This eight-part series examines the context and the sub-text of India’s human rights record in light of its examination by the United Nations Human Rights Committee after 28 years.
—
THE flagship of the United Nations treaty body system will be examining India’s fourth periodic report in all probability on July 15 and 16, 2024. The Human Rights Committee (HRC) is the treaty body tasked to monitor compliance with the International Covenant on Civil and Political Rights (ICCPR).
India signed the Universal Declaration of Human Rights (UDHR) on June 10, 1948. It must be remembered that in international law, a declaration is merely a statement of intent, not a binding instrument like signing an international covenant.
India signed the Universal Declaration of Human Rights on June 10, 1948.
India ratified the Genocide Convention on November 9, 1950, and after ratifying it, in 1959 came with an important reservation to Article IX of the convention. The reservation dealt with not accepting the jurisdiction of the International Court of Justice (ICJ) in the event of differences in interpretation of what constituted genocide. It brought no concomitant domestic legislation and never made the necessary changes in domestic criminal law.
Exaggerated notions of sovereignty
India has been reticent about signing international covenants or conventions relating to human rights thanks to exaggerated notions of sovereignty which even China seems to have given up in relation to the UN Treaty body system. To illustrate, China ratified the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment on October 4, 1988, while India is yet to do so, 27 years after signing it.
It was conscious that repeated pogroms euphemistically called ‘communal riots’ against Muslims, an orgy of pogroms in many states against Sikhs in the aftermath of the assassination of Prime Minister Indira Gandhi and pogroms against tribal Christians in Odisha would have all attracted these provisions, over and above the normal criminal law provisions.
A little history
India ratified the ICCPR along with the International Covenant on Economic, Social and Cultural Rights (ICESCR) on April 10, 1979.
The political leadership of the then-new Janata Party government did the needful but not without a major rearguard action by the permanent bureaucracies of the ministries of external affairs, home and law.
When acceding to the ICCPR, India made numerous reservations or declarations, as India coyly calls them. It also made many reservations to the ICESCR.
India did not sign the ‘optional protocol’ to the covenant which gives the committee competence to examine individual complaints regarding alleged violations of the covenant by State parties to the protocol.
It also did not sign the ‘second optional protocol’ to the covenant, which relates to the abolition of the death penalty by States who have accepted the protocol.
In Article 1 of the ICCPR, India has declared the words “the right to self-determination” are to apply to people under foreign domination and do not apply to people in sovereign States. It does not need much grey matter to fathom as to why this was done.
India ratified the ICCPR along with the International Covenant on Economic, Social and Cultural Rights on April 10, 1979.
About Article 9 of the ICCPR, India noted that under Indian law there is no enforceable right to compensation for infringement of fundamental rights. India further stated that this Article will be applied in consonance with Article 22 of the Indian Constitution, which provides for preventive detention in certain cases, suspending the right to liberty. Such a necessary evil it is, the State’s first resort!
Article 12 of the ICCPR relates to freedom of movement within one’s own country and that “everyone shall be free to leave any country, including his own”.
India states that the Article will be applied in consonance with the Indian Constitution. Remember Priya Pillai of Greenpeace?
In any case, it is instructive to remember that in Kharak Singh versus State of Uttar Pradesh, the Supreme Court of India held that the right to move freely is not an absolute right, and reasonable restrictions can be imposed for maintaining public order and ensuring national security.
In G. Sundararajan versus State of Tamil Nadu, the Supreme Court upheld restrictions on the right to reside near the Kudankulam nuclear power plant, citing the potential threat to public safety and national security.
Indian citizens wanting to travel to a third country from Nepal also need a ‘no objection certificate’ (NOC) from the Indian embassy in Kathmandu. Interestingly, Nepal states that they are an independent sovereign country!
Regarding Article 13 of the ICCPR, India has declared that domestic law will apply to foreigners in India.
As regards Article 19 (3), Article 21 and Article 23 of the ICCPR, India has held that these Articles are to be applied in conformity with the Indian Constitution as well.
India’s reservations
There has been concern surrounding India’s reservations, particularly to Article 9 and its seeming incongruity with the paragraphs of Article 22 of the Indian Constitution outlining the procedure for preventive detention.
