On 9 June this year Indian Prime Minister Mr. Narendra Modi, while addressing the members of the US Congress, extolled the idea of freedom, democracy and equality being the essence of democracies such as India and the United States of America. Amid a big round of applause he said, "...It (US democracy) manifests the spirit of this great nation which is in Abraham Lincoln's words were conceived in liberty and dedicated to the proposition that all men are created equal."
However, little did Mr. Modi know that within less than a month of making such tall claims about equality, his government would undergo a litmus test on the subject. On 30 June, when the 48-member United Nation's Human Rights Council, headquartered in Geneva, discussed a resolution on having a UN Independent Expert dedicated to monitoring human rights violations on the grounds of sexual orientation and gender identity (SOGI), India decided to abstain from voting. Fortunately, the resolution, which had initially been proposed by six Latin American nations (Argentina, Brazil, Chile, Colombia, Mexico and Uruguay), was adopted along with few amendments by a vote of 23 in favour, 18 against and six abstentions.
India, unfortunately, not only abstained from voting, but in order to dilute the resolution, it went ahead and voted in favour of six out of 17 amendments moved by Pakistan on behalf of the member states of the Organization of Islamic Cooperation (OIC). Indeed, the Indian government had the historic opportunity to uphold our constitutional moralities at an international stage. But instead of being on the right side of history, India gave Mexican Ambassador and Permanent Representative of Mexico at UN, Jorge Lomonaco, an opportunity to correctly hint at the hypocrisy of Indian Government, as Mr. Modi was among those heads of the states who was quick to condemn the attack at Pulse, the gay pub in Orlando, but did not walk the talk when the time came to do so.
The Modi government tries to put forward a "progressive" face, but its medieval mindset means that it cannot stop targeting certain people, mostly minorities.
Subsequently, the Ministry of External Affairs (MEA) was quick to try and makes excuses by outlining the "legal" realities around LGBTQI+ rights in India. It did not try to shed light on how, despite having the same legal realities, India under the UPA dispensation could vote in favor of SOGI inclusion in Extra Judicial Execution (EJE) and ECOSOC accreditation in LGBTI NGOs in 2008, 2010, 2011, 2012, 2013, and 2014. Defending India's position at UNHRC on the newly adopted resolution, Vikas Swarup, the spokesperson of MEA, said, "The issue of LGBT rights in India is a matter being considered by the Supreme Court (SC)." Indeed, the Supreme Court of India has referred a batch of curative petitions against Section 377 of Indian Penal Code (IPC), which criminalizes any non-procreative ("against the order of nature") consensual sexual activities between two adults, to a five-judge Constitution Bench for a possible back-to-roots, in-depth hearing.
Keeping these two realities -- Mr Swarup's comment and the current legal battle -- in mind, let's decode what this newly adopted resolution and India's vote in favour of a few amendments really mean.
Let us first understand the urgency of adopting SOGI within the existing thematic mandates of the UNHRC's "Special Procedure", and having an expert tasked with focusing urgent, systematic and comprehensive attention to violence on the basis of gender and sexual identity. To do this, we need to look at how relentless violence has been unleashed upon LGBTQIA+ populations across different regions of the world. As of 2016, more than 70 countries, including India, have existing laws (including the death sentence) to criminalize sexual activities by LGBTI+ individuals. In South Africa, more than 10 lesbian women are raped weekly to "correct" their sexual preferences. About 40% of the total 1.6 million youth facing homelessness every year in the USA identify themselves as LGBT. The torture and brutal murder of more than 300 queer individuals in Brazil in 2013 or the regular execution of gay men in Iraq by ISIS, the recent murder of Xulhaz in Dhaka or Alesha in Peshawar -- these are manifestations of global scourges called homophobia and transphobia
At UNHRC, India, in a rush to defend culture and tradition, took a stand which is quite opposite to Article 17 of the Indian Constitution, which criminalizes discriminatory traditions...
Given the intensity of such struggles, it was not surprising when UN Secretary General Ban Ki-moon reminded the member countries of their duties to protect LGBTQI+ individuals. What was surprising was the number of amendments moved by Pakistan to dilute the resolution in every possible way -- from stripping the specificity of the language on sexual orientation and gender identity and replacing it with other categories of discrimination (Amendments L71, L72, L80); to introducing problematic notions of cultural and religious relativity in interpreting human rights (Amendments L73, L75, L76, L78 and L79) -- it slowly crawled towards the heart of the resolution and tried to replace even its operative paragraph.
