The 32nd Session of the HRC and the SOGI Resolution

This is a guest post by Sharan Bhavnani, a third year student at National Law School, Bangalore. The author can be contacted at [email protected].

This June, the UNHRC has convened for its 32^nd Session in Geneva. One of the draft resolutions shall, if voted for by the members, be the third resolution of the Council on Sexual Orientation and Gender Identity (SOGI).

The draft resolution has been proposed by seven South American nations. It has four preambulatory clauses and eight operative clauses. Most of the clauses are based on language agreed on in the past. However, interestingly, this draft seeks to “appoint, for a period of three years, an Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity[.]”

This post seeks to look into India’s voting history on the SOGI issue, the possible reasons for such a vote in the past, and the possible factors that might drive this coming vote. Of course, it might be conjecture. But one can only deduce the reasons from looking at factors and events surrounding the various votes.

Voting History and Factors Driving the Vote

Broadly speaking, India has voted in two forums on the SOGI issue; The Human Rights Council and the United Nations General Assembly (Third Committee).

The HRC:

In the Human Right’s Council, the SOGI issue has emerged only been tabled as a resolution three times (2016 being one the third time).

The first such resolution was tabled in 2011. It requested the High Commissioner for Human Rights to prepare a study on discrimination and violence perpetrated on the basis of sexual orientation and gender identity. India, at this point of time, was not a Member of the HRC and couldn’t vote on the resolution.

The next time this issue was raised was in 2014. This time, India was a Member of the HRC. In the September session of the HRC, a new resolution was tabled for a vote. This SOGI resolution took note of the outcome of the study and panel discussion necessitated by the previous resolution. It requested the High Commissioner to update the study. The resolution was put up to a vote with seven hostile amendments. These amendments were defeated and the resolution was passed. India abstained in this vote.

There were domestic factors which probably drove this vote. In 2013, the Supreme Court of India upheld the very provision the Delhi High Court had struck down in 2009 regarding the criminalisation of consensual sex between sex adults. There was, however, one positive judgment which came out of the very same Apex Court in 2014. The Court recognised the right of transgender persons to determine their own gender, and called upon the Indian Government to ensure equal rights for transgender persons. The Indian judiciary, thus, seemed to be divided on issues related to LGBTI rights. Apart from this, elections to the Lok Sabha were held in May 2014. India had voted in the Bhartiya Janta Party (BJP) headed by Narendra Modi. Before the elections, the then President of the BJP – Rajnath Singh said that, Sec. 377 had to remain because “ homosexuality is an unnatural act and cannot be supported,” However, other BJP leaders like Arun Jaitley, recently, even called upon the Supreme Court for a reconsideration of their judgement on Sec. 377. Thus, even the political party in power, seems splintered on the issue.

It, however, is only possible to speculate that these factors impacted the general policy decision regarding the SOGI issue in the HRC, leading to an abstention in 2014.

The UNGA:

The United Nations General Assembly has never addressed the issue of LGBTI rights as directly as the UNHRC. It has, however, over a series of resolutions urged States to “ensure the effective protection of the right to life of all persons under their jurisdiction, to investigate promptly and thoroughly all killings, including those targeted at specific groups of persons…because of their sexual orientation or gender identity…” India has always voted for these resolutions. However, we must keep in mind that the wording of these UNGA texts on ‘Extrajudicial, summary or arbitrary executions’ only urges States to investigate crimes, essentially, motivated by hate. The Indian Government cannot refuse to investigate the killing of an individual despite the motivation of such a crime being hatred for the LGBTI community. Therefore, it’s not nearly as controversial as the HRC resolutions which address concepts of both violence and discrimination perpetrated against LGBTI persons.

The Probable Vote

There are 3 types of factors that may impact the way India will vote – the language in the draft, international factors, and domestic factors.

Language in the Draft:

In the upcoming tabling of the HRC Draft Resolution, two informal negotiations were held by the Sponsors of the Draft Resolution. On the first informal negotiation, the Russian Federation spoke out against the text in its entirety by stating that this was a sensitive issue and that the Sponsors should consider withdrawing it. China argued that it was a complicated issue and they had reservations to the “Special Procedures” that the text seeks to bring about. India, while present, indicated that they shared China’s reservations.[i]  Both countries had concerns around the appointment of an Independent Expert (IE) on sexual orientation and gender identity. It was interesting to note that in the second informal negotiation, the Indian delegation was not present.

It is also possible that concerns related to the language of the text may influence India’s vote.

The strongest concern which India could have is in Operative Paragraph 3 and the use of these Special Procedures of the Council for the appointment of an “Independent Expert.” The sub-clauses within these paragraphs give a very broad mandate to the IE. This mandate could be seen as intervening in the domestic sphere where the State is sovereign.

