INDIA: Stakeholders’ Report under the UPR
1. NGO Consultation on the UPR
2. Human rights situation on the
ground
I. Impunity: The root cause of massive and
flagrant human rights violations
II. Key civil and political rights issues in
India
b. Armed
conflicts, public emergency and derogation
III. Key economic, social and cultural
rights issues in India
a. Development
and exclusion: Implications on ESCR rights of the Excluded
IV.
State of the vulnerable groups.
f. Stigmatisation and denotified tribes
g. Refugees under the government of India
b.
Attacks on domestic and international human rights defenders
3. State’s
Obligations/Commitments
4. Enhancement of State’s capacity/technical
cooperation
5. Cooperation with HRC, Treaty
Bodies and OHCHR
Annexure
I: List of the NGOs endorsing this submission
1. NGO Consultation on the UPR
This
stakeholders’ submission has been prepared through "India National
Consultation for Preparation of Stakeholders' Report under the Universal
Periodic Review" organized by Asian Centre for human Rights, Forum Asian
and Peoples Watch Tamilnadu in New Delhi on 13-14 November 2007. An estimated
192 civil society organisations and 13 human rights defenders endorsed this
submission.
Unfortunately, the government of India failed to hold consultation with
civil society stakeholders before 20 November 2007, the deadline for submission
by the stakeholders.
2. Human rights situation on the ground
I. Impunity: The root cause of
massive and flagrant human rights violations
There is virtual
impunity for “public servants” and politicians from President to the head of
the Village Council, panchayat. Even
for prosecution of the law enforcement personnel accused of rape and murder,
“prior sanction” from the government is mandatory under Section 197 and section
132 of the Criminal Procedure Code and Section 6 of Armed Forces Special Powers
Act. Most Acts provide immunity for “acts done on good faith”. The executive in
India acts as the supra judicial body.
Especially for mass
killings and massacres, accountability has not been established. When faced
with public outcry, the government usually sets up Commissions of Inquiry which
may identify causes of these crimes and even pinpoint the culprits but do not
result in prosecution. First, the
government establishes more than one inquiry commissions. There were nine inquiry commissions concerning the anti-Sikh
riots of 1984. There are two inquiry commissions headed by Justice S N Sarma
and Justice K N Saikia into the secret killings of the members of the armed
opposition groups United Liberation Front of Assam and their relatives in late
1990s. Justice K N Saikia in his report submitted on 15 November 2007 reached
different conclusions. Second, some
commissions like the Liberhan Commission investigating into the demolition of
Babri Mosque in 1992 are yet to complete its investigation and only in November
2007 another extension was provided. Third,
the findings of majority inquiry commissions like the Justice Upendra
Commission of Inquiry into the killing of Ms Thangjang Manorama Devi on August
2004 in Manipur is yet to be published. Fourth,
when reports of commissions of inquiries such as the Justice Sri Krishna
Commission inquiring into the Mumbai progrom in 1992-1993 are made public, no
action has been taken. Fifth, even
when the High Court orders to place the reports of inquiry commission such as
the massacre of the Dalits in Kuhmer in Rajashthan, the government in contempt
of the High Court order even refused to place before the State Assembly. Sixth, during the investigation
processes by the Inquiry Commissions such as the Nanavati Shah Commission of
Inquiry into the Gujarat genocidal carnage of 2002, all attempts are made to
ensure that the truth never comes out.
[1]
The culture of
impunity exacerbates human rights violations as the public officials consider
themselves beyond the reach of the law. It is often the marginalised sections
of the society like the Dalits, tribals, minorities who are victims of more
human rights violations.
II. Key civil and political rights
issues in India
a. Right to life
The violations of
the right to life through custodial deaths, encounter killings, indiscriminate
and disproportionate use of fire-arms and enforced disappearances are rampant.
The National Human Rights Commission reported 136 deaths in police custody and 1,357 deaths in judicial
custody and 122 cases of encounter killings during 2004-2005. The data is only the tip of the ice berg.
In a rarest case,
the Kolkata High Court on 16 November 2007 in its judgment termed the shooting of 14 persons
by the West Bengal Police on 14 March 2007 as “wholly unconstitutional” and
“not provocative enough to warrant police firing”.
[2]
In majority of the cases of police firing, no investigation is conducted.
The right to life of
women and girl child are also violated within the family structure and society
in general and within ‘communities’.
The denial and
deprivation of the economic, social and cultural rights also led to violations
right to life through suicide, hunger and starvation. A staggering 89,362 farmers committed suicide between 1997 and 2005.
