India, the self-styled world’s largest democracy, has secured its position in the newly constituted UN Human Rights Council following elections held on May 9th, 2006. Although India’s initial period serving on the Council is limited to one year, there is much that India can do during its tenure to improve its human rights record and also to encourage other countries, particularly within the region, to engage in a similar exercise. Such efforts will not only generate an atmosphere of fruitful development of the Council’s working methods and mechanisms, but will also be an opportunity to look deeper into human rights issues in various other member states.
Like many other states, India made a voluntary human rights pledge as part of its candidacy for membership to the Council. It is now time for India to put into practice that which it has pledged to do.
Even though all the elements in the pledge are significant, of particular importance is India’s promise that it “will continue to abide by its national mechanisms and procedures to promote and protect the human rights and fundamental freedoms of all its citizens.”
Given this promise, and now with its membership in the Council, it is worth analysing how honest India has been in protecting and promoting human rights thus far. Although in theory India is considered to be a functioning democracy, in actual practice democratic values have been tainted by extreme discrimination and situations in parts of the country resembling those found in military states. Of particular concern are caste and gender based discrimination; the draconian laws put in place in so-called disturbed areas; and the ever increasing number of starvation deaths and extreme cases of poverty reported from India.
Fifty nine years since independence, discrimination based on caste, religion and gender is still widespread in India. In the past decade India has vehemently denied that caste based discrimination exists in India. In addition to this, the Indian authorities have unsuccessfully attempted to prevent discussion on caste based discrimination in international fora. This was evident in India’s objection to admit that caste based discrimination is racial discrimination at the Durban Conference.
Millions of Indians are discriminated against owing to their birth into a particular community. Although a specific domestic law. The Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act – is in place in India, the actual domestic implementation of the law is far from satisfactory. This law entirely depends upon the honest and effective investigation by the local police for its implementation. Given the fact that the police in India is a failing institution, the implementation of this law remains beset by problems.
Of equal concern is the delay in court procedures and the prosecution of cases. If a person, who faces discrimination or other human rights violation, needs to wait for decades to see justice done, the very concept of justice is damaged. This has resulted in a situation, where the members of the lower castes are consistently discriminated against and are blocked from participating in the democratic process. For members of discriminated community, unless a person is associated with a political party he or she cannot challenge human rights violations in India. This situation is exploited by various political parties in India.
Gender based discrimination is also a major concern in India. A female child is considered to be a burden on the family and is often murdered before or soon after birth. Discrimination happens at home and also in government offices. India does not yet have a domestic law that prohibits gender based discrimination. Religious and other customary practices, such as the use of dowries, have resulted in an alarming rate of female infanticide. The national average of the female to male population is an indicator that clearly illustrates this stark reality. According to the Registrar General & Census Commissioner of India, in some states including Punjab, Haryana, Gujarat, Himachal Pradesh, Delhi, some districts of Tamil Nadu, Maharashtra and recently Karnataka, the gender ratio has declined to about 900 girls per 1000 boys in the 0-6 age group. In some districts, the ratio has plummeted to less than about 850 to 1000 boys. In India, a woman is considered to be an instrument for pleasure and a source of free labour. Even though some states like Kerala are considerably advanced in female literacy compared to the rest of India, gender based discrimination also remains a burning issue in this state. The amount paid per dowry in Kerala is proportionally one of the highest in India.
Although there are domestic laws in place, such as the Pre-natal Sex Selection/Determination (Prohibition and Regulation) Act, which expressly prohibits gender determination of an unborn child, there are major failings in the implementation of the Act. This is also the case concerning the Dowry Prohibition Act 1961, which prohibits the practice of demanding and accepting dowries. An addition to the Indian Penal Code, to include punishment for violence against women arising out of wedlock, under Section 498 A of the Code, has also not been effectively implemented due to failings in the police and the judiciary.
When it comes to ensuring human rights and other fundamental rights of the citizens, it is to the courts that people turn. It is true that the courts in India, particularly the Constitutional Courts, have delivered landmark judgments that are often quoted inside and outside the country as an example of an active judiciary. However, failings in the implementation of these judgments completely undermine these efforts. One such example is the judgment of the Supreme Court of India regarding arrest and detention procedures. The judgment, which was delivered in 1996, is yet to be implemented in its true sense. The Asian Human Rights Commission (AHRC) in recent years has been informed of hundreds of cases of blatant violations of the standards set forth in the judgment.
Furthermore, the courts in India have failed to consider the gross human rights violations committed by the security forces and to challenge the draconian laws in force in many parts of India that have been declared as “disturbed areas.” Not only have the courts failed to declare these laws as being anti-constitutional and against fundamental rights, but they have tacitly justified state violence by holding that such laws are required in the name of national security.
Indian citizens in all of the country’s eastern states are subjected to gross human rights violations perpetrated by the armed forces. The prevailing human rights situation in the state of Jammu and Kashmir is of particular concern. Currently, draconian laws, such as the Public Security Act, are already in place in the name of countering Neo-Maoist activities in several other states in India. Illegal arrests, custodial torture, disappearance and extra-judicial killing are reported on a daily basis from the country.
