HRF/99/04

  30 May  2004

INDIA

Human Rights Challenges For The New Government

The newly-elected United Progressive Alliance (UPA), together with the Left parties, has started off on the right foot by deciding to repeal the Prevention of Terrorism Act (POTA), 2001. However, it remains to be seen if the Government will give effect to this decision. Those in the security establishment who still entertain fond hopes about the legislation’s potential usefulness must remember the lessons of TADA and the torment it caused to a number of innocent people. They must also take the blame for any further harm that POTA is certain to cause if it remains on the statute.

POTA is not the only issue that is of concern to liberal-minded citizens. The past few months have seen little soul-searching with regard to formulating a concrete and coherent policy on human rights either during the pre-election pledge-making process or later in the announcement of priorities by the various political groups. After the new Government settles in, it would do well to reflect on some of the most pressing human rights issues and come up with a plan of action. By doing so, it will demonstrate its commitment to protecting the rights of its citizens and of those who seek the protection offered by India’s democratic traditions.

1. Ratification of Convention Against Torture and visit of the Special Rapporteur

The systematic use of torture by police as a tool of interrogation, or even as a form of summary punishment against detained individuals, is evident throughout India. Several legislations moreover provide impunity to perpetrators of torture and thwart the investigation of abuses. The impunity conferred on the armed forces is especially troubling given the powers granted to security forces under laws such as the Armed Forces (Special Powers) Act 1958.

India is yet to ratify the UN Convention Against Torture (CAT). Ratification of the Convention is important if India wants to demonstrate a commitment to eradicating torture. Further, the Government of India must extend an invitation to the United Nations Special Rapporteur on Torture to visit the country. National security is not threatened by visits of independent human rights experts. Nor is it an affront to national honour; in fact, it will serve to demonstrate that India is a transparent society, open to international scrutiny and constructive criticism.

India has moreover consistently sought to block progressive human rights initiatives at international fora such as the UN Commission on Human Rights and the UN Economic and Social Council. In this context, the new Government must also review the stand taken by its representatives at such fora. The positions taken by the Indian delegation at the UN Commission on Human Rights, for example, are often regressive and hardly in line with India’s democratic credentials.

2. Repeal the Foreign Contribution Regulation Act (FCRA), 1976

The Foreign Contribution Regulation Act (FCRA), 1976 requires that all Indian organisations and individuals that seek to receive foreign contributions must first receive clearance from the Ministry of Home Affairs, in the form of either registration or prior permission. Since its enactment during the 1976 Emergency, the FCRA has had a negligible effect in accomplishing its stated objective – i.e. to halt the inflow of foreign funds, the objective of which is purportedly to destabilise the nation. Instead the FCRA has stymied beneficial development projects and served to narrow the political and social space that non-governmental organisations (NGOs) operate in.

The government has a legitimate interest in holding NGOs accountable for financial or other wrongdoing. However, normal regulatory and criminal justice procedures provide sufficient institutional resources to accomplish this task. Similarly, narrowly tailored financial reporting requirements for NGOs serve legitimate governmental interests and should remain in place. However, it is the Ministry of Finance, rather than the highly politicised Home Ministry, that should be given the task of administering these laws. If the Indian government wishes to take practical steps to bring about a collaborative relationship, it must repeal the FCRA. The present legislation is a gross violation of freedom of association.

3. Ratify the Rome Statute of the International Criminal Court

There are few mechanisms for establishing accountability for violations of human rights and fundamental freedoms at the domestic level. India however remains allergic to international scrutiny. During the negotiations on the Rome Statute for the International Criminal Court, India played a negative role. Since its adoption, India has shown little interest in the International Criminal Court (ICC). The ratification of the ICC would be a giant step by the Government of India, and would demonstrate its commitment to justice and accountability.

4. Abolish the death penalty

The 1950 Indian Constitution protects the right to life (Article 21), the right not to be arbitrarily deprived of one’s life (Article 21), and the right to equal protection by law (Article 14).  Capital punishment violates these rights. The International Convention on Civil and Political Rights (ICCPR) ratified by India also obligates States to work toward the abolition of the death penalty. A growing number of countries are in the process of either abolishing the death penalty or have placed a moratorium on it. India’s stand however continues to be regressive, with as many as 11 offences under the penal Code that may be punishable with death. The previous government, in fact, sought to broaden the applicability of the death penalty by applying it to crimes such as dealing in spurious drugs. This runs contrary to the ‘rarest of rare’ doctrine that successive Indian governments and the courts have cited to justify the retention of the death penalty.

5. Eliminate 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 India's Armed Forces (Special Powers) Act grants members of the armed forces immunity from prosecution. Given the regular allegations of human rights violations committed by India's armed forces, this amounts to a denial of justice and redress in the form of compensation to significant numbers of people.

6. Acknowledge caste discrimination as a form of racism

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 UN Convention on the Elimination of Racial Discrimination (ICERD) which India has ratified. 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. India owes it to those suffering from caste-based discrimination to provide access to international redress mechanisms. This will reaffirm India’s commitment to addressing a historical wrong and reinforce affirmative action mechanisms that are already in place at the domestic level.

9. Follow international monitoring and complaints procedures

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 UN 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 still awaiting India's fourth report which was due in 2001.

The Indian Government's reports have often been criticised for merely describing the legal safeguards in place to protect human rights, rather than the practical effectiveness of their implementation. The new Government must address this criticism by giving effect to the international instruments it has ratified.

10. Implement the National Police Commission recommendations

The anti-minority violence in Gujarat in 2001 not only brought to the fore the communal bias and virulent prejudices of the state bureaucracy and the judiciary, but also put the actions of the police in the spotlight.

Policing in India is plagued by political interference, a lack of basic training, the virtual absence of accountability and a poor public image. Brutality has become endemic in police work. The police force, on the other hand, must contend with low pay, poor working and living conditions and high levels of stress.

The National Police Commission (NPC) – set up in 1977 to examine all aspects of the Indian Police Service and to “re-define the role, duties, powers and responsibilities of the police” – has made numerous far-reaching and promising recommendations concerning the functions, procedures and perceptions of the police force in India and the Indian system of justice in general. The NPC produced a total of eight reports; the eighth and concluding report proposed a new Police Act to replace the Police Act of 1861. However, India’s State and Central governments have shown no signs of implementing any of the recommendations. The new Government has already committed itself to setting up mechanisms to ensure justice for victims of rioting. Having a revamped, revitalised police force will go a long way in protecting victims and their rights, and the implementation of the NPC recommendations must be the first step in this respect.

There are a number of other issues that need serious consideration – among them, formulating a refugee policy, tackling judicial delay and ensuring the protection and promotion of economic, social and cultural rights such as the right to food, the right to health, the right to housing and the right to education. It is time the Government – as well as other constituents of civil society, such as the media – went beyond their formalistic preoccupation with economic and foreign policy, and tackled the enormous gaps in other aspects of policymaking.

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