However this may not be quite true as the Sponsors included Operative paragraph 5 which reads:

“5. Calls upon all States to cooperate with the Independent Expert in the discharge of the mandate, including by providing all information requested, to give serious consideration to responding favourably to the requests of the Independent Expert to visit their countries and to consider implementing the recommendations made in the mandate holder’s reports;”

This dilutes the strong mandate, permitting many countries to disallow the IE from pursuing her/his mandate in their countries. So, even if States do vote for this resolution, they have no actual obligation to permit the functioning of the IE within their boundaries.

Therefore, even though there is a strong mandate, the text seems to create a backdoor for those who may not want to comply. This may tempt India to vote for the resolution if it doesn’t seek to do anything about recognising LGBTI rights. However, before we can jump to such a conclusion, it is important to consider other factors as well.

There are two sets of factors which may influence India’s vote on the 30^th of June or 1^st of July on this Draft Resolution – International factors and domestic factors.

International Factors:

On the first level, we must consider three international factors – first, PM Modi’s interest in his Government’s foreign policy, and second, the fact that India is due to present their UPR (Universal Periodic Review) in 2017; and third, States opposed to the SOGI draft resolution.

First, India’s Prime Minister has shown enthusiasm for diplomacy. His own Government calls this brand of diplomacy, “fast track diplomacy”. With all global leaders expressing their grief after the Orlando massacre, PM Modi found it necessary to do the same on Twitter. He expressed his “shock” and offered his “thoughts and prayers” to the “bereaved families and the injured.” Of course, an anti-LGBTI stance would hamper the Prime Minister’s diplomacy. By conveying his condolences for those at a loss in Orlando, he has publically accepted the existence of violence and discrimination faced by individuals based on their sexual orientation, something he could have ignored considering his party’s stance on the issue.

Second, India is due to present their UPR in the June session of 2017 as part of its third UPR submission. The Universal Periodic Review (UPR) is a unique process which involves a periodic review of the human rights records of all 193 UN Member States. It provides an opportunity for all States to declare what actions they have taken to improve the human rights situations in their countries and to overcome challenges to the enjoyment of human rights.[1] The last time they were questioned on their policy on the SOGI issue and this time is likely to be no different. An anti-LGBTI stance would present the Indian government in a very unfavourable light during the UPR and dent the global image of this government. Mr. Modi’s desire to exercise more soft power through diplomacy cannot be achieved with a policy that is opposed to an issue which has gained a lot of political traction, especially in Europe and the Americas. If he needs to increase his diplomatic influence, India must not only vote yes for the resolution but, looking ahead, must also have answers to the inevitable question on LGBTI rights on the upcoming UPR  in 2017.

Lastly, a parallel draft resolution has been tabled by Egypt and Russia, as well as a few other States. This draft is titled ‘The Protection of Family.’ Which seems to directly oppose the idea of a family which is not heterosexual. India may alienate States opposed to the SOGI issue, if it votes for the SOGI draft.

Domestic Factors:

We must consider two domestic factors – first, a shift in the views of the Indian judiciary, and second, a shift in the views of the RSS. First, recently, the Supreme Court permitted a relook at the Koushal judgment which upheld Sec. 377 through a (rare mechanism called) “curative bench.” Second, the Joint General Secretary of the RSS (which wields enormous influence with the government) suggested that homosexuality should not be criminalised though it’s a “psychological” problem and socially “immoral”. Domestically, there has been a gradual shift to the acceptance of the LGBTI rights – at least, to the extent of decriminalising consensual sex between adults of the same sex.

So, How Will India Vote?

To answer that, we must take all of the factors in consideration – past trends in votes – abstention in controversial resolutions; the language in the text – a broad mandate of the IE, however, not creating a legal obligation on States; a right wing political party splintered in its views on the issue;divided opinion of the judiciary; a brand of foreign policy and diplomacy spearheaded by the PM himself, and the upcoming UPR submission.

The language in the text, the PMs foreign policy motives and the upcoming UPR submission suggest that India might, for a change, vote for the resolution. However, when we see the views of some in the BJP, and the RSS regarding LGBTI issues, a vote for the resolution may cause the PM to gain popularity in the West, but lose the same within his party, the RSS and many conservative voters. Internationally speaking, a vote for the SOGI draft may alienate those who are known to vote against the SOGI issue and are sponsoring the draft on ‘Protecting the Family’. An abstention would be the most uncontroversial direction that India could take, while balancing all the aforementioned factors.

Therefore, keeping all the aforementioned factors in mind, the vote is eagerly anticipated. Come the 30 of June or the1^st of July, we will know which way the ballot swings.