The Asian Human Rights Organization, Hong Kong, says: India will be evaluated at the United Nations' Universal Periodic Review in Geneva, Switzerland today.
The three countries (Troika) involved in the review are Kuwait, Mauritius and Mexico. That these countries have worse records of human rights in comparison to the country they would collectively review suggests how firmly, and perhaps blindly, such processes are at the UN. Yet the UPR may still be considered beneficial because it at least presents recurring opportunity at the UN for human rights organizations to flag their concerns about the country under review.
India has submitted its
National Report to the UPR Working Group, which is available
here.
Other documents concerning India relevant to the UPR process
are also available here.
The national report places
overwhelming emphasis upon the jurisprudence developed by
the Supreme Court on human rights. In page 3 of the report,
the government claims that the Court has initiated a
"revolutionary interpretative evolution" of
fundamental rights in India. It is true. What is false,
however, is the affirmation that the Court's initiative is
"fully supported by the overnment". The evolution
of the Court's interpretation of Article 21 of the
Constitution encompasses the right to housing, against
forced eviction, right to education, clean environment and
against forced labour proves that on each occasion someone
had to approach the Court seeking its assistance and writ
jurisdiction to 'direct' the government concerned toward
what that government had to do. Each one of these cases
highlight the failure of the state to fulfil its duties. The
Court has also reiterated its authority to review both
legislative and executive actions. Within the Constitutional
architecture, the government is legally compelled to obey
with the Court's directives. Essentially, the government's
'concessionary' claim that it has 'fully supported' the
Court's directives possess no inherent merit.
The absence of honesty in
the government's claim as to its compliance of the Court's
directives is visible from facts on the ground. The first
case cited by the government is the Naga People's
Movement for Human Rights (petitioners) against Union
of India and others (respondents) reported in All India
Reporter Supreme Court 431. The Court was called upon to
decide the constitutional vires of the Armed Forces (Special
Powers) Act, 1958 in this occasion. While maintaining that
the central government had adequate powers to enact the law
now held to have had the worse impact on the protection of
human rights, the Court drew comparison from the Reserve
Forces Act, 1980 of the United Kingdom where the government
is empowered to "call upon" its reserve forces
when there is a threat to the security of the nation. The
Court failed to recognise, however, that the conditions in
the United Kingdom (UK) and India are vastly different. The
UK could afford to have legislation such as the Reserve
Forces Act because its justice institutions are far superior
to those of India (in terms of transparency, accountability,
resources dedicated to training, solid theoretical and
philosophical foundation and an infinitely less corrupt
bureaucracy), both then and now. The Court however could not
be blamed in totality for this serious omission and
disparity since it had not been requested to consider the
misuse of the law in the infringement of human rights as it
happened then and continues now.
Despite this,
jurisprudential wisdom at the time warranted the Court to
impose 10 'dos and don'ts', none of which has been followed
since then. Given knowledge of the cases of human rights
violations available today, one could argue that the Court
failed to critically appreciate the nature of the threat the
AFSPA was supposed to help diminish, the population upon
which the law is thrust upon and the possibility of
enforcing discipline upon the armed units which would be
protected by the impunity provided them by the law. Today,
AFSPA has not merely failed to reduce or contain this
violence, but has instead inflamed it. The populations in
places throughout India where this law is enforced have
further alienated themselves from the national mainstream
– this is also due to the discrimination practiced
against them by the rest of the country. The number of human
rights abuses committed by armed units under the protection
of this Act as documented by numerous NGOs and civil society
organisations is alarmingly high. This has substantially
contributed to the considerable lack of discipline within
the country's armed units.
Incidents left inadequately
investigated due to the absence of an independent
investigating agency in the country and the unwillingness of
the government to create one has resulted in gross human
rights abuses wherever this draconian law is in use. The
unmarked mass graves in the state of Jammu and Kashmir, the
countless cases of rape, torture, enforced disappearances
and extrajudicial executions reported from states like
Manipur stares balefully in the face of the Supreme Court's
jurisprudential piety in issuing some obviously ineffective
dos and don'ts while deciding the Naga People's case.
They are of such nature that
it is worth reproducing here.
1. Action … (b)
Power to open fire using force or arrest is to be exercised
under this Act only by an officer/JCO/WO and NCO. (c) Before
launching any raid/search, definite information about the
activity to be obtained from the local civil authorities.
(d) As far as possible co-opt representative of local civil
administration during the raid.