Since 2002, there has become one suicide every 30 minutes.
The award of death
penalty is the norm; the application of the “rarest of the rare case” principle
is an exception. In this overall scenario where human rights are violated with
impunity, the human rights of marginalized sections, indigenous peoples,
depressed castes and religious minorities are in greatest threat. Women among
those sections are victims of being thrice oppressed.
b. Armed conflicts, public
emergency and derogation
About 21 out of 28 States are afflicted by internal
armed conflicts. Many of these States are heavily militarised and the use of
special laws such as the Armed Forces Special Powers Act of 1958 that provides
the power to shoot to kill to a non-commissioned officer with virtual impunity
has unleashed a vicious cycle of violence and has buried the original political
disputes that triggered the violence. While the government of India justified
the use of AFSPA because of the war like situation before the UN Human Rights
Committee, it denied existence of any armed conflict before the CEDAW Committee
to deny applicability of the Security Council Resolution 1325 on protection of
women victims. The AFSPA can be applied after declaration of certain areas as
“disturbed” which is in fact declaration of public emergency within the meaning
of article 4(3) of ICCPR and even non-derogable rights such as right to life,
right against torture are routinely violated. Research and solidarity visits by
the international human rights organisation are severely restricted due to
imposition of laws like the Foreigner Protected Area Order and Restricted Area
Permit in the North East. Even respected international humanitarian
organisations like the ICRC are denied access except for a limited access to
Jammu and Kashmir.
c. Rights of the prisoners
According
to the National Human Rights Commission, there were a total of 3,32,112
prisoners against the total capacity of 2,38,855 prisoners in the 1315 jails of
the country as on 31 December 2004. Out of them, 2,32,731 inmates were
undertrials, comprising of staggering 70% of the total inmates.
[3]
Condition in these prisons for undertrials or inmates does not meet bare human
rights standards.
The
showpiece of India’s prisons, Tihar Jails is so overcrowded that Delhi High
Court in June 2007 that observed “You (jail authorities) wait till the prisoner
is in his deathbed to give him medical attention”. A three-member probe committee
appointed by the High Court found that the prison cells were highly
overcrowded, medical facilities were virtually “non-existent” and acute
shortage of water and fans in the prison.
[4]
On 7 November 2007, the Delhi High Court directed Tihar jail authorities to put
“petition box” in the jail where the inmates could drop their complaints to be
considered by National Human Rights Commission.
[5]
But, under the Human Rights Protection Act, the NHRC must give prior
information to the state authorities before visiting the prisons! Official
figures show that India’s largest minority, the Muslims suffer worst at the
hands of the criminal justice system. A quarter of under trials in Gujarat’s
jails, 33% in Maharashtra and 19% in Karnataka are Muslims. Institutionalized
bias operates at the stages of arrest, torture, lack of access to legal aid,
and a prejudiced judicial authority.
[6]
III. Key economic, social and
cultural rights issues in India
a. Development and
exclusion: Implications on ESCR rights of the Excluded
As India achieves 8
to 10% growth rate, the issue of the Excluded has come to mean. The Special Economic Zones, constructions of
dams and leasing of areas for mining
etc have become virtual “conflict zones” as the government takes away private
lands of the people without free, prior and informed consent under the “public
purpose” and sell them to the private companies for profit. Now coastal zones
have become the target.
As
on 2 December 2006, as many as 237 Special Economic Zones (SEZs) have been approved
by the Ministry of Commerce and Industry. The state governments have been
primarily allotting prime agricultural lands for the private companies. The
land owners are being forced and induced to manufacture consent for approval of
the SEZs. Violence continues to erupt in Singur and Nandigram in West Bengal in
protest against forcible acquisition of land of the farmers.
In armed conflict
situations, militarisation and military oriented development are being
encouraged. Public hearing for approval of the projects is held inside army
barracks with selected participants in the North East. Private sectors have
been hiring security agencies/anti-social elements for human rights violations
of the victims.
Despite
of having around 450,000 conflict-induced internally displaced persons as a
result of conflict mainly in Chhattisgarh, Assam, Jammu and Kashmir, Mizoram,
Tripura and Gujarat. India has no policy on conflict induced IDPs and the
Kashmiri Pandits are provided better facilities than the other conflict induced
IDPs.
The
disaster response whether in Tsunami or recent floods were marked by caste
bias.
Once
displaced, all other rights including the right to adequate housing, food,
health, education etc are violated. Their livelihoods are destroyed. Women,
children and persons belonging to vulnerable groups remain prone to violence.
