The country’s human rights record came up for periodic scrutiny by the UN's highest rights body. The review was not as searing as it could have been
The UN Human Rights Council (UNHRC) adopted the report of India’s human rights record review on May 9. There were 250 recommendations by 103 countries that had taken the floor five days earlier to comment on the human rights situation in the country.
Reviewing human rights
This was India’s third Universal Periodic Review (UPR) after 2008 and 2012. As the name suggests, it is a process through which a country’s rights record is peer-examined every four and a half years by the UNHRC. The review is based on three reports: one, the country’s self-assessment, second, an assessment of civil society organisations and other stakeholders, and third, the Office of the High Commissioner for Human Rights’ (OHCHR’s) report, which is a compilation of reviews of treaty bodies and independent human rights experts who have been mandated by the UNHRC to monitor thematic issues (like ‘freedom of religion’) based on country visits. All 193 UN member states have had their human rights records fully reviewed at least twice since the process began in 2008. Foreign governments primarily base their assessment of a country situation on these three reports.
The UN report mentions the special rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns’ recommendation after his March 2012 visit to India that there is a need of “challenging the general culture of impunity; eliminating the practice of fake encounters; and ensuring that swift, decisive action, with concrete outcomes, was taken in cases of large-scale killings”. Also, that delays in judicial proceedings was one of the most serious challenges that India faces.
He further recommends that India should repeal or at least radically amend the Armed Forces Special Powers Act (AFSPA) to ensure that the principles of proportionality and necessity as stipulated under international law are followed. Additionally, all legal barriers for the criminal prosecution of members of the armed forces should be removed. He has asked for a “swift” enactment of the Prevention of Torture Bill in line with the UN’s Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
The special rapporteur on housing Leilani Farha, basing on her visit in 2016, has recommended that India enact legislation to curb “all forms of de facto housing discrimination” against any individual or group, especially religious or ethnic minorities, women, scheduled castes or scheduled tribes, internal migrants and manual scavengers.
The UN report also mentions that “several incidents” at universities last year had triggered debate on the application of penal provisions relating to hate speech, sedition and the use of section 144 of the Indian Penal Code to prohibit the rights to assemble and to protest. The assassinations of well-known rationalists had “added to the concerns about the reduced space for free speech and expression”.
On May 4, 103 countries spoke as opposed to 80 in 2012. The review was not as scathing as it could have been given some of the observations in the UN report and in the stakeholders’ summary. For instance, about eight submissions by NGOs to the UN “reported a worsening situation of freedom of religion since the 2012 review”, including “the large-scale targeted violence against Muslims in Uttar Pradesh in 2013”. “Several submissions, including JS32 noted the grave insecurities of religious minorities from anti-conversion laws, ‘ghar-wapsis’ (where converts from Hinduism are forcibly converted back to Hinduism), and the harsher beef ban law enacted after 2014. “Several submissions reported on training by armed militias of right-wing organisations accentuating threats to religious minorities,” says the report.
The stakeholder’s report says an inclusive civil society consultation that is required by the UNHRC for the preparation of UPR “remains an illusion”.
Human Rights Watch released a press statement days before India’s UPR.
“Since the BJP-led government under prime minister Narendra Modi took office in 2014, extremist Hindu groups have led mob attacks across the country to enforce ‘Hindu nationalism’,” read the statement highlighting other issues as well such as the disproportionate impact of the death penalty on vulnerable sections, AFSPA violations, sterilisation deaths, curbs on press freedom and civil society groups. “Hindu vigilante groups killed at least 10 Muslims in separate incidents across the country since 2015 over suspicions that they killed, sold, or bought cows for beef. Churches were attacked in several states in 2015,” said the statement.
Given the strength of such statements, the review was not as searing as it could have been. Mild statements came from unexpected quarters. No one directly raised the issue of beef ban or cow vigilante – these issues were cloaked in generic terms such as the need for protection of religious minorities and other vulnerable sections.
Saudi Arabia only spoke of the need for eradicating poverty in the country while China, for the most part, praised India, surprising presumably even the Indian delegation. The Chinese delegate spoke of India’s “huge efforts” in achieving SDGs, countering climate change, fighting corruption, and supporting the empowerment of women, among other things. All it wants India to do now is to “continue improving the living standards for its people” and counter violent assaults against women.