2. Action during Operation
(a) In case of necessity of opening fire and using any force
against the suspect or any person acting in contravention to
law and order, ascertain first that it is essential for
maintenance of public order. Open fire only after due
warning. (b) Arrest only those who have committed cognizable
offence or who are about to commit cognizable offence or
against whom a reasonable ground exists to prove that they
have committed or are about to commit cognizable offence or
against whom a reasonable ground exists to prove that they
have committed or are about to commit cognizable offence.
(c) Ensure that troop under command do not harass innocent
people, destroy property of the public or unnecessarily
enter into the house/dwelling of people not connected with
any unlawful activities. (d) Ensure that women are not
searched/arrested without the presence of female police. In
fact women should be searched by female police only.
3.
Action after operation (a) After arrest prepare a list of
the persons so arrested. (b) Handover the arrested persons
to the nearest Police Station with least possible delay. (c)
While handing over to the police a report should accompany
with detailed circumstances occasioning the arrest. (d)
Every delay in handing over the suspects to the police must
be justified and should be reasonable depending upon the
place, time of arrest and the terrain in which such person
has been arrested. The least possible delay may be 2-3 hours
extendable to 24 hours or so depending upon particular case.
(e) After raid make out a list of all arms, ammunition or
any other incriminating material/document taken into
possession. (f) All such arms, ammunition, stores, etc.
should be handed over to the police State along with the
seizure memo. (g) Obtain receipt of persons arms/ammunition,
stores etc. so handed over to the police. (h) Make record of
the area where operation is launched having the date and
time and the persons participating in such raid. (i) Make a
record of the commander and other officers/JCOs/NCOs forming
part of such force. (k) Ensure medical relief to any person
injured during the encounter, if any person dies in the
encounter his dead body be handed over immediately to the
police along with the details leading to such death. 4.
Dealing with Civil Court (a) Directions of the High
Court/Supreme Court should be promptly attended to. (b)
Whenever summoned by the courts, decorum of the court must
be maintained and proper respect paid. (c) Answer questions
of the court politely ad with dignity. (d) Maintain detailed
record of the entire operation correctly and
explicitly.
Don'ts 1. Do not keep a
person under custody for any period longer than the bare
necessity for handing over to the nearest Police Station. 2.
Do not use any force after having arrested a person except
when he is trying to escape. 3. Do not use third degree
methods to extract information or to extract confession or
other involvement in unlawful activities. 4. After arrest of
a person by the member of the Armed forces, he shall not be
interrogated by the member of the armed force. 5. Do not
release the person directly after apprehending on your own.
If any person is to be released, he must be released through
civil authorities. 6. Do not tamper with official records.
7. The Armed Forces shall not take back person after he is
handed over to civil police.
That the judicial logic
behind these directions has failed, and miserably so, is
proved by the D. K. Basu (petitioner) against State of
West Bengal and others (respondents) reported in All
India Reporter Supreme Court, 610. Ironically, the
government has cited this case as well in its report to
showcase the prowess of the safeguards provided by the
judiciary to protect fundamental rights in India. The
Court's intervention in this case was due to the repeated
instances of blatant violations of prescribed procedures and
fundamental by the state police. The argument that the legal
guarantees even civilian police fail to provide in peaceful
environments and times would be provided by armed units
operating in hostile environments is naivety and nothing
short of laughable. The present quality of life in places
where the AFSPA is enforced is proof of this. That the
Supreme Court of India has declared AFSPA constitutional in
1988 should not be an excuse for the government to review,
and, if necessary, repeal it.
The government has claimed
that it is considering a domestic law against torture. It is
true that the law was passed in the Lok Sabha in 2010. The
importance the members of the Lok Sabha attributed to this
law and informed nature of the debate is apparent from the
long discussion on the law in the Lok Sabha. Most members
complained in jest that holding them back in the parliament
at 9.30 pm is torture and requested that the law be quickly
passed. The 625 words-long Bill that failed to even properly
define the term 'torture' has today been placed in the Rajya
Sabha's deep freezer for the past two years following a
review by the Parliamentary Select Committee. Even the
members of the parliament do not know the fate of the Bill.
No government worthy of its mandate would go to an
international body like the UN and state that even though
the government is still not serious about this law,
"the Supreme Court of India, through its judgments, has
… laid down exacting standards on this issue".
This statement about the Court laying down exacting
standards is false. There is simply no such judgment.