Since the allowance for preventive detention by a legislative act is actually written into the Indian Constitution, many legal scholars have debated what this means for India’s relationship with the ICCPR.
As Prof. Derek Jinks writes, “Preventive detention is too deeply implicated in the Constitution’s very definition of personal freedom to conceive of the practice as simply ‘derogation’ or ‘exception’ to otherwise well-established rights.”
The present government of India report
The HRC has requested India for general information on the national human rights situation, including new measures and developments relating to the implementation of the ICCPR.
In Para 2 of the government of India’s report, everything was tickety-boo: Since the concluding observations from the consideration of the third periodic report in 1996, there has been a marked decline in the constitutional and legal framework for the protection of human rights. In one instance, the Supreme Court of India warned an activist against writing to UN human rights bodies.
When acceding to the ICCPR, India made numerous reservations or declarations, as India coyly calls them. It also made many reservations to the ICESCR.
The attitude of the State machinery is to subtly and not too subtly discourage international engagement using the Foreign Contribution (Regulation) Act, 2010 (FCRA), income tax and enforcement directorate inquiries, visa denials to international academics and law students from international universities wanting to do research on human rights issues or pro bono work or internships with human rights non-governmental organisations (NGOs) such as (South Asia Human Rights Documentation Centre (SAHRDC).
Specifically, the reply to Para 3 of the government report listed the existence of statutory and constitutional bodies in India meant to promote and protect human rights.
Also read: Global rights body must hold NHRC accountable for its silence on key human rights issues in India
The government of India forgets to mention that all statutory and constitutional bodies taken note of in the third periodic report and others have been enfeebled to the extent that they exist more in form than substance.
In the government of India’s submission of its fourth periodic report under Article 40 of the covenant, it states, “Since the adoption of the previous concluding observations, India has made considerable progress in developing a strong and elaborate legal and institutional framework for the promotion and protection of human rights.
“These developments which include constitutional amendments, enactment of new legislations, amendments to the existing laws and developments affected through case laws have been highlighted at relevant places in the replies to the list of issues.”
Parliament of India
The position of deputy speaker of the 17th Lok Sabha, the lower house of the Indian Parliament, remained vacant since May 2019. Hopefully, it will be filled in the newly elected Parliament.
The Prime Minister did not answer a single question on the floor of either house of Parliament in the last Parliament. Not a single notice from an opposition member of Parliament (MP) was accepted for discussion under Rule 267 in the Rajya Sabha, which is the upper house of Parliament in the winter session of the last house.
In terms of the number of sittings, this was the lowest number of days worked since 1952 in the Lok Sabha. And the least productive. In an unprecedented move, 146 members of Parliament were suspended for demanding a discussion on a security breach in Parliament. After this, about 300 questions from opposition members of Parliament were deleted.
In a first, a ruling party member using unparliamentary language hurled obnoxious ‘communal’ (sectarian) slurs. Parliamentary democracy or electoral autocracy?
The Election Commission of India
“The Election Commission of India (ECI) has, in recent years, disappointed the Indian electorate by its inability to be effective, impartial and prompt in its role as the watchdog of elections. This is partly a function of the mechanism of the appointment of the ECI’s members, which is entirely a partisan decision of the executive.
Indian citizens wanting to travel to a third country from Nepal also need an NOC from the Indian embassy in Kathmandu. Interestingly, Nepal states that they are an independent sovereign country!
“The integrity and credibility of the ECI is central to the legitimacy of elections. Reinforcing its independence should be a priority for all stakeholders in Indian democracy, particularly political parties and the judiciary. The ECI is too important to be left to itself.”
Also read: International reports on India and the dual standards in India
Thus read a May 23, 2024 editorial in The Hindu. Need we say more?
National Human Rights Commission
As far as the National Human Rights Commission (NHRC) is concerned, one only seeks to draw the attention of the reader to the indulgent decision of the Sub Committee on Accreditation (SCA) of the Global Alliance of National Human Rights Institutions (GANHRI) to defer the decision on conferment of ‘A’ status for actually the third time around. Not having made any substantive or meaningful changes, since the SCA first commented on the Indian NHRC in 2017.
