India: ray of hope from Supreme Court for LGBTI rights

Feb 3, 2016 | News

Yesterday’s decision of the Indian Supreme Court to refer to a larger bench of the same Court the petition challenging Section 377 of the Indian Penal Code (IPC), offers the opportunity to undo the appalling 2013 judgment of a two-judge bench of the SC in the Suresh Koushal case, says the ICJ.

“This order of the Supreme Court is a crucial opportunity to undo the injustice of the Suresh Koushal decision,” said Sam Zarifi, ICJ’s Asia Director. “It is an important test of the Supreme Court’s commitment to equality and ending discrimination against people on the basis of sexual orientation or gender identity.”

After the December 2013 Suresh Koushal decision – when the Supreme Court upheld the constitutionality of section 377 and reversed the Delhi High Court’s courageous and much celebrated decision – the petitioners filed a review petition, which was dismissed.

The petitioners then filed “curative petitions” in 2014, stating that the Supreme Court’s judgment of December 2013 violated principles of natural justice for several reasons. A “curative petition” allows the Supreme Court to re-assess its previous decisions on limited grounds, even after appeals and reviews have concluded.

Yesterday the Supreme Court referred the curative petition, and the major constitutional questions it raised, to a five-judge bench of the same Court, thus acknowledging doubts about the correctness of its 2013 ruling. A five-judge bench will now be set up to hear this challenge.

“The referral highlights the Supreme Court’s recognition of the need for a judicial response to the ongoing discrimination against people on the basis of sexual orientation and gender identity,” Zarifi said.

“After 16 years within the court process, this issue clearly could not be resolved with the highly problematic Suresh Koushal decision, which ignored the reality of consensual same sex behavior in India and the fact that Section 377 criminalizes people for who they are and leads directly to serious human rights violations.”

By criminalizing consensual same-sex adult sexual conduct, Section 377 is inconsistent with India’s obligations under international human rights law, including in respect of the rights to sexual autonomy, equality, non-discrimination, privacy, dignity, free expression, and life.

Many of these rights are guaranteed in India’s Constitution.

India is also a party to several international instruments, which require that these rights be respected, protected and fulfilled.

The Yogyakarta Principles – which apply international human rights law to issues of sexual orientation and gender identity – clarify that the rights to equality, non-discrimination and privacy require states to “repeal all laws that criminalize consensual sexual activity among persons of the same sex who are over the age of consent.”

The Supreme Court referred to these principles in the 2014 National Legal Services Authority v Union of India (NALSA) case where it also acknowledged that Section 377 was “used as an instrument of harassment and physical abuse against Hijras and transgender persons”.

“Yesterday’s decision offers hope that the Supreme Court intends to reaffirm the principle that people in India cannot be subjected to discrimination, harassment and violence, simply on the basis of their sexual orientation or gender identity,” Zarifi said.

Background

Section 377 makes it an offence to “voluntarily ha[ve] carnal intercourse against the order of nature with any man, woman or animal” and has been used to persecute people for their real or purported engagement in consensual same-sex sexual conduct. The penalty can extend to life imprisonment.

Several reports document how Section 377 has been a tool for discrimination, blackmail, extortion, and violence by state and non-state actors against the LGBTI community.

It has adversely affected HIV/AIDS prevention efforts, and has also reinforced harmful social stereotypes and taboos against sexual minorities.

The petitioners in the original challenge against section 377 have waged this legal battle for over a decade. The constitutional challenge against Section 377 was filed in 2001.

In 2009, in Naz Foundation v. Government of NCT of Delhi and Others, the Delhi High Court held that Section 377 denied “a person’s dignity and criminalises his or her core identity solely on account of his or her sexuality”.

It went on to find that this criminalization of identity denied “a gay person a right to full personhood which is implicit” in the notion of life under Article 21 of the Indian Constitution, and also violated the constitutional right to equality and non-discrimination. The High Court held that Section 377 was unconstitutional insofar as it criminalized consensual same-sex sexual conduct.

However, its judgment was appealed to the Supreme Court.

On appeal, in 2013 the Supreme Court reversed the decision of the Delhi High Court, holding the section to be constitutional.

The Supreme Court also affirmed that legislature would “be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same as per the suggestion made by the Attorney General”.

India: support comprehensive and consultative Transgender Rights Bill

Dec 3, 2015 | News

The Indian government should support a comprehensive law guaranteeing equal rights and non-discrimination to transgender persons, consistent with India’s international human rights obligations, the ICJ said today.

