India Comes in the Line of Fire at UNHRC Over Rights Record, Racism

In his opening remarks, attorney general Mukul Rohatgi said India was a secular state with no religion and that the constitution protects the rights of minorities.

New Delhi: India faced questions about its human rights records from over 100 countries, ranging from attacks on Africans to restrictions on foreign funding of NGOs, even as it asserted that a “vibrant” civil society and “fiercely independent” judiciary was enough to address any aberrations.

On Thursday, India was under the spotlight for the third time during the universal periodic review (UPR) at the UN Human Rights Council (UNHRC), the peer-based scrutiny of a nation’s human rights situation. Attorney general Mukul Rohatgi led an inter-ministerial delegation at the UNHRC’s 27th UPR session. Around 110 nations spoke for about one minute each  during the afternoon session, but several had also submitted written questions earlier. The report will be formally adopted on May 9.

Here is a breakdown of the key issues raised by states about India:

Restrictions on civil society

Although India claimed at the UNHRC that it takes “pride in our extremely vibrant civil society,” there was disquiet among various states about restrictions on activists and human rights defenders, which was reflected in their interventions.

The US, Norway, Australia, Germany, Ireland and the Czech Republic were among the dozen countries to raise the issue about the clampdown on foreign funds for voluntary agencies.

Ireland urged India to review the Foreign Contribution Regulation Act (FCRA) in light of its negative impact on civil society and to give special attention to human rights defenders working with minority rights, journalists and children.

Similarly, the German delegate said that his country was “worried about the continued social hardship endured especially by marginalised groups, and is concerned about restrictions on civil society”.

“Amend the Foreign Contribution Regulation Act to ensure the right to freedom of association, which includes the ability of civil society organisations to access foreign funding, and protect human rights defenders effectively against harassment and intimidation,” Germany recommended.

Expressing concern at “growing restrictions” on civil society, including religious minorities, Switzerland urged India to “remove the legal restrictions or obstacles to the work of civil society groups and associations and ensure that they can carry out their legitimate activities without the risk of reprisals”.

The US delegate recommended that India should “ensure consistent, transparent application of Foreign Contributions Regulations Act regulations to permit full exercise of the right to freedom of association”.

In its reply to these concerns, India did not refer to the FCRA matter specifically, but repeated that activities of human rights defenders and NGOs would “have to be in conformity of the law of the land”.

In line with previous reviews, several western countries, including Italy, the Vatican, Canada and the Netherlands, expressed worry about the misuse of anti-conversion laws and urged India to protect religious minorities.

“The Netherlands regrets that anti-conversion laws are sometimes misused and fuel violence against persons belonging to religious minorities,” the Dutch diplomat noted on the floor of the UNHRC. This was also echoed by the US, which noted that “laws restricting religious conversion in seven states contribute to intolerance”.

The UK called for the enactment of the Prevention of Communal and Targeted Violence Bill, which the previous UPA government had to drop under opposition from BJP.

In his opening remarks, Rohatgi noted that India was a secular state with no religion and the Indian constitution enshrined various provisions for protection of the rights of minorities. He also specifically mentioned Article 30 of the constitution, according to which minorities can establish and administer educational institutions. “Some of India’s most famous institutions of academic excellence are minority institutions,” he said.

Discrimination against African nationals

After the attack on Nigerian students at Greater Noida in February, African heads of missions had threatened to go to the UNHRC. In the end, there was no concerted efforts by African countries to raise the issue in Geneva, but Haiti did mention it strongly during its submission.

During its intervention, the Haitian delegate called upon India to bring upon specific laws to deal with “racial attacks” against African nationals, as well as create awareness to prevent “Afrophobia”.

.@Haiti_UNOG recs @IndiaUNGeneva create national action plan to combat #racism and hate crimes #UPR27 #UPR3India

— UPR Info (@UPRinfo) May 4, 2017

In a prepared statement, a member of the Indian delegation replied that the incidents of attack against African nationals were “unfortunate” and “painful”. He cited the historical ties between India and Africa, especially the support of Indian leaders towards the colonial struggle. The Indian official claimed that Indian leadership had “pro-actively” reached out to African diplomatic missions and instructions were given for heightened security in areas with high concentration of African nationals.

Reiterating the Indian government’s argument, the Indian official also claimed that the incidents could not be termed as “racist”. “All criminal acts can’t be termed as racist,” he asserted. Stating that India was the land of Gandhi and Buddha, he added, “we cannot have a racist mindset”.

LGBT rights

Several western countries, including Canada, Ireland, Norway, Canada, Sweden and Israel – the ruling NDA government’s close ally – called upon India to “de-criminalise” same sex relations by revoking section 377 of the IPC.

Rohatgi passed the buck to the judiciary, referring to the Supreme Court’s quashing of the Delhi high court judgement that had decriminalised section 377. He mentioned that there was a pending curative petition, which was likely to be heard by the Supreme Court soon. However, the attorney general remained silent on the apex court’s direction that the repeal of section 377 should be done through the parliament.

While Israel called for implementation of the Transgender Persons (Protection of Rights) Bill, Ireland gave a nod to the criticism of the Bill by stating that New Delhi should “enact legislation consistent with the Supreme Court’s recognition of the rights of transgender persons”.

Activists have criticised the Bill, stating that it did not give rights accorded by the Supreme Court for transpersons to decide their self-identified gender. The Bill, currently tabled in the Lok Sabha, has also been heavily censured for giving a “degrading” definition of transgender.

