INDIA: UN Human Rights Council candidacy - promises contradict performance

FOR IMMEDIATE RELEASE
May 5, 2006
AS-097-2006

A Statement by the Asian Human Rights Commission

INDIA: UN Human Rights Council candidacy - promises contradict performance
The Asian Human Rights Commission (AHRC) is monitoring India's candidacy to the United Nations Human Rights Council with interest. India, along with the other 17 candidates from Asia that are vying for 13 seats on the Council, has made a voluntary pledge and commitments to human rights to accompany its candidacy. The Council, which is to replace the discredited Commission on Human Rights, is part of a reform package launched by the United Nations, and may present an opportunity for greater protection and enjoyment of human rights. This will depend to a great extent on the calibre and good faith of its 47 members and the development of progressive mechanisms with which the Council will undertake its work. In light of this, India's candidature to the Council is worth scrutiny with regard to the pledge and commitments it has made.

India claims in its pledge that it has a long tradition of promoting and protecting human rights and that it believes in the principle that the "growth and well being of its citizens can only be guaranteed through promotion and protection of human rights." India also states that it "is a committed supporter of the UN Human Rights Systems". However, India ranks low amongst the international community in terms of the ratification of international conventions and covenants. Concerning those which India has ratified, it has made convenient reservations or opted out from the jurisdiction of independent UN bodies, which creates significant barriers to the enjoyment of rights enshrined within these treaties, going against the spirit of their content. India has, in doing so, shielded itself from scrutiny, for example by the Human Rights Committee, the Committee on the Elimination of Discrimination against Women (CEDAW) or the Committee on the Elimination of Racial Discrimination (CERD).

This attitude is further reflected in a section of India's pledge that reads "India will continue to abide by its national mechanisms and procedures to promote and protect the human rights and fundamental freedoms of its citizens," which implies that it will not commit itself to the jurisdiction of the UN Special Procedures, but will rather continue to claim that its domestic mechanisms are capable of ensuring justice for its citizens. India's current human rights record stands in stark contradiction to the promises the country has made in its human rights pledge.

India's pledge highlights its willingness to protect and promote human rights and the impressive example it has set, according to the government, in the region. The Constitution of India guarantees basic freedoms and rights. Most rights of a civil and political nature are guaranteed as primary rights under the Constitution. However, when it comes to economic, social and cultural rights, these have been safely compartmentalised as directive principles of state policies, which are not fully justiciable.

The pledge made by India claims that the judiciary is fully charged with the actual realisation of the rights of its citizens. However, the courts in India continue to fail to deliver justice. One such example is the right to property, which was initially a fundamental right guaranteed by the constitution. It was subsequently removed by the 44th constitutional amendment. Although the amendment was challenged, the courts failed to agree that the right to property is a fundamental right. Today, tribal and scheduled communities in remote areas continue to be evicted as part of construction or development projects, such as dams and other hydroelectric projects.

One specific example is the Narmada dam project, which now threatens 35,000 families. Of the over 10,000 families that were evicted 25 years ago, during the project’s early stages, adequate resettlement is yet to materialise. On this issue the courts passed the decision-making responsibility to the Government, which has passed it back, without either taking a decisive role. Given the promise and the pledge that the Government of India has made along with its candidacy to the UN Council, how can the Government justify this delay in resettling families who lost everything to a dam project and are still waiting for justice?

Even though India pledges that it will "maintain the independence, autonomy as well as genuine powers of investigation of the national human rights bodies, including the National Human Rights Commission" the lack of independency of domestic human rights institutions in India is of serious concern. The National as well as State Human Rights Commissions do not have independent mechanisms for investigating cases. The Human Rights Act does not provide for it. The Commissions carry out their activities using officers on deputation from the police services. Resources given to these officers are grossly inadequate and any findings made by the Commissions totally lack enforceability.

Custodial torture is rampant in India and the police are regarded as being criminals in the eyes of many in the country. Torture is resorted to as the cheapest way of conducting investigations. Custodial torture is not a crime in India. There is no independent mechanism to investigate complaints against police officers. India, although it has signed the UN Convention against Torture, resisted ratifying it on the pretext that domestic mechanisms within the country are capable of addressing the issue. Select cases in the Supreme Court are often flagged as indicators showing how successful domestic mechanisms are in preventing torture. However, the government is not carrying out the implementation of these judgments, and the police are often used as a tool to suppress the people, particularly the poor. The request by the UN Special Rapporteur on Torture to visit India is yet to be met with an invitation by the government, despite its having been pending for years.

Ordinary Indian citizens cannot currently be said to benefit from the protection and enjoyment of rights to an acceptable level. The country is one of the worst in the world when it comes to access to justice and the efficiency of justice dispensation mechanisms. Years of delay are commonplace concerning the disposal of cases in India's courts. Vacancies concerning judicial officer positions and those of other court staff remain unfilled. Positions within the office of the public prosecutor, particularly at the trial courts, are considered to be jobs to be filled with political cronies. Domestic laws are outdated and obsolete and can only serve as a hindrance with regard to the discharging of justice for the common citizen. They are, however, being exploited by the rich and powerful.

