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)
Apr 29, 2017
The High Court of the Hong Kong Special Administrative Region decided to effectively grant the same spousal benefits to a civil servant in a same-sex marriage that the Government provides to the spouses of other married civil servants whose marriages are to persons of the opposite gender.
The High Court held in the case Leung Cheung Kwong v. Secretary for the Civil Service, et. al, that the denial of spousal benefits under the Civil Service Regulations to same-sex couples legally married under foreign laws amounts to unlawful discrimination based on sexual orientation.
“This decision confirms the critical role that the judiciary can and should play in upholding human rights and combatting discrimination based on sexual orientation and gender identity,” said Emerlynne Gil, ICJ’s Senior International Legal Adviser for Southeast Asia.
Mr. Leung Chun Kwong, the applicant in the case, is a Chinese national and a permanent resident of the Hong Kong Special Administrative Region. In 2005 he met Mr Adams, a national of New Zealand, and they later decided to marry.
In light of the fact that the law in Hong Kong did not allow for same-sex marriage, they married in New Zealand, where the law makes provision for such marriages.
Eventually, Mr. Leung applied for and was denied: a) spousal benefits that the Government provides to the spouses of other married civil servants whose marriages are to persons of the opposite gender; and b) to have his tax liability jointly assessed with that of Mr. Adams, as a married couple.
He then brought judicial review proceedings before the High Court challenging both decisions on a number of grounds, including that the said denials discriminated against him based on his sexual orientation.
Judge Anderson Chow said he was unable to see how the denial of such benefits to legally married same-sex couples would serve to protect “the traditional family”.
The ICJ had been granted leave by the Court to intervene in the case.
The amicus brief submitted by the ICJ described the European Court of Human Rights’ approach to the issues at stake in this case, including, in particular, that the prohibition of discrimination under the European Convention on Human Rights duly covers questions related to sexual orientation, and that if the reasons advanced for a difference in treatment were based solely on a person’s sexual orientation, this would amount to discrimination under the Convention.
The High Court was also presented with the question of whether the marriage of a same-sex couple legally entered into under foreign laws may also constitute “marriage” for the purposes of Hong Kong’s Inland Revenue Ordinance (IRO).
In this instance, however, the Court held that to construe “marriage” under the IRO as including same-sex marriages would run counter to the meaning of this term under Hong Kong laws.
In any event, the High Court further pointed out that the refusal by the Commissioner of Inland Revenue to assess the tax liability of Mr. Leung jointly with that of his spouse, as a married couple, did not cause any prejudice to them as the joint assessment would have made no difference to their total tax liability.
In the circumstances, therefore, the Commissioner’s refusal did not engage the right to equality.
Gil said: “The issue of the equal right of same-sex couples to marriage in Hong Kong was not ultimately at stake in this case. However, we hope that future judicial decisions will continue to push forward the protection of all human rights for all people in Hong Kong.”
Hong Kong-ICJ Amicus-Advocacy-Legal submissions-2017-ENG (ICJ Amicus, in PDF)
Hong Kong-High Court Judgment-Advocacy-2017 ENG (Judgment, in PDF)
Jan 23, 2017
On 16 January 2017, the ICJ with other civil society organizations submitted a third-party intervention in the case of E.S. v. Spain before the European Court of Human Rights.
The case (application no. 13273/16) arose from the attempted removal of a gay asylum applicant to Senegal. The third-party submissions focus on the relevance of the Refugee Convention — as interpreted by a number of domestic courts — and of the EU asylum acquis and the EU Charter of Fundamental Rights to the determination of the scope and content of non-refoulement obligations under Article 3 of the European Convention on Human Rights (ECHR) of those Contracting Parties that are also EU Member States.
The submissions, in particular, address the following:
- Enforced concealment of one’s same-sex sexual orientation constitutes persecution under refugee law and is incompatible with the ECHR, in particular, Article 3;
- The criminalization of consensual same-sex sexual conduct gives rise to a real risk of Article 3 prohibited treatment, thus triggering non-refoulement obligations under that provision of the Convention; and
- The risk of persecution based on sexual orientation in Senegal.
The comments drew upon the European Court’s case-law; authoritative interpretation of other applicable sources of international law and comparative international law.
