An Indian Record of Human Rights

THOSE who live in glass houses should not throw stones at others. The saying applies very much to successive governments of India which chafe at international accountability for their observance of human rights, are very touchy about foreign criticism while freely criticising the records of other countries. Strangely enough, while India’s participation in the United Nations fora is well reported in the media, for nearly a quarter century the media have downplayed, if not ignored or even blacked out, the drubbings India’s Attorneys General have received in the U.N.’s Human Rights Commission and its successor, the U.N. Human Rights Council.

If the truth be told, even the National Human Rights Commission was born, if not in sin, as a baby to demonstrate our virtue. There is no denying that on many an issue it has rendered service or that on sensitive issues it becomes “patriotic”. Nor does one question the fact that our record is about the best in the Third World.

But how many papers reported the proceedings of the Human Rights Council on April 14, 2008, when Solicitor General Goolam Vahanvati presented India’s report and had to respond to criticism of India’s record by the members?

The background is important. On March 27, 1979, India ratified both the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights. The Instrument of Ratification was deposited with the U.N. on April 10, 1979. Much later, on May 14, 1993, the government moved in Parliament the Human Rights Commission Bill (No. 65) of 1993. It became law on January 8, 1994, in an improved form, as the Protection of Human Rights Act, 1993 (Act 10 of 1994).

Each step reflected its clime. The ratification was done by the Janata Party government in the wake of the Emergency imposed by Prime Minister Indira Gandhi (June 1975-March 1977). The Act was enacted for mixed considerations. It was partly in response to demand at home but largely to silence criticism abroad. This duality of its raison d’etre has impaired the institution, in its composition and actual functioning.

In 1992, the late Vithal N. Gadgil of the Congress represented India before the Human Rights Commission, which met annually in Geneva. It was set up by the U.N.’s Economic and Social Council on February 16, 1946. Listening to the criticism of India’s handling of insurgency situations, he hit upon a bright idea – our own Human Rights Commission. “Its findings will act as correctives to the biased and one-sided reports of some of the NGOs [non-governmental organisations]. It will also be an effective answer to the politically motivated international criticism.” It was to be a part of the state, its defender before the world.

Article 16 of the International Covenant on Economic, Social and Cultural Rights binds state parties to submit “reports on the measures which they have adopted and the progress made in achieving the observance of the rights recognised herein”. They are to be submitted in stages in accordance with a programme drawn up by the Economic and Social Council.

Article 40 of the Covenant on Civil and Political Rights contains a similar commitment. These reports were examined by the Human Rights Committee (HRC) set up under Article 28 of the Covenant. India submitted its first report on July 4, 1984, four years after ratification. It was examined by the HRC in New York on March 28 and 30, 1984, in three meetings. India’s Attorney General K. Parasaran was closely questioned.

The second report was due on July 9, 1985. It was submitted on July 12, 1989, after seven reminders. It was examined by the HRC on March 26 and 27, 1991, in four meetings (CCPR/C/SR 1039 to 1042).

In 1984 as well as in 1991, members of the HRC seemed extremely well informed and closely questioned India’s representative. On both occasions, India’s response was formal rather than substantial. It relied on the texts of the Constitution and the laws. They wanted details on actual performance and criticised laws such as the Armed Forces (Special Powers) Act, the Terrorist and Disruptive Activities (Prevention) Act (TADA) and the National Security Act as being incompatible with the Covenant. They were concerned at instances of torture and death in police custody and failure to bring offenders to justice. What is important is that a pattern of international accountability has been firmly established.

Questioning on the second occasion was sharper than on the first. NGOs such as Amnesty International and Human Rights Watch briefed members of the HRC thoroughly. Attorney General G. Ramaswamy presented the second report. The third report was submitted only on November 29, 1995. It was examined by the HRC in Geneva on July 24-25, 1997. Attorney General Ashok Desai introduced the report.

We had by then built up a formidable reputation for transparency in international accountability on human rights. The 1997 Annual Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions said: “The Special Rapporteur continued to receive numerous reports indicating the occurrence of violations of the right to life in India. The majority of the information received related to the situation in the State of Jammu and Kashmir where, according to various sources, Indian security forces were responsible for human rights violations, including deliberate killings of detainees in custody and reprisal killings of civilians. The perpetrators of extrajudicial, summary or arbitrary executions reportedly continue to enjoy virtual impunity. In addition, it was reported that the government continued to support paramilitary troops, which are reportedly also responsible for the killing of a large number of civilians. The source pointed out that these troops are non-uniformed and there

Three requests in 1994 for permission to visit India were declined (emphasis added, throughout). The 1997 Reports of the U.N.’s Working Group on Disappearances and the Special Rapporteur on Torture were also critical of India’s record. There was widespread criticism of the HRC’s composition and behaviour. Some states, notorious for their violation of human rights, got elected on that body and acted as judges on others’ conduct.