The Indian Home Ministry has been tasked with drafting a new Police Bill, which is intended to bring policing in India under the jurisdiction of a central command. A Committee was constituted to come up with a draft Bill in six months. The term of the Committee expired on 31st January 2006, although the Committee failed to deliver anything. The Indian police remains a breeding ground for corruption, nepotism, bribes, cruelty and torture, under a law that governs policing in India dating back to 1861. There is no independent and effective procedure in India that provides for a process to investigate and further punish erring police officers.

Suppression of the freedom of _expression with regard to atrocities committed by the military and paramilitary forces in the eastern states and in the state of Jammu and Kashmir are also of concern. Journalists are prohibited from travelling to or reporting on these regions, due to travel restrictions and the monitoring of communication to and from these regions by the armed forces. While these serious crises receive little international attention, even the domestic media only report a little from these regions.

India has pledged that it will "continue to foster the culture of openness and accountability..." Although India brought in the Right to Information Act in 2005, the actual implementation of the Act is limited to the publication of service information of government officials through websites, which often fail to work and which are never updated. Bribery remains the main catalyst for action in State or Central government offices. A considerable number of elected representatives are also under the shadow of corruption or crime, but make use of the weak legal system to complete their tenures in impunity.

Despite the affirmative promise that India is "expanding its implementation of its Rural Employment Guarantee Programme," the programme, which assures a minimum of 100 days of employment per year for the rural poor, is no better than the Constitutional promise which the country made decades ago. Today, families die of starvation in several states, including but not limited to West Bengal, Bihar, Orissa and Uttar Pradesh. The situation is worse for women in these states.

From 1947 to 2006 India has indeed made scientific, academic and economic progress. The question remains as to how far this has contributed to an average Indian's welfare. However, 59 years since independence, there has not been significant improvement concerning human rights for the majority of Indians, who live in poor villages and slums.

Although India has pledged that it will "continue to promote the social, economic and political empowerment of women in India by affirmative actions" the reality regarding the situation of women in India still of grave concern. India has women pilots, and female scientists working for the Atomic Research Centre. However, in general, women, including those who are educated and working as professionals, are not immune to dowry related killings and other forms of discrimination. Education for female children is still a rare privilege, and a girl-child is considered as a burden and a commodity to ensure free labour and as a tool for pleasure in most parts of India. The law brought in to prevent female infanticide the Prenatal Diagnostic Techniques Act, 1994 is not practiced and enforced in the cities or the villages, resulting in a widening disparity between male and female birth rates in India.
Although the eradication of discrimination against lower castes has, in theory, been a priority for various recent governments in India, caste discrimination is still a burning issue within the country. Atrocities committed against the lower castes are very rarely even investigated. Discrimination is rife. For example, it has taken 27 years for a lower caste community in Belwa village, Uttar Pradesh State, to participate in democratic elections, as they were being prohibited from participation by caste Hindus. Religious intolerance is also a significant problem. In places where Muslims and other non-Hindus, such as Christians, are an acute minority, they face the threat of violence and discrimination from caste Hindus, as exemplified in Gujarat. The investigation, trial and acquittal of the accused in the case of the communal violence in Gujarat and the retrial ordered by the Supreme Court, exposes both the deep failings in the policing system and the justice dispensation mechanisms in the country. Gujarat continues to suffer from sporadic violence between communities, which indicates the continuing failure of the law enforcement agencies.
India often hides behind the rhetoric of improvement and development concerning human rights. India plays hide and seek and refuses to admit that human rights are a concern at the domestic level. Indians cannot file a complaint with any UN Special Procedures mechanisms if they fail to get justice at the domestic level. Furthermore, India is very late in its reporting duties to UN Treaty Bodies: a report to the Human Rights Committee has been due since December 31, 2001; a report to the Committee on Economic, Social and Cultural rights has been due since June 30, 2001; and a report to the CEDAW has been due since August 8, 2002. In spite of this, India has made promises and pledges concerning the promotion and protection of human rights as part of its candidacy to the UN Human Rights Council. India's bid must be observed with caution. Real improvements and the actual fulfilment of pledges made must be witnessed if India is going to become a valuable member of the Council.

If India is elected to the Council, its rights record and the way in which it implements the commitments it has made need to be scrutinised. Failure on the part of India to deliver results must entail its being voted out from the Council. India's representative to the Council must be a person who has the highest human rights credentials and it not placed on the body simply to deflect criticism or outside scrutiny with regard to the situation in the country. India must enable its citizens to have access to international mechanisms for redress, if domestic remedies fail them, as is so often the case at present.

To begin with, India must withdraw all reservations that it has placed on the international conventions and covenants that it has ratified. India also needs to ratify other important international conventions, for example the United Nations Convention against Torture. Further to this, India needs to look further into improving its domestic human rights standards, mechanisms and the situations of huge numbers of victims. Without all of these, membership within the UN Human Rights Council will mean nothing to the ordinary Indian in terms of the enjoyment of rights. India's membership will only serve to hinder the Council in delivering on its aims to improve human rights around the world. The inclusion of members that were serious violators of human rights within the Council's abandoned predecessor, the Commission on Human Rights, was the main reason behind its failure. Such a fate must be averted concerning the Council if we are to see any real advances in human rights at the global level.

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About AHRC The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984

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