The UNHRC concluding observations do not allow for semantics
Ravi Nair·August 22, 2024
The concluding part of the analysis of the audit of India’s human rights report after 28 years by the United Nations Human Rights Council.
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Read Part 1 here.
RECENTLY, the United Nations Human Rights Council (UNHRC) did an audit of India’s human rights report after twenty-eight years.
Even before the Indian delegation had returned to New Delhi, the Union ministry of external affairs put out a media statement congratulating itself.
“India successfully concluded its fourth periodic review by the Human Rights Committee under the International Covenant on Civil and Political Rights (ICCPR) in Geneva…,” the statement read.
Abracadabra, or in desi lingo, shoo mantra Kali kantar, whatever the hocus pocus magical incantation the government of India called to its aid, it seems to have tried to pull another fast one. Everything on the Human Rights front was hunky dory!
As shown in Part 1 of this piece, it was far from that. Now read on for the rest.
Right to privacy
The UNHRC was concerned about information received about India’s use of the Pegasus spyware to target mobile phones of journalists, activists and government officials from mid-2017 to 2023.
Even before the Indian delegation had returned to New Delhi, the Union ministry of external affairs put out a media statement congratulating itself.
It was also concerned about information about multiple security breaches and vulnerabilities relating to the information stored in the Aadhaar identification database; the de facto requirement for the mandatory use of Aadhaar; and the increasing use of facial recognition technology for surveillance, and access to public benefits and voting rights; as well as by the lack of adequate privacy safeguards in content and data regulation legislation, and in the context of search and seizures.
The UNHRC stated that India should ensure that legislation regarding surveillance, content and data regulation, as well as related activities, and any other interference with privacy, such as search and seizure activities, is in full compliance with article 17 of the ICCPR and with the principles of legality, proportionality and necessity.
Freedom of conscience and belief, and non-discrimination
The UNHRC was concerned about the high levels of violence against religious minorities, such as the incidents in Manipur since May 2023 and the riots in Gujarat in 2002, and the resulting lack of accountability for human rights violations, including extrajudicial killings.
Also read: UNHRC’s examination of India’s periodic report after 28 years: Part 8
The UNHRC was also concerned about other violent incidents, such as the demolitions of places of worship and homes of religious minorities— most Muslim— following the riots during the Ram Navami processions in 2022, and the reports of violence and lynching by ‘cow vigilantes’ against Muslims and Christians.
The UNHRC was also concerned about the application of national security and counter-terrorism laws to target religious minorities and about reports of public officials engaging in hate speech and inciting public violence against religious minorities.
The UNHRC stated that in accordance with Article 18 of the ICCPR and General Comment 22 on the right to freedom of thought, conscience and religion of 1993, India should ensure respect for freedom of thought, conscience and religion for all and prevent combat and address all forms of discrimination and violence against religious minorities.
Anti-conversion laws
The UNHRC was concerned about provisions that require individuals to notify authorities of their intention to convert; contain vague wording that gives officials broad power to decide on religious conversions; impose enhanced punishments for conversion by minority groups; consider interfaith marriages as presumptively unlawful; or shift the burden of proof to the accused to show that a conversion was not coerced.
The UNHRC was concerned about information received about India’s use of the Pegasus spyware to target mobile phones of journalists, activists and government officials from mid-2017 to 2023.
The UNHRC was also concerned about vigilante attacks against religious minorities. The UNHRC was concerned about ‘ghar wapsi’ (homecoming) ceremonies, where religious minorities are allegedly coerced to convert to Hinduism; according to reports received, over the past decade, thousands of Christians and Muslims have been converted to Hinduism during these ceremonies.
The UNHRC stated that India should guarantee, in law and practice, the effective exercise of freedom of religion and belief and refrain from imposing any restrictions on those rights beyond the narrow limitations permitted under Article 18(3) of the ICCPR.
Freedoms of expression and peaceful assembly
The UNHRC was concerned about the arbitrary restrictions in law and practice to freedom of expression online and offline in India, including the broad and frequent use of internet shutdowns, such as the complete ban on mobile internet facilities for months in Jammu and Kashmir in 2016 and for 18 months in 2019, the blockage of online content on vaguely defined grounds and without court authorisation, and the banning of books and films.