IV.
State of the vulnerable groups
a. Violence against women
Women
in India continue to face physical, sexual, emotional and economic violence.
According to the 2005 Annual Report of the National Crime Records, 1 crime was
committed against women in every 3 minutes, 1 rape in every 29 minutes, 1
molestation in every 15 minutes, 1 dowry death case in every 77 minute in the
country during 2005. The NCRB recorded a total of 1,55,553 cases of Violence
Against Women (VAW) including 18,359 cases of rape involving 18,376 victims,
34,175 cases of molestation and 58,319 cases of torture in 2005. Out of total
22,832 cases reported for kidnapping and abduction of women 43% were for marriage
only and 56,709 cases investigated by police during 2005 were of cruelty by
husband and relatives.
[7]
It is worth noting that NCRB seldom collects
the data on offences committed by the armed forces.
Women,
particularly those from tribal, dalit and religious minorities, face sexual and
gender based crimes during/after caste or communal conflict situations. There
are rampant child marriages - while the
legal age of marriage for women is 18 years, 2% of girls of 10-14 years age
group and 24% of 15-19 age group are married (Source Census 2001). Women’s
right within family and marriage, specially her rights to property,
inheritance, maintenance are not ensured. In the age of liberalisation, there
is increased feminisation of poverty especially with males committing suicide.
Poor socio-economic indicators, deplorable educational, reproductive and sexual
health statistics highlight that women are increasingly being marginalized in
the development and political agenda. Across North India, there is inverse juvenile
sex ratio because of female foeticide.
b. Rights of the child
The
situation of children remained vulnerable with the lack of effective programmes
for the child labourers, recruitment as child soldiers, sexual violence against
girl child and deplorable conditions of the juveniles in conflict with the law.
Dalit and tribal children are more vulnerable to abuses and face problems for
access to education. The government remains a mute witness to recruitment as
child soldiers. Torture and corporal punishment are rampant.
c. Violence against Dalits
The
Scheduled Castes, known as “Dalits”, continued to face atrocities and caste
based discrimination in all spheres of life. The 2005 Annual Report of the
National Crime Records Bureau reported a total of 26,127 cases - 8,497 cases under the Protection of Civil
Rights Act and 291 cases under the SC/ST (Prevention of Atrocities) Act of 1989
(Atrocities Act)- against the Scheduled Castes. Although the average charge-sheeting
rate for the crimes against the SCs was 94.1 per cent, the average conviction
rate was only 29.8%. A total of 46,936 persons (82.4%) out of 57,804 persons
arrested for crimes committed against Scheduled Castes were charge-sheeted but
only 28.3% were convicted consisting of 12,691 persons out of 44,842 persons
against whom trials were completed.
[8]
As the Dalits assert the rights, they faced increased violence. But their
complaints are seldom registered. The enactment of the SC/ST Act in 1989 became
necessary after the earlier Civil Rights Act was found to be ineffective. The
purpose behind this specific legislation that gave greater protection to Dalits
has been neutralized by the police and judicial machinery by not applying the
empowering sections of the law when such crimes are committed.
Institutionalised prejudice (casteism and communalism) prejudices the criminal
justice system against Dalits and the religious minorities further.
[9]
The Dalits continue
to be denied access to public places including places of worship, electricity
and water. Women face ill-treatment and there are higher mortality rates among
Dalit women and children and less access to vaccination.
d. Indigenous peoples
Over
84 million indigenous/tribals peoples of India, known as the Scheduled Tribes,
continued to be disproportionate victims of “development”, displacement and
dispossession.
Many
tribal communities including Birhores of Jharkhand
[10]
;
Karbongs of Tripura
[11]
;
the Great Andamanese, Onges, Shompens, Jarawas, and Sentinelese of Andaman and
Nicober
[12]
have been facing extinction. In 2002, the Supreme Court ordered the closure of
the Andaman Trunk Road that run along and through the Jarawa Tribal Reserve as
it threatens their survival. But the Andaman Trunk Road continued to remain
open in gross violation of the Supreme Court orders.
[13]
According
to the 2005 Annual Report of the National Crime Records Bureau, a crime against
the tribals was committed in every 29 minutes. In 2005, a total of 5,713 cases
against Scheduled Tribes (STs) were reported in the country as compared to
5,535 cases in 2004 showing an increase of 3.2% in 2005 from 2004. These
included 1,283 cases reported under the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act of 1989 and 162 cases under the Protection of
Civil Rights Act. Although the average charge-sheeting rate for the crimes
against the STs was 91.6 per cent, the average conviction rate was only 24.5%.
