GENEVA (7 September 2018) – The landmark ruling by India’s Supreme Court to decriminalise same sex relationships is a giant step for equality in India, and will hopefully prompt other States to adopt similar legislation in line with international human rights law, a UN expert said.
“Criminalisation of homosexuality is one of the root causes behind grave and pervasive human rights violations against gay, lesbian, trans and bisexual persons,” said Victor Madrigal-Borloz, the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity.
A world free from discrimination and violence on the basis of sexual orientation and gender identity depends to a large extent on dismantling criminalising provisions, which are often the result of colonial imposition, he said, applauding the judgement diluting Section 377 of the Indian Penal Code, issued unanimously by a five-Judges bench on 6 September 2018.
“It is my sincere hope that, today, all other countries that still criminalise homosexuality and other forms of sexual orientation and gender identity, will carefully examine this ruling and decide that the time has come to bring themselves to full compliance with this human rights imperative,” the Independent Expert said.
Madrigal-Borloz, who has repeatedly stated that these forms of criminalisation of consensual sex between two adults violates international human rights law, noted that the Indian Supreme Court had remarked on the arbitrary and irrational nature of such criminalisation.
“I am encouraged by the Supreme Court’s findings, which evoke the principle of equality and the imperative of respecting a person’s identity. I am delighted that India – home to one-sixth of the world’s population - has taken this very meaningful step toward full compliance with its human rights obligations,” he said.
Madrigal-Borloz applauded the vital contribution of civil society in the drive to decriminalise same sex relations in India.
“Behind this and every other major State step to protect the human rights of gay, lesbian, bisexual and trans persons there are years of steadfast commitment by human rights defenders, victims, advocates and activists,” he said. “This judgement, which comes after decades of litigation before the Indian Judiciary, is a reminder of the indispensable contribution of civil society to the mission of perfecting democracy and respect for human rights around the globe.”
Mr. Victor Madrigal-Borloz (Costa Rica) assumed the role of UN Independent Expert on Protection against violence and discrimination based on sexual orientation and gender identity for a three years period starting on 1 January 2018. He serves as the Secretary-General of the International Rehabilitation Council for Torture Victims (IRCT), a global network of over 150 rehabilitation centres with the vision of full enjoyment of the right to rehabilitation for all victims of torture and ill treatment. A member of the UN Subcommittee on the Prevention of Torture from 2013 to 2016, Mr Madrigal-Borloz was Rapporteur on Reprisals and oversaw a draft policy on the torture and ill-treatment of LGBTI persons. Prior to this he led technical work on numerous cases, reports and testimonies as Head of Litigation and Head of the Registry at the Inter-American Commission on Human Rights and has also worked at the Danish Institute for Human Rights (Copenhagen, Denmark) and the Inter-American Court of Human Rights (San José, Costa Rica).
The Independent Experts are part of what is known as the Special Procedures of the Human Rights Council. Special Procedures, the largest body of independent experts in the UN Human Rights system, is the general name of the Council’s independent fact-finding and monitoring mechanisms that address either specific country situations or thematic issues in all parts of the world. Special Procedures experts work on a voluntary basis; they are not UN staff and do not receive a salary for their work. They are independent from any government or organization and serve in their individual capacity.
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