As India’s human rights record comes up for review under the Universal Periodic Review Process at the United Nations Human Rights Council in Geneva on Thursday, one hopes that Indian authorities will drop their defensive posturing and practise what they preach.
The peer-review system was set up in 2006 to take stock of every UN member’s human rights record in a four-year cycle. Each country gets to present what it has done to meet its human rights obligations and other member states have a chance to give feedback and recommendations on what needs to be resolved or improved.
India’s government, the National Human Rights Commission and civil society coalitions have all made their submissions to the United Nations Human Rights Office, which reported these to the council. On May 4, the government will present its record and receive recommendations from other member states.
A major concern leading up to the review has been the contradictory messages from the government regarding its commitment to human rights. For instance, the government’s official submission talks about the Supreme Court’s 2016 order against blanket immunity for security forces and the Justice JS Verma Committee’s recommendation to do away with prior sanction for prosecuting security personnel for sexual offences. However, not only have we seen no movement towards accepting the Verma Committee’s recommendation, just last week the Attorney General Mukul Rohatgi unsuccessfully asked the apex court to recall the 2016 order, arguing that the Army’s actions during military operations could not “be put to judicial scrutiny”.
The government’s submission reiterates its commitment to promoting and protecting human rights defenders. But at the March 2017 session of the council, India voted on an amendment proposed by Russia, China and Pakistan to remove the term “human rights defender” from a resolution on the issue.
The submission notes that “a vibrant civil society keeps the government accountable for its commitments”, but at home, it has used the Foreign Contribution Regulation Act, 2010 to stifle dissenting non-governmental organisations, and human rights activists have faced threats and violence from vigilante groups, and arbitrary arrests and detention.
This doublespeak on human rights is unhelpful and raises questions about how seriously the Indian authorities take the review process.
Since India’s last review in 2012, despite legislative reform on some human rights issues such as violence against women, there has been limited progress on many recommendations accepted by the government, particularly on civil and political rights.
At the last review, India accepted recommendations to prevent discrimination and violence against women and girls, members of religious minorities, and Scheduled Castes and Scheduled Tribes. However, the authorities have failed to ensure that cases of violence against women and girls are properly registered and investigated, and rape within marriage is yet to be recognised as a crime. Laws to prosecute crimes against members of Scheduled Castes and Scheduled Tribes, and laws to end the practice of manual scavenging are still poorly enforced.
The government also accepted recommendations to promote equal access to justice for all, including by providing more legal aid to the poor and marginalised. But inadequate provision of legal aid continues to contribute to excessive pre-trial detention. Two-thirds of India’s prison population is of pre-trial detainees, with Dalits, Adivasis and Muslims disproportionately represented.
The government’s submission for the upcoming review reaffirms its commitment to key human rights issues such as an anti-torture legislation, non-discrimination against lesbian, gay, bisexual and transgender people, and a law against enforced disappearance. However, given the lack of serious groundwork by the executive on these issues in the last four years, this promise sounds more like an attempt to evade criticism. The Prevention of Torture Bill, 2010 lapsed with the end of the 15th Lok Sabha in 2014. Apart from announcing last year that a new Bill was ready, there is little to suggest the government is serious about introducing an anti-torture law.
On the issue of lesbian, gay, bisexual and transgender rights, the government has done little to reverse the setback of December 2013, when the Supreme Court disappointingly re-criminalised consensual same-sex relations. BJP parliamentarians have not even allowed private members’ Bills seeking amendments to Section 377 of the Indian Penal Code to be introduced. The only substantive response has come from civil society actors who filed a curative petition against the ruling, which of course finds mention in the government submission.
The government also claims that it is committed to ratifying the International Convention for the Protection of All Persons from Enforced Disappearances, but we have not seen any movement towards creating an enabling domestic legislation or ratifying the convention.
Merely promising to ratify and implement human rights treaties without any apparent intent to do so does nothing to improve the human rights situation in the country. India must drop its defensive approach to human rights issues and use the review to start an earnest process of addressing key human rights challenges.
Raghu Menon works with Amnesty International India.