India may stand shame faced before UN Rights Council

By Debabrata Laifungbam *

The Human Rights Council (HRC) and Office of the High Commissioner for Human Rights (OHCHR) of the United Nations has now released documents giving information on India's Report, a summary of its human rights obligations based on official UN documents and also the report of stakeholders' groups regarding the situation of human rights in India for the Universal Periodic Review (UPR).

The HRC Working Group on the UPR will be having its First Session from 7-18 April 2008 in Geneva. The report of India is scheduled to be considered by the Working Group on 10 April 2008.

Among the recommendations to India by the stakeholders groups, the unacceptability of the Armed Forces (Special Powers) Act 1958 and recommendation for its repeal has been highlighted several times. The recommendations have come in preparation for the first session of the new UPR mechanism established by the HRC.

The Centre for Organisation Research & Education (CORE) Manipur and the Committee for Human Rights (COHR) have submitted separate reports last November to the HRC informing of the prevailing situation in Manipur. The report of CORE Manipur was submitted after consultations with the Apunba Lup. There were 35 other NGOs submissions concerning India including one from the National Human Rights Commission. No other statutory Commissions submitted Independent reports to the HRC.

In the report prepared by the OHCHR compiling official UN documents with reference to India, addressing the right to life, liberty and security of the person, the situation in Manipur is emphasised as one of very great concern with the use of excessive force including rape, murder, mass arrests in response to peaceful protests, targeting of human rights defenders against the Manipuri indigenous communities. The report highlights several serious shortcomings with regard to India's obligations to international human rights standards.

The OHCHR report states at the very outset that India has been invited by the UN treaty bodies "...to consider the ratification of the CAT, ICAMW, Palenno Protocol, ILO Conventions 138 and 182 relating to the abolition of child labour, ILO Convention 169 concerning Indigenous and Tribal Peoples in Independent Countries, 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, ICCPR OP-1, OP-CEDAW; as well as to making the optional declaration provided for in Article 14 of ICERD... [and] to review the reservations or declarations it made to Articles 1, 9, 13, 12, 19, paragraph 3, 21 and 22 of ICCPR and to Articles 5 (a) and 16 (1) of CEDAW with a view to withdrawing them; and to consider withdrawing its reservation to Article 16 (2) of CEDAW and its declaration to Article 32 of the CRC.

The Government of India Report states (para 13) that "Universally recognised human rights and fundamental freedoms are guaranteed without discrimination to all citizens of India, which had taken an active part in the drafting of the Universal Declaration of Human Rights."

The report also claims (para 37) that "Section 2(d) of the Protection of Human Rights Act, 1993 defines "human rights" as the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants, and, enforceable by courts in India. This definition is in conformity with international and the accepted interpretation of human rights".

Despite these claims in its report, international treaties that India is party to are not self-executing in domestic law so that they may be invoked directly before the courts. The claim made by India is also patently untrue as the fundamentable and non-derogable human right to life has been suspended for the people of Manipur since 1958, just seven years after the adoption of India's Constitution.

The report states further (para 15) that, "The bulwark of all Fundamental Rights is found in Article 21 which provides that no person shall be deprived of his life or liberty except in accordance with procedure established by Law." It further says that the Constitution offers the "right to equality including equality before law, prohibition of discrimination on grounds of religion, race, caste, sex or place of birth..."

It is extraordinary that such a bulwark of Fundamental Right can be deprived from its citizens for 50 years by a legal instrument that falls way below internationally accepted standards.

The report also clearly does not recognise the phenomenon of torture, a universally recognised human right violation for which a separate UN treaty has been established. India, while proudly claiming that it partook actively in the drafting of the Universal Declaration on Human Rights, has not ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

In the report, India states that, "It has also signed the Convention against Torture, and other cruel, inhuman or degrading Treatment or Punishment, (CAT) and the Convention on Enforced Disappearances (CEO) signalling its Intention to respect the provisions of the so treaties and is taking steps towards their ratification." But no such steps have been taken in the last 10 years since India signed the convention prohibiting torture.

In its reference to the right to development (paras 42-44), the report merely passes over it in three short paragraphs with a quote from a speech that the present Prime Minister made in the USA (2005) and some additional references to economic growth, growth of the private sector and infrastructure and the handing over of India Inc. to global finance and market. Does the present Government of India understand this right and how it is to be implemented and monitored?

Referring to the civil and political rights, the report states (para 49) that, 'Terrorists are the biggest violators of the most basic of human rights, the Right to Life." If this is taken to be true, the Government of India and its security forces apparatus constitute the biggest terrorist organisation in the country as it has violated this right to this day for 50 years in Manipur, Nagaland and many other parts of the entire northeastern region.

It is certainly a very nervous India that will stand before the Human Rights Council's Working Group on 10 April this year. What is of concern is whether it will join its other peer States in the UN and the HRC to resolve to quickly correct many of the outstanding concerns regarding its obligations to human rights as the largest democracy and a self-proclaimed champion of human rights.