India, on Thursday, 7th July 2022, abstained from voting for a UNHRC resolution to renew the mandate of the independent experts on protection against violence and discrimination based on sexual orientation and gender identity. Nonetheless, the resolution was ultimately adopted with 23 countries voting in favour, 17 against, and 7 abstention. Sponsored by Latin American countries, the resolution renewed the mandate for the Special Rapporteur for protection against violence and discrimination based on sexual orientation and gender identity ( SOGI) for the next three years. The countries who voted yes were mainly European and South American nations, while the other side was made up primarily of African and Muslim-majority countries. Besides India, the other nations which abstained were Armenia, Benin, Kazakhstan, Namibia, and Uzbekistan.
In 2016 too, when the first resolution to create this post was adopted, India abstained from voting. At the time, the MEA cited the presence of section 377, which criminalises “unnatural sex” as a reason for abstinence. In September 2018, the supreme court published the landmark judgment that decriminalised all consensual sex among adults. It effectively brought down the curtains on the usage of Section 377 of the Indian Penal Code, which had criminalised homosexual relations in India for more than a decade. A year passed by, and in 2019, despite being urged by various individuals and organisations, India abstained without explaining.
Now in 2022, three years later, India has made no change in its position. This year as well there was no statement made by the Indian side to give an explanation for abstaining. On July 5th This year in an open floated letter, wherein members of the LGTBQIA+ community and allies urged External Affairs Minister S Jaishankar to vote in favor of the mandate. The letter said
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“The legal scenario has changed dramatically since the time India abstained from voting in favour of this mandate. As such the changed constitutional, legal, social, and political scenario, makes it incumbent on the Indian government to vote YES to renew the mandate of the Independent Expert on Sexual Orientation and Gender Identity.” The letter further cited Navtej Singh Johar Vs Union of India, where the Supreme Court of India upheld the rights of the LGTBQIA+ community as equal rights-bearing citizens, and NALSA Vs Union of India where the apex court had“already recognized that transgender person had the right to self-recognition of gender and that transgender persons were entitled to full constitutional rights”
It was reported that the key reason continues to be the lack of legislation by the Indian government, which would indicate a particular pro-active stance. While no specific law has been approved in the post 377 scenarios, reports suggested that the government had taken several steps to improve the legal rights of transgender people. There is a common pattern that is observed in the three resolutions has been the multiple amendments proposed by Organisation of Islamic Conference (OIC) member states, with India voting in favor of them.
In 2016, India voted in favor of at least six of the eleven OIC-backed amendments. In 2019 as well, India pushed the “yes” button on four of the 10 amendments.
This time on behalf of OIC, Pakistan tabled 13 amendments, out of which only one was adopted. India voted in favor of three amendments and abstained from the rest.
While most of the amendments were identical to previous years, Pakistan also tabled a couple related to negating same-sex marriage and reaffirming the right to marry for adults. India abstained on both. The sole OIC amendment that was approved upon additional language that affirmed “ the sovereign right of each country to develop its national laws, in accordance with its international human rights obligations.” India had voted in favor of this amendment.
A press release by UNHRC stated –
The Council calls upon States to amend or repeal laws and policies that discriminate against certain persons on the basis of their sexual orientation and gender identity, and to take effective measures to prevent acts of violence and discrimination; decides to extend for a period of three years the mandate of the Independent Expert on protection against violence and discrimination related to sexual orientation and gender identity; requests the Independent Expert to continue to report annually on the implementation of their mandate to the Human Rights Council and the General Assembly.