“To deny people their human rights is to challenge their very humanity.” – Nelson Mandela

Sexuality is integral to human existence. It is a mode to express a human being’s physical, emotional and romantic desires. Human rights are a set of basic rights that are attributed to every living person from the day they are born, unto death.  The concept(s) of sexuality and rights are inter-connected on a profound level and though, on the face of it, they might seem disconnected from one another, there is indeed a nexus between the two, especially in the contemporary world. This in no way signifies that sexuality was unimportant back in time. The worldwide discourse, taking place in this regard,the recognition of sexuality rights in legal frameworks across the globe, political activism that picked up pace post the 1950’s and globalization have given much-needed impetus to the LGBTQ community. The assimilation of sexuality within international human rights law was based on the universality of human rights and the inalienable nature of rights belonging to every person by virtue of being human.

Sexual rights include the right to express one’s sexuality freely, without discrimination on the grounds of sexual orientation, and to have access to provisions in the legal framework that are all-inclusive and offer protection whenever the need arises.  Even though sexual rights do not specifically exist in International Human Rights law, they are found in the precincts of its instruments and treaties such as those of the UDHR[1], the ICCPR[2] and the ICESCR[3]. An essential document for fighting discrimination specifically in the workplace was the International Labour Organisation’s (ILO) 1958 Convention 111 Concerning Discrimination in Respect of Employment and Occupation[4]. Furthermore, through this document, the ILO produced and promoted international norms on work and employment, many of them referring to or useful in the eradication of homo-lesbo-transphobia. Articles 1, 2, 4 & 5 of Convention 111 inspires actions that promote rights, diversity and equality in the workplace. But sexuality rights were more clearly recognised in 1994, in Toonen v. Australia[5], in which the United Nations Human Rights Committee held that Tasmania’s sodomy law violated the guarantee of privacy and that discrimination on the grounds of sexual orientation is a form of “sex” discrimination prohibited under Article 26 of the International Covenant on Civil and Political Rights. Indian Courts applied the same principle and relied on treaties that India is signatory to. The Supreme Court of India sought to apply principles of international law[6] to which India had itself subscribed by ratifying the International Covenant on Civil and Political Rights.

The Supreme Court of India in September 2018[7] further reiterated this aspect of international human rights law in the Indian context and decriminalised consensual non-penile vaginal sexual intercourse between adults. It cited Toonen to advance its stand on same-sex relationships and read down section 377 of the Indian Penal Code. When an Indian court cites Toonen, it is not applying “foreign” law. Rather, it is relying on an authoritative statement by the highest international body^[8] charged with interpreting principles that India has chosen to embrace.

It is pertinent to mention that the British introduced Section 377 in 1860 in India and even though the British themselves decriminalised same-sex consensual sexual intercourse in 1967, the LGBTQ community continued to be classified as “criminal offenders” in India up till September 2018. The pro-activeness of the Supreme court of India in recognising sexuality as a human right is in stark contrast to the stand taken by the Government of India, which continues to brush aside the dire need for legal frameworks and mechanisms that provide substantive equality to the LGBT community, even though 8%[9] of the Indian population belongs to the LGBT community, which means that almost 104 million people continue to live in India without proper frameworks and policies that protect and uplift them and sans any mechanisms aligned with international standards that bring them at par with “heterosexuals”. Needless to say, these figures are obviously not in tune with the real number of LGBT people that actually reside in India because stigma and lack of supportive legal frameworks do not allow them to openly reveal their sexual identity, which continues to be masked in the socially acceptable heterosexual “binary” which is based on the regressive thinking that biological sex determines sexuality, gender roles, sexual identity, etc.

In July 2019, India again maintained its past position on LGBT rights by abstaining from voting at the UN Human Rights Council on a resolution moved by Latin American states seeking to renew the mandate of an independent expert on protection against violence and discrimination based on Sexual Orientation and Gender Identity (SOGI). When the Government had justified its earlier abstention from voting in 2017, the issue of decriminalisation of homosexuality was still sub judice but in 2019 it was not. This stand finds its foundations in religion and public morality. In various arguments advanced in the court by lawyers for the Union of India, their prime defense has always been that public morality and safety are central tenets in Indian society. The Union of India in Navtej Singh Johar vs. Union of India stated that criminalisation of same-sex sexual relations should be retained, given the fact that it is a reflection of the prevailing social mores of today in large segments of society. According to them, this furthered a compelling state interest to reinforce morals that are predominantly held in society.

What is remarkable to note is that strictures against homosexuality and gender nonconformity largely reflect only the colonial legacy of India’s Victorian rulers that displaced the multifarious and generally far more tolerant approaches of their Hindu, Buddhist, Jain and Muslim predecessors. There are innumerable examples, not just textual but also in practice and customs, of the historical acceptance of diverse sexual and gender identities in the Indian context. However, domestic laws and policies reinforce a hetero-normative framework of family and society, rendering same-sex relationships invisible and thus illegitimate, even after the Supreme court has in 2014 and 2018[10] recognised the need for acting in line with the international standards to which India is a signatory. This makes it not only difficult for LGBT people to express their sexuality freely, but also creates an environment of isolation, stigma and fear, which scars their self-esteem and dignity, and has detrimental effects on their overall well-being. Furthermore, sexual and reproductive health access for lesbians and bisexual women in India is also restricted since women’s sexuality, in any case, is not acknowledged in society, except for its reproductive functions. Ironically, as is implicit in its name, the government allocates the budget for sexual health under Reproductive and Child Health (RCH). This excludes not just women who are single but also those women who do not conform to a ‘straight’ sexuality.

Fortunately, attempts at suppression have failed to eradicate India’s rich diversity of sexual and gender identities, and in recent years gay, lesbian, and transgender Indians have grown increasingly vocal in defending their rights.

[1]The Universal Declaration of Human Rights; proclaimed by the United Nations General Assembly in 1948

[2]The International Covenant on Civil and Political Rights

[3]The International Covenant on Economic, Social and Cultural Rights

[4]C111-Discrimination (Employment and Occupation) Convention, 1958 (No. 111)https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C111

[5]Toonen v. Australia, Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994).

[6]National Legal Services Authority vs Union Of India & Ors, 15 April2014 &Navtej Singh Johar vs. Union of India, on 6September 2018

[7] Navtej Singh Johar vs. Union of India, Writ Petition (Criminal) No. 76 of 2016

[8]The International Covenant on Civil and Political Rights

[9]“Campaigners celebrate as India decriminalises homosexuality”https://www.theguardian.com/world/2018/sep/06/indian-supreme-court-decriminalises-homosexuality

[10]Navtej Singh Johar vs. Union of India, Writ Petition (Criminal) No. 76 of 2016

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