Russia, South Africa and Cuba were also understated in their recommendations. But this may be because Russia, Cuba and China have maintained that human rights have become a political tool at the UNHRC, primarily for the western bloc – so to stop needling other countries on “internal” matters. Basically, to follow a live-and-let-live principle among the Non-Aligned Movement group and the Like Minded Group of countries at the Council.
Ensure the systematic functioning of all mechanisms for the delivery of financial and other forms of assistance to those in need which have been established within the framework of the National Social Assistance Programme, said Russia, adding that India should sign the CAT. Take steps to prevent “inter-communal violence”, it added.
“Continue incorporating the gender perspective in the design and implementation of policies, and guarantee that the development agenda pays equal attention to the concerns of women,” was the Cuban suggestion. South Africa recommended on similar lines.
Predictably, Pakistan made a strong statement but surprisingly it was the only country to talk of the Kashmir situation (though other governments spoke of the need to repeal AFPSA, curbs on internet access and so forth, but did not specifically spell out Kashmir).
Take visible policy and other measures to ensure the freedom of religion and belief and address the alarming trend of racism, racial discrimination, xenophobia and related intolerance including mob violence committed, incited and advocated by right-wing parties and affiliated extremist organisations against minorities, particularly Muslims, Christians, Sikhs and dalits, said Pakistan. Additionally, Pakistan said that India must stop violations of human rights against Kashmiri people in “India-administered Kashmir” and “allow them to exercise their right to self-determination through free and fair plebiscite”, it demanded.
Terrorism in Jammu and Kashmir is sustained by cross-border terrorism from the neighbourhood, India responded. Terrorism is the grossest violation of human rights and the entire state of Jammu and Kashmir is an integral part of India so any description of “India-administered Kashmir” is invalid, India’s deputy permanent representative to the UN office at Geneva said.
However, others in the Indian subcontinent were fulsome in appreciation for their bigger neighbour.
There have been many important schemes that have been launched by the government like Skill India and that India is an “open and democratic society”, said Bhutan.
Being a close neighbour, Sri Lanka is “encouraged” by India’s vision of social, economic and political rights and also its successful attempts in reducing MMR, said the Sri Lankan permanent representative to the UN office at Geneva. Similar statements were made by Nepal and Bangladesh.
The strongest statement among the Western Bloc about the Indian human rights situation came from Switzerland. The Swiss government stated that it was “concerned about the increasing restrictions imposed by the Government of India on the independent actors of civil society” including those of religious minorities and against their activities.
Argentina baffled Indian officials, and provided comic relief to some viewers, by asking India to put an end to harmful practices like sati (to be fair, there were other suggestions as well that were not as anachronistic).
The need for India to sign CAT was the recommendation that was flagged by most number of countries. This was an issue in the 2012 UPR as well. Though CAT was signed in 2007 it is yet to ratify it. The Indian government has maintained the same line of defence since: that India is “committed” to ratifying CAT and is bringing domestic legislations that observe commitments under the convention.
More than 30 countries including Germany, Greece, Guatemala, Israel, Italy, Japan, Kazakhstan, Kenya, Norway, Portugal, South Korea, Russia and Senegal called on India to ratify CAT.
“We believe in peace, nonviolence and upholding human dignity. As such, the concept of torture is completely alien to our culture and it has no place in the governance of the nation,” the attorney-general of India, Mukul Rohatgi, who led the 18-member Indian delegation, said in his opening statement at the UPR. This argument may not have convinced many governments or CSOs.
The second most popular recommendation for the Indian government was to amend the Foreign Contributions Regulations Act (FCRA) and to allow civil societies to operate without restriction. Around a dozen countries including Ireland, the US, the UK, Germany, Switzerland, Australia, Czech Republic and Norway pitched in to ask for a reviewing of the FCRA for its negative impact on the functioning of NGOs, which recently has led to the cancellation of the licences of more than 14,000 NGOs due to alleged violations of Indian law and 30,000 more are lined up to have their licences reviewed.
“Ensure consistent, transparent application of Foreign Contributions Regulations Act regulations to permit full exercise of the right to freedom of association,” the American government said.
FCRA prohibits the acceptance or utilisation of foreign contribution or foreign hospitality for any activity that is “detrimental” to national interest, India said in response, and that “CSOs and individuals need to work in conformity and within the legal framework of the State”.
