Missed opportunity

For an aspiring superpower, India’s record as an upholder of human rights is far from enviable. But last year, when the Supreme Court struck down the draconian Section 377 of the Indian Penal Code (IPC) in the Navtej Singh Johar versus the Union of India case, the country had a crucial opportunity to somewhat redeem its reputation on the world stage.

By reading down a colonial-era law that criminalized sexual minorities, the apex court sent out a message that was unequivocally clear. As the then Chief Justice of India, Dipak Mishra, said in his judgement, discrimination on the basis of sexual identity is “irrational, indefensible and manifestly arbitrary" and violates the spirit of the Constitution. Mishra’s phrase was quoted by António Guterres, secretary general of the UN, on Twitter, while Victor Madrigal-Borloz, the UN’s independent expert on sexual orientation and gender identity, echoed his approbation on the same platform.

Ironically, in 2016, India had abstained from voting at the UN to establish the mandate of this same LGBTQ+ expert. At the time, the Bharatiya Janata Party government felt that participating in the vote would be incompatible with India’s own position on LGBTQ+ rights. But three years later, with Section 377 struck down, it seems there was more to India’s resistance to the vote than a simple legal loophole.

On 12 July, India once again refused to participate in the vote to extend the mandate of the LGBTQ+ expert at the UN. Along with Angola, Burkina Faso, Congo, Cameroon, Hungary, Senegal and Togo, it abstained from the motion, losing out on a chance to signal its commitment as a human rights leader in the subcontinent. Although the government hasn’t explained its decision, it is a moral lapse by every reckoning.

“The decision is disappointing, especially in the light of the Navtej Singh Johar case, which recognizes the rights to equality, non-discrimination and dignity of LGBTQ+ people," says Menaka Guruswamy, a senior advocate with the Supreme Court, who was part of the team of lawyers which led the petitions filed by 32 private citizens in the case. “This was an opportunity for the government to take the lead on a significant human rights issue on the global stage."

“Johar was not simply a judgement about decriminalization, it was a judgement affirming the equal moral membership of sexual minorities in Indian polity and society," adds Delhi-based lawyer Gautam Bhatia. “In this context, India’s abstention signals an unfortunate refusal to commit, on an international plane, to the principles that its Constitution requires."

Apart from sending out a morally ambiguous message to its citizens with its dilly-dallying on such a serious human rights issue, India has lost a chance to set an example before several nations in the Commonwealth, where discrimination against LGBTQ+ people is yet to end.