The SCA once again commented on the failure of the Indian NHRC to conform to the Paris Principles in 2023 and chose to defer its ‘A’ status for a year. In its meeting in May 2024, the SCA, having seen no compliance, is reported to have once again deferred the ‘A’ status for another year.
The 2024 SCA recommendations have not been posted on the GANHRI website as of June 11, 2024. However, all the major dailies in India have reported extensively on the SCA decision.
The Indian NHRC should have rightfully, based on its record, been formally downgraded to ‘B’ status at the very least. The overly lenient approach of the SCA of the GANHRI in the face of unwillingness to effect real changes by the NHRC and the government of India only undermines accountability by an international organisation tasked to uphold it.
The government of India forgets to mention that all statutory and constitutional bodies taken note of in the third periodic report and others have been enfeebled to the extent that they exist more in form than substance.
Writing about the alleged efficacy of the other constitutional or statutory bodies would be only labouring the point about their vacuity.
Reservation for women in Parliament
The government of India report, in Para 36, states, “India encourages women’s participation in political life and the same has been gradually rising. The proportion of women members in Lok Sabha (lower house of the Parliament) increased from 11.6 percent in 2014 to 14.4 percent in 2019.”
The reality is that the Act to reserve two-thirds of seats in Parliament for women was a pyrrhic victory for gender justice. The Act introduced reservations for women for 15 years with no rotation. Seats reserved for women will be rotated after each delimitation, as determined by a law made by Parliament.
Also read: Use of pellet guns in farmers’ protests another milestone in shrinking space for dissent
The second and more significant difference from the previous versions of the Bills is linking women’s reservation to the delimitation exercise (or what is also referred to as ‘redistricting’ or the redrawing of constituency boundaries).
The delimitation is unlikely to happen before 2031— depending on when the next census is completed and whether the commission can use its report for redrawing constituency boundaries.
This puts a question mark on the exact timeline of the Act’s implementation and pushes the horizon to an indefinite date. Some observers feel this could be as late as 2039 because the delimitation exercise is suspended until the updated census numbers are available.
The updated population distribution will be used to determine the number of new seats and the allocation of reserved seats against the total number.
In Kashmir, The Hindu reported that 14 percent of those injured by pellet guns in the 2016 uprising were below 15 years of age.
Most believe that instead of working towards immediate implementation, the ruling Bharatiya Janata Party/National Democratic Alliance (BJP/NDA) government “offered a post-dated cheque and created an optical illusion instead of a sure pathway for the Act to come into force”.
Legal experts have observed that while the role of the Delimitation Commission may be salient, the constituencies are already demarcated in accordance with the 2011 census and they could easily have been allocated for the 2024 election instead of waiting for the next delimitation exercise. This could have been done through a lottery of the kind used to allocate reserved seats for local and urban bodies.
Pellet guns
The government of India response on pellet guns in Para 141 of its report hides more than it reveals. It gives the impression that the usage of pellet guns was confined only to Kashmir. In the heartland state of Haryana, the police used pellet guns against farmers at two locations— Khanuari and Shambhu Barrier— along the Punjab–Haryana border, approximately 200 km away from Delhi.
“Around 200 people have received serious injuries, including by pellet guns. Some are still admitted to hospitals in Chandigarh and Patiala,” The Hindu reported.
In Kashmir, The Hindu reported that 14 percent of those injured by pellet guns in the 2016 uprising were below 15 years of age. The Central Reserve Police Force (CPRF) admitted to using 1.3 million pellets in the first 32 days of the protest in 2016.
As early as 2014, a study of 20 pellet victims with eye injuries revealed that 33 percent of them did not regain their vision. In a 2016 study by the Physicians for Human Rights, it was found that the security forces use the 12-gauge shotgun which is “inherently inaccurate, indiscriminate and capable of penetrating soft tissues even at a distance”.
It stated that the 12-gauge shotgun comes under the class of kinetic impact projectiles, which should not be used for crowd management or crowd dispersal. This is because these weapons cannot be used safely or effectively against crowds.
The report further added: “At close range, the lethality and patterns of injuries of weapons firing cartridges of pellets or rubber bullets become similar to those of live ammunition.”
The use of pellet guns is expanding and the threshold of their use is being lowered. Consequently, the space for dissent is shrinking.