This blog is based on a lecture that I delivered at the Leiden University’s Summer School on Sexual Orientation and Gender Identity in International Law (August 2019). In this blog, I argue that international law played a supportive role in the two major LGBT[1] decisions in India: NALSA v. Union of India, and Navtej Johar v. Union of India. These two decisions, especially the latter, was one in a long series of litigation spanning over two decades that ushered in a new era of rights for the LGBT population in India.

As per Article 38(1) of the Statute of the International Court of Justice, the sources of international law are: 1. International conventions, by which are meant treaties and agreements concluded between States or regions. Modifications of the treaties through devices such as Optional Protocols also count as international conventions. 2. Custom, by which is meant constant and uniform State practice, and belief that the practice is required by law. State practice is demonstrable by means such as diplomatic correspondence, government policy statements, press releases, official manuals etc. 3. General Principles of Law, in which are included certain Jus Cogens norms such as prohibition of torture and slavery, and agreement about the fundamental principle of humanitarian conflict (no murder of civilians in occupied territory, no deportation of civilians to slave labour etc.). 4. Judicial decisions and the writings of the most highly qualified publicists of various nations. While the decisions of the International Court of Justice have no binding effect expect between the parties to the dispute, and decisions of courts of foreign nations do not count as a source of international law, this source of international law includes UN Committee reports and publications of well known international human rights observers such as Amnesty International, Human Rights Watch etc.

A simple mapping exercise will reveal that in the NALSA case, sources falling under categories 1 and 4 mentioned above, were cited. Source 1: international conventions: Universal Declaration of Human Rights; International Convention on Economic, Social and Cultural Rights; Convention Against Torture; Recitals of the European Parliament; General Comment 20 of the Convention on Elimination of Discrimination Against Women, General Comment No. 2 on the Committee on Torture (it is arguable whether General Comments form a source of international law). Source 4: 2009 report of the Committee on Economic, Social and Cultural Rights.

Similarly, the Navtej Johar decision relied on international law sources, specifically source 4. Justice Dipak Misra’s decision relied on a judgment rendered by the Human Rights Committee and another by the European Court of Human Rights. Justice Chandrachud relied on a World Health Organization Report, UNAIDS and so on.

However, these sources could not have independently led the decision in its final direction. International law does not become automatically binding in India. Article 253 of the Indian constitution empowers the Parliament to legislate in order to give effect to international obligations. Unless such legislation occurs, international obligations can only be used as an interpretive aid to understand various provisions, including constitutional provisions. However, if the un-legislated international obligation is contrary to Indian law, Indian law will take superintendence. This part is explicitly laid down in the NALSA case in these words:

Any international convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into those provisions, e.g., Articles 14, 15, 19 and 21 of the Constitution to enlarge the meaning and content thereof and to promote the object of constitutional guarantee.  Principles discussed hereinbefore on TGs and the International Conventions, including Yogyakarta principles, which we have found not inconsistent with the various fundamental rights guaranteed under the Indian Constitution, must be recognized and followed, which has sufficient legal and historical justification in our country. [para 53].

Finally, the decision in the two cases were grounded in fundamental rights: Articles 14, 15, 19, and 21 of the Indian constitution, and the State obligations that stem from those Articles. For example, to see the ratio decidendi in the Navtej Johar case, see this post . While international law was cited and influenced the decision of these two cases by showing the direction in which the international organizations of repute were moving, the Indian decisions were rooted firmly in the fundamental rights doctrine in Articles 14, 15, 19, and 21. Had the doctrine in those Articles not been developed enough to answer the legal questions raised by these cases, international law, for all its progressive commands, could not have turned the decisions in favour of greater rights for the LGBT community.

My thanks to Miriam Schwarz for suggesting this as a blog topic for this month.

[1]The acronym LGBT stands for lesbian, gay, bisexual ,and transgender. The definition of transgender according to the Indian Supreme Court is quite broad and includes all persons who identify in a gender different from the one assigned at birth, whether or not they have undergo re-affirmation surgery, and includes the different communities known by regional names, and gender fluid and non-binary persons.