The foreign policy orientation of the new government headed by Narendra Modi will be keenly watched. Among the many serious foreign policy challenges facing the new government, there are also opportunities to demonstrate a commitment to upholding human rights standards and take on the role of a human rights leader.
India, inspite of being the world’s largest democracy, has shown little inclination to infuse its constitutional vision, grounded in a strong commitment to civil and political rights, into its foreign policy.
Come July 11, 2019, India will once again be presented with an opportunity to demonstrate leadership, when as a member of the Human Rights Council it will be asked to vote on a resolution moved by Latin American states which seeks to renew the mandate of the first UN Expert on Sexual Orientation and Gender Identity (SOGI). The mandate holder will be tasked with continuing to highlight best practices when it comes to SOGI and engaging in sustained dialogue with all countries on these matters.
India, in the past, has abstained on resolutions which sought to protect persons from violence and discrimination on grounds of sexual orientation and gender identity. The ‘abstention’ was troubling as the constitution is quite clear in its protection of all persons from violence and discrimination. Emblematic of India’s default position was its abstention in 2016 when the Human Rights Council voted to establish the mandate of the Independent Expert on SOGI.
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When the MEA spokesperson was expressly asked if this vote did not “reflect poorly on us as a liberal democracy interested in ensuring the human rights of the LGBT community?” he said, “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 today, the legal situation is crystal clear with the unanimous decision of the five-judge bench of the Supreme Court in Navtej Singh Johar v. Union of India which was delivered on September 6, 2018, and struck down Section 377. In the judgment Chief Justice Mishra and J. Khanwilkar noted:
Section 377 IPC also assumes the characteristic of unreasonableness, for it becomes a weapon in the hands of the majority to seclude, exploit and harass the LGBT community. It shrouds the lives of the LGBT community in criminality and constant fear mars their joy of life. They constantly face social prejudice, disdain and are subjected to the shame of being their very natural selves. Thus, an archaic law which is incompatible with constitutional values cannot be allowed to be preserved.
The judgment in Navtej Singh Johar v. Union of India has removed any possible legal ambiguity with respect to the fact that LGBTQIA+ persons are entitled to all human rights under the constitution. The judgment has not been opposed by the Union government and, in fact, has been widely hailed and welcomed by civil society, academia and the media. The judgment also had a global resonance and was welcomed by key UN officials and hailed by many countries around the world.
People celebrate after the Supreme Court’s ruling on Section 377. Credit: Reuters/Francis Mascarenhas
The Secretary-General of the UN, Antonio Guterres welcomed the judgment, quoting Chief Justice Dipak Misra’s remarks.
Discrimination and prejudice are always “irrational, indefensible and manifestly arbitrary”, as Chief Justice Misra says. I welcome today’s decision by India’s highest court #LoveWins
— António Guterres (@antonioguterres) September 6, 2018
The UN Independent Expert on SOGI, Victor Madrigal also welcomed the landmark decision noting that “I am encouraged by the Supreme Court’s findings, which evoke the principle of equality and the imperative of respecting a person’s identity. I am delighted that India – home to one-sixth of the world’s population – has taken this very meaningful step toward full compliance with its human rights obligations.”
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The reason why the judgment has resonated so widely, both nationally and internationally, is that it is based on the values of the constitution and is in conformity with the concept of universal human rights.
India has taken pride in this judgment and in an unprecedented development, hosted a discussion on striking down IPC Section 377 at the UN Headquarters in New York to mark the 70th anniversary of the world human rights day on December 10, 2018. The panel was opened by the Indian ambassador to the UN, Syed Akbaruddin who opined that the judicial decision decriminalising same-sex relations was “an important contribution” in “the implementation of principles underlying the universal declaration of human rights”.
Akbaruddin went on to say that the effort of decriminalisation needs to be placed in the context of “India’s contribution to the formulation of the Universal Declaration of Human Rights” so that one sees “these efforts as part of the ongoing tradition of support for the principles of human rights”.
Thus, after the judgement in Navtej Singh Johar, there is a positive recognition that LGBTQIA+ persons are entitled to a full protection of rights under the constitution. Such being the case, to support the renewal of a mandate on SOGI keeps faith with the constitution as well as renews India’s commitment to the idea of human rights as ‘universal’ and ‘indivisible’.
Arvind Narrain is a human rights lawyer based in Bangalore.