By: Umang Sharma
First Position in SKL Article writing Competition 2019-20
In many parts of the world, individuals are subject to serious human rights abuses because of their real or perceived sexual orientation and gender identity. Lesbian, gay, bisexual, transgender and intersex (“LGBTI”) persons have been able to obtain international protection in some countries but not in others. LGBT individuals may be subjected by State authorities, their families or communities to physical, sexual and verbal abuse and discrimination, because of who they are or who they are perceived to be. This might be because of prevailing cultural and social norms, which result in intolerance and prejudice, or because of national laws, which reflect these attitudes.
A common element in the experience of many LGBT applicants is having to keep aspects and sometimes large parts of their lives secret. This may be in response to societal pressure, explicit or implicit hostility and discrimination, and/or criminal sanctions. The consequence is that they often have limited evidence to establish their LGBT identity or may not be able to demonstrate past persecution, in particular where they were not living openly as LGBT in the country of origin.
Laws criminalizing consensual same sex relations still exist in some 76 countries (including imposition of the death penalty in five countries), and can exacerbate the ill treatment of LGBTI persons and perpetuate negative stereotypes and stigma. Sexual orientation is a fundamental part of human identity, as are those five characteristics of human identity that form the basis of the refugee definition: race, religion, nationality, membership of a particular social group and political opinion. Claims relating to sexual orientation and gender identity are primarily recognized under the 1951 Refugee Convention ground of membership of a particular social group, but may also be linked to other grounds, notably political opinion and religion, depending on the circumstances. This has been affirmed by courts and tribunals in various jurisdictions, including Australia, Canada, France, Germany, New Zealand, Sweden, the United Kingdom and the United States.
Homosexuality is still a taboo subject in India. However, the LGBT movement has received much limelight in the recent times. In India, especially, the Supreme Court judgment in Suresh Kumar Koushal v Naz Foundation which overruled the Delhi High Court judgment of Naz Foundation v Government of NCT. In this context, the case of Toonen v Australia has been discussed. Australia and India have had similarity as regards their criminal codes, as both obtained them from the Victorian era because of being British colonies. The project will discuss India’s ratification of the International Covenant on Civil and Political Rights and its ramifications. Chapter 1 provides an overview of the Toonen v Australia case and how it implements the ICCPR. Chapter 2 discusses the Indian situation as regards the ICCPR. Chapter 3 looks at how Toonen affects the Indian situation, if at all.
Chapter 1: Toonen and Its Impact
Toonen v Australia was a landmark human rights complaint brought before the United Nations Human Rights Committee (UNHRC) by Tasmanian resident Nicholas Toonen in 1994. Toonen was an activist for the promotion of the rights of homosexuals in Tasmania, one of Australia's six constitutive states. The case resulted in the repeal of Australia's last sodomy laws when the Committee held that sexual orientation was included in the antidiscrimination provisions as a protected status under the International Covenant on Civil and Political Rights (ICCPR).
The author was an activist for the promotion of the rights of homosexuals in Tasmania, one of Australia's six constitutive states. He challenged two provisions of the Tasmanian Criminal Code, namely sections 122(a) and (c) and section 123, which criminalise various forms of sexual contact between men, including all forms of sexual contacts between consenting adult homosexual men in private. Toonen, in his complaint, stated that the aforementioned sections of the Tasmanian Criminal Code empowered Tasmanian police officers to investigate intimate aspects of his private life and to detain him, if they had reason to believe that he was involved in sexual activities which contravened the above sections.
Apart from these national law provisions, Toonen also included the following provisions of the ICCPR (as Australia had ratified it and the First Optional Protocol to the ICCPR):
The complaint contained the following legal contentions stating why the criminal law provisions violated the provisions of the ICCPR:
The UNHRC rejected that for the purposes of Article 17 of the Covenant, moral issues were exclusively a matter of domestic concern. It opined that this would open the door to withdrawing from the Committee's scrutiny a potentially large number of statutes interfering with privacy. It further noted that with the exception of Tasmania, all laws criminalising homosexuality were repealed throughout Australia and that, even in Tasmania, it was apparent that there was no consensus as to whether sections 122 and 123 should not also be repealed. Considering further that these provisions were not enforced, which implied that they were not deemed essential to the protection of morals in Tasmania, the Committee concluded that the provisions did not meet the “reasonableness” test in the circumstances of the case, and that they arbitrarily interfered with Toonen's right under Article 17.