A total of 8,273 persons (83.8%) out of 9,870 persons arrested for crimes
committed against Scheduled Tribes were charge-sheeted but only 24.2% were
convicted consisting of 1,934 persons out of 7,981 persons against whom trials
were completed.
[14]
The
Ministry of Tribal Affairs in its Draft National Policy on the Tribals stated
that nearly 8.6 million tribals were displaced until 1990 on account of mega
development projects like dams, mining, industries and conservation of nature
etc.
e. Religious minorities
The
religious minorities in India who constituted 18.6 % of the total population as
per 2001 census
[15]
face serious discrimination from majority Hindus and the state has turned
distinctly majoritarian. The religious minorities face persecution,
stigmatisation and marginalisation in economic, social and political spheres.
The Justice Ranjinder Sachar Committee in 2007 has highlighted the same. Women and girls among
the religious minorities face three levels of deprivation – of gender, class
and community.
Freedom
of faith is violated under the Freedom of Religious Acts. The religious
minorities cannot control their places of worship. The Bodh Gaya temple where
Lord Buddha gained enlightenment is still managed by the Hindus in
contraventions of the directions of the National Commission for Minorities. 297
places of worship – Mosques and Dargah’s were destroyed during the Gujarat
Genocidal carnage of 2002. Only a few have been repaired.
[16]
India having born
out of communal riots during the partition in 1947 continues to witness regular
communal violence, mass crimes, ethnic cleansing and genocide. There has not
been any law to deal with such communal violence. A special law to deal with
genocidal crimes has been demanded by rights activists and minority groups. At
present, the Communal Violence Bill is being examined by the Rajya Sabha but
the Bill does not define mass crimes, genocide etc. Nor does it ensure
punishment to the chain of command, the man or woman at the helm who
masterminds carnage. It further strengthens the State but there are no
provisions for witness protection, reparation, command responsibility. The Bill
is extremely gender insensitive and the crimes under the Bill are already
covered under the Indian Penal Code!
f. Stigmatisation and denotified tribes
Various religious groups, Muslim clerics, pastors etc
continue to be victims of human rights violations at the hands of the law
enforcement personnel as a result of prejudices.
Apart from
prejudices, certain communities continue to suffer from stigmatization. The
colonial British government identified certain tribal groups as “born
criminals” under the racist Criminal Tribes Act of 1871. The government of
India only amended the nomenclature of the Act in 1952 by rechristening it as
‘Habitual Offenders Act’ and denotified certain tribal groups. However, the
basic thrust of the Act – identifying certain tribal groups as “habitual
offenders” or “born criminals” – continues even today. The government set up a
National Commission on the Denotified Tribes which has the worst mandate in
terms of powers and functions in comparison to other statutory bodies.
g. Refugees under the government of India
According
to Annual Report 2005-06 of Ministry of Home Affairs, there were 1,08,414
Tibetan refugees and the government of India reportedly spent an amount of
about Rs. 18.17 crore on their resettlement.
[17]
About 80,000 were in northeast Indian state of Mizoram, which borders Myanmar’s
Chin State, while 10,000 were in Manipur and 2,000 in Delhi.
[18]
They constantly live under fear of deportation.
V.
Overarching Issues
a. State of Judiciary
Judiciary
despite its independence has virtually collapsed in terms of quantitative and
qualitative deliverance of justice, long ago. There are at least 28.6 million
cases pending before the courts in India.
[19]
According to Chief Justice of India K.G. Balakrishnan there is a need for at
least 5,000 more courts
[20]
,
1,539 more judges in the High Courts and 18,479 more judges in subordinate
courts to clear the backlog cases within one year. Presently, India has only
10.5 judges per million population.
[21]
In addition, vacancies are seldom filled up on time. There were four vacancies in the Supreme Court of India (out of
sanctioned strength of 26 judges, there were only 22 judges) as on 10 July
2007, 142 vacancies in the 21 High Courts of the country (there were 583 judges
against the sanctioned strength of 725 judges) as on 1 July 2007 and 2,768
vacancies in the district and subordinate courts (there were 11,951 judges
against the sanctioned strength of 14,719 judges) as on 31 March 2007.
[22]
The issue however is not only of absence of courts. An inherent lack of
accountability and transparency from the judiciary, especially in cases related
to severe human rights violations is made worse by the existence of an outdated
and undemocratic Contempt of Court Act.
