India’s vote

The appointment of the first Independent Expert on Sexual Orientation and Gender Identity in the 32nd session of the Human Rights Council marked an important milestone in the LGBTI struggle. However, the distance yet to be travelled was brought home in a stark fashion in the 36th session of the Human Rights Council in the debate around the death penalty.

Introduction

Understanding Resolution 36/17 of 2017 on ‘The question of the death penalty’

The Amendment Strategy

Analysing the vote on Resolution 36/17

Understanding the ‘Yes vote’

Understanding the ‘No vote’

The USA’s Vote

Japan’s vote  

India’s vote  

India has traditionally voted against resolutions which seek to limit the use of the death penalty both in the Human Rights Council and in the General Assembly.  This support for the death penalty seems to derive from the fact that the death penalty is on the statue books and is a punishment which is applied by India.

However, the Indian Supreme Court has strongly articulated that the death penalty should only be applied in the ‘rarest of the rare’ cases and the Indian legal position seems to converge with the key objectives of Resolution 36/17.  If India had voted for 36/17 it would have been in line with the Constitutional mandate as clearly imposing the death penalty for ‘apostasy, adultery and consensual same sex relations’ would undoubtedly fall foul of the Indian Constitution as interpreted by the Supreme Court.

It has been argued that, ‘The obligation which flows from being a constitutional democracy requires that positions India takes at the international level [should not be] mere coinage in realpolitik but rather [should] derive from and reflect constitutional values. Till such time as those crafting India’s international policy positions, see fidelity to the Constitution as a virtue, we are likely to witness contradictions such as that of a democracy voting to preserve the death penalty in all its manifestations’. [34]

In both Resolution 27/32 of 2014 and Resolution 32/2 of 2016 on sexual orientation and gender identity, India chose to abstain. Recent developments make India’s abstention an outdated position as the Indian Supreme Court has advanced a powerful defence of LGBT rights as human rights. In Puttuswamy v Union of India the Court held,

Yet in a democratic Constitution founded on the rule of law, their [LGBT persons] rights are as sacred as those conferred on other citizens to protect their freedoms and liberties. Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution. [35]

If India aspires to be a global leader, then it must play a more proactive rule in defence of human rights at the international level. The policy position must be derived from the Constitution and voting at the Human Rights Council must reflect constitutional values. This would include voting for resolutions akin to 37/17 and for resolutions defending SOGI rights.

Conclusion: Towards an intersectional approach?  

Download full report here.

[34] https://scroll.in/article/852859/contradicting-the-constitution-what-indias-vote-against-un-resolution-on-death-penalty-means
[35]  https://indiankanoon.org/doc/91938676/