India failed to adhere to its own constitutional tenets by abstaining on the votes related to the establishment of the mandate, placing its cultural concerns above universal human rights.
On June 30, the UN Human Rights Council voted to establish the first Independent Expert on Sexual Orientation and Gender Identity (SOGI). The establishment of this historic mandate places the issue of sexual orientation and gender identity firmly within the remit of international human rights law. The independent expert’s annual reports will ensure that human rights violations based on sexual orientation and gender identity are focused on, analysed and responded to by the UN system.
There were seventeen votes on the resolution seeking to establish an SOGI. India abstained on 11 of the 17 votes and voted with hostile nations to introduce six amendments with the sole intent of subverting the purpose of the resolution.
India abstained on the votes related to the establishment of the mandate and on amendments that sought to strip the words sexual orientation and gender identity from the resolution. India also abstained on the no action motion, which was a procedural manoeuvre meant to prevent any discussion on the subject itself. Finally, India abstained on the voting on the entire resolution and the mandate thereby stood established. However, there were six hostile amendments on which India voted with Pakistan, who represented the Organisation of Islamic Cooperation (OIC) excluding Albania.
The amendments on which India voted fell into four categories.
Firstly, those that sought to strip the resolution of the specificity of the language of sexual orientation and gender identity and replace it with other categories of discrimination, such as race, sex, language, religion, political or other opinion, national or social origin, property, birth or other status (amendments L 71, L72, L80).
Secondly, those amendments that sought to introduce problematic notions of cultural relativism as well as the importance of respecting domestic debates, and the importance of respecting regional, cultural and religious values systems in interpreting human rights (amendments 73,75, 76, 78 and 79).
Thirdly, amendments that were not problematic on substantive grounds but were moved with hostile intent. These included an amendment on combating racism and on deploring the use of coercive measures against developing nations (amendments 74 and 77).
Fourthly, an amendment that went to the heart of the resolution and sought to delete the operative paragraph setting up the mandate of the independent expert to assess the implementation of existing international human rights law on SOGI, raise awareness on violence and discrimination on grounds of SOGI, and address multiple and aggravated forms of violence and discrimination faced by persons on grounds of SOGI.
The amendments to fail were the ones that sought to strip the SOGI language from the resolution and the amendment establishing the mandate of the independent expert. India abstained on these amendments.
The amendments that sought to introduce problematic notions of cultural relativism, as well as those which sought to introduce language on combating racism and deploring unilateral coercive measures, were successful. India voted for all but one of these amendments.
Where does India stand on LGBT issues?
This differentiated voting by India indicates that it did not want to be seen as regressive and homophobic. Thus it abstained on the most egregious amendments going to the heart of the resolution. Abstention on this is also possibly linked to the fact that the LGBT movement has high visibility in the Indian context and a negative vote was sure to dent India’s international image as the world’s largest democracy.
This strong domestic pressure combined with the need of the current administration to appear in a favourable global light possibly pushed the current administration to abandon an overt homophobic stance (as in the previous vote in the General Assembly where India opposed extending partnership benefits to same sex couples) in favour of a feigned neutrality.
However this brings little credit to the government. The continued failure to repeal IPC Section 377 only highlights the unwillingness of the Modi government to see LGBT persons as citizens of India entitled to full constitutional rights. On the international level when India abstains on a resolution meant to address violence and discrimination on grounds of SOGI, it sends a message that the continued endemic violence against LGBT people is of little concern to the Indian government.
This abstention on the resolution as a whole was accompanied by India voting for the amendments proposed by Pakistan, some of which sought to dilute a core principle of international human rights, i.e., the universality of human rights.
Amendment L 75 reads: Reiterating the importance of respecting regional, cultural and religious value systems as well as particularities in considering human rights; while amendment L 76 reads: Underlining that fundamental importance of respecting the relevant domestic debates at the national level on matters associated with historical, cultural, social and religious sensitivities.
These amendments seek to undo the international consensus that cultural sensitivity must always yield to the duty of all states to protect universal human rights as embodied in the Vienna Declaration and Programme of Action. Paragraph 5 of the Vienna Declaration (which is recalled in paragraph 2 of the SOGI resolution) notes that ‘while the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of states regardless of their political, economic and cultural system to promote and protect all human rights and fundamental freedoms’. It is troubling that India should ally itself with efforts to undo a fundamental tenet of human rights – that it is universal.
This deference to cultural and religious value systems is particularly problematic in the Indian context as it reinforces casteist practices and gender discrimination, not to mention discrimination on grounds of sexual orientation and gender identity. An unqualified deference to cultural and religious value systems is also antithetical to the Indian constitutional framework.
The freedom of religion clause in the constitution (Article 25) is specifically subjected to the limitations imposed by the other fundamental rights. This is because the constitution accommodates the concerns of women members of the Constituent Assembly, such as Hansa Mehta, who talked about how the freedom of religion could well become the tyranny of religion, especially over women.
Similarly the practice of untouchability is at heart a cultural practice undergirded by a religious value system. This practice was declared a constitutional crime under Article 17. What the criminalisation of the practice of untouchability indicates is that the Indian Constitution is no passive supporter of culture and tradition. Rather, the Constitution prohibits cultural practices which violate fundamental rights.
When India votes for these amendments, it shows a profound lack of respect for the Constitution and its values. A mere declaration by the prime minister that the Constitution is the holy book, signifies nothing until India votes in accordance with the Constitution’s tenets and stops exalting religion and culture over basic freedoms of the individual.
Dismantling the human rights framework
The Indian vote on the resolution to establish the independent expert in its entirety, is nothing to be proud of. Instead of standing with progressive voices in the international community, India choose to ally itself with those who seek to dismantle the very framework of international human rights law.
However, despite the brazen efforts by Pakistan and the OIC to destroy the resolution along with the covert support from nations like India, the heart of the resolution – the establishment of the mandate – survived. All amendments that were carried were to the preambular paragraphs and not to the operative paragraphs, which establish the nature and scope of the mandate of the independent expert.
It will now be up to the independent expert, once appointed, to take forward the operative part of the resolution and through their work reaffirm the commitment to combatting discrimination on grounds of sexual orientation and gender identity as part of their wider commitment to the principle of universal human rights.
How India responds to the process as it unfolds in Geneva will be watched with great interest.
Arvind Narrain is a human rights lawyer who is currently the Geneva Director of Arc International, which works on international advocacy on LGBTI rights.