The fact that the ‘Supreme Court is yet to pronounce on’ LGBT rights was not an obstacle for India to join hands with the OIC in introducing amendments to dilute the UN proposal
New Delhi: On Thursday, India abstained during the voting for the resolution which created a watchdog for LGBT rights at United Human Rights Council – but it joined the Islamic bloc in voting in favour of six amendments that sought to frame the appointment as a hegemonic move to violate the cultural, regional and social values of non-western countries.
The resolution to appoint an independent expert on protection against violence and discrimination based on sexual orientation and gender identity was initiated by the UNHRC’s Latin American members, but it was finally co-sponsored by over 40 countries. It was approved by 23 votes, with 18 nays. India, along with Botswana, Ghana, Maldives, Philippines and South Africa, abstained.
India didn’t give an explanation of its vote in Geneva. But in Delhi, the ministry of external affairs cited the ‘sub judice’ nature of petitions on decriminalising gay sex in the country as the reason for the abstention:
“As you know, the issue of LGBT rights in India is a matter being considered by the Supreme Court under a batch of curative petitions filed by various institutions and organisations. As you also know, the Supreme Court is yet to pronounce on this issue. As such we had to take this into account in terms of our vote on the third UN resolution to institutionalise the office of an independent expert to prevent discrimination against LGBT persons.”
However, the MEA spokesperson’s statement is at odds with India’s votes backing several amendments moved by Pakistan, on behalf of the Organisation of Islamic Cooperation. Despite the status of LGBT rights being the subject of litigation before the Supreme Court, India had no problem voting for those amendments.
The OIC members had first tried to move a ‘no-action’ motion, which was supported by Saudi Arabia, Bangladesh and Nigeria speakers on the floor. The Saudi diplomat termed the ‘no-action’ motion as the “last attempt” to make the co-sponsors recognize their “deeply divisive proposal”. The argument went that it was “contrary to international human rights and would disregard the universality of human rights”. The Saudi representative added that it would not compromise or barter man-made legislation against divine laws and that Islam knew the true meaning of human rights.
That motion was thrown out by 15 in favour, 22 against and nine abstentions. India abstained.
Amendments backed by India
Then, Pakistan asked for the 11 amendments moved by OIC to be taken up together in four small batches. Mexico insisted that the amendments should be taken up one by one.
In the end, seven amendments passed muster in the 47-member UNHRC. Out of them, India voted in favour of six of the seven amendments.
These are the six amendments that India voted for, which inserted new paragraphs in the preamble of the resolution:
L.73 – Stressing the need to maintain joint ownership of the international human rights agenda and to consider human rights issues in an objective and non-confrontational manner.
Germany said that this amendment wasn’t discussed or presented during negotiations. It implied that the co-sponsors were confrontational, when they had opened talks with all, said the German diplomat.
24 votes in favour, 17 against, 4 abstentions
L.74 – Undertaking to support its broad and balanced agenda, and to strengthen the mechanisms addressing issues of importance, including fighting racism, racial discrimination, xenophobia and related intolerance in all their forms,
Mexico claimed that purpose of amendment L.74 was to bring confusion into the discussion and deviate from the focus of the initiative. Panama said that it would send a negative message that the council was not capable of providing all people without distinction with protection from human rights violations.
23 votes in favour, 17 against and 5 abstentions
L.75 – Reiterating the importance of respecting regional, cultural and religious value systems as well as particularities in considering human rights issues
Mexico said that the amendment misquoted the Vienna Declaration and Programme of Action. Netherlands elaborated that through the Vienna Declaration, it had been established that it was duty of States, regardless of their political, economic or cultural systems, to promote and protect all human rights and fundamental freedoms.
20 votes in favour, 18 against and 6 abstentions
L.76 – Underlining the fundamental importance of respecting relevant domestic debates at the national level on matters associated with historical, cultural, social and religious sensitivities
Mexico said that failure to uphold the human rights of all people and protect them against discrimination or violence constituted a serious violation of international human rights law. Noting that each state had the right to cultural identity, Slovenia said that human rights and fundamental freedoms could not be subjected to selective recognition or protection.
21 votes in favour, 17 against and 7 abstentions
L.77 – Deploring the use of external pressures and coercive measures against States, particularly developing countries, including through the use and threat of use of economic sanctions and/or application of conditionality on official development assistance, with the aim of influencing the relevant domestic debates and decision-making processes at the national level,
Mexico said that the amendment “misleadingly tried to introduce the false idea that the resolution tried to use economic sanctions and coercive measures to undermine the authority of states to determine and influence their own decision-making processes.”. Switzerland also decried it as a “false idea”. The UK said that the amendment had “no place in the text” of the resolutions, which was about stopping discrimination.
23 votes in favour, 18 against and 4 abstentions
L.79 – Underlining that the present resolution should be implemented while ensuring respect for the sovereign right of each country as well as its national laws, development priorities, the various religious and ethical values and cultural backgrounds of its people, and should also be in full conformity with universally recognized international human rights,
Mexico asserted that states could not hide themselves under their sovereignty, national laws, development priorities or religious or ethical values in order not to respect human rights. he adoption of the draft amendment would be a denial of the mandate of the Council to protect and promote human rights of all without distinction, Panama said. UK described the amendment as incomplete and confusing. Netherlands said that the 1993 Vienna declaration had already “had already established that the universality of human rights drummed particularities”
22 votes in favour, 17 against and 5 abstentions
Rather than sitting on the fence, it is evident that India actively voted to support amendments which modified the resolution to indicate that it was confrontational, coercive, violated sovereignty and tried to impose cultural norms on developing countries.
Previously, India had abstained from voting on the September 2014 resolution on sexual orientation and gender identity. It was the first time that the UNHRC approved a resolution on LGBT rights with a majority. India had not been a member when the first resolution on LGBT rights was passed by UNHRC in 2011 with 23 votes.
In March 2015, India backed a Russian initiative in the Fifth Committee to stop the United Nations from extending staff benefits to same-sex couples. The resolution was defeated with 80 countries voting negatively. India was among the 43 nations which voted in favour, along with Saudi Arabia, China, Iran, Egypt, Pakistan, and Syria.
On June 29, the Supreme Court referred a fresh petition from prominent members of the LGBT community challenging the criminalisation of homosexuality to a constitution bench headed by the Chief Justice of India. The bench was already hearing a curative plea for re-examining the 2013 Supreme Court judgement that had upheld the legality of section 377 of the Indian Penal Code.