Stance on Death Penalty, Not Gay Sex, Behind India’s Vote in UNHRC

India’s vote on a resolution against death penalty for homosexuality was problematic, but not made out of bigotry.

The Indian government’s stance on the death penalty caused it to vote against the recent HRC resolution.

(Photo: Altered by The Quint)

In late September 2017, India, along with the USA, voted against a resolution of the United Nations Human Rights Council (UNHRC) that sought to condemn the death penalty as punishment for homosexual acts. Resolution A/HRC/36/L.6 was passed by the HRC by 27 votes in favour to 13 votes against, with India finding itself in the latter camp alongside Saudi Arabia, Iraq, Bangladesh, Egypt and China.

With news of the resolution becoming common knowledge over the last couple of days, the condemnation for this action has been strong in both India and the USA from LGBT activists as well as those who have supported the current administration.

The Ministry of External Affairs has not yet issued a clarification as to why this decision was taken, and in the absence of any further information, it looks like a pretty terrible decision.

By voting against the resolution, it looks like India supports the imposition of the death penalty as punishment for gay sex, which isn’t even possible under the contemptible Section 377 of the IPC, which itself came in for criticism by the Supreme Court in the right to privacy judgment.

The optics of the decision are even further worsened by the fact that the resolution condemned the death penalty for minors, the mentally disabled and pregnant women, as well as for things like apostasy and blasphemy that are not even crimes under Indian law.

So why then did the Indian government vote in a manner that opens them up to such intense criticism, and which wasn’t even required by our draconian law against gay sex?

Resolution’s Condemnation of Death Penalty

The resolution in question is the latest in a line of UNHRC resolutions that have condemned the death penalty, something which can be observed from the title of the resolution: “The question of the death penalty”.

The issues of apostasy, blasphemy, adultery and consensual homosexual relations were only part of the resolution – a key part, as these had never been included in such a resolution – but only a part nonetheless. The relevant operative clauses on this are as follows:

5. Urges States that have not yet abolished the death penalty to ensure that the death penalty is not applied against persons with mental or intellectual disabilities and persons below 18 years of age at the time of the commission of the crime, as well as pregnant women;

6. Also urges States that have not yet abolished the death penalty to ensure that it is not imposed as a sanction for specific forms of conduct such as apostasy, blasphemy, adultery and consensual same-sex relations;

If this had been all, it is possible that India could have voted in favour of the resolution. However, the resolution also contains more general condemnations of the death penalty in the preambulatory clauses, which contradict India’s stance on the death penalty, which it still imposes in certain situations (not including apostasy, blasphemy, adultery or homosexual acts).

These include clauses that:

• strongly deplored the fact that the use of the death penalty leads to violations of human rights of the persons facing the death penalty and of other affected persons;
• acknowledge a report of the UN High Commissioner for Human Rights which concluded that the death penalty is viewed by many countries as a form of torture or other cruel, inhuman or degrading treatment or punishment; and
• deplore the fact that the death penalty is used against people exercising freedoms, and disproportionately affects poor and economically vulnerable persons.

The resolution also includes an operative clause calling upon States that have not yet ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights to do so – a move which would then require them to abolish the death penalty.

India cannot support such statements as this would be contrary to our established foreign policy – we have not supported such resolutions in the past for the same reason. This is the same bind that all States that retain the death penalty (known as retentionists) found themselves in – not one retentionist country among the 47-strong UNHRC voted in favour, including the USA and Japan, even those which didn’t favour this punishment for homosexuality.

Does This Mean India’s Decision Was OK?

This is a more difficult question to answer. Just because the specific reason for voting against this resolution wasn’t bigotry doesn’t necessarily mean that we have to agree with the decision and what it implies.

For those opposed to the death penalty in India, this is yet another example of how the decision to retain capital punishment in India is problematic, forcing us to forego supporting measures that we may otherwise want to agree with.

Even those who support the death penalty may be uncomfortable with this decision, as the resolution includes no mandatory operative clauses requiring the abolition of capital punishment, only urging retentionist States to not impose it in a discriminatory way or for controversial offences such as apostasy, blasphemy, adultery and consensual same-sex relations. While countries like Saudi Arabia would not be able to support such clauses, India would not be barred from doing so.

Of course, the preambulatory clauses mentioned above would continue to be problematic for India, since a yes vote for the resolution would indicate support for these. India tried to propose amendments to the resolution that would have recognised the primacy of their domestic law over such statements, but these amendments failed.

Abstention Would Have Been a Better Option

Still, a vote against wasn’t the only option – a far better one would have been to abstain from voting on the resolution. This could have been presented as showing that while we didn’t support the general statements against the death penalty, we (at least tacitly) condemn the imposition of the death penalty for vulnerable persons and for religious crimes and homosexuality. This was the stance taken by Cuba, Indonesia and Nigeria, and would have been at least more optically sensitive.

Unfortunately, by voting against the resolution, India took the more ham-fisted approach available to it, and opened itself up to justifiable criticism.

The MEA will be issuing a statement later on Wednesday which we expect will include similar reasoning to that discussed above. This would be in line with the US Department of State’s statement on the matter released on Tuesday, which explained that they couldn’t support the resolution because of its condemnation of the death penalty.

It can only be hoped that the MEA statement, when released, not only explains the foreign policy bind we were in, but also includes a condemnation of death penalty for vulnerable persons and for religious crimes and homosexuality, as the USA did. Sadly, this may be too much to ask for, given that India has previously abstained from a UNHRC resolution that appointed an independent expert to monitor discrimination and violence on the basis of gender identity and sexual orientation.