individual governments to the situation in China, including the dire situation facing Uyghurs and other Turkic Muslims; the crackdown on human rights defenders, including those working to draw attention to violations of economic, social and cultural rights; and the suppression of fundamental freedoms in Tibet. However, we deplore that the Council and many of its members have once again failed to take decisive action to ensure monitoring and reporting on the human rights situation in the country, especially Xinjiang, and press for access for the High Commissioner.
For five years since the last joint statement in March 2014, the Council has failed to hold Egypt accountable for continuing systematic and widespread gross human rights violations. In the latest crackdown on peaceful protests, reports indicate that more than 2000 people have been arrested in the past week. When will the Council break its silence and convene a Special Session to address the grave and deteriorating human rights situation in Egypt?”
Signatories:
- International Service for Human Rights (ISHR)
- DefendDefenders (the East and Horn of Africa Human Rights Defenders Project)
- Commonwealth Human Rights Initiative (CHRI)
- CIVICUS: World Alliance for Citizen Participation
- Cairo Institute for Human Rights Studies
- Asian Legal Resource Centre
- Asian Forum for Human Rights and Development (FORUM-ASIA)
- International Commission of Jurists (ICJ)
- Amnesty International
- Association for Progressive Communications (APC)
- Human Rights Watch
- International Federation for Human Rights (FIDH)
Sep 6, 2019 | News
The ICJ, along with 124 other international and domestic civil society groups from around the world have condemned the actions of Indian government in publishing an incomplete and discriminatory Assam National Register of Citizens (NRC) on 31 August, 2019.
The NRC excludes some 1.9 million people – nearly 6 percent of the population of Assam – thereby rendering them at risk of statelessness. The statement points to violations of rights to equality and non-discrimination, as the process has disproportionately affected Muslims of Bengali descent, undocumented women and children as well as other minorities.
The groups call on India to take measures to redress the situation in a non- discriminatory and non-arbitrary manner, with full regard to due process rights and a commitment to protect the right to a nationality and to avoid statelessness of all long-term residents and their children.
Arbitrary deprivation of nationality is a human rights violation, which undermines the enjoyment of the human rights of those affected and their ability to participate fully in society. International law prohibits the arbitrary deprivation of nationality and obliges States to avoid statelessness, while guaranteeing the right of every child to acquire and preserve their nationality and to be protected from statelessness.
In 2015, the Assam state government, pursuant to a Supreme Court decision, announced it would initiate a process of updating the NRC, requiring every person in Assam who recognized themselves as an Indian citizen, to submit proof of their ancestry (or birth) in the country pre-dating 1971, the year that Bangladesh was formed. The act of requiring individuals to prove their citizenship by providing documentary evidence dating back over 50 years, and excluding applicants on the basis of their inability to fulfill this evidentiary burden, has led to arbitrary deprivation of nationality, contrary to Article 15 of the Universal Declaration of Human Rights.
Further, poor birth registration rates, despite an obligation under Article 7 of the Convention of the Rights of the Child to immediately register every birth has denied numerous applicants of a critical piece of evidence to establish their citizenship. Similarly, many people who possessed the required documents, have nonetheless been penalized due to administrative errors.
Despite repeated calls to action by UN human rights authorities, India has refused to reverse the process and other States have done little to press the Indian government to reverse course.
Those excluded from the list must appeal within 120 days to Foreigners Tribunals (FT), a quasi-judicial institution mandated to determine citizenship. In essence, this implies that the government already considers those excluded from the NRC to be foreigners, and not Indian citizens.
Find the full statement, endorsed by the ICJ and 124 other international and domestic civil society groups from around the world here: https://files.institutesi.org/cso-joint-statement-on-assam-nrc.pdf
Contact:
Maitreyi Gupta (Delhi), ICJ International Legal Adviser for India, t: +91 7756028369 e: maitreyi.gupta(a)icj.org
Frederick Rawski, ICJ Asia-Pacific Director, t: +66 64 478 1121; e: frederick.rawski(a)icj.org
Aug 6, 2019 | News
The Indian Government’s revocation of the autonomy and special status of Jammu and Kashmir violates the rights of representation and participation guaranteed to the people of Jammu and Kashmir under the Indian Constitution and in international law and is a blow to the rule of law and human rights in the state and in India, the International Commission of Jurists (ICJ) said.
The Indian Government today pushed through a legislative package effectively eliminating the special status accorded to Jammu and Kashmir under Article 370 of the Indian Constitution, which granted autonomy to Jammu and Kashmir and limited the Indian Government’s legislative powers in the state. The move was preceded by a communication blackout, arbitrary detention of political leaders, banned movement and meetings of people, and increased military presence, purportedly to quell protests.
“The Indian Government has pushed through these changes in contravention of domestic and international standards with respect to the rights of people in Jammu and Kashmir to participate and be adequately represented, accompanied by draconian new restrictions on freedoms of expression, assembly, and travel, and with an influx of thousands of unaccountable security personnel,” said Sam Zarifi, ICJ’s Secretary General.
“The legality of the Indian Government’s measures to eviscerate Article 370 will certainly be tested before the Indian judiciary, which should look closely at the serious violations of proper legislative and Constitutional processes,” Zarifi said. “All eyes are now on the Indian Supreme Court to fulfill its functions in defense of the rights of people of Jammu and Kashmir and the Indian Constitution,” Zarifi said.
The procedure adopted to revoke the special status and autonomy of Jammu and Kashmir appears to be incompatible with judgments and observations of high courts and the Indian Supreme Court, who have clarified that the President of India would need the agreement of the government of Jammu and Kashmir to change its status. The amendments effectively render Article 370 inoperative in its entirety, without meeting the Constitutional requirements in spirit.