It was replaced by the Human Rights Council by U.N. General Assembly Resolution 60/251 of March 15, 2006, and consists of 47 member-states of the U.N. It was mandated to “undertake a Universal Periodic Review (UPR), based on objective and reliable information, of the fulfilment by each state of its human rights obligations and commitments in a manner which ensures universality of coverage and equal treatment with respect to all states; the review shall be a cooperative mechanism, based on an interactive dialogue, with the full involvement of the country concerned and with consideration given to its capacity-building needs; such a mechanism shall complement and not duplicate the work of treaty bodies.”

At its fifth session on June 18, 2007, the Council responded to this request and adopted, in Resolution 5/1, detailed modalities regarding the UPR mechanism. These modalities relate, in particular, to the basis of the review, principles and objectives to be followed, the periodicity and order of review of countries, process and modalities as well as the outcome and the follow-up to the review. Furthermore, the HRC decided that the review would be conducted in one working group composed of the 47 member-states of the Council.

On September 21, 2007, the HRC adopted a calendar in relation to the consideration of the 192 member-states of the U.N. to be considered during the first four-year cycle of the UPR mechanism. It decided on the precise order of consideration of reviewed states in 2008. In accordance with Resolution 5/1, the documents on which the review would be based are information prepared by the state concerned, which can take the form of a national report; and any other information considered relevant by the state concerned, which could be presented either orally or in writing.

Additionally, a compilation prepared by the Office of the High Commissioner for Human Rights (OHCHR) of the information contained in the reports of treaty bodies, special procedures, including observations and comments by the state concerned, and other relevant official U.N. documents.

Additional, credible and reliable information provided by other relevant “stakeholders to the Universal Periodic Review”, which should also be taken into consideration by the Council in the review. The stakeholders include, inter alia, NGOs, human rights defenders, academic institutions and research institutes, regional organisations and civil society representatives. The national report is required to be prepared on the basis of general guidelines adopted by the Council on September 27, 2007.

Additionally, the HRC adopted a detailed UPR mechanism on June 18, 2007. It runs into 127 paragraphs plus 20 Rules of Procedure.

When, therefore, India’s report came up before the Human Rights Council for its consideration, it had before it an able compilation prepared by the OHCHR of the information on India’s record contained in the reports of U.N. bodies and rapporteurs as well as a summary of 37 stakeholders’ submissions to the UPR. They include Amnesty International, Human Rights Watch and the Kashmir Institute of International Relations. It alleged that 80 per cent of the school buildings were occupied by the Army.

Even in former times, international NGOs would brief members thoroughly on flaws in the reports submitted by the states. The HRC appointed Ghana, Indonesia and the Netherlands as a troika of rapporteurs “to facilitate” review of India’s report. A list of questions prepared in advance by Ireland, Germany, Portugal, Italy, Sweden, Denmark, Finland, the Netherlands, the United Kingdom and Latvia was transmitted to India through the troika. These questions are available on the extranet of the UPR.

Questions to India

The report was considered on April 10, 2008. Forty-two statements were made by various delegations. Those from the Third World were benign. The official “Summary of the Proceedings of the Review Process” and its “Conclusions and/or Recommendations” make interesting reading. Here are some revealing nuggets:

“While welcoming the fact that India is a party to a number of international human rights instruments, the United Kingdom of Great Britain and Northern Ireland noted that India has not ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, or its Optional Protocol. It recommended that India ratify both instruments at the earliest opportunity. The United Kingdom asked for additional information on (a) reports of attacks against persons from religious or other minorities, in particular in Orissa State; (b) steps to implement treaty body recommendations on the Armed Forces Special Powers Act; (c) anti-conversion legislation; and (d) the Communal Violence Crimes Bill. It welcomed the involvement of civil society in the national preparatory process for the UPR session and recommended that they be fully involved in the follow-up to UPR.”

“Canada recognised that India is a highly diverse country facing many challenges. It raised issues concerning the Armed Forces (Special Powers) Act (AFSPA), the situation of civil society and the situation of Dalits. Canada referred to reports of torture and abuse by and impunity of police and security forces acting under the AFSPA. Canada spoke about the commitment of the Prime Minister and the studies undertaken to reform the AFSPA and asked what measures had been taken to repeal or reform this Act. Canada referred to India as a model where civil society and democracy flourishes and the press actively reports on human rights abuses.