The ICJ made the submissions jointly with the Human Dignity Trust, the European Council on Refugees and Exiles, the European Region of the International Lesbian, Gay, Bisexual Trans and Intersex Association (ILGA-Europe) and the AIRE Centre (Advice on Individual Rights in Europe).
SPAIN-ECtHR joint amicus in ES v SPAIN-Advocacy-LegalSubmission-2017-ENG
Nov 24, 2016
In April and July this year, the ICJ and four other NGOs filed two sets of written submissions with the Constitutional Court of Romania in the case of Coman Relu Adrian, Hamilton Robert Clabourn and Association Accept v. General Inspectorate for Immigration and Ministry of Home Affairs.
The case concerns the Romanian authorities’ refusal to recognize either de facto or de jure the same-sex marriages of migrant EU citizens with third-country nationals.
In their original original third-party intervention of April 2016, the ICJ, the AIRE Centre, ECSOL, FIDH and ILGA-EUROPE argued that such refusal violates relevant EU law and the European Convention on Human Rights.
In their supplementary intervention, filed in July 2016, the five NGOs made additional written submissions to the Constitutional Court of Romanian in light of the judgment by the European Court of Human Rights in the case of Taddeucci and McCall v. Italy of 30 June 2016.
romania-cc-joint-amicus-re-third-country-national-spouse-legal-submissions-april-2016-eng
romania-cc-joint-amicus-re-third-country-national-spouse-legal-submissions-july-2016-eng
Nov 11, 2016 | News
The ICJ today condemned efforts by a group of States led by the African Group of the UN Members States to halt the work of the UN Independent Expert charged with protecting people from discrimination and violence based on sexual orientation and gender identity (SOGI).
The organization said that the move constituted an unwarranted interference with the independence and capacity of the Human Rights Council to discharge its mandate for the promotion and protection of all human rights and fundamental freedoms for all, without discrimination.
On 3 November 2016 Botswana on behalf of the African Group introduced a draft resolution before the Third Committee of the UN General Assembly in New York questioning the authority for the mandate of the Independent Expert Vitit Muntarbhorn (photo) and deferring action indefinitely on confirming the mandate’s establishment.
The ICJ is calling on the African Group to withdraw its draft resolution.
If a vote on the resolution does go ahead, the ICJ said that States must resoundingly reject it and send a signal to the world that the rights of all persons must be protected on an equal basis and that the UN Human Rights Council is capable of acting to secure such protection.
The ICJ considers that adoption of the resolution would represent a dramatic setback to the Human Rights Council’s efforts to tackle violence and discrimination based on SOGI.
Each year, the Third Committee of the UN General Assembly considers the Human Rights Council’s annual report.
This year, that report contains Human Rights Council resolution 32/2 on Protection against violence and discrimination based on sexual orientation and gender identity.
The Human Rights Council’s adoption of resolution 32/2 on 30 June 2016 made history by establishing the first-ever mandate of an Independent Expert of the Human Rights Council on protection against violence and discrimination based on SOGI.
In September this year the Human Rights Council appointed Prof. Vitit Muntarbhorn of Thailand to discharge this mandate.
Since then, Prof. Muntarbhorn has duly taken up his position and has begun fulfilling this work.
The draft resolution that the African Group has tabled at the Third Committee questions the basis in international law for the establishment of the Independent Expert’s mandate on SOGI and seeks to defer action on Human Rights Council resolution 32/2 indefinitely.
Since the Human Rights Council was set up in 2006, none of its resolutions mandating the establishment of a Special Procedure has ever been challenged by the General Assembly.
The ICJ considers that the adoption of the African Group’s resolution would set an extremely detrimental and regressive precedent by blocking the Human Rights Council from carrying out its own mandate.
It would undermine the UN’s preeminent human rights body’s overall authority by sapping its independence and ability to fulfil its mandate for the promotion and human rights for all without discrimination as it sees fit.
Contact
Livio Zilli, ICJ Senior Legal Adviser and UN Representative, t: +41 22 979 38 23 ; e: livio.zilli(a)icj.org
Read also
What is the Future of the SOGI Mandate and What Does it Mean for the UN Human Rights Council?