The revocation of special status of Jammu and Kashmir without agreement from the state government is contrary to the spirit of Article 370, which envisioned that the will of the people would be taken into account in decisions relating to state’s special status and autonomy.
“The Indian Government rushed through the amendments at a time when Jammu and Kashmir was under the direct rule of the Central Government, and the state legislature was dissolved. As the government of Jammu and Kashmir is not empowered to discharge its functions, it has not been consulted, let alone agreed to the revocation,” Zarifi said.
“The lack of consultation with the people of Kashmir is all the more troubling because the changes pushed by the Indian Government will materially affect Kashmir’s status as India’s only Muslim-majority state, including special rights for citizens of the state to own and hold land and seek education and employment,” Zarifi said.
The Office of the United Nations High Commissioner for Human Rights (OHCHR) in successive reports in 2018 and 2019 has noted that the region of Jammu and Kashmir, under dispute between India and Pakistan since 1947, has been the theatre of grave human rights violations, including unlawful killings, enforced disappearances and torture, committed with impunity by Indian security forces.
The UN High Commissioner for Human Rights in both reports recommended to the Indian Government to “fully respect the right of self-determination of the people of Kashmir as protected under international law”.
The ICJ condemns the legislative steps taken with respect to Jammu and Kashmir, and calls on the Indian Government to implement in full the UN High Commissioner’s recommendations, including respecting the right to self-determination of people of Jammu and Kashmir, and to respect, protect and fulfill the human rights of people in Jammu and Kashmir.
Contact
Sam Zarifi, ICJ Secretary General,e: sam.zarifi(a)icj.org, t: 41 (0)22 979 38 00
India-Jammu Kashmir and Autonomy-News-press release-2019-ENG (full story with additional information, in PDF)
Jul 23, 2019 | News
The Transgender Persons (Protection of Rights) Bill, 2019, does not adequately protect the rights of transgender people and should be revised to address the concerns of the transgender community and to conform with India’s international human rights obligations, the ICJ said today.
“The Transgender Bill as currently drafted still fails to fully protect the rights of transgender people including to self-identify, a right that has been upheld by the Indian Supreme Court,” said Frederick Rawski, ICJ’s Asia Pacific Director.
“If Parliament passes the Bill in its current form, it will miss an important opportunity to introduce a law that respects, protects and fulfills the human rights of transgender people as required by the Supreme Court’s decision in NALSA and India’s international obligations,” he added.
The Government introduced the Transgender Persons (Protection of Rights) Bill, 2019, before the Parliament on 19 July 2019.
The current draft, fails to address key concerns that have been repeatedly raised by the transgender community and human rights organizations.
Critically, the Bill continues to mandate sex reassignment surgery for transgender people who seek to identify as male or female.
This requirement clearly contravenes the Supreme Court’s judgment in NALSA v. UOI, which guarantees the right to self-identification, without any need for medical intervention. Nor does the Bill make provision for reservations in employment or education despite a mandate by the Supreme Court in NALSA.
Among the problematic provisions are those which set out lighter sentences for criminal offences when committed against transgender people (including “sexual abuse”, “physical abuse”, “verbal and emotional abuse”, “economic abuse” and denial of “passage to a public place”); inadequate or missing definitions of offences; the retention of provisions that could be used to target transgender people for criminal prosecution; and the absence of mechanisms to enforce prohibitions on discrimination in the law.
The ICJ acknowledges that the draft of the Bill contains improvements over the version passed by the Lok Sabha in 2018.
The new draft removes the requirement for a screening committee to review applications for the issuance of a gender identity certificate. It also no longer criminalizes “compel[ing] or entice[ing] a transgender person” to engage in begging
The ICJ and other human rights organizations have recommended the deletion of these provisions in light of the well-documented historical abuse that such laws enabled by making it possible to target transgender persons, and the resulting effect of creating a specter of criminality around transgender identities.
“The Bill does include some important improvements over its 2018 version, such as the elimination of screening committees for the issuance of identity documents, and problematic criminal provisions relating to begging. However, it still falls significantly short from a constitutional and an international human rights perspective,” said Rawski.
“We urge the Parliament to address the deficiencies that remain – such as provisions on mandatory sex reassignment surgery, which contravene human rights law – before passing it into law,” he added.
The current session of Parliament will close on July 26, 2019 and may be extended by two-three days. If passed by the Lok Sabha, this Bill will be introduced in the Rajya Sabha (Upper House of the Parliament) for consideration.
The ICJ urges the Lok Sabha to reconsider the Transgender Persons (Protection of Rights) Bill in accordance with the constitutional and international law obligations of the Indian state, and to ensure meaningful consultation with the transgender community in its lawmaking.
Contact
Frederick Rawski, ICJ Asia Pacific Region Director, e: frederick.rawski(a)icj.org, t: +66 644781121
Maitreyi Gupta (Delhi), ICJ International Legal Adviser for India, e: maitreyi.gupta(a)icj.org, t: +91 7756028369
Read also
ICJ Briefing Paper on India: Legal and Jurisprudential Developments on Transgender Rights, SAATHII Vistaara Coalition. The paper analyses in detail the domestic judicial developments on transgender rights as well as the legislative process undertaken until the Transgender Persons (Protection of Rights) Bill, 2018 was passed on 17 December 2018.
ICJ Briefing Paper on The Transgender Persons (Protection of Rights) Bill, 2016, analyzes the 2016 Bill, its shortcomings, and India’s international obligations, as it is the basis of the 2018 Bill.
ICJ Briefing Paper on Implementation of NALSA Judgment discusses the 2014 April NALSA decision that affirmed that transgender people have the right to decide their self-identified gender. The paper analyses the responsibilities placed on Indian authorities, gaps in implementation, and India’s relevant international law obligations.