Also read: Sub-classification may create more problems than it solves
While the UNHRC commended the abolition of the offence of sedition in the former penal code, it remains concerned that Section 152 of the new penal code, Bharatiya Nyaya Sanhita, 2023 criminalises forms of expression that endanger the sovereignty, unity and integrity of the State party.
The UNHRC was also concerned about the misuse of vague and broadly formulated provisions of legislation, such as on counter-terrorism, which according to information received is misused for the arbitrary arrest and prosecution of minority groups, journalists and other individuals expressing minority or dissenting views and exercising their right to peaceful assembly.
The UNHRC stated that India should take all measures necessary to guarantee the full enjoyment of freedom of expression by everyone, in accordance with Article 19 of the ICCPR and the UNHRC’s General Comment 34 (2011), and that any restrictions comply with the strict requirements of Article 19 (3) of the ICCPR.
The UNHRC was concerned about the killing of 59 journalists since 2006, as well as allegations that human rights defenders have been barred from travelling outside India and engaging with United Nations bodies, such as in the case of Khurram Parvez, a Kashmiri human rights defender who was prevented from travelling to Geneva to attend the Human Rights Council and has been arbitrarily detained since 2021.
The UNHRC was concerned about information regarding the transnational repression of political opponents and human rights defenders. The UNHRC was also concerned about the frequent disruption of demonstrations and cases of excessive use of force, such as in the protests in Tamil Nadu in 2018 that resulted in 13 deaths; and the use of pellet-firing shotguns for crowd control purposes resulting in numerous persons injured, in particular in Kashmir since 2010.
The UNHRC was concerned about the possibility of the arbitrary application of certain provisions of the new criminal legislation, such as those on public order related to peaceful assemblies.
The UNHRC was also concerned about other violent incidents, such as the demolitions of places of worship and homes of religious minorities.
The UNHRC wants India to take measures to guarantee that everyone can exercise the right to freedom of expression, as well as the right of peaceful assembly in accordance with Article 21 of the covenant and the committee’s General Comment 37 (2020) on the right of peaceful assembly.
Freedom of association
The UNHRC was concerned about the misuse of the Foreign Contribution (Regulation) Act, 2010 (FCRA) which, according to information received, is used to target nongovernmental organisations critical of the government and to silence dissenting voices, including non-governmental organisations (NGOs) working on human rights issues. The UNHRC has been informed that the State party has cancelled the FCRA licences of more than 20,600 NGOs between 2011 and 2021.
The UNHRC stated that India should guarantee, in law and practice, a safe and enabling environment for civil society organisations, and that any restriction should be in conformity with Article 22 of the ICCPR.
Citizenship and prevention of statelessness
The UNHRC was concerned about the fact that the Citizenship Amendment Act, 2019 and the Citizenship Amendment Rules, 2024 establish access to citizenship for asylum seekers and refugees according to religious criteria, discriminating in particular against Muslims. According to this legislation, citizenship is reserved for Hindus, Sikhs, Buddhists, Parsis, Christians and Jains from Pakistan, Bangladesh and Afghanistan.
In addition, the committee was concerned about the excessively complex proceedings faced by Muslims and the evidence requested to be included in the National Population Register and enlisted in the National Register of Citizens.
As a consequence, over two million Muslims in Assam who already hold citizenship risk Statelessness and being placed in detention centres for an indefinite period before being expelled from the territory of the State party.
The UNHRC was also concerned about the fact that according to a 1986 circular issued by the Union home ministry, Sri Lankan refugees who are Indian-origin Tamils do not have access to citizenship.
The committee was also concerned about the difficulties refugee parents face in registering their children.
The committee stated that India should repeal or amend the Citizenship Amendment Act, 2019 and the Citizenship Amendment Rules, 2024 or ensure they comply with the provisions of the ICCPR, including the prohibition of discrimination on religious grounds; as well as with international customary law that prohibits the arbitrary deprivation of nationality, including on religious grounds.
Rights of minorities and indigenous peoples
While acknowledging the efforts of India to envisage affirmative action and empowerment in favour of certain communities, the UNHRC was concerned that the Scheduled Tribes (ST) remain amongst the most disadvantaged socio-economic groups in the country.
