Immediately following the adoption of the resolution to establish a Human Rights Council by the General Assembly on 15 March 2006, India declared that it “was committed to the enlargement of human freedoms throughout the world”, and believed that “the newly established Council, which would recognize the importance of civil society in the area of promoting and protecting human rights, was a major credit to the Organization”. It was an important initial announcement, as there was never any doubt that India intended to enter the election fray.

The General Assembly resolution provides for the election of 47 members by the General Assembly on 9 May 2006, based on equitable geographic distribution. Asia has been allocated 13 seats, and, at the time of writing, these will be contested by a minimum of 18 candidates. In accordance with the resolution to establish the Council, when electing members to the Council, “Member States shall take into account the contribution of candidates to the promotion and protection of human rights and their voluntary pledges and commitments made thereto”. To date, the majority of candidates have submitted these voluntary pledges and commitments to the Secretariat of the General Assembly.

The text of India’s voluntary pledge is not even a masterful disguise; it is poorly worded and hastily executed. This in itself is a slight to the new electoral system.

The pledge begins with the mention of India’s “long tradition of promoting and protecting human rights”, flowing from the “realization that in a truly pluralistic society, the growth and well being of citizens can only be guaranteed through [such a] culture.” It is claimed that such values are enshrined in India’s Constitution, although there is no qualification or apology to the effect that India’s Constitution, for example, provides for the use of preventive detention and denies any statutory right to compensation for human rights violations.

The report then refers to the “independent and impartial judiciary’s… far reaching pronouncements” on the protection and promotion of human rights. Whilst this is generally the case, it remains a half-truth. No mention is made of the Supreme Court’s dismissal of the right to strike in India; or its upholding of the Prevention of Terrorism Act, which egregiously violated numerous fundamental freedoms. Nor is any mention made of the problem of judicial delay in India which has resulted in over 70 percent of India’s detainees languishing in prison as undertrials. The Indian Government has made no effort to alleviate this problem, thus violating the inalienable right of the individual to due process and effective remedy.

The pledge’s first claim to progress is in the empowerment of women through the reserving of one-third of all seats for women in urban and local government. Whilst this is welcome, there is no mention of outstanding impediments, to which the Government has shown no initiative, deriving from its “policy of non-interference in the personal affairs of any community without its initiative and consent.” Personal laws in India, which control matters such as inheritance, property rights, and adoption, continue to follow patriarchal principles. For example, according to Hindu personal law, daughters are denied most of the important property rights that are granted to sons; women’s right to the family dwelling home is subordinate to men’s rights; women’s guardianship of their children is secondary to that of men; and wives cannot initiate adoption. The Government has made no efforts to repeal such laws. There is also no mention of the fact that the conditions in women’s prisons in India are appalling. According to a former Chairperson of the National Commission for Women, Mohini Giri, “bills dealing with women are low priority for the government.” During her three-year tenure, approximately 213 recommendations and 24 amendments were proposed, of which the central government did not implement a single one.

The pledge proceeds to state that the launch of the National Rural Employment Scheme on 1 February 2006 “operationalised the right to work in India”. This is not correct. The pledge admits that the scheme provides for 100 days work per year; however, it intentionally neglects to mention that this applies to only 200 of the country’s 602 districts thus far, and that it provides for wages of Rs 60 (1 euro) per day. It is also reported that this so-called “operationalised right to work” of 100 euro per year is being substantially reduced by central government at the present time.

This follows to the proclamation that the National Human Rights Commission is a “powerful and independent body” and the pledge that India will “maintain the independence, autonomy as well as genuine powers of investigation of national human rights bodies”. In truth, the National Human Rights Commission is neither independent nor powerful. Rather it is shackled by the political appointments of Commissioners, including the appointment of the former Director of the Central Bureau of Investigation to the National Human Rights Commission, and staff that is drawn almost exclusively from government offices. Further, even the Commission itself recognizes that it does not have genuine powers of investigation. It is precluded from independently inquiring into human rights violations committed by the armed forces, which, in turn, are granted effective immunity in India, or into indeed any human rights violations committed in the state of Jammu and Kashmir. It’s the Commission’s general performance in all regards has led to a stage where it is generally disregarded by the human rights community in India. The same total sense of redundancy can be applied to the National Commission for Women and the National Committee for Minorities among others. All are powerless by the limitations of their enabling legislation and by the political selectivity of the appointment processes.

