HRF/95/04
29 March 2004
Big democracy fails international compliance test
On paper, the Indian Government’s commitment to the human rights standards enunciated in several key international instruments is exemplary. It has acceded to the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), indicating its willingness to be bound by the treaties in international law.
However, the reality of India’s human rights record reveals that this formal affirmation of human rights is deceptive. The fundamental rights that the State has pledged to protect in the three aforementioned treaties continue to be routinely violated through the application of particular laws and the actions of State authorities. This disparity between the rhetoric and practice of the Indian Government is disturbing. It calls into question whether the Government’s ratification of the ICCPR, the ICESCR and the ICERD is motivated by a genuine commitment to human rights, or the need to divert international scrutiny from the plight of its citizens.
The
Caste System
Caste-based discrimination remains endemic in Indian society. The groups occupying the lowest echelons of the caste system, particularly the Dalits or the Scheduled Castes, are regularly denied basic political, economic, social and cultural rights. The range of abuses to which they are subjected include torture, restrictions on their freedom of movement, and forced participation in such degrading tasks as manual scavenging.
In spite of the fact that this constitutes a clear derogation from the provisions of the ICCPR, the ICESCR and the ICERD, the Indian Government has sought to frame caste-based discrimination as a social issue of purely domestic concern, rather than a human rights problem warranting international attention. This argument ignores indications that comparable kinds of discrimination exist in numerous countries in Asia and Africa. Even so, the Indian Government was successful in ensuring caste-based discrimination was omitted from the agenda of the World Conference against Racism, Racial Discrimination, Xenophobia and All Related Forms of Intolerance held in late 2001.
However, this reasoning has been unequivocally rejected by the Committee on the Elimination of Racial Discrimination, the monitoring body established under the Convention. The Committee has recognised caste-based discrimination as a form of discrimination based on descent and has passed a general recommendation reiterating this view, putting the question of the scope of the ICERD beyond doubt.
The
Rights of Indigenous Peoples
The rights of indigenous peoples are enshrined in various provisions of the ICERD, the ICCPR and the ICESCR. In particular, the right of all peoples to self-determination is recognised in Articles 1 of both the ICCPR and the ICESCR. Contrary to these provisions, the Indian Government has acted to suppress even peaceful movements for self-determination. Although the Indian Government ratified the ICCPR and ICESCR with reservations in respect of those Articles, this does not diminish the seriousness of the abuses systematically inflicted upon its indigenous populations.
The tribal people of Northeast India, for example, have suffered economic deprivation, social and cultural oppression and have been the victims of a discriminatory application of emergency laws such as the Armed Forces (Special Powers) Act. Section 4(a) of the AFSPA provides that any commissioned officer or a person of equivalent rank in the Armed Forces is empowered to shoot to kill after giving such due warning as he may consider necessary.
The
Rights of Religious Minorities
Instances of the complicity of State agents in the persecution of religious minorities in India continue to undermine the Government’s purported commitment to the protections contained in the ICERD.
In the aftermath of the Gujarat riots in early 2002, overwhelming evidence emerged implicating members of the police force in the violence against Muslims. Furthermore, collusion between police and Government officials to protect the perpetrators of the violence from prosecution was reportedly widespread.
Far from being an aberration in the behaviour of State officials, the tendency of law enforcement agencies to side with the Hindu majority in communal riots has been publicly acknowledged for some time. Indeed, the 1981 Report of the National Police Commission admitted to such a bias in the operations of its police officers.
The uncertain predicament of religious minorities in India is also apparent in the passage of anti-conversion laws in the early 1990s. Although ostensibly secular in purpose, the laws in fact operate to reinforce the dominance of the Hindu majority. The Special Rapporteur on Religious Intolerance shared this conclusion, reporting in 1992 on the forced conversions of Christians to Hinduism in the state of Madhya Pradesh, led by the Bharatiya Janata Party, which governed the state at the time. The same trend is apparent in more recent legislation enacted by the Jayalalitha Government in the state of Tamil Nadu and the controversial Government of the state of Gujarat.
