he world’s largest democracy faces questions about discrimination and violence against religious minorities.
India under the Narendra Modi regime faces a review of its human rights record by the U.N. Human Rights Council. The Universal Periodic Review (UPR) Working Group of the UN will examine India’s human rights record for the third time on Thursday, May 4. As of now, India is the second most popular country for this UPR session—South Africa just barely beat it out with 113 countries listed to speak for that UPR. Brazil, Indonesia, Morocco and the Philippines are all tied for third at 109.
The first batch of questions that will be put forth by the 112 countries has officially been released and covers the overall situation of human rights in the country. India will have to respond to queries on its human rights record on religion-based discrimination, lawlessness when it comes to attacks on religious minorities, and stigmatization of Dalits (a burning issue since the first review) and violence against them. The crushing of dissent and attacks on human rights defenders will be also a matter of concern.
India will also be questioned on limits on free speech, limits on work of human rights defenders, attacks on religious minorities, reports of excessive use of force, including in Jammu and Kashmir, and use of Armed Forces (Special Powers) Acts, or AFSPA. Other issues on which it faces questions are combating violence against women, human trafficking, tackling harmful practices such as “honor killings,” early and forced marriages, violence against children and child labor.
The National Human Rights Commission (NHRC), created under the Paris Principles of the United Nations, is also supposed to submit an independent assessment and report. This body is not known for functioning with independence and autonomy except in three or four instances in its history since it was established in 1993. The Working Group on Human Rights (WGHR), Advocates for Human Rights, Citizens for Justice and Peace and Indian American Muslim Council, among many organizations, have submitted extensive reports and fact sheets on different aspects of the human rights situation. There is a live web cast of the session on May 4.
India and Previous UPRs
India’s second report had come in for heavy criticism by Human Rights Council troika comprising Latvia, the Philippines and South Africa in 2008. These countries had served as rapporteurs for India’s review and stakeholders in the second review in 2012. At this week’s session, India will spell out steps to implement the council’s recommendations after the previous reviews that it committed to follow up on, as well as highlight the many recent human rights developments in the country. While the 112 countries will be given 1.5 minutes each, in an intense three-and-a-half hour session, the Indian delegation led by attorney general Mukul Rohatgi will introduce the report prepared by the country and will have to answer questions from the member nations, civil society and the troika. (Here is India’s official report.)
India has been in the spotlight, given the fact that a supremacist government under Narendra Modi has ruled since 2014. Eleven states are controlled by the same party as the center, and in another four Modi’s party is an alliance partner with another regional party. Violence in the name of cow protection, 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 all figure among the concerns raised by various countries.
An extensive report compiled by the UN’s own agencies has 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 serious questions 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 has yet to ratify.
Making a special mention of the situation in Jammu and Kashmir, the Human Rights Council’s own report by its Special Rapporteur has also asked for India to repeal or at least radically amend the Armed Forces (Special Powers) Act and the Jammu and Kashmir Armed Forces (Special Powers) Act while “removing all legal barriers for the criminal prosecution of members of the armed forces.” The Special Rapporteur’s report has also focused on incidence of caste- and gender-based violence, including a special mention of criticism of the National Commission of Women over what it called the “2002 Gujarat massacre.”
According to the Human Rights Council submissions so far, countries including the UK, Switzerland, the Netherlands and Norway have registered questions on the treatment of religious minorities in India, asking specifically about recent incidents of communal violence, while Sweden and Spain have questioned India’s failure to ratify the Convention on Torture yet, despite agreeing to it in 1997. Sweden and Spain have asked for the government to explain its stand on homosexuality rights and the repeal of Article 377, which criminalizes same-sex relationships.
The UPR Cycle
In a cycle of four years, the human rights records of the member states of the United Nations are 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). This is a complex process that includes reports submitted by the country, by the autonomous National Human Rights Commission, by various UN agencies, by 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 has 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 did they 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.
Indian Human Rights Organizations and Their Interventions
The Office of the United Nations High Commissioner for Human Rights has submitted to the UN General Assembly several recommendations from over four-dozen organizations from all over India.
Switzerland has asked if India has already initiated a process to introduce legislation against 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 Supreme Court decision in the D.K. Basu case, which lays down guidelines for arrest and detention of suspects and accused persons. However, this judgment goes back decades.
There have been 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 member of Parliament Ashwani 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 Supreme Court said this should be treated with some urgency.
Belgium asks: “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 steps are being taken by the Government of India to hold accountable public and police officials found complicit in shielding criminals involved in intimidating and unleashing violence against minorities and those who advocate religious hatred?” asks Switzerland.
The United Kingdom asks: “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 vigilantes against “love jihad” and for “cow protection.”
With regard to those opposing “love jihad,” there have been objections to intercommunity love relationships, specifically between India’s majority Hindus and minority Muslims.
The cow is worshipped by a section of Hindus and the majoritarian regime has allowed mob violence in the name of cow protection to go unabated. There has been a spate of violent incidents where armed vigilante groups have assaulted (in some cases, killed) minorities over slaughter of cows for beef. The zeal has stretched to the assault of a Dalit in Gujarat and a Muslim dairy farmer in Rajasthan. In another case, a Muslim man, Md Akhlaque, was killed on the 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.
In 2009, the Delhi High Court had struck down Section 377 of the Indian Penal Code, which criminalizes homosexual 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 relationships in India.
Human Rights Defenders
Several countries have sent questions regarding the protection and freedom to work of human rights defenders. UN agencies have pointed out India’s obligation to allow such organizations 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 released a report last year 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 charged with the harassment and the vigilante groups were disbanded. There has not yet been any fresh review of the situation.
Right to Privacy
There is a battle going on in India’s Supreme Court on the safety of Aadhar Unique Identification Data and serious questions raised on privacy. India’s Attorney General Mukul Rohatgi, who will defend the government against questions by 112 countries, 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 Centralized Monitoring System (CMS) will become operational in 2017. There have been reports drawing similarities with it to the U.S.’ prism program, 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 for presenting the law in Parliament. The report mentions that a “review committee” will monitor authorizations 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 among the countries that have raised questions on protection of women and children from sexual violence in India and mechanisms to monitor implementation of laws. 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 First Information Reports (FIRs, or police reports), 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 Offenses (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 the December 2012 rape and murder case. One of the convicts was a minor at the time of the crime and has received 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.
How Will Indian Attorney General Mukul Rohatgi Defend India?
Rohatgi will be the man who leads India’s defense. An attorney with an extensive legal practice, he had a reputation for some legal finesse despite his bluster in Court. But that was before Prime Minister Narendra Modi chose him for this post. The attorney general of India is now known for his aggressive, irrational and bullying postures in court.
On May 4, it will be particularly interesting to hear Rohatgi’s statements on LGBT rights, as he had personally supported this movement before he was appointed attorney general. He even helped prepare the petition presented to the Supreme Court in response to the earlier UPA Party government’s stand against the 2009 Delhi High Court judgment. But now he defends a questionable and near-indefensible record, of the world’s largest democracy and its respect and concern for human rights.