India, most likely not willing to be seen as an officially regressive and homophobic nation, abstained on the most atrocious of these amendments. The LGBTQI+ movement in India is highly visible and a negative vote would have guaranteed bad publicity for the Indian government. Also, Mr. Prime Minister's dear friend, "Barrack" wouldn't have been very happy had India voted along with Russia. Last year, the Indian government invited criticism from the US and other Latin American nations when it voted in favour of a resolution drafted by Russia that opposed benefits for same-sex partners of UN staff.
The fact is that the Modi government has a well-known strategy -- it tries to put forward a "progressive" face, but its medieval mindset means that it cannot stop targeting certain people, mostly minorities. India's vote in favour of six amendments are not as problematic as those which it abstained on, but surely problematic enough to dilute a core principle of international human rights i.e. the universality of rights. Amendment L75, which India voted in favour of, reads:
"Reiterating the importance of respecting regional, cultural and religious value systems as well as particularities in considering human rights."
At UNHRC, India, in a rush to defend culture and tradition, took a stand which is quite opposite to Article 17 of the Indian Constitution, which criminalizes discriminatory traditions such as untouchability. The Indian Constitution declares that certain practices are unacceptable even if they bear the sanction of culture and tradition.
The government might as well amend Article 14 of the Indian Constitution (equality before law) and replace it with verses from religious books.
In order to block any kind of discussion on LGBTQI+ rights, Indian government, for decades, put up an extremely flawed argument -- "society is not ready to accept LGBTQI+ individuals." The fact is that society is not static, and changes in it often flow from enacting laws that protect individuals from unfair treatment. Is the Indian government really expecting LGBTQI+ individuals to hold a one-to-one debate with more than 1.2 billion Indians in order to bring the desired changes in society? Also, the government needs to decide which value systems and traditions it's protecting when a transgender activist in Hyderabad is given electroconvulsive treatment to be "cured", or a gay man from Ahmedabad is allegedly beaten up and later raped by two policemen or a transgender man is raped by his cousin under the sanction of his own parents. If being LGBT is not a crime in India, then by not protecting these lives the Indian government is indirectly upholding a dangerous culture of violence. And if only culture, religion and value system are to be protected, then the government is morally not fit to set the wheels of the Uniform Civil Code or law against racial discriminations/attacks in motion. The government might as well amend Article 14 of the Indian Constitution (equality before law) and replace it with verses from religious books.
The MEA's invocation of legal realities around Section 377 of (the) IPC is just a facade. Though Section 377 is often used to terrorize queer folk, tying it up with LGBT rights is a deliberate misinterpretation of the law. Section 377 doesn't specifically criminalize homosexual or transgender individuals. In fact, millions of heterosexual couples also fall under this section of the IPC if they indulge in any sexual activities against the "order of nature". One could be gay in India and pursue celibacy, thus nullifying the application of Section 377 in his personal life, but still vulnerable to violence and discrimination because of his sexual identity, which is exactly what this resolution has been adopted to address. In my opinion, the MEA's justification reflects how the legal battle has quietly become a convenient smokescreen behind which the Indian government is hiding its prejudices.
We do not expect a democratically elected government to display their bigotry and shamelessly expose their ignorance on various international stages.
It is also not clear why India failed to respect the Supreme Court's NALSA verdict, which affirms the constitutional rights and freedom of transgender individuals. By recognizing diverse gender identities, the court granted all individuals the right to self-identify gender. The court also declared that no one can be discriminated against on grounds of sexual orientation. The formation of transgender boards in several states and the expected bill to end discrimination based on gender identity in accordance with Article 19(1)(a) and 19(2) of Indian Constitution -- are these all shams? The government must answer why, in spite of acknowledging the systemic oppression faced by transgender individuals, they decided to abstain on the SOGI resolution.
It is not quite right for me to speculate on why the Indian government under the leadership of Mr. Modi has quietly altered the stand of the previous UPA dispensation on LGBTQI+ rights. We do not expect a democratically elected government to display their bigotry and shamelessly expose their ignorance on various international stages. The Prime Minister has frequently proclaimed on national and international for that the Indian Constitution is the only holy book for his government, but the reality belies this. Perhaps it is time for the Indian government to take a firm stand against the human rights violations experienced by LGBTQI+ Indians and consider giving them adequate legal protection. It's the only constitutional thing to do.
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