The pledge then claims that Indian civil society is “among the most vibrant anywhere the world” and that India “will continue to encourage efforts by civil society seeking to protect and promote human rights”. This is untrue. The enactment of such legislation as the Foreign Contributions Regulation Act (FCRA), 1976, is intentionally designed to clamp down on the activities of NGOs, and is being used in this manner against various NGOs that are critical of government policy. The FCRA requires the permission of the Ministry of Home Affairs, and not the Ministry of Finance, before any NGO can receive foreign funding, and refusal on the basis of the NGO being a “political organisation” requires no explanation. The Government’s attempts to crack down on NGO activities may be further imposed if the recently drafted Foreign Contribution Management and Control Bill passes into law, whereby the government will have the power to completely prohibit organisations of a “political nature” from receiving foreign funding, whereby the government will determine what constitutes “political nature”.

At the international level, India claims to be a committed supporter of the UN human rights system, and pledges to support the Office of the High Commissioner for Human Rights (OHCHR) and strive for the full realisation of all rights. No explanation is provided for the fact that India initially opposed the very creation of the OHCHR, alongside Pakistan, when the OHCHR was first instituted. During the drafting of the resolution to establish the Human Rights Council, India proposed, alongside China, Pakistan, Cuba, Belarus and Singapore, that the Council should review the work of the OHCHR. Attempting to threaten the OHCHR's independence, this proposal would have sought to criticize the content and alleged political intention of the Office's reporting and thus eventually undermine its credibility and support.

Generally, and critically, it should be noted that all of India’s pledges regarding its future work in the Human Rights Council only relate to engaging in norm-setting, the establishment of modalities, and “co-operating with States through capacity building by way of technical co-operation.” This is because India does not allow adequate international scrutiny of its human rights record. The most over-arching statement in the pledge which alludes to this fact is its claim that “India will continue to abide by its national mechanisms and procedures to promote and protect the human rights and fundamental freedoms of its citizens.” The National Human Rights Commission was originally established quite openly for this purpose, or to “counter the false and politically motivated propaganda by foreign and Indian civil rights agencies.”

Despite its claim, India is not striving for the full realization of all rights. In actuality, India is at the forefront of efforts to undermine an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (ICESCR) that would allow for individual complaints of violations of these rights. At the treaty level, India has not submitted a report to the UN Committee on Economic, Social and Cultural Rights for over 20 years. To date, three Special Rapporteurs (SRs) have been granted the right to visit India, on the right to food, violence against women, and freedom of religion or belief, in 2005, 2000, and 1996 respectively. The SRs on racism and toxic waste, the Special Representative on Human Rights Defenders, and the Working Group on Arbitrary Detentions, have all had their requests ignored. The SRs on extrajudicial executions and torture have had continual requests ignored since 1993. Other SRs additional to the above, such the SRs on housing, the sale of children, and migrants, have written to the Indian government expressing various concerns, but at the time of writing, have yet to receive replies. When India pledges to “participate in reviewing and strengthening Special Procedures”, this should be kept in mind.

At the Commission on Human Rights, India opposed agenda item 9’s country specific resolutions on the grounds that they are unproductive and politically motivated. India last year abstained on the North Korea resolution, voted against the Cuba resolution, voted in favour of a no-action motion on Belarus, and opposed the resolution proper. Concerning the resolution on extrajudicial executions, India voted in favour of Pakistan’s proposal to delete the paragraph which called upon States concerned to investigate promptly and thoroughly all cases of killings “including those committed in the name of passion or in the name of honour”, as if to suggest that such executions are exempt from prompt and thorough investigation. And concerning the death penalty, India proposed to delete any reference calling on States who have not done so to abolish the death penalty, “not to execute any person as long as any related legal procedure, at the international or at the national level, is pending”, and any reference to assuring that the death penalty will not be carried out following a request for extradition for any capital charge. It then proceeded to abstain from the final vote.

This constitutes the total of India’s pledges and commitments. Given the sheer volume of prospective candidates for election, the misnomers, half truths, and even lies that are propagated by candidates may go unquestioned by others. In India’s case, the overwhelming majority of its statements and pledges are manipulated, and it is important that the above corrections should be taken into account before the elections on 9 May 2006.

To provide some final context, it is valuable to look beyond the rhetoric and revert to India’s participation in the drafting of the Council resolution. Amongst many of India’s reservations at the time was the unwillingness to accept the provision that States shall: “uphold the highest standards in the promotion and protection of human rights, fully cooperate with the Council, and be [the first to be] reviewed under the universal periodic review mechanism during their term of office.” This is the type of candidate that expects an easy election to the Human Rights Council.

 Human Rights Features