This law must be developed and passed after adequate consultation with the transgender community in India, the Geneva-based organization added.

“The transgender community in India has faced stigma, discrimination and violence for years,” said Sam Zarifi, ICJ’s Asia-Pacific Director. “It is time for the Indian Parliament to pass comprehensive anti-discrimination legislation as an essential first step towards guaranteeing the transgender community’s internationally recognized, and constitutionally protected, human rights.”

Earlier this year, the Rajya Sabha (Upper House of the Indian Parliament) passed the Rights of Transgender Persons Bill, 2014, a private member’s Bill, that is, a bill introduced by a Member of Parliament rather than the Government.

The Bill guaranteed a wide range of rights to transgender individuals, including the right to be free from discrimination, the right to life and personal liberty, the right to protection from abuse, violence and exploitation, as well as equality in educational opportunities, employment, social security, and health care.

The Lok Sabha (Lower house of the Indian Parliament) will discuss a revised version of this Bill in the current session. The Government’s Ministry of Social Justice and Empowerment is reportedly developing its own draft.

“Any transgender rights legislation must fully comply with India’s international human rights obligations,” Zarifi added. “An essential element of this is that the Indian government must ensure that the transgender community participates in, and is meaningfully consulted on, the new law’s provisions.”

India has ratified several international instruments, including the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the Convention on the Elimination of all forms of Discrimination against Women. They prohibit discrimination and guarantee full equality for everyone, including transgender people.

Successive pronouncements by international bodies, including the UN, have affirmed that these rights apply to transgender persons.

The Yogyakarta Principles – which reflect the specific application of international human rights law in the context of sexual orientation and gender identity – recognize transgender people’s human rights, including the right to equality before the law, equal protection of the law and the principle of non-discrimination, as well as the right to self-defined sexual orientation and gender identity, the right to expression, to privacy, to health, to housing, to education, and the right to participate in policies affecting one’s welfare.

India’s transgender rights Bill should respect, protect and fulfill this range of rights. It should also ensure that the definition of who constitutes a transgender person, as well as the process of determining this, is consistent with international standards, the ICJ said.

In 2014, in the case of National Legal Services Authority v Union of India (NALSA), the Indian Supreme Court recognized transgender persons’ right to self-identification and to the legal recognition of their gender identity. However, a year after the Supreme Court’s judgment, its directions are yet to be effectively implemented, making the passage of a comprehensive bill on transgender persons’ human rights all the more crucial. At the same time, the legislative process culminating in the adoption of the legislation needs to be adequately consultative.

“A comprehensive transgender rights bill is long overdue in India,” Zarifi said. “It is crucial that the Indian government take advantage of the current political momentum to reaffirm the rights of transgender persons, and pass a strong and progressive law.”

Contact:

Sanhita Ambast, ICJ International Legal Adviser (Delhi), t: +91 9810962193; e: Sanhita.ambast(a)icj.org

Background

A report by India’s Ministry of Social Justice and Empowerment – Report of the Expert Committee on the Issues relating to Transgender Persons –has acknowledged the range and impact of discrimination faced by the transgender community in India.

It makes note of the stigma, discrimination and violence they face from their families, communities, and state institutions, including the police. It also highlights the difficulties faced by them in accessing services like housing and education.

In the NALSA case, the Supreme Court found that discrimination faced by the transgender community in India violated the rights to equality, non-discrimination, free speech and expression, and life in the Indian constitution. The Court gave specific directions to address this discrimination.

It also noted that the absence of “suitable legislation protecting the rights of the members of the transgender community” has resulted in their facing discrimination in various areas. A clarification petition, filed by the government, regarding this case is currently pending at the Supreme Court.

Following the Supreme Court’s 2013 NALSA judgment, several states have put in place progressive policies to address the discrimination faced by transgender groups.

However, the implementation of this judgment is far from adequate, and a lot more needs to be done.

A 2011 Report of the United Nations High Commissioner for Human Rights has recommended that states “Enact comprehensive anti-discrimination legislation that includes discrimination on grounds of sexual orientation and gender identity among prohibited grounds and recognizes intersecting forms of discrimination”.

It also asked states to “Facilitate legal recognition of the preferred gender of transgender persons”.

In its 2015 report, the United Nations High Commissioner for Human Rights recommended that anti-discrimination legislation should “include[s] sexual orientation and gender identity among prohibited grounds, and also protect[s] intersex persons from discrimination” and that “LGBT and intersex persons and organizations [should be] consulted with regard to legislation and policies that have an impact on their rights”.