Since the Committee has found a violation of Mr Toonen's rights under Articles 17 and 2(1) of the Covenant and required the repeal of the offending law, the Committee did not consider it necessary to consider whether there had also been a violation of Article 26 of the Covenant.
Toonen was an important decision in a number of respects. It confirmed that sexual conduct in private is within the meaning of ‘privacy’ in the ICCPR. More generally, as a complaint decided on the basis of the privacy protection provided by Art 17, and the first complaint that an individual had made against Australia under the optional protocol, it gave important guidance as to how other privacy issues might be brought before the Committee. It established that the requirements of a ‘victim’ and a lack of an effective domestic remedy will usually not prove to be impediments to claiming one’s rights. Most importantly, interferences with privacy which are sanctioned by existing laws (for example, data-matching or other data surveillance laws) will not be immune from complaints of ''arbitrary' (though not unlawful) interference with privacy. The elastic concepts of ‘unreasonable’, ‘proportional’ and ‘necessary’ give potential scope for a wide range of complaints.
More recently, the Human Rights Committee's decision in Young v Australia advanced same-sex marriage rights. The Committee held that Australia, in denying pension rights to the surviving same-sex partner of a war veteran, violated discrimination protections in Article 26 of the ICCPR.
Chapter 2: ICCPR and India – Ratification and Ramification
The United Nations adopted the Universal Declaration of Human Rights in 1948. The Declaration provides for two classes of rights: (1) political rights and (2) economic and social rights. The primary distinction between these types of rights is that while political rights can be granted immediately through legislation, economic and social rights develop only over a long period of time, through the creation of institutions. Largely because of this difference, the UN created two treaties, one dealing with each category of rights; the International Covenant on Economic, Social and Cultural Rights addresses economic and social rights, while the ICCPR addresses political rights. Though the ICCPR itself does not recognize LGBT rights explicitly, it does contain general protections that seem to include sexual minorities under Art 2, Art 17 and Art 26.
Many countries, like India, have recently introduced pieces of domestic legislation, or failed to remove existing legislation, that directly contravene treaties to which those nations are signatories; other nations maintain laws on the books from pre-treaty days that violate their treaty obligations. India acceded the ICCPR on April 10, 1979. The case in point is Section 377 of the Indian Penal Code 1860.
Section 377 is the colonial version of the Offences Against the Person Act of 1861. Section 377's language stems from nineteenth-century views of Christian morality, which Christian colonizers imported into populations less familiar with this form of moral condemnation. Before the colonial period, homosexuality was generally tolerated, ignored, or incorporated into many societies in Asia. Indian culture was open, as evidenced by depictions of same-sex activity in the Kama Sutra, an early Indian text on sexuality.
In May 2008, an Indian HIV/AIDS advocacy group called the Naz Foundation challenged Section 377 before the Delhi High Court. Naz Foundation challenged the law on the grounds that it violates the right to privacy enshrined in the Indian Constitution, and the Delhi High Court agreed, interpreting that the law did not apply to private homosexual sex acts between consenting adults. This progressive decision was overturned in the much-debated appeal of Suresh Kumar Koushal v Naz Foundationwhere the Apex Court of the country stated that only a miniscule fraction of the country's population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 IPC and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.
The Human Rights Act 1993 doesn’t contain specific provisions for the protection of the LGBT either. As per the ICCPR, India’s current laws which discriminate based on sexual orientation are in contravention. The next section deals with the implication of Toonen in India.
Chapter 3: Toonen and India
The Toonen case has been significant as it is the first case decided by the UNHRC regarding homosexuality. Although India has opted out of the First Optional Protocol to the ICCPR, it does not mean that the principles enshrined in the ICCPR do not become applicable to India. The First Optional Protocol only provides for a direct individual complaint mechanism to the UNHRC.
