| Click here for a summary of India’s review at the first cycle and/or the second cycle. |
27th UPR session
Date of review: 4 May 2017
Date of report adoption: 21 Sep 2017
Document number: A/HRC/36/10
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SUMMARY SOGIESC issues during India’s 3rd UPR review |
I. SOGIESC issues/recommendations identified by NGOs and other stakeholders
Information provided by the national human rights institution accredited in full compliance with the Paris Principles
4. Regarding same-sex relations, although the Delhi court had decriminalized samesex relations, it was overturned at the Apex court, which is again seized of the matter.
Equality and non-discrimination
38. Noting the re-criminalization of homosexuality in 2013, JS21 highlighted abuses against LGBTI persons since India’s second cycle review in 2012. JS18 recommended that India repeal Section 377 of the Penal Code.
39. HRW reported that the Supreme Court recently recognized transgender individuals as a third gender and ordered a review of its earlier judgement that upheld a discriminatory colonial-era law criminalizing homosexuality. Nevertheless, JS21 noted that there has been little effort to give effect to one of the decision’s key holdings—that transgender persons must be given legal recognition for the self-identified gender. ICJ recommended engaging in meaningful public consultation with members of the transgender community, with a view to substantially revising the Transgender Persons (Protection of Rights) Bill, 2016, to bring it in line with the Court’s decision and international human rights law.
II. Excerpts on SOGIESC issues from the national report
Right to an adequate standard of living
88. Poverty eradication is a key element of India’s developmental goals. As of 2012, 21% of India’s population is under the poverty line. India is intensifying its efforts to align its policies with SDGs by focusing on education, health, gender, skills and employment, energy and infrastructure development, etc.
Right to health
110. Recognizing the need for awareness building as a key element in health related interventions, India launched programmes such as the Rashtriya Kishor Swasthya Karyakaram (RKSK) in 2014, which includes the imparting of health education through community based interventions, and the Scheme for Promotion of Menstrual Hygiene among adolescent girls in rural areas. Further, the fourth phase of the National AIDS Control Programme (NACP-IV) was launched in February 2014 which supports the training and capacity building of staff in STI/RTI Clinics (Suraksha clinics), provision of counsellors, availability of free colour-coded standardized STI/RTI drug kits, and the like. Recognizing that Men Having Sex with Men (MSMs) are a High Risk Group for HIV/AIDS, and that due to social and legal stigma such persons may not have adequate access to health services, the National AIDS Control Organization has implemented various schemes to reach out to sexual minorities. India pharma’s contribution of 80% of the world’s antiretroviral drugs to combat HIV/AIDS is well recognised.
Right to education
114. India agreed to further promote children’s right to education, especially through the continued implementation of a non-discriminatory and inclusive policy to guarantee quality education to all children. India agreed to reinforce its efforts in providing free and compulsory primary education, and to work towards the smooth implementation of the 2010 Right of Children to Free and Compulsory Education Act. With universalisation of primary education and achievement of gender parity, the Education for all programmes (Sarva Shiksha Abhiyan) is now moving into the second phase with its focus on affordable and quality secondary education. India also agreed to continue with action to include human rights education in school curricula.
Women
126. India remains committed to combating sexual violence against women and children. In the aftermath of a tragic gang rape in New Delhi in December 2012, the Government of India set up the Justice J. S. Verma Committee to suggest measures for addressing violence against women. Based on the recommendations of this Committee, various law reforms were introduced. Laws relating to sexual violence were comprehensively reviewed and overhauled to recognize the multiple forms and sites of sexual violence. New procedures and evidentiary requirements were also put in place to aid swift and successful prosecutions.
127. India also enacted a new law to deal with sexual violence against children of all genders. This law provides for stringent punishment, special courts, as well as procedural measures to protect the child during investigation and trial.
Sexual orientation and gender identity
143. India agreed to study the possibility of eliminating any criminalisation of same sex relations.
144. Section 377, Indian Penal Code, criminalizes homosexuality. In 2009, the Delhi High Court declared this section to be unconstitutional. This decision was reversed by the Supreme Court of India in 2013. However, the Supreme Court in February 2016 agreed to another hearing on the matter, which is now subjudice. In a related judicial development, in 2014, the Supreme Court recognized that sexual orientation and gender identity are integral to a person’s personality and are “basic aspects of self-determination, dignity and freedom.”The Court stated that discrimination on the basis of sexual orientation violates India’s constitutional guarantee of equality.
