International Commission of Jurists Calls for Repeal of Sec 377 and Ending Discrimination against Queer People in Justice System

The Indian authorities must end discrimination against people based on sexual orientation and gender identity in the formal justice system, the International Commission of Jurists (ICJ) said in a report released on Feb 24th.

The 60-paged report “Unnatural Offences”: Obstacles to Justice in India Based on Sexual Orientation and Gender Identity documents the challenges queer persons in India face while trying to access justice, starting from the impact of laws that criminalize people for their real or imputed sexual orientation and gender identity; to police harassment, violence and abuse; and to discrimination and other hurdles within the justice system.

Based on 150 interviews across nine cities in India, including with people who identified as lesbian, gay, bisexual, and transgender, the report uses the term “queer” to refer to any individual who identifies with a non-normative sexuality or gender identity.

It includes individuals who identify as lesbian, gay, bisexual, transgender, intersex and gender-queer, and also encompasses persons who may not fit into any of these identity categories.

“Criminalization, police violence, and the prejudiced attitudes of officials in the courts’ system have a profoundly detrimental impact on the ability and willingness of queer persons to resort to legal avenues to obtain justice,” said Sam Zarifi, ICJ’s Asia Director.

“The systemic discrimination and violence faced by queer persons in India, and the challenges they face accessing justice, are clearly contrary to India’s international human rights law obligations and the Indian Constitution,” he added.

The report also draws on responses from various government departments to ICJ’s requests under the Right to Information Act, both on the enforcement of the law against queer individuals and on gauging how legal entitlements have operated.

It describes how:

  • Laws like Section 377 of the IPC and some other broad and vaguely formulated laws, such as those that criminalize sex work and begging, are used by the police to persecute people based on their real or imputed sexual orientation and gender identity, and inhibit queer persons from accessing justice.
  • Even where the law purportedly provides legal entitlements and protections, queer persons continue to face a range of difficulties in accessing them.
  • Police violence, abuse and harassment are one of the biggest barriers to queer persons’ access to the justice system in India.
  • The challenges that lawyers who argue cases involving the human rights of queer persons combine with the biases of officials in the formal justice system compounding the difficulties queer persons face in obtaining justice.

“The inspiring work of activists and human rights lawyers in India has led to positive judicial decisions showing the potential of the law to affirm human rights and ensure justice for all persons, irrespective of their sexual orientation or gender identity,” Zarifi said.

“Indian authorities should build on this momentum and take immediate steps to end the discrimination and violence queer persons face,” he added.

The ICJ report makes a number of recommendations to Indian authorities, which include:

  • Ensuring that police officers promptly register and investigate any complaint regarding violence or any other criminal act filed by a queer person and/or on their behalf;
  • Providing legal and sensitization training relating to sexual orientation and gender identity to lawyers and judges under the State and District Legal Services Authority along with outreach programmes to facilitate queer individuals’ access to the justice system;
  • Repealing Section 377 of the Indian Penal Code and vaguely worded criminal laws that invite discriminatory application, or substantially revising them to ensure there is no scope for abuse in their enforcement;
  • Withdrawal of the Transgender Persons (Protection of Rights) Bill 2016 as currently drafted, engaging in meaningful and substantial public consultation with members of the transgender community; and ensuring that any process introduced for the legal recognition of gender identity is consistent with international human rights law and the NALSA