As mentioned before, the Toonen case lays down that laws in a country cannot be in contravention of the principles enshrined in the ICCPR. In the present set of circumstances, it would appear that India is in violation of its obligations under the ICCPR.
Additionally, the Constitution also includes these principles within itself. There is a strong need to review the recent judgments which reinstate the colonial law of Section 377.
Sexual orientation is an immutable feature or characteristic, in the same way that one has no choice as to whether they are born left or right handed. Imposing criminal liability for such an immutable feature is akin to criminalising left handedness and attributes criminal liability to individuals who can in no way be held responsible for their characteristics. Legislation criminalising same-sex sexual conduct does not deter or prevent same-sex sexual orientation. Even if it were accepted that some individuals can and do choose their sexual orientation, an all encompassing law criminalising same-sex sexual conduct attaches liability to both who choose and those who cannot, with the result being the discriminatory treatment of a minority group. In any case, even if a person chooses his/her sexual orientation, it cannot be a decision of the state to interfere in these personal and private basic human rights.
Laws that criminalise same-sex sexual conduct involve the state assigning a lesser legal and social status to an individual, violating his/her right to equal treatment before the law on the basis of sexual orientation. Criminalising same-sex sexual conduct creates a stigma and presumption of criminality that prevents members of the LGBT community from enjoying fundamental human rights. Discriminatory treatment of this nature is wholly incompatible with Commonwealth member states’ obligations under international and regional human rights law and contradicts declarations of Commonwealth principles and values.
It is in the interest of India’s international and constitutional obligations to adopt the principles enshrined in the Toonen, Young and Dudgeon cases.
 UN High Commissioner for Refugees (UNHCR), “The Protection of Lesbian, Gay, Bisexual, Transgender and Intersex Asylum-seekers and Refugees” 22 September 2010 <http://www.refworld.org/pdfid/4cff9a8f2.pdf>
 UN High Commissioner for Refugees (UNHCR), “UNHCR Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity”, 21 November 2008 <http://www.refworld.org/docid/48abd5660.html>
 Supra note 1.
 (2014) 1 MLJ 68; 2013 (15) SCALE 55
 2010 Cri LJ 94
 Any person who – (a) has sexual intercourse with any person against the order of nature; ... Or (c) consents to a male person having sexual intercourse with him or her against the order of nature, is guilty of a crime.
 Any male person who, whether in public or private, commits any indecent assault upon, or other acts of gross indecency with, another male person, or procures another male person to commit any act of gross indecency with himself or any other male person, is guilty of a crime.
 Graham Greenleaf, “Toonen v Australia”  PrivLawPRpr 33 <http://www.austlii.edu.au/au/journals/PrivLawPRpr/1994/33.html>
 UN GAOR Hum Rts Comm, 78th Session, UN Doc CCPR/C/78/D/941/2000 (2000), <http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CCPR.C.78.D.941.2000.En?Opendocument>
 General Assembly Res No 217A (I11), UN Doc No A/810 at 71 (1948).
 Emma Mittelstaedt, “Safeguarding the Rights of Sexual Minorities: The Incremental and Legal Approaches to Enforcing International Human Rights Obligations” 9 Chi. J. Int'l L. 353 (2008-2009), 359.
 “Core International Human Rights Treaties, Optional Protocols & Core ILO Conventions Ratified by India” NHRC < http://nhrc.nic.in/documents/india_ratification_status.pdf>
 Judith Avory Faucette, “Human Rights in Context: The Lessons of Section 377 Challenges for Western Gay Rights Legal Reformers in the Developing World” 13 J. Gender Race & Just. 413 (2009-2010), 415.
 Ibid. at 416.
 Naz Foundation v Government of NCT 2010 Cri LJ 94.
 (2014) 1 MLJ 68; 2013 (15) SCALE 55.
 Hayley Haas and Fred Cowell, “The Impact of Laws Criminalising Same‐Sex Sexual Conduct in the Commonwealth”, Commonwealth Human Rights Initiative <http://www.humanrightsinitiative.org/london/lgbt_rights/CHRI_information_paper_on_the_impact_of_laws_criminalising_of_same-sex_sexual_conduct.pdf>
 A violation under the ICCPR, as mentioned before.