The court has dealt with
this issue on several occasions, most importantly in
Kishore Singh (petitioner) against the State of Rajastan
and on others (respondents) when the court said
"...othing is more cowardly and unconscionable than a
person in police custody being beaten up and nothing
inflicts deeper wound on our constitutional culture than a
state official running berserk regardless of human
rights". This case is reported in 1981 All India
Reporter, Supreme Court 625. Yet torture has not been
defined as it is understood in international law. Neither
does the offense carry significance particular to crimes
against humanity that warrants serious investigation and
prosecution. That the D. K. Basu case came 16 years since
the Kishore Singh case proves this. Torture is endemic in
India and there are painfully few means to change this
reality at the moment.
The accolades showered upon
the National Human Rights Commission by the government in
its report need to be viewed with exceptional caution. Mr.
K. G. Balakrishnan, who bears a tainted image concerning his
integrity as a judge, heads the NHRC. This was reflected in
the NHRC's own consultative process for the UPR. Many
consultations were held where members of the army, human
rights defenders and victims were invited to the same room.
Then the human rights defenders and victims of rights abuses
were asked to depose against the army, which they did not
due to fear of reprisals. The very same insensitivity of the
NHRC while adjudicating claims has attracted criticism so
much so that during the accreditation review process the
NHRC underwent in 2011, a considerable number of Indian
human rights organisations appealed to the International
Coordination Committee for NHRIs to degrade the NHRC from
its 'A' status. The lobby did not succeed, yet it was one of
the most embarrassing moments for the NHRC in its entire
history. That the NHRC received near to 100,000 complaints
is no surprise owing to the poor human rights standards in
India. Admittedly, expecting the NHRC to deal with so many
complaints with the present limited infrastructure itself is
injustice. That the NHRC disposed off 87,568 cases in two
years itself shows the quality of adjudication. This means
that, excluding holidays, the NHRC has the unique capacity
to adjudicate about 300 cases in each working day. This
poses troubling questions about the quality of the
adjudication being dealt out.
It is true that State Human
Rights Commissions are constituted in 20 states. However,
fewer than five among these twenty states possess adequate
infrastructure for day-today functioning; these include
independent Commissioners. Many Commissions have ceased to
function as appointments to office-bearing positions
critical to the commissions' operations have not made. That
the NHRC has resorted to monetary compensation instead of
proper resolution of the cases/grievances suggests that a
meagre USD6020 has been used to "buy off" 583
victims. This fails to bring the investigations to the heart
of the matter, where institutional failures have occurred
and where systemic abuses of human rights have become the
norm.
Similar claims made by the
government concerning child rights, the right to food and
the right to equality are equally questionable. That 42
percent of the children below the age of five in India are
severely malnourished places India lower in living standards
than all countries in Sub-Saharan Africa. It is not a record
that speaks well of any government that 42 percent of its
future population might not even live their life to the
fullest that already they have suffered substantial and
permanent physiological damage that will prevent them from
developing their intellectual and physical capacities. For a
country to plan an estimated USD40.44 billion outlay not to
have means to rescue its children from acute poverty lacks
logic. The Supreme Court of India cannot supplement the
provision of nutrition with its empty judgments.
Worse still are the
accusations laid upon country's civil society by its
government in a report concerning the Maoist issue. The
government has placed the responsibility upon the civil
society organisations to urge the Maoists to join the
national mainstream. The question that needs to be asked is
which side of the national main stream, whether the
increasing number of rich upper middle class or the 42
percent who are destined to starve to death in the coming
years that the Maoists are being asked to join. Indeed the
country's civil society bears some of the responsibility to
urge violent political forces to resort to democratic ways
of participation. However this is not possible without the
government undertaking to address the root cause of the
rebellion. Legislations like the Chhattisgarh Special Public
Security Act, 2005 or private militias like the Salwa Judum
– which the Supreme Court of India has also held
illegal but the government continues to promote –
provide no answer to the Maoist concern. If Maoism was the
answer to Stalin's snubbing of China, what it fuels today in
India is criminal neglect by the government of its people.
The answer to this concern lies partially with the
government, and it is the honesty, sincerity and humility of
that admission which is lacking in the government's
report.
The UPR, which will be
completed today, will not address any of these concerns. It
will remain a reduced space for the country's civil society
to articulate and debate concerns about the people of India
and their interests. What is required is action by the
government on the ground. That would not come about through
the government's voluntary pledge to the Human Rights
Council or from the government's treaty obligations to
international conventions and covenants. Neither can the
administrative writ of a government, even supplemented by
court judgements, result in improvement of the human rights
conditions. In India, well-intentioned but hollow and
ultimately ineffective judgements remain a desperately
inadequate substitute for the good governance that will
systematically and sustainably improve the mechanisms
protecting human rights and standards of living.
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