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 21, 2017 | News
On the 10th anniversary of the Supreme Court’s decision in Sunil Babu Pant on the protection of the rights of lesbian, gay, bisexual, transgender and intersex people (LGBTI), the ICJ calls on the Government of Nepal to fully implement the Court’s ruling.
In 2007, the Supreme Court of Nepal delivered a judgment in Sunil Babu Pant v. the Government of Nepal and others, directing the Government of Nepal to take necessary measures to ensure that people of diverse gender identities and sexual orientations could fully enjoy their rights without discrimination. Such measures were to include the adoption of new laws or amending existing laws.
However, ten years after the judgment, LGBTI persons are denied equal protection of the law, and their rights are still not fully protected.
“The Supreme Court’s 2007 judgment gave hope to LGBTI people in Nepal and inspired judiciaries in the region and the world,” said Frederick Rawski, ICJ’s Asia Director. “Despite some positive measures, the Government has much more work to do to implement the judgment and ensure that the rights of the LGBTI community in Nepal are fully respected.”
The Supreme Court based its findings on international human rights law and standards, particularly in respect of the right to non-discrimination and equality and the right to privacy. The Court relied in particular on Nepal’s legal obligations under the International Covenant on Civil and Political Rights (ICCPR).
The Court strongly rejected arguments that a person’s LGBTI status was the result of “emotional and psychological disorders”, and found that the petitioners faced violence, stigmatization, and discrimination because of their sexual orientation or gender identity. The Court further ordered that a new Constitution under consideration by the Constituent Assembly should guarantee the right to non-discrimination on the grounds of gender identity and sexual orientation.
Since then, some steps have been taken. The 2015 Constitution that was ultimately adopted contains provisions guaranteeing the right to equality for all citizens and establishing special provisions for the protection, empowerment and advancement of gender and “sexual minorities”. Pursuant to a subsequent Supreme Court ruling, transgender men and women can now change their gender markers to “O” on official documents. However, to use “M” or “F”, they still face prohibitive and unclear restrictions. A recently tabled bill would also criminalize unnecessary medical interventions and provide some, though incomplete, protections to intersex children.
Despite these developments, discrimination against LGBTI people remains rampant in the labour market, in schools and in hospitals. LGBTI people are mistreated and sometimes disowned by their families and singled out for physical attack – often beaten, sexually assaulted and subjected to severe physical abuse. Recent revisions to the Civil Code (2017), effective from mid-August 2018, do not recognize equality before the law related to family life.
“These violations continue in the absence of a state strategy or political will to tackle them,” added Rawski. “The Government of Nepal should prioritize enacting reforms to ensure the protection of the rights of LGBTI persons.”
The ICJ calls on the Government of Nepal to fully implement all aspects of the 2007 ruling and subsequent Supreme Court rulings affecting LGBTI communities. This should include, at the minimum:
- Repealing all discriminatory laws, including provisions of the recently introduced Penal and Civil Codes, against sexual orientation and gender identity in line with the principle of equality, equal protection and non-discrimination;
- Enacting legislation that allows same-sex couples full equality before and protection of the law;
- Enacting legislation that removes any prohibitive or unclear restrictions to changing of gender markers on all official documents;
- Enacting legislation that establishes prior, free, full, informed, genuine and consistent consent, and prevents unnecessary medical interventions on intersex persons; and
- Ensuring that the legal protections are given practical effect, including through implementation measures and administrative instructions binding officials at all levels of government.
Contact:
Frederick Rawski, ICJ Asia Pacific Regional Director, t: +66 64 478 1121, e: frederick.rawski@icj.org
Oct 24, 2017 | News
Today the ICJ expressed its grave concern at the arrest and arbitrary detention of 13 Tanzanian human rights defenders and lawyers on charges that are incompatible with international legal obligations binding on Tanzania. The ICJ has called for their immediate release.
On 17 October 2017 13 human rights defenders, some of whom are lawyers, were arrested and detained in Tanzania after participating in a legal consultation aimed at considering legal challenges to the Tanzanian government’s ban on drop-in centres serving people at risk of HIV and a ban on the importation of water-based lubricants that are an essential HIV prevention tool.
Those 13 human rights defenders are all affiliated with the Initiative for Strategic Litigation in Southern Africa (ISLA) and Tanzanian organisation Community Health Services and Advocacy (CHESA).
Though they have not been charged, they appear to be under investigation for promoting homosexuality and in terms of section 154 of the Penal Code, which prohibits having ‘carnal knowledge of any person against the order of nature’.
To date 12 of the 13 remain in custody. After initially being granted bail by the Tanzanian police services, their bail was revoked without specified reason on 20 October 2017 and the 13 continue to face the real threat of criminal prosecution.
Instead of releasing the detained on bail, on 24 October the Tanzanian police services approached a Tanzanian court seeking an order granting them permission to perform ‘medical tests’ in the form of ‘forced anal tests’.
The police sought to perform these tests on the nine men who remain in detention. These invasive and demeaning tests appear to have been aimed at obtaining evidence for their criminal prosecution for performing sexual acts with other men.
If carried out non-consensually such exams violate the prohibition against torture and cruel, inhuman or degrading treatment.
The 13 charged under archaic colonial-era criminal laws that prohibit ‘carnal knowledge against the order of nature’, and which criminalize consensual sexual conduct between consenting males a sentence of ‘imprisonment for life and … for a term of not less than thirty years’, in contravention of international standards.
The laws, which are inherently abusive under any circumstance, do not even appear to be in any way applicable the 13 persons who were meeting for purposes of HIV prevention and promoting the right to health and the right to life.
The ICJ is concerned that arrests have been undertaken in contravention of rights protected under the Tanzanian Constitution and international law, including the International Covenant on Civil and Political Rights and the African Charter on Human and Peoples Rights, treaties to which Tanzania is party.
The protected rights include freedom of expression, the right to liberty, including freedom from arbitrary deprivation of liberty and the right to equal protection of the law; and the right to non-discrimination.
If they are carried out, any ‘forced anal tests’ would violate the right to be free from torture and cruel, inhuman or degrading treatment or punishment.
In addition, the ICJ has previously denounced such tests as evidentially and medically worthless.
Tanzanian authorities also appear to be attempting to use this prosecution to clamp down on the activities of civil society organizations.
The registration of CHESA has been suspended in what appears to be an attempt to halt its operations.
This amounts to a violation of the right to freedom of association, which is protected by the Tanzanian Constitution, the African Charter and the International Covenant on Civil and Political Rights.
The ICJ urges the authorities to drop the charges against these 13 human rights defenders. Pending revocation or dismissal of the charges, the 12 remaining detainees should in any event be immediately released.
The ICJ condemns the attempts of the Tanzanian police services to perform forced anal tests on male detainees, which constitute ill-treatment under international law, and urges the authorities to immediately desist from this course of action.
Contact:
Arnold Tsunga, ICJ Director of the Africa Regional Programme, t: +27716405926, e: arnold.tsunga(a)icj.org
Tanzania-Statement illegal detention-News-Web Stories-2017-ENG (full statement with additional information, in PDF)
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).”
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)