The UNHRC was concerned about provisions that require individuals to notify authorities of their intention to convert.
Also read: When prejudice gains a majority, the law becomes a minority
The UNHRC was also concerned that the rights to the land of indigenous and tribal peoples are often threatened by development projects and the activities of extractive and other industries, without proper consultation and obtaining their free, prior and informed consent.
The UNHRC was also concerned that the laws enacted to protect land rights, and to prevent violence and discrimination against indigenous and tribal peoples are inadequately enforced.
The UNHRC was also concerned about information received that in Raigarh, Chhattisgarh 1,176 cases of tribal lands acquired under coercion and without seeking free, prior and informed consent remain still unaddressed and the recommendations of the National Commissions of Scheduled Tribes on this issue are not being implemented.
The committee stated that India should ensure that the rights of indigenous and tribal peoples to own, use and develop their ancestral lands and resources are recognised, respected and protected in law and practice.
Treatment of aliens, including refugees and asylum seekers
Despite the tradition in India of openness and welcoming refugees and asylum-seekers, the UNHRC regretted that the situation has seriously deteriorated since the previous Concluding Observations.
The UNHRC was concerned about reports about the lack of access of migrants to health services, jobs, education and housing; and the precarious situation of migrant children, including unaccompanied minors.
The committee was also concerned about the application of the criminal law to migrants in an irregular situation, as well as “undocumented” or “non-authorised” migrants in detention centres, who are kept in indefinite detention under deplorable conditions.
The UNHRC was also concerned about anti-migrant hate speech, including by public officials, which is becoming increasingly violent, particularly with regard to Muslims, including Rohingyas from Myanmar, who are publicly identified as a threat to national security.
Finally, the UNHRC was concerned about deportations to Myanmar, including regarding plans to deport more than 5,000 asylum-seekers from the Kuki and Chin communities.
The UNHRC said that the State party should enhance the protection of migrants, refugees and asylum-seekers without discrimination. In particular, it should:
The UNHRC was concerned about reports about the lack of access of migrants to health services, jobs, education and housing.
(a) Consider adopting a general law on asylum and refugee status, in accordance with relevant international standards, clarifying the procedural guarantees available to all asylum-seekers.
(b) Ensure that migrants and asylum-seekers have a non-discriminatory and equal access to basic services.
Also read: Subjecting the CAA Rules to proportionality
(c) Refrain from criminalising the irregular entry or stay of migrants and persons in need of international protection, and uphold the principle of non-refoulement.
(d) Ensure that immigration detention is used only as a measure of last resort and for the shortest possible period, and increase the use of alternatives to detention that are respectful of human rights; ensure that those in detention have access to legal aid services and language interpretation and that their living conditions and treatment is in conformity with international standards.
(f) Condemn and combat hate speech against migrants, asylum seekers and refugees, including by public officials and politicians.
(g) Consider the ratification of the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugee, as well as the 1954 Convention Relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness.
Dissemination and follow-up
India should widely disseminate the ICCPR, its 4th periodic report and the present concluding observations, to raise awareness of the rights enshrined in the covenant among the judicial, legislative and administrative authorities, civil society and non-governmental organisations operating in the country, and the general public.
India should ensure that the periodic report and the present concluding observations are translated into the official languages and consider translating them into other languages commonly used in the country.
India should ensure that the periodic report and the present concluding observations are translated into the official languages and consider translating them into other languages.
In accordance with Rule 75 (1) of the committee’s rules of procedure, the State party is requested to provide, by July 23, 2027, information on the implementation of the recommendations made by the committee in Paragraphs 12 (anti-corruption measures), 16 (non-discrimination) and 28 counter-terrorism and security measures and accountability for serious human rights violations) above.
The external affairs ministry statement of July 16 ended with: “The review demonstrated India’s commitment to engaging with the international human rights framework and its willingness to address concerns while continuing its efforts towards protection and promotion of human rights of its citizens.”
Amen, or given the present predilection for all things Sanskrit and Hindutva, tathastu. In plain English, ‘so be it’.
The writer is the executive director, South Asia Human Rights Documentation Centre.