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India remains in the closet as UNHRC implements historic LGBT watchdog

Durga M Sengupta | Updated on: 1 July 2016, 16:45 IST

UPDATE: India has clarified that it abstained because 'the matter is sub judice'.

It's a historic moment for LGBT rights all over the world. Historic, because while this may not be the United Nations' (UN) first pro-LGBT move, it definitely is the most tangible. The UN has passed a resolution to appoint an independent expert or watchdog to protect the rights and interests of the members of the LGBT community.

The resolution was passed by way of a vote in the 47-member UN Human Rights Council (UNHRC). Of these, 23 countries voted 'Yes' in favour of human rights, 18 voted 'No', and six countries, including India, abstained.

Also read -United Nations votes to form LGBT rights watchdog, India abstains

The countries that voted in favour of the move are mostly European and Latin American nations. In fact, it was due to the efforts of Latin American countries like Argentina, Brazil, Chile etc. that the matter was taken up by the UN in the first place. A joint statement signed by more than 620 NGOs from 151 countries was also released.

The statement reads, "It is time to move beyond one-off initiatives and piecemeal measures. The establishment of a dedicated protection mechanism to address [sexual orientation and gender identity]-related human rights violations is a necessary step towards urgently addressing the serious abuses on these grounds in every region of the world."

What's the watchdog's function?

The UNHRC's newly appointed independent expert is expected to identify the problems that the LGBT community faces in different countries and find indigenous ways to combat them. For instance, a problem unique to India is that of the caste system and how it's tied to the way in which homosexual Indians are persecuted.

In other countries there are problems of religion, of war, of the lack of social security. Even in a country that has progressive LGBT laws like the USA, for example, there is the problem of hate crimes. The Orlando Pulse nightclub shooting is all too fresh in the memory.

The UN watchdog is expected to focus on these issues and discuss possible solutions with the governments, urging them to find ways to protect LGBT human rights.

Also read - LGBT rights are human rights: US President Barack Obama

Where's the caveat?

Of the 47 countries, 23 is no majority. In a twisted manner, it is thanks to fence-sitters like India that the 23 who voted in favour of the move were able to pass the resolution.

However, again, due to fence-sitters like India and the 18 countries who don't favour rights for LGBT persons, the UN had to tweak their ambitious watchdog programme.

Also read - Chief Justice of India to decide on LGBT celebs' plea to quash Section 377: Supreme Court

In a nod to the no bloc, countries of the world, a last-minute amendment in the resolution says that "the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind." It goes on to say that "it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms."

That might be difficult considering over 70 countries in the world still see the right to love another human, albeit of the same sex, as a punishable offence. Ten of these countries would happily dole out capital punishment to LGBT people.

Who are India's bedfellows?

The 18 countries that voted against the move include the usual suspects - China, Russia, Saudi Arabia, etc. But the six countries that abstained apart from India include Botswana, Ghana, Namibia, Philippines and South Africa.

The plight of the LGBT communities in these countries can reassure India about the good company it's keeping. Ghana deems homosexual activity illegal and punishable with up to three years in prison.

According to a recent Reuters report, while laws in the Philippines may not be anti-LGBT, the homophobic sentiment is so strong that violence against the community is rarely reported to the police. This is mostly because the police allegedly add to the trauma by further subjecting them to violence.

The government of Botswana and President Ian Kharma are so anti-LGBT that, in a country with some of the highest HIV infection rates in Africa, Kharma has ruled that condoms should not be distributed in prisons. Because condoms encourage gay sex. Obviously.

However, South Africa may still be India's best friend among the five. Because South Africa is one of the only African nations to have a progressive outlook towards the LGBT community. So progressive that back in May 1996 it became the first jurisdiction in the world to recognise the community and provide constitutional protection. It's also the country with the highest number of cases of corrective rape.

Corrective rape is the practice of raping an LGBT individual to 'cure' them of their sexuality. A major human rights concern, the crime is so prevalent in South Africa that nonprofit Luleki Sizwe has ascertained this number to be as high as 10 lesbians being raped weekly.

This makes SA our bestie because which other country can be a better fence-sitter than one that has its laws in place on paper but not in practice.

Also read - Bangladesh LGBT mag editor Xulhaz Mannan's murder: Let this not be another statistic

What stops India?

Now this one's tricky. Tricky because India has steadfastly held on to an archaic British law preserved under IPC Section 377 that criminalises 'unnatural sex'. This makes India inherently homophobic.

However, the Indian Supreme Court has now granted recognition to the transgender community. Our laws now protect the 'T' of the LGBT from ill-treatment and guarantee them fundamental rights.

As for Section 377, the SC, earlier this year, appointed a five-judge bench to look into the law, thereby promising a possible change in our laws. A promise that makes LGBT Indians hopeful enough to not give up. In fact, just two days ago, LGBT celebrities filed a petition for Section 377 to be revoked.

In such a climate, it would've been a moment of closure for India to have participated in the UNHRC vote. While the claim to Section 377 being sub judice is accurate, this is barely the first time India has made an excuse to not vote, or worse, vote a 'No'.

If India had voted a Yes, it would've set a shining example of how we're progressing. Had it voted No, it would've confirmed our worst fears. But India didn't vote. And not voting at the UN can only mean one thing - India wants the world to think LGBT issues are not worth the debate.

First published: 1 July 2016, 16:45 IST
Durga M Sengupta @the_bongrel

Feminist and culturally displaced, Durga tries her best to live up to her overpowering name. She speaks four languages, by default, and has an unhealthy love for cheesy foods. Assistant Editor at Catch, Durga hopes to bring in a focus on gender politics and the role it plays in all our interactions.