“However, it mentioned allegations about the use of the Foreign Contribution Regulation Act in limiting civil society’s work on sensitive issues and referred to reports that Amnesty International had to downsize its work on account of this Act. With reference to the follow-up of the 2007 concluding observations on India adopted by CERD [Committee on the Elimination of Racial Discrimination], Canada recommended that India begin providing disaggregated data on caste and related discrimination.”

Brazil asked several questions regarding (a) the measures taken to promote the empowerment of women and the main policies taken to mainstream gender into national plans, (b) the concrete measures implemented to combat extreme poverty and (c) the evaluation of the strategy to end child labour. Additionally, Brazil proposed that India consider signing and ratifying the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) as well as International Labour Organisation (ILO) Conventions No. 138 concerning minimum age for admission to employment and No. 182 concerning the prohibition and immediate action for the elimination of the worst forms of child labour.

China asked how India intended to implement the National Rural Employment Guarantee Programme further. Considering the prohibition of child labour, the Netherlands recommended that India review its reservation to Article 32 of the Convention on the Rights of the Child and ratify ILO Conventions No. 138 and 182.

“Germany asked India to provide complementary information on (a) how recommendations made by the Committee on the Elimination of Racial Discrimination and CEDAW on Dalits and Scheduled Castes were being followed up on, (b) what the position of the government was regarding the recommendation of several treaty bodies to repeal the Armed Forces (Special Powers) Act of 1958, and (c) what concrete steps were being taken to implement national laws abolishing child labour.”

“The United States of America expressed its satisfaction to see a nation as diverse as India engaged in the UPR process. It asked for further details on (a) freedom of religion and expression and on the promulgation of state anti-conversion laws, (b) actions being undertaken to combat police and government corruption, (c) implementation of child labour laws, (d) crimes against women, including domestic violence, dowry-related deaths, honour crimes and sex-selective abortion of unborn girls, and (e) the social acceptance of caste-based discrimination.”

The Indian delegation said that “ratification of the Convention against Torture is being actively processed by the government”. The Bharatiya Janata Party-led National Democratic Alliance government signed it with great fanfare nearly a decade ago. Nearly a year has elapsed since the delegation promised active processing. Nothing has been done. Pray, what does the vague, readily abused word “process” mean? It is not the Ministry of External Affairs but the Home Ministry which creates problems.

In the second round “the Republic of Korea asked for more information on Section 197 of the Code of Criminal Procedure of 1973 regarding the impunity of civil servants”. Tellingly, “Latvia noted India’s positive cooperation with the special procedures and stated that it would like India to consider extending a standing invitation to all special procedures of the Human Rights Council”. Switzerland referred to the reported cases of torture, noted by the Human Rights Committee and the Special Rapporteur on the question of torture, and welcomed India’s signature of the Convention against Torture and its determination to ratify it. It, therefore, recommended that India ratify the Convention as soon as possible. Additionally, it encouraged India to respond favourably to the renewed request made by the Special Rapporteur on the question of torture to be permitted to carry out a mission to the Indian territory as soon as possible. Lastly, it recommended that a standing invitation be extended by India to all the Council’s special procedures.

Sweden raised two questions which it stated could also be seen as recommendations. India has ratified or acceded to several instruments of international law relating to human rights, but there are also a number of instruments to which it is not a party, notably, the Convention against Torture, the Refugee Convention and ILO Convention Nos. 138 and 182 relating to child labour. It noted with interest India’s intention to ratify the Convention against Torture and encouraged the government to do so.

India’s bland denials verged on the ridiculous. “India noted that Canada, as well as others, referred to the impunity for human rights violations under the Armed Forces Act which was incorrect. India stated that no forces, armed or police, function with impunity. Armed forces were under strict orders not to transgress human rights and the strictest action is taken, and incidents are swiftly adjudicated by procedures that include court-martials.” Tell that to the Kashmiris. The recent outrage in Sopore alone belies the claim. “Regarding questions on minorities from Saudi Arabia and Bangladesh, India noted that minorities, both religious and cultural, enjoy a very special status.” Indeed, like Kashmir’s “special status”?

The tabulation of Recommendation and India’s Response put out by the OHCHR makes interesting reading. Note the bureaucratese evasion. Requests for concrete action are met with profuse expressions of devotion to the rights.

The implication is clear. We are perfect. We are doing fine. The action recommended is unnecessary

Frontline Magazine, Volume 26 – Issue 07 :: Mar. 28-Apr. 10, 2009

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