In most cases, the issues deal with violations of basic rights by state agencies. This also extends to the state machinery and response to human rights violations suffered by individuals or groups due to the changing cultural and political scenario in India.
On May 4, India has to present its response to a government-to-government peer review of its human rights record. Leading up to the review, several countries have questioned India’s record on issues such as protection of Dalit and minority rights, gender, sexuality, prevention of custodial torture, women’s rights, violations by security forces and the AFSPA.
While concerns of human rights issues are on the platter, there is no denying that this has to do with the world’s perception of India and its reactions to political, economic and social issues.
In most cases, the issues deal with violations of basic rights by state agencies. This also extends to the state machinery and response to human rights violations suffered by individuals or groups due to the changing cultural and political scenario in India.
Violence in the name of cow slaughter, invoking sedition and anti-terror laws to suppress freedom of speech in university campuses and in public and issues relating to the cultural and religious rights of minorities have figured amongst the concerns raised by various countries.
The UN’s own agencies have also recommended policy changes and reported on the several incidents of human rights violations including communal violence and cow slaughter. There are also notes on hate speech and sedition laws referencing the February 2017 disturbance in Jawaharlal Nehru University (JNU) and prior to it in the University of Hyderabad.
Several countries have asked about the status of these issues especially where India has signed and ratified treaties and conventions dealing with these issues.
There are also several international conventions, such as the one on torture, which India is yet to ratify.
Indian representation
The attorney general of India, senior advocate Mukul Rohatgi, will be speaking on behalf of India during the review process.
In an interview to The Hindu, he said that he would describe the fair trials and appeals allowed to Ajmal Kasab and Yakub Memon; both convicted in terror cases. Both of these convicts were given the death penalty.
Memon’s case included last-minute efforts through an emergency conveying of the Supreme Court of India benches to review his death sentence, which was ultimately carried out.
Process
In a cycle of four years, the human rights records of the member states of the United Nations is reviewed by peers under the United Nations Human Rights Council. After two previous turns in 2008 and 2012 respectively, India’s turn has once again come up for the Universal Periodic Review (UPR).
The process includes reports submitted by the country, by the autonomous National Human Rights Commission, by various UN agencies, rapporteurs and by civil society.
Following this, the other UN members send their recommendations for India to set its performance straight. Similar recommendations were made following the 2008 and 2012 reviews. Many of these are still pending action.
What the UN has to say
As per the report of the Office of the United Nations High Commissioner for Human Rights, India is yet to implement a bulk of the recommendations to ratify international conventions. This report was submitted to the UN General Assembly in February 2017.
According to the report, in 2016, the UN High Commissioner for Human Rights had been denied entry into Jammu and Kashmir despite the large number of human rights allegations reported in the region, including use of excessive force by the state.
The report highlights the use of excessive force under the Armed Forces Special Powers Act (AFSPA) and the J&K AFSPA. Relying on recommendations made by a Supreme Court-appointed commission, a UN Special Rapporteur recommends that the laws should be repealed or partially amended to prevent their misuse by security forces. This included a recommendation to “remove all legal barriers for the criminal prosecution of members of the armed forces”.
There is a recommendation for swift enactment of the long-pending law against torture, which is an obligation under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. It was signed by India in 1997 but is yet to be ratified.
Regarding the autonomous human rights institutions in the states, the UN Special Rapporteur has reported that these bodies did not function independently of the state nor have the resources to investigate violations and complaints.
The Special Rapporteur has also pointed out planned incidents of communal violence, especially prior to elections, mentioning the 2013 Muzaffarnagar riots as an example.
The report notes that the Prime Minister had condemned violence due to allegations of cow slaughter and called it “attempts to poison social harmony”.
Interestingly, the UN has taken note of last year’s incident in JNU, asking for amendments to India’s hate speech and sedition laws.
Civil Society
The Office of the United Nations High Commissioner for Human Rights has submitted to the UN General Assembly several recommendations from NGOs. These include the Centre for Justice & Peace (CJP), Jamia Teachers Solidarity Association and the Quill Foundation based in India and the US-based Indian American Muslim Council (IAMC) and The Advocates of human Rights.
Incidentally, the CJP’s permission to draw foreign funding was reviewed and cancelled by the Indian ministry of home affairs.
“The outright refusal of the Indian government to acknowledge the wide range of human rights abuses, both by State agencies and by non-State actors linked to the ruling BJP, is very disappointing. Whereas even the NHRC report for the UPR has noted that attacks on religious minorities by the Hindutva fringe is disquieting, and the government’s own data showing a sharp increase in attacks on the religious minorities, especially Muslims, the government’s position as enumerated in its report to the UNHRC ahead of the UPR on May 4 does not even refer to this alarming uptick in violence,” says Ajit Sahi, advocacy director for the IAMC.