However, in his opening remarks, Rohatgi highlighted India’s record in this area by asserting that the country “has been at the forefront of recognising the equal rights of transgender persons”.

Use of excessive force by security personnel

The US appreciated the Supreme Court judgement in 2016 that said that army or Manipur police could not use excessive force under the Armed Forces (Special Powers) Act (AFSPA). At the same time, the US diplomat also criticised the continued impunity on abuse allegations against security personnel.

The Swiss delegate said India should revise the AFSPA “to bring it into line with the obligations of the International Covenant on Civil and Political Rights to combat impunity”.

The repeal of the AFSPA had been recommended at the previous UPR cycle in 2012 and, therefore, it was no surprise that it made its appearance during the current review.

Rohatgi pointed out that whether “this Act should be repealed or not is a matter of on-going vibrant political debate in my country”.

He argued that the Act was applicable only at a few areas, which are near international borders, and only to deal with “exigent circumstances like terrorism”. He asserted that even in those areas where the law was applicable, the military personnel were mainly there to assist civil authorities.

The attorney general also noted that there had been a judicial review of the AFSPA. “The Supreme Court of India has upheld the constitutionality of the Act and laid down strict guidelines. Recently, the Court held that the armed forces cannot use excessive force in the course of the discharge of their duties under the Act, which does not allow blanket immunity for perpetrators of unjustified deaths or offences,” he said.

He noted that aberrations are “dealt with by our internal processes that include our fiercely independent judiciary, autonomous Human Rights Commission at both national and State levels, vigilant and vocal media and a vibrant civil society”. “All these institutions ensure that authorities remain respectful of constitutional and human rights norms,” he added.

Along with repeal of the AFSPA, Pakistan also raised the matter of use of force by Indian security personnel, called on India to ban pellet guns and allow for an UNHRC investigative group to visit Jammu and Kashmir. India replied specifically to Pakistan, denying allegations of use of excessive force in the Valley and reiterating its position on Kashmir.

In its separate report to the UNHRC, the National Human Rights Commission (NHRC) claimed that turmoil in Kashmir was “augmented by trans-border terrorism and jihadi funding from the neighbouring country”.

Admitting that the use of pellet guns was “controversial,” the NHRC said that it had taken up the matter with the government. At the same time, it said that it “withholds its comments (on use of pellet guns) now because human rights of both sides are involved, when young crowd pelt stones at the Police personnel”.

Ratification of Convention Against Torture

In 2012, the most frequent recommendation made to India during its second UPR review was to ratify the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Five years later, nearly all the 100-odd states, including developing countries like Burkina Faso, Turkey, South Africa and Kazakhstan, reminded India of this obligation.

Germany asserted that India should swiftly ratify the CAT and its optional protocol, ensure that domestic legislation defines torture in line with international standards, and extend an invitation to the special rapporteur on torture for an official visit to the country.

India reiterated during its reply that it was remained committed to ratifying the convention. The Indian official told the international community that the Law Commission of India was examining the changes required to domestic law prior to ratification and the government was preparing a comprehensive legislation to that effect. In the meantime, India laws were “adequate” enough to prevent torture, argued the Indian delegate.

Incidentally, in its report for the UPR process, the NHRC had described the view that existing provisions with slight amendments in IPC were adequate to deal with torture as “mendacious”. “Delay in bringing out the changes in the law as a pre-requisite for ratification of CAT is disquieting as five years have passed without any significant change,” the NHRC report noted.

Marital rape

Nearly every state recommended giving more attention to prevent violence against women, but many of the western states called upon India to specifically criminalise marital rape.

“Marital rape is not yet criminalised in India – in spite of many calls for criminalisation, including from the UN,” said the Swedish delegate. Similar views were expressed by Iceland, Ireland, Australia, Belgium, Canada and Slovenia, with most calling for the removal of the exception related to marital from the definition of rape in Section 375 of the IPC.

Last year in March, Maneka Gandhi, Union minister for women and child welfare, had said that the concept of marital rape could not be applied in the “Indian context”. A few months later, she claimed that even if there was a law on marital rape, she was sure that most women would not come forward to complain.

Internet shutdowns

The Indian delegation plugged the flagship ‘Digital India’ program, which the Rohatgi said would transform India into a “digitally empowered society through increased connectivity, better access to knowledge, delivery of services, and e-governance through digital means”.

Sweden also noted that although the Indian government was working to increase access through initiatives like Digital India, the “blocking of websites and network disruption occur in entire regions on the pretext of national security concerns”.

According to Indian media watchdog The Hoot, internet was shut down 31 times in various regions of India in 2016. This year, the internet has already been shut down 14 times.

The small European principality of Liechtenstein was the only nation to refer to India’s burgeoning electronic surveillance network. The Liechtensteiner delegate recommended “bringing all legislation concerning communication surveillance in line with international human rights standards and especially recommends that all communication surveillance requires a test of necessity and proportionality”.

Besides, Liechtenstein also recommended that India should take the necessary steps to ensure that all operations of intelligence agencies are monitored by an independent oversight mechanism.

While the Indian delegation did not direct address this issue, India’s “national report” submitted for the UPR process had a specific section on “right to privacy and surveillance,” where it argued that it had enough safeguards to address concerns about freedom of speech.

“India believes that its surveillance programme furthers its national security interests, and that safeguards in the law, including safe transmission of content, requirement for authorization from senior officials, and the existence of a Review Committee to oversee such authorