India, U.S. Vote Against UN Move to Ban Death Penalty for Adultery and Same-sex Relations

By | October 5, 2017

India and the United States are among the 13 nations, which voted against the United Nations Human Rights Council (UNHRC) resolution to ban the death penalty for blasphemy, adultery and consensual same sex relations on Sept. 29. Of the 47 members of the UNHRC, 27 voted in favor of the resolution, 13 against it and seven countries abstained. The resolution was introduced by the West African country of Benin.

The resolution urged nations that have 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.”

The countries beside India that voted against the resolution are Bangladesh, Botswana, Burundi, China, Egypt, Ethiopia, Iraq, Japan, Qatar, Saudi Arabia, UAE and the United States. The opposition of several countries is against many other provisions of the resolution, not over its application to same sex relationships, which currently can result in the death penalty in six countries.

After an outcry by the LGBTQ community against the U.S. vote, State Department spokesperson Heather Nauert, said: “We voted against that resolution because of broader concerns with the resolution’s approach in condemning the death penalty in all circumstances. The United States unequivocally condemns the application of the death penalty for conduct such as homosexuality, blasphemy, adultery, and apostasy. We do not consider such conduct appropriate for criminalization.”

In India, homosexuality is a criminal offence under Section 377 of the Indian Penal Code, which criminalizes “carnal intercourse against the order of nature”. The law continues from the Colonial times though the British have long since repealed Section 377 in their own country.

The Supreme Court of India upheld the constitutionality of Section 377 in 2013. However, with the recent ruling on the right to privacy for Indian citizens, the ground to challenge Section 377 has grown stronger, with LGBTQ communities claiming their relationships come under the ambit of the right to privacy.

This is not the first time India has voted against banning death penalties. When the UN General Assembly adopted a resolution titled, Moratorium on the use of the death penalty in December 2016, 117 countries voted in favor, while 40 voted against, with 31 abstentions. India voted against the resolution. The country’s position on death penalties was justified by Virander Paul, India’s deputy permanent representative to the UN in Geneva. According to Paul, the question of whether to retain or abolish death penalty and the types of crimes for which the death penalty is applied should remain the inalienable right and exclusive decision of the sovereign state.

According to Indian Constitution, the death penalty should only be invoked “in the rarest of rare cases”.

“Since it is an incontrovertible position in Indian jurisprudence that Indian would not impose the death penalty for these crimes, why won’t India take a leadership role and support such propositions internationally?,” Arvind Narrain writes in the website, Scroll. “To state that the death penalty should not be applied on these grounds is to strongly affirm the fundamental norm of both the Indian Constitution as well as the international law – the right to life.”

The death penalty against same sex relationships can be invoked in six countries presently — Iran, Saudi Arabia, Sudan, Yemen, Nigeria and Somalia.

“It is unconscionable to think that there are hundreds of millions of people living in States where somebody may be executed simply because of whom they love,” Renato Sabbadini, the executive director of The International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), said in a statement.

The resolution has also asked countries where death penalty is not yet abolished to ensure that it is not “applied arbitrarily or in a discriminatory manner.”