145. In 2014, the Supreme Court of India recognized that discrimination, violence and prejudice based upon a person’s gender identity, as well as the non-recognition of transgendered persons in law, violates India’s constitutional commitments to equality, liberty and life with dignity. The Court directed the state to include transgendered persons within the categories eligible for various affirmative action schemes. In 2016, the Transgender Persons (Protection of Rights) Bill, 2016 was introduced in the Lok Sabha. This Bill seeks to protect transgendered persons from violence and discrimination. It also provides for equal opportunities in education, employment and residence. Simultaneously, the Government is working on an Umbrella Scheme for the Welfare of Transgender Persons. India has also taken various steps to make state practices and public spaces safe and inclusive for transgendered persons.
III. Excerpts on SOGIESC issues by UN agencies
Equality and non-discrimination
17. The country team reported on a 2014 landmark judgment of the Supreme Court affirming the equal rights of transgender persons and that, in 2014, the same Court had overturned a 2009 judgment by the Delhi High Court that had decriminalized consensual same-sex relationships between adults. Referring to a recommendation, the Committee on the Elimination of Discrimination against Women urged India to make efforts towards eliminating the criminalization of same-sex relations. The Special Rapporteur on violence against women recommended that India repeal section 377 of the Penal Code.
IV. References to SOGIESC issues during the Working Group review
12. The delegation [of India] also mentioned India’s efforts for evaluating compliance with labour laws through a Unified Labour Web Portal whereby employers were required to file returns giving details of their compliance with labour laws. In addition, a law was enacted requiring employers to provide effective redressal to women complaining of sexual harassment.
15. In April 2014, the Supreme Court gave a landmark judgment directing the Government to declare transgender persons as a ‘third gender’ and included them as an “Other Backward Class” entitled to affirmative action benefits. The Court also reinforced that they should have all rights under law.
68. The Government introduced the Transgender Persons (Protection of Rights) Bill, 2016, which provided for, inter alia, non-discrimination against transgender persons and the formation of a National Council for Transgender Persons.
69. Section 377 of the Indian Penal Code criminalizing consensual sexual acts by adults of the same sex in private was decriminalized by a High Court judgement, which was overturned by the Supreme Court. However, the Supreme Court had agreed to re-examine the issue.
137. Canada welcomed efforts to strengthen justice for victims of sexual assault, and commended the Supreme Court of India’s recognition of transgender persons.
139. Chile wished to know whether specific measures existed to address violence and discrimination based upon sexual orientation or sexual identity.
142. Côte d’Ivoire encouraged India to continue its actions regarding, inter alia, freedom of expression, gender equality, and socio-economic development.
V. Conclusions and/or recommendations
India accepted the following recommendations:
160.80. Adopt measures to effectively protect transgender persons, including the implementation of the Transgender persons or (Protection of Rights) Bill (Israel);
India noted the following recommendations:
160.71. Intensify efforts to guarantee equality and non-discrimination in line with its international obligations, by developing public human rights awareness programmes and taking concrete steps to advance the rights of women and girls, members or religious minorities, LGBTI persons and to combat castebased discrimination including to: criminalise marital rape; de-criminalise consensual same-sex relations; and establish appropriate policies and practices for registering, investigating and prosecuting violence against women, girls and members or religious minorities (Ireland);
160.76. Repeal Section 377 of the Indian Penal Code and ensure that consensual same-sex relations are not criminalized (Iceland);
160.77. Take steps to end the criminalization of same-sex relations (Israel);
160.78. Amend or revoke section 377 to de-criminalise same-sex relations (Norway);
160.79. Repeal Section 377 of the Indian Penal Code which criminalizes same-sex conduct between consenting adults and enact legislation consistent with the Supreme Court’s recognition of the rights of transgender persons (Canada);
VI. Further information
You will find all documents relating to India’s third review at UPR-Info and OHCHR’s websites.