There is no law to
ensure judicial accountability. The Contempt of Court Act is often used to
silence the truth.
In addition, legal
aid system has collapsed.
b. Attacks on domestic and
international human rights defenders
Human
rights defenders continue to face repression. On 17 July 2007, Subash Mahapatra,
Director of Forum for Fact Finding, Documentation and Advocacy (FFDA) was
handed over to the police in Raipur, Chattisgarh by the Chhattisgarh State
Human Rights Commission where he went to inquire about the status of his
complaints of human rights violations filed with the commission.
On
24 August 2006, Leitangthem Umakanta Meitei, Secretary General of the
Threatened Indigenous People's Society of Manipur was arrested by the police
from his house in Imphal, Manipur under the Unlawful Activities (Prevention)
Act, 2004. His colleague, Yengkokpam Langamba Meitei alias Thabi was arrested
on 23 August 2006. On 4 October 2006, both of them were released and all
charges against them were dropped as the police could not produce any evidence.
Since
14 May 2007, Dr. Binayak Sen, General Secretary of the Chhattisgarh State
Branch of the Peoples Union for Civil Liberties (PUCL) and the Vice-President
of the National PUCL has been detained under the Chhattisgarh Special Public
Security Act, 2005 and the Unlawful Activities (Prevention) Act, 1967 on the
charges of having links with the Maoists. On 23 June 2007, Dr Sen was denied
bail by the Chhattisgarh High Court. He continues to be imprisoned.
Victims
of the Gujarat carnage of 2002 and human rights defenders supporting their
struggle have faced threats of arrest by the state government of Gujarat.
Latifa Begum in Godhra, Ameenabi from Pandharwada, Gujarat are too examples.
Rais Khan Pathan and Teesta Setalvad of Citizens for Justice and Peace have
been threatened with arrest and are now on anticipatory bail.
The
threats are no longer limited to human rights defenders in India. On 26
September 2007, Additional Chief Metropolitan Magistrate in Bangalore issued
arrest warrants against seven Netherlands-based human rights defenders
including Ms. Ineke Zeldenrust, Ms. Esther de Haan, Ms.
Christa de Bruin and Mr. Evert de Boer of Clean Clothes
Campaign (CCC), an organisation which struggles for the improvement of working
conditions in garment industries and Mr. Gerard Oonk, Mr. Hans Maas
and Ms. Pauline Overeemand of the India Committee of the
Netherlands (ICN), an NGO raising awareness on the negative impacts of
globalisation policies on human rights in India. Fibres and Fabrics
International (FFI) and its subsidiary company Jeans Knit Pvt Ltd (JKPL) – two
subcontractors of big brands such as G-Star, Armani, RaRe, Guess, Gap and Mexx,
which have been accused of physical and verbal abuse on employees, forced
labour, unpaid overtime working hours, non-deliverance of contracts, confiscation
of identity cards, etc filed a petition alleging the Netherlands based human
rights defenders of “cybernetic crimes”, “racist and xenophobe acts” and
“criminal defamation” under Articles 499 and 500 of the Indian Criminal
Procedure Code and under Articles 2 to 6 of the Additional Protocol to the
Convention on Cybernetic Crime.
[23]
3. State’s
Obligations/Commitments
I. National level obligations
India has plethora
of laws – laws almost on every subject and very issue except possibly torture
and accountability of the State. India’s commitment cannot be measured by the
Constitution, various national laws, or judgments of the Supreme Court. India’s commitment must be judged from its
commitment to implement which stands exposed from the report on human rights
situation on the ground.
The
government of India also failed to implement Supreme Court judgment in the case
of Salem Advocate Bar Association of
Tamil Nadu Vs Union of India (2003 1 SCC 49) which directed the government
of India to conduct “judicial impact assessment” and provide finance and
infrastructure to deal with additional cases every time a new law is enacted.
There are
implementation mechanisms and therefore, the judgements like the DK Basu
judgement which the government of India “loves to quote” or recent Supreme
Court judgement on police reforms have not been implemented.
The government
failed to comply with the Paris Principles on National Human Rights
Institutions with regard to the National Human Rights Commission, National
Commission for Minorities, National Commission for Scheduled Tribes, National
Commission of Scheduled Castes, National Commission for Women, National
Commission for Children, National Commission for the De-notified Tribes and
various State level bodies because of failure to provide powers, funds and
resources, and autonomy. The guidelines of the NHRIs including on rape,
custodial deaths and encounter killings are not implemented.
On the administration of justice apart from failure to register the First Information Reports especially by the vuln