Unfinished Equality: Addressing LGBTQ+ Protection Gaps in India's Criminal Code Reform

24-08-2023

Alexandra Posta

East and South Asia Human Rights Researcher

Global Human Rights Defence

India's ongoing reform of its criminal code, the Bharatiya Nyaya Sanhita, marks a significant step towards modernization and shedding the colonial-era mindset. However, a crucial aspect of this reform involves addressing the protection of the LGBTQ+ community, an area where the reformed penal code falls short. The reform aims to align with contemporary values and human rights principles, yet it fails to adequately safeguard the rights of LGBTQ+ individuals.

While the reformed code strives to reflect India's evolving societal norms, it's essential to recognize that it contains notable gaps in ensuring the protection and equality of LGBTQ+ members. For instance, provisions related to discrimination, hate crimes, and violence against LGBTQ+ individuals remain insufficiently robust. This raises concerns from a human rights perspective, as these gaps infringe upon the principles of equality, non-discrimination, and personal security enshrined in international human rights agreements.

Under the International Covenant on Civil and Political Rights (ICCPR), which India ratified in 1979, the state is bound by its obligation to ensure the protection of all individuals, irrespective of their sexual orientation or gender identity. Additionally, the Yogyakarta Principles, a set of international principles on the application of international human rights law in relation to sexual orientation and gender identity, emphasize the necessity of safeguarding LGBTQ+ rights as integral human rights. India's efforts to modernize its legal framework must align with these international commitments, bridging the existing gap in protection for LGBTQ+ members.

While commendable strides are being taken towards legal reform, the existing gap underscores the need for India to intensify its commitment to human rights, ensuring the full protection of LGBTQ+ individuals. The international community should call upon India to uphold its responsibilities under human rights conventions and to address these deficiencies in its legal framework, ultimately fostering an environment of inclusivity, equality, and respect for all members of society.

SOURCES

Kanav Narayan Sahgal. (30 August 2023). India’s Proposed New Penal Code Fails to Protect LGBTQ+ Rights. The Diplomat. Available at < https://thediplomat.com/2023/08/indias-proposed-new-penal-code-fails-to-protect-lgbtq-rights/>.

Kraus-Perrotta, C., Garnsey, C., & DeMulder, J. (2022). Neglected gaps in improving the health, wellbeing, and care for sexual and gender minority young people living in low-and lower-middle-income countries: a scoping review. Available at < https://assets.researchsquare.com/files/rs-1923127/v1/96af0503-8a8a-4096-b856-e66fb420237f.pdf?c=1661967391>.