Economic, social and cultural rights receive much less importance in India. Most of these rights are not guaranteed as fundamental rights under the constitution. More than half of the entire population in India remains deprived of basic amenities. Acute poverty is very common in all states. Of particular concern are the states of Uttar Pradesh, Bihar, West Bengal, Orissa, Uttaranchal, Jharkhand and Rajastan. A recent estimate indicates that about 500 million people in India face poverty, resulting in malnourishment and even starvation. Given the fact that India is a food-rich country, the alarmingly large proportion of the population suffering from food shortage indicates serious failings in domestic policy. Even though the countrywide network of public distribution shops are expected to distribute food at subsidised prices, and in some places free of cost, the food that is to be sold through these shops is in fact sold on black market by the shop licensees with the help of the local police. The domestic law, The Essential Commodities Act, is not being enforced in practice.
There are several causes which can be linked to the failures of the domestic justice dispensation mechanisms and the reluctance of the government to address these adequately. The dependency upon outdated laws, lack of basic infrastructure, absence of proper concern by the judges, institutionalised corruption are examples of such causes.
Concerning the use of available international mechanisms, India has opted out from the jurisdiction of all UN Treaty Bodies, thereby completely ruling out the possibility for Indian citizens to approach and make use of these mechanisms by making individual complaints. For example India has opted out from the jurisdiction of the Human Rights Committee, CEDAW Committee, CESR Committee and the CERD Committee. India takes pride in the presence of various Indians within these mechanisms’ staff. However, none of their services are available to Indian citizens due to reservations that the government of India has made as part of the ratification of the international Conventions and Covenants that the country has undertaken.
International law is of little relevance if a state decides to avoid it completely. It cannot be considered as a replacement for non-functioning domestic mechanisms. However, international law has contributed towards the development and improvement of domestic standards in numerous countries. Given this, it is important to understand what India meant when pledging to continue to abide by its national mechanisms and procedures for the promotion and protection of human rights.
It can be inferred that India will continue to refrain from submitting itself to the scrutiny of any of the UN Special Procedures or the jurisdiction of the Treaty Bodies, given its complete reluctance to do so thus far. An example is India’s refusal to permit the UN Special Rapporteur on Torture to visit the country, despite continued requests. Furthermore, as the current members of the newly-established Council will be involved in establishing the body’s working methods, it is likely that India will also act to undermine the Special Procedures in collusion with other member states of the UN.
The international community must be wary of Inidas intentions in the Council and analyse the countrys performance with regard to the promises it has made in its pledge. The AHRC is concerned that India may use its growing political clout to undermine the UN Human Rights Council’s ability to consider and act upon the human rights situations in individual countries. Of further concern is the fact that India may lobby against mechanisms permitting the effective participation of non-governmental organizations within the Council. This concern arises out of India history of resistance to creative NGO participation, as was witnessed during the Durban Summit on racism. During this meeting India lobbied other member states not to allow the representatives from concerned civil society groups to make intervene during the meeting. In a futile attempt to sabotage the parallel meeting held by NGOs in Durban, India sponsored select groups to be vocal against the concerns of the lower castes and caste discrimination in India.
At present, most human rights violations in India recur and are left unchallenged owing to a failed justice dispensation mechanism. To begin with, India must immediately try to revitalise its snail-paced judiciary. No resources must be spared to provide enough funds for proper and regular functioning of the courts. Old and outdated laws like the Criminal Procedure Code and the Police Act must be replaced or amended to include basic requirements, such as modern facilities for the investigation and prevention of crime.
Draconian laws like the Terrorist and Disruptive Activities Prevention Act must be scrapped. The unnecessary presence of military and other armed forces must be completely avoided. The impunity provided to members of these forces must be removed and their acts made challengeable in civil courts. Any law that is derogative of the Constitutional provisions, such as the Armed Forces Special Powers Act, must be withdrawn.
However, such attempts must not be used as an opportunity to limit individual freedom. Of particular importance is a complete change in the attitude of policing. The police must be made accountable for every allegation of custodial violence and dereliction of duty. There must be an independent and effective establishment within the country to prosecute crimes committed by the police. The first step to this is to make custodial torture a crime along with the ratification of the Convention against Torture. The National and State Human Rights Commissions must be provided with enough statutory as well as logistical freedom to independently investigate cases brought to their notice. This must begin with the establishment of an independent body within the Commissions to conduct their own independent inquiries into allegations of human rights violations. The Commissions currently depend on the local police for such investigation.
Although not a complete solution, a revitalisation of the justice dispensation mechanisms will go a long way to improve India’s human rights record. However, in addition to this, structural adjustments within the domestic set-up, such as the establishment of independent bodies for appointments into key government offices, including the offices of the public prosecutor, the police and the lower judiciary must be made. This will remove the current clout the political parties enjoy with regard to the appointments to these offices. Until such changes are made within the country’s administrative framework, the introduction of new laws will make no sense, since the implementing organs will fail to deliver upon them.
As a member of the Council with considerable influence, India must not only act to improve its own record, but encourage other members of the Council and the United Nations to do so. The members of the new Council must show genuine commitment to global human rights if the body is going to be an improvement on its predecessor, the now-discredited Human Rights Commission.
The Asian Human Rights Commission will continue to monitor India’s activities with regard to the domestic fulfilment of its human rights promises. The AHRC calls upon other concerned civil society organisations to engage in similar tasks, focusing on the countries of their choice. If civil society fails to make use of the new opportunities and safeguards that the Human Rights Council is expected to provide, it is likely that the new body will not fulfil its potential or enable fresh means of protecting and promoting human rights.
