Living with Dignity Sexual Orientation and Gender Identity-Based Human Rights Violations in Housing, Work, and Public Spaces in India | ICJ, 2019

PREFACE

As both an ICJ Commissioner, and as the former Chief Justice of the Delhi High Court, I am proud to introduce this ICJ report.

It not only documents the legal obstacles faced by the LGBTQ community in accessing justice for violations of their rights, it also takes a proactive and forward-looking approach by offering a set of recommendations to the government and other actors to better protect the rights of LGBTQ persons -particularly their vital access to housing, work and public spaces. I trust that it will not only be used as a tool by lawyers, human rights defenders and policy-makers, but that it will contribute to enhancing public discourse on LGBTQ rights, as well as broader issues of discrimination and the rule of law in India.

This report is built upon and should be read and understood alongside, the recent jurisprudence of the Indian courts that has developed in the wake of the Supreme Court’s pronouncement in Navtej Singh v. Union of India that read down Section 377, which had criminalized same-sex relations. That decision, and subsequent jurisprudence, drew heavily upon international human rights law and standards in progressive and innovative ways that can act as a model for the region -indeed, the world. This ICJ report rightly celebrates these jurisprudential developments and documents positive steps taken by the government in the wake of these decisions, but also identifies the substantial obstacles that have prevented its full implementation.

Indeed, while Section 377 can no longer be used to perpetuate and foster discrimination and violence, the abolition of that provision is only one part of a much larger and more challenging effort to ensure that the national and international legal framework adequately protects every person’s right to equality, non-discrimination and dignity -regardless of their gender identity and sexual orientation. In order to make the promises of Navteja reality, India needs to make its broader law and policy frameworks more inclusive of, and responsive to the concerns of, LGBTQ persons and communities. This will require an overhaul of some systems and re-development of commonly accessed institutions and spaces, including schools, workplaces, families, public transport and even streets. Human rights and rule of law principles need to be at the center of these efforts if they are to succeed.

Jawaharlal Nehru said in his speech in 1959 at an International Commission of Jurist’s gathering, “Rule of Law, which is so important, must run closely to the Rule of Life... It has to deal with today’s problems. And yet law, by the very fact that it represents something basic and fundamental, has a tendency to be static. That is the difficulty. It has to maintain that basic and fundamental character but it must not be static, as nothing can be static in a changing world†.

I find that this report makes a contribution to this effort to maintain this connection between the Rule of Law and the Rule of Life. It presents a legal analysis at the ICJ’s usual high standards, but in a way that is built upon, and prioritizes the voices of the people most affected by current injustices perpetuated by discriminatory law, policy and practices. The first-person narratives in the report give life to the legal analysis. The analysis and recommendations, we hope, will make a contribution to improving the lives of affected individuals and communities.

The progress that has been made in India on LGBTQ rights and in the protection of economic, social and cultural rights more generally, is evidence both of the changing world of which Nehru spoke, as well as the law’s capacity to evolve and improve -however belatedly and imperfectly. I trust that this report and its recommendations will serve as an important resource for policymakers, civil society and lawyers who are seeking to support and build upon that progress.

— Justice Ajit Prakash Shah 2nd June 2019

Living with Dignity Sexual Orientation and Gender Identity-Based Human Rights Violations in Housing, Work, and Public Spaces in India - June 2019 |

by The International Commission of Jurists (ICJ