The US, the UK, Switzerland, the Vatican, the Netherlands, Germany, Russia, Cuba, Japan and South Korea among others spoke of discrimination against religious and other minorities, like dalits, scheduled tribes, and vulnerable groups like women and children (trafficking and forced labour) as well as the need to repeal anti-conversion laws.
Many countries broached the issue of so-called honour killings at the Indian rights review.
While the US said that laws restricting religious conversion “contribute to intolerance”, the Vatican recommended strengthening freedom of religion especially by “retracting so-called anti-conversion laws”, to pursue through appropriate judicial means to prevent all violent acts against religious and tribal minorities, dalits and other lower castes. The UK said that it encourages the passing of the Communal Violence Bill in parliament.
“On the issue of perceived discrimination of minorities and the situation of freedom of religion, it is to be stated that India is a secular country. India is one of the most diverse nations in terms of religion,” Rohatgi said citing various constitutional guarantees for exercising the freedom of religion. “Some of India’s most famous institutions of academic excellence are minority institutions,” he added.
Including marital rape under the ambit of rape laws (raised by Spain, Latvia, Namibia, Portugal, Slovenia, Ireland, Sweden, Zambia, Australia, Canada, Belgium, France and others), clamping down on coerced and unsafe sterilisations (Ghana, Iceland, Sweden and others) and repealing section 377 that criminalises same-sex relations (Israel, Iceland, Norway, Canada and others) were the other issues that were often thrown up during the review.
The law commission has been requested by the government to deliberate on marital rape, said the Indian government.
‘Repeal AFSPA’ was another common refrain.
“Concerns have been raised with regard to the Armed Forces Special Powers Act. However, this Act is applied only to disturbed areas where the law and order machinery is dealing with exigent circumstances like terrorism. These areas are very few and in proximity to some international borders. Whether this Act should be repealed or not is a matter of on-going vibrant political debate in my country,” Rohatgi said in his opening statement since AFSPA was an issue raised in the 2012 UPR as well.
Spain, Italy, France, Namibia, Portugal, Ireland and Belgium among other countries spoke of the need to have a moratorium on the death penalty in India and eventually abolish it altogether.
Importantly, a Haitian statement spoke of attacks against Africans in the country. “Establish a national plan for combatting hate crimes, racism and negative stereotypes against people of African descent inside its territory, including appropriate programmes of public awareness that will address the problem of racism and Afrophobia in full consultation with those particularly affected,” the delegate said.
India has to respond to the 250 recommendations, either accepting or rejecting some or all of them, latest by the next session of the UNHRC in September 2017. It will be a tricky terrain to negotiate some of them. But we do have an indication of how issues like Afrophobia, ratifying CAT, and AFSPA, among others will be dealt with.
India responding to the Haitian statement said that attacks on African students are “unfortunate and painful” and that relations with Africa are “based on brotherhood”. However, not all acts of violence should be construed as racial attack. India is a land of Buddha and Gandhi; it cannot have a racial mindset, it said. Given India’s stance of outright rejecting even the possibility of racist and xenophobic incidences in the country, it is hard to see how we would agree to having a national plan to combat racism and hate crimes.
Similarly, India has said that the concept of torture is alien to the country, which may perhaps indicate that CAT or the national prevention of torture bill is not going to be ratified, and the latter adopted, anytime soon.
Sweden’s recommendation of ensuring that “any measure limiting freedom of expression, assembly and association on the internet, is based on clearly defined criteria in accordance with international law including international human rights law” may not be accepted as a general principle, even though the UNHRC passed a resolution in July 2016 supported by 70 countries that condemned “measures to intentionally prevent or disrupt access to or dissemination of information online”. Though no human rights law or treaty says that everyone has a right to access the internet, the universal declaration of human rights and the international covenant on civil and political rights says that everyone has the right to seek, receive and impart information and ideas of all kinds through any media. But Kashmir remains a fragile situation and the authorities have claimed that the measure is necessary to stanch rumours and prevent youth from gathering for stone pelting. Though the opposition has cried foul for the internet disruption in the Kashmir valley, it has resorted to the same strategy when in power. According to the UN, since 2012 there have been 31 reported cases of social media and internet bans in Jammu and Kashmir.
As such, three months seem like a rather tight time frame to get back to the UNHRC with responses for all the recommendations.
(The article appears in the May 31, 2017 issue)