India’s foreign policy faces other test, when it comes to the vote on July 7 during the 59th session of the United Nations’ Human Rights Council, when member states will vote on whether to renew the mandate of the first UN independent expert on protection against violence and discrimination based on sexual orientation and gender identity.

This mandate was established in 2016 and renewed in 2019 and 2022 and has been supported by a growing number of states from all regions. The current resolution to renew the mandate was presented by a core group of six Latin American countries – Brazil, Chile, Colombia, Costa Rica, Mexico, and Uruguay .

It was co-sponsored by countries from all regions of the world, including European countries such as the United Kingdom and Spain, African countries such as South Africa and Cabo Verde and Asian countries such as Japan. Asian countries that have voted for the mandate in the past include Nepal, South Korea, Vietnam, Mongolia, Philippines and Thailand, thereby strongly indicating that for Asia, LGBTQIA rights is no more a zone to be avoided but actively supported.

In this trend of increasingly global support (with strong participation from the global south) for the proposition that discrimination and violence on grounds of sexual orientation and gender identity have no place in our world, India’s voice has been noticeably absent. While India has been a member of the Human Rights Council since 2016, on every resolution on sexual orientation and gender identity, India has unconscionably abstained.

Course for the future

The argument (though untenable) for abstention in 2016 was that the issue of decriminalisation was sub-judice and hence India could not take a position. However since the decriminalisation decision in Navtej Singh Johar v Union of India by the Supreme Court this position cannot be taken anymore. Navtej Johar has made explicit the position of the Supreme Court that “history owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries”

The court also said, “It is difficult to right the wrongs of history. But we can certainly set the course for the future. That we can do by saying, as I propose to say in this case, that lesbians, gays, bisexuals and transgenders have a constitutional right to equal citizenship in all its manifestations.”

Unfortunately while the Supreme Court has acknowledged discrimination against LGBTQI persons as an egregious wrong, this thinking is yet to influence foreign policy. As such, India inspite of this historic and progressive decision, has chosen to remain mute both in 2019 and 2022 when it came to the resolution for renewing the sexual orientation and gender identity. mandate.

This silence of the Indian government is untenable as 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.

Combatting discrimination

The mandate of the independent expert is based on the principle of dialogue with both states and civil society and aims to take forward best practices with respect to combatting discrimination on grounds of sexual orientation and gender identity.

Since the post was established, three successive mandate holders have conducted official visits to 11 countries, produced 17 reports documenting discrimination on the grounds of sexual orientation and gender identity – including the impact of the criminalisation of same-sex relations between consenting adults, the need to legally recognise a person’s gender, and the situation of LGBT persons who are forcibly displaced, among others. They also sent communications documenting allegations of human rights violations to 171 states across all regions.

It is of global significance that the mandate be renewed for another three years as so doing will ensure that there will be a spotlight on the discrimination and violence suffered by LGBTQIA persons in United Nations spaces. This has brought global attention to the often invisible suffering imposed on LBGTQIA persons. The mandate will enable LGBTQIA persons to continue to bring attention to egregious human rights violations and amplify the call to end violence and discrimination based on sexual orientation and gender identity.

This upcoming vote is an opportunity for India 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. This is yet another opportunity to shed that lassitude and stand on the right side of history.

Arvind Narrain is a legal scholar, and the author of India's Undeclared Emergency: Constitutionalism and the Politics of Resistance.