Contradicting the Constitution: What India’s vote against UN resolution on death penalty means

India’s decision to vote against the resolution on the death penalty at the September Session of the Human Rights Council further dents its reputation as the world’s largest democracy. The actions of India internationally do not seem to reflect the values that have animated the vibrant, constitutional democracy for over six decades.

The resolution on the death penalty, among other things, condemned the “imposition of the death penalty as a sanction for specific forms of conduct such as apostasy, adultery and consensual same sex relations” and urged all states to “protect the rights of persons facing the death penalty”. The resolution sought to limit the application of the death penalty to the “rarest of the rare” cases, ensure non-discriminatory application of the death penalty as well as to identify the “underlying factors that contribute to the substantial racial and ethnic bias in the application of the death penalty”.

Prior to the final vote India, India voted for amendments (moved by Russia and Egypt) that sought to dilute the resolution by subjecting action under it to “decision based on domestic debates at the national level” and reaffirming “sovereign right of all countries”. However India’s joint efforts (along with Saudi Arabia, Russia, China and Egypt) to water down the resolution did not succeed. All the amendments failed.

In the final vote on the resolution, India voted along with 12 other countries against the resolution, while 27 countries voted for the resolution and seven countries abstained. Keeping company with India in the “no” vote camp were China, Egypt, the US and Saudi Arabia. The countries that voted for the resolution included Ghana, Brazil, South Africa and several Latin American and European countries. In effect, India choose to ally with repressive regimes and choose not to align itself with those countries that would be considered democracies.

A poor reputation

Over the years, India has generally voted “no” on the moratorium on death penalty resolutions both at the General Assembly and at the Human Rights Council. This position has not varied under either the Congress-led United Progressive Alliance government or the current Bharatiya Janata Party-led administration. India, on the international stage, is developing a reputation as a wilful obstructer to development of human rights norms rather than as a human rights leader (as behoves the world’s largest democracy) .

The only burnishing of Indian democracy on the international stage really comes from the actions of the judiciary. The United Nations Secretary General in his reports on the moratorium on the death penalty has repeatedly cited the decisions of India’s Supreme Court, which has sought to limit the application of the death penalty and protect the rights of those who have been sentenced to death. But nothing that the Indian government has done has elicited any positive response in any of the Secretary General’s Reports on the moratoriums on the death penalty.

India’s vote on the death penalty showed a lack of support for the proposition that death penalty should not be imposed for “apostasy, adultery and consensual same sex relations”. Since the Constitutional position is that death penalty can be imposed only “in the rarest of the rare cases”, that rules out any future fanciful possibility of imposing the death penalty for “apostasy, adultery and consensual same sex relations”. Such act would fall foul of the Indian Constitution as it has been interpreted by the Supreme Court. Since it is an incontrovertible position in Indian jurisprudence that India would not impose the death penalty for these crimes, why won’t India take a leadership role and support such propositions internationally? 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 obligation that flows from being a constitutional democracy requires that positions India takes at the international level are not mere coinage in realpolitik but rather derive from and reflect constitutional values. Till such time as those crafting India’s internationally policy positions see fidelity to the Constitution as a virtue, we are likely to witness contradictions such as that of a democracy voting to preserve the death penalty in all its manifestations.

Human rights lawyer Arvind Narrain is the Geneva director of ARC International, an organisation that aims to advance recognition of human rights based on sexual orientation and gender identity at the international level.