Right to self-determination in the Indian scenario
Article 1(2) of the United Nations Charter refers to the promotion of “respect for the principle of equal rights and self-determination of peoples.”[1] Similarly, article 1 of the UDHR states that “All human beings are born free and equal in dignity and rights,”[2] which indicates a person’s right to self-determination.
The International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Rights (ICESCR), Declaration on the Granting of Independence to Colonial Countries and Peoples, and African Charter on Human and Peoples’ Rights are some international instruments among others which address the right to self-determination.
The right to self-determination is at the core of human dignity. It allows people and communities to freely choose and determine their political, social, cultural, and economic development without external interference. Primarily, it was centered around people’s right to associate with a group or choose their political status or sovereignty. In the current scenario, the concept has expanded to include various aspects of human rights and individual autonomy, including the right to choose a marriage partner, gender identity, and sexual orientation.
Consider the case of Christine Goodwin v. United Kingdom, 2002,[3] the court held that denying legal recognition of Christine’s acquired gender identity violated her right to respect for private life and her right to marry under the European Convention on Human Rights. Also, in the Indian Supreme Court’s ruling on Section 377 in 2018[4] the Supreme Court decriminalized consensual same-sex relationships by striking down Section 377 of the Indian Penal Code, thus affirming the right to self-determination in matters of sexual orientation.
These cases and developments reflect the growing recognition of the right to self-determination in relation to gender identity and sexual orientation within the framework of human rights and legal protections. This may vary from country to country but the trend to encompass gender identity and other modern social and cultural issues under the ambit of self-determination has increased significantly.
Defining self-determination
As previously stated, self-determination means that every individual or community has a right to associate with a certain group or determine their political status or sovereignty. However, it has been broadened over time to encompass various aspects of human rights and individual autonomy. This includes the right to participate in and shape the cultural, social, and economic aspects of their lives, as well as the right to preserve and promote their cultural heritage, language, and traditions. Therefore, one may summarise the concept of self-determination to consist of two crucial points:
- Right to politically participate- under this heading, an individual may exercise his right to self-determination by establishing his choice of sovereign or by associating with other sovereigns, or by integrating with another state after expressing his will to do so.[5]
- Another part of self-determination concerns with identity- for instance, self-determination entails the ability to express, practice, and preserve one’s cultural identity without external interference or assimilation[6]. For example, the ability to freely choose a partner without undue interference, coercion, or discrimination is an important element of personal autonomy and self-determination.
The right to self-determination saw the limelight during the period of anti-colonial struggle. Therefore, it is not surprising that many considered it to be synonymous with independence. The national movements across the globe and the aftermath of both world wars had left colonial power in tatters. They were in no shape to rule and the other nations also began to see that their freedom to choose their sovereign or to pursue social cultural, economic, and political development was their legitimate right.
The seeds of social and cultural aspects of self-determination were sowed together with the struggle for decolonization. For example, High Commission territories[7] which generally saw peaceful independence often had internal disturbance due to anti-racial struggle. In post-independence, many areas continued to be strongly influenced by apartheid policy but the liberalization struggle had inspired the black populace to fight against the discrimination. In this context, we see the national struggle in these areas largely consisted of social and cultural aspects of self-determination.[8]
India’s Stance on Self-determination
The political aspect of self-determination is highly complex in India. The Kashmir issue is a very popular example of how complex the stance India takes on the issue of self-determination. But, if one is to flip the coin, one may see that India has supported the principle of self-determination in general. For instance, the 73rd and 74th amendments encouraged the political participation of the public at the local level through self-governance.[9] Another example is granting of special status to certain regions; by granting special status to certain states such as Assam, Manipur, Nagaland, etc., the constitution of India safeguarded the interests and aspirations of these regions hence actively supporting their right to self-determination.[10]
Putting aside the political aspect of self-determination, the cultural and social aspects of self-determination play a very major role in Indian society. India is culturally very rich and consists of various languages, religions, traditions, and ethnicities. Therefore, to maintain a democracy of such vast diversity, importance to the right to self-determination is essential.
Hence, while the Constitution does not explicitly mention the right to self-determination, it guarantees certain fundamental rights and freedoms that contribute to the social and cultural expression of different communities. For instance, article 25 of the Indian constitution states “freedom of conscience and free profession, practice and propagation of religion” or schedule eight of the constitution lists the official languages of the nation which promotes linguistic diversity[11]
In recent years, India has also begun encompassing the concepts of gender identity and sexual orientation within the scope of self-determination. In 2014, the Supreme Court of India recognized transgender individuals as a “third gender” and affirmed their right to self-identify their gender in the case of NALSA vs Union of India.[12] This landmark judgment acknowledged the importance of self-determination in matters of gender identity, ensuring the rights and dignity of transgender and gender-nonconforming individuals.
In 2019, the Transgender Persons (Protection of Rights) Act[13] was enacted which was another step forward in recognizing gender identity as part of an individual’s right to self-determination. Though the act was a point of controversy as it was criticized for falling short of fully recognizing and respecting the right to self-determination by imposing certain conditions and requirements for gender recognition. However, it cannot be denied that it is a positive step forward towards recognizing the right of transgender persons to self-perceived gender identity.
Hence, India’s stance in recognizing gender identity as part of self-determination is clear though still at the developing stage. The more sensitive topic is India’s stance on sexual orientation as part of self-determination. As previously stated, in 2018, the Supreme Court of India decriminalized homosexuality by striking down Section 377 of the Indian Penal Code, which criminalized consensual same-sex relationships. Hence, it somewhat included sexual orientation in the right to self-determination. But it is widely constrained due to societal norms and legislative bodies have still not given all the rights to homosexual relationships which have been given to heterosexual relationships.
Therefore, despite all the legal and societal shortcomings, India has moved forward to include gender identity within the ambit of self-determination. With the evolving nature of diverse Indian society, India has shown acceptance of all the aspects of self-determination while expanding its scope and nature to entail all the rights that are essential for human development.
Conclusion
Self-determination has a very wide scope but most of contemporary history focused only on its political aspects. Hence, it is high time that the international community and state governments turn their heads to see the cultural and social aspects of this right. Struggle movements for gender identity are not a recent trend. Hence, it is high time that the states recognize the right to self-determination which is the core of human rights including the right to gender identity.
In a recent ruling, Rajasthan High Court[14] said that the right of a human being to choose his/her sex or gender identity is integral to his/her personality and is one of the basic aspects of self-determination, dignity, and freedom. Here, the court ordered faster action in amending the documents in the service record of a female employee who turned male after successful gender reassignment surgery. The court also emphasized the need for a grievance redressal mechanism forum for such issues in each district.
This stance of the Indian Judiciary is positive and highly welcomed. Though this issue of the right to self-perceived gender identity is subject to ongoing debates, judgments like this are sign of growth and acceptance of those who view themselves outside the traditional perception of gender being either male or female.