Reporting
Responsibilities
In light of the range of human rights violations in India that contravene provisions of the ICERD, it is unsurprising that the Indian Government has been reluctant to submit its compliance reports to the CERD. It submitted its 16th and 17th reports after receiving four and three reminders from the Committee respectively.
The
Death Penalty
In spite of its obligation under Article 6(6) of the ICCPR to work towards the abolition of the death penalty, the Indian Government has signalled its movement in the opposite direction by broadening the applicability of the death penalty as a punishment for ‘terrorist acts’ in its recent counter-terrorism legislation, the Prevention of Terrorism Act 2001.
Furthermore, the Government is yet to amend the Indian Penal Code to ensure that persons are not executed for crimes committed when they were under the age of eighteen, in line with the requirements of Article 6(5) of the ICCPR. In conjunction with its reticence on the issue of signing the Second Optional Protocol to the ICCPR, this suggests a lack of good faith on the part of the Indian Government in its efforts to comply with the provisions of the ICCPR.
Rights
in a State of Emergency
Although Article 4 of the ICCPR allows for the suspension of some of the rights contained in the Covenant in times of ‘public emergency’, it does not allow derogation from designated fundamental human rights under any circumstances.
Several pieces of legislation enacted by the Indian Government clearly fall foul of this provision, including the AFSPA, the National Security Act and the Prevention of Terrorism Act. None of these Acts were enacted in an officially proclaimed emergency. Of greater concern, however, is the authorisation of measures such as arbitrary detention and other infringements upon fundamental human rights standards expressly prohibited by the ICCPR.
Official
Immunity
Both the ICCPR (in Article 2(3)) and the ICERD (in Article 6) enunciate the need for an effective remedy to be available to victims of human rights abuses. However, section 6 of AFSPA grants members of the armed forces immunity from prosecution. Given the regular allegations of human rights violations committed by India’s armed forces in the past, this amounts to a denial of justice and of redress in the form of compensation.
Monitoring
and Complaints Procedures under the ICCPR
The ICCPR provides for two complaints procedures – one available to individuals under the First Optional Protocol, and one available to States under Article 41 of the Covenant. However, the Indian Government has failed to consent to either of these mechanisms, depriving its citizens of an important alternative avenue of redress against the State.
States that have acceded to the ICCPR are also expected to submit periodic reports to the Human Rights Committee detailing its compliance with the Covenants requirements. Each of the reports India has submitted thus far have been late, and the Committee is currently awaiting India’s fourth report, which was due in 2001. The Indian Government’s reports have often been criticised for focusing on describing the legal safeguards in place to protect human rights, rather than the practical effectiveness of their implementation.
The
Right to Food
Article 11 of the ICESCR enshrines the right to food as a basic human right. The Committee on Economic Social and Cultural Rights elaborated on this issue by noting in its 29th Session that ‘the roots of the problem of hunger…are not lack of food but lack of access to available food…’
This is the context in which the right to food in India must be viewed. The Government often emphasises the country’s transition from an agrarian deficiency to an agrarian surplus. However, this does not address the problem of the lack of a basic food supply to close to 400 million people, while the surplus rots in Government godowns.
In a development that gives cause for optimism, the Supreme Court of India has passed orders asking the authorities in numerous states to ensure that families below the poverty line are provided with adequate food. The court has also undertaken to monitor the implementation of the orders. However, it is alarming that the right to food is only receiving recognition on account of an activist judiciary. Given the limited resources of India’s judiciary, it is clearly still imperative that the Government intervene to address this crisis.
Conclusion
A cursory glance at India’s human rights record exposes the Government’s failure to translate its rhetoric in international fora into concrete domestic safeguards for human rights. India’s most vulnerable citizens, principally the poor and ethnic and religious minorities, continue to suffer from human rights violations that impinge upon the whole spectrum of their rights - political, economic, social and cultural.
The Indian Government must dedicate time and resources to the implementation of its human rights obligations. Otherwise, its ratification of international treaties will continue to be regarded as little more than a disingenuous exercise in international diplomacy.
Human Rights Features
About SAHRDC / Action Alerts / Human Rights Features / Publications / Online Resource Centre / Home