Originally published on Firstpost on 09/03/2016. Available at: https://www.firstpost.com/india/section-377-violates-the-principle-of-non-discrimination-hope-supreme-court-of-india-recognises-that-un-expert-2666258.html
By Shreerupa Mitra-Jha
The State has a responsibility for protecting the LGBTI community from violence, a UN expert said on Wednesday, adding that he hopes that the Supreme Court of India makes an “enlightened” and “progressive” decision on the matter.
“Whether the state decides to retain consensual acts between individuals in private, they still have a responsibility to protect those people from violence even when committed by non-State actors,” Juan Mendez, UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment told Firstpost.
“My mandate does not extend to general issues of non-discrimination. But as a matter of international law, I think that sodomy laws, as they are sometimes called, that is laws that criminalise private behavior between consenting adults do violate the principle of non-discrimination. So, I would hope that the Supreme Court of India, like in many other instances of human rights [violations] has shown very enlightened and very progressive decisions would also recognise this, in the case of sodomy laws,” he added.
In 2009, Delhi High Court had ruled that Section 377 of the Indian Penal Code — a colonial-era law that criminalises consensual sex between LGBTI partners — is unconstitutional. However, in 2013, a two-judge bench of the Supreme Court of India quashed the Delhi High Court judgment saying that the ruling was a matter of judicial overreach and it was up to the Parliament to make laws.
Congress MP and former UN undersecretary-general Shashi Tharoor had tried introducing a bill in December 2015 which sought amendment to the IPC by seeking to “substitute a new section for section 377 of the IPC” but was shot down in the Lok Sabha. Tharoor has asserted that he will introduce the bill again.
A curative petition now lies with the Supreme Court to review its earlier decision though the track record for a favourable response in curative petitions is low.
The UN expert presented his latest report to the UN Human Rights Council (HRC) on 8 March which assessed the applicability of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment in international law to the unique experiences of women, girls, and lesbian, gay, bisexual, transgender and intersex persons.
“A clear link exists between the criminalisation of lesbian, gay, bisexual and transgender persons and homophobic and transphobic hate crimes, police abuse, community and family violence and stigmatization,” Mendez states in his report.
At least 76 States have laws that criminalise consensual relationships between same-sex adults, in breach of the rights to non-discrimination and privacy; in some cases, even the death penalty is handed out.
“Such laws foster a climate in which violence against lesbian, gay, bisexualandtransgender persons by both State and non-State actors is condoned and met with impunity. Transgender persons are criminalised in many States through laws that penalise cross-dressing, ‘imitating the opposite sex’ and sex work,” Mendez stated.
“Lesbian, gay, bisexual and transgender persons are frequently detained on the basis of laws containing vague and undefined concepts such as “crimes against the order of nature”“morality”, “debauchery”, “indecent acts” or “grave scandal”, he added.
The LGBTI and women and girls are at particular risk of ill treatment and torture within the criminal justice system when deprived of their liberty.
“Measures to protect and promote the rights and address the specific needs of female and lesbian, gay, bisexual and, transgender prisoners are required and cannot not be regarded as discriminatory,” the report states.
The writer is a journalist at the United Nations