“It is shocking that the government’s report makes no reference to the widespread abuse of authority by law enforcement agencies across the country by way of illegal detention, torture, extrajudicial killings including both custodial and fake encounter deaths, and impunity for the officials. It is time that India at the very least acknowledge these problems are chronic, before it can begin to take corrective measures. To pretend there is no problem of human rights abuse in India, as the government’s report to the UPR does, is to befool not just the international community but even its own citizens.”
AFSPA
Several countries have questioned the use of AFSPA in India both in the Northeast and in Jammu & Kashmir. The Indian report however makes it clear that since the law has judicial sanction, it does not have any plan to repeal the law.
Issues in Kashmir are likely to generate some friction. Invoking sovereignty could well be a fig leaf since the UNHRC is not trying to decide or influence the political issue in Kashmir or subvert it but questioning the treatment of human beings in the troubled land.
In 2016, the Supreme Court removed immunity from prosecution for security forces for extrajudicial killings under AFSPA. While arguing the case, the attorney general had been quoted as saying that it was part of India’s sovereign function. He later clarified that he was misquoted but that India was in a “war-like situation” within its own borders.
The NHRC has played it safe and not commented on violations reported from the valley. Largely, human rights bodies keep a check on rights violation by the state agencies. Instead, the Indian NHRC has decided to keep mum on the use of pellet guns, the effect of which was splashed across media outlets through a major part of last year.
“The turmoil in Kashmir is on the spotlight now. It is augmented by trans-border terrorism and Jihadi funding from the neighbouring country. The use of plastic pellets by CAPFs is controversial. NHRC has taken up a case on the matter but withholds its comments now because human rights of both sides are involved, when young crowd pelt stones at the Police personnel,” wrote the NHRC in its report to the UN for the review.
Sources in the government say that the Indian stand may be to claim that a deeper review is underway since the political executive has changed since the last review and it will take time.
It is learnt from both the Indian government report and reliable sources that the attorney general will be citing decisions favouring and protecting human rights.
However, many of the exceptions have been left out of the report. This includes last year’s Supreme Court judgement on the law of criminal defamation which was challenged by political parties, individuals and media houses. A bench of the apex court upheld the penal law provisions that criminalise defamation which has a “chilling effect” on the freedom of speech.
Torture
As yet, India has not ratified the convention against torture claiming that the Indian Penal Code (IPC) has specific provisions dealing with it. There is also a landmark SC decision in the D.K. Basu case, which lays down guidelines for arrest and detention of suspects and accused persons.
There have continued frequent complaints of custodial sexual and other assault such as in the cases of Soni Sori in Chhattisgarh as well as other cases, particularly cases under the Unlawful Activities Prevention Act (UAPA).
On April 24, the Supreme Court of India directed the central government to file a response to a public interest litigation filed by former Ashwini Kumar on enacting legislation against torture.
The Chief Justice of India pointed out that India had also faced faculties during extradition processes because it was one of the nine countries (as opposed to 161 others) that had failed to ratify the treaty.
While the Solicitor General said it was pending before the Law Commission, the SC said this should be treated with some urgency.
“The Government of India signed the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 1997 and committed to ratify this Convention at its previous UPR. What is the state of play of the ratification process of these international legal instruments?”
The Indian government report says that it is committed to ratifying the convention. It says that the Law Commission of India has been assigned the task to review which Indian laws would have to be amended to introduce the legislation but does not mention any timelines.
The Law Commission of India is in the process of recommending reforms in criminal law related to bail and arrest. While these are expected to change the process, the report is not yet out.
Protection of Minority Rights
“What other steps could the government of India take to promote and protect the rights of persons belonging to minority groups, as enshrined in India’s constitution?
What steps is the government of India taking to ensure swift adoption of the Prevention of Communal and Targeted Violence Bill?”
Raging debates within the country have deafened the discussion on minority rights in India globally. These have to do with a growing majoritarian sentiment that has spawned off vigilantes against ‘love jihad’ and for ‘cow protection’.
In love jihad, there have been objections to inter-community love relationships, specifically between India’s majority Hindus and minority Muslims.
The cow is worshipped by Hindus and recently there have been a spate of violent incidents where armed vigilante groups have assaulted (and in cases killed) minorities over slaughter of cows for beef. In cases, the zeal has stretched to assault of a Dalit in Gujarat and a Muslim dairy farmer in Rajasthan. In another case, a Muslim man. Md Akhlaque, was killed on mere suspicion of storing beef in his refrigerator.
The Czech Republic has asked about steps taken to fight caste-based violence and discrimination; the safety and protection of human rights defenders; if the government is considering lifting restrictions on foreign aid and funding; and details of internet shutdowns.
LGBT Rights
In 2009, the Delhi High Court had struck down Section 377 of the Indian Penal Code, which criminalises such sexual relationships, classifying them as ‘unnatural’ sex. That decision was overturned by the Supreme Court of India in 2013. It has since been referred to a five-judge constitution bench of the apex court where it is pending.
In 2014, another bench of the Supreme Court has held that discrimination and violence based on sexual preference and gender are unconstitutional.
Sweden has questioned the lack of a right to same-sex sexual relationships in India.
It will be interesting to hear the Rohatgi’s statement in this regard. Personally, he has supported LGBT rights and, before being appointed attorney general, had helped prepare the petition presented to the Supreme Court in response to the earlier UPA governments stand against the 2009 Delhi High Court judgement.
Human rights defenders
Possibly the most disliked of creatures in India, several countries have sent questions regarding their protection and the freedom to work. UN agencies have pointed out India’s obligation to allow such organisations to carry on their legitimate work. For that, the UN’s Special Rapporteur and other UN agencies had also lobbied with India to repeal the foreign contributions law, which they said was used to restrict human rights work.
According to the Special Rapporteur’s report, “The UN Committee on the Elimination of Discrimination against Women urged India to remove restrictions on the work of human rights defenders, not to place them under surveillance and to ensure that women in the north-eastern states participated in peace negotiations and in the prevention, management and resolution of conflicts.”
The Special Rapporteur on the rights to freedom of peaceful assembly and association expressed concern at the restrictions imposed on human rights organizations.
Amnesty International had released a report last year which spoke about the condition of human rights defenders in Chhattisgarh’s Bastar zone. Vigilante groups harassed and heckled scholars and human rights activists and questionable cases were also used against certain individuals. Ultimately, the state removed the police official to whom the harassment was credited and the vigilante groups were disbanded. There is yet to be any fresh review of the situation since.
Foreign funding
The clampdown on foreign aid began with the leak of a government report in May 2014 which blamed international and domestic NGOs for hampering India’s economic interests. Since then, the ministry of home affairs has clamped restrictions or cancelled registration to receive foreign funding for several such organisations. In many cases, bank accounts had also been frozen. The most recent affected organisation is the PHFI, funded by the Bill and Melinda Gates Foundation, which has contributed to work on mental health and AIDS.
A UN agency report mentions that terms such as “economic interests of the State” and “political nature” used in the foreign contributions law were vague terms and were not “proportionate responses to the purported goal of the restriction.”
Right to Privacy
During a hearing on the safety of Aadhar data and questions raised on privacy, Rohatgi had told the Supreme Court that the Constitution of India did not guarantee privacy as a fundamental right. The Aadhar card data and its potential for misuse have been the subject of a heated debate since it may make citizens vulnerable to breach of privacy and possible surveillance by the state.
In the report by the government, it states that the Centralised Monitoring System (CMS) will become operational in 2017. There have been reports drawing similarities with it to the US’ prism programme, which was exposed by Edward Snowden as a tool of illegal mass surveillance.
While it promises a law on privacy to the UN, there has been no commitment as to by when the law will be presented in Parliament. The report mentions that a “review committee” will monitor authorisations to keep surveillance, which does not even provide for any judicial permission to keep such surveillance. India also does not have a mechanism for parliamentary oversight on such surveillance.
Protection of Women and children from sexual abuse
Slovenia is amongst the countries that have raised questions on protection of women and children from sexual violence in India. More than the law itself, the country has asked about the mechanism to monitor their implementation.
Since the December 2012 gang-rape and murder of a 23-year-old woman, the country’s rape law has been amended through a special commission. This includes registering of zero FIRs allowing women to register FIRs anywhere as well as changes in the definition of rape. There has been concern over political comments made regarding sexual assault cases.
India has also introduced a stringent legislation called the Protection of Children from Sexual Offences (POCSO) Act in 2012. Under this law, all minors have protection and all trials are held in-camera with provisions for due care and protection of the minor victims of sexual abuse.
There has also been concern about older children who are accused of violent crimes such as in the December 2012 rape and murder case. One of the convicts was a minor at the time of the crime and has therefore leniency in sentencing in comparison with the other offenders. This sparked an outrage and led to a heated social debate. Several voices called for amending the law to make the punishment fit the crime, in cases when the offender was above 16.
Despite the amendment to the law, violence against women, “…has not shown strong trends of abatement as NCRB statistics shows 3,37,922 crimes against women including 36,735 cases of rape in 2014. The POCSO, 2012; and SHWW, 2013 have been enacted. While legal regime stands strengthened, allegations of sexual offences against minors have not shown signs of abatement. The JJA, 2015 has also been amended. However, an allegedly retrograde provision has been added which enables adjudication of cases related to children between 16-18 years to courts,” noted the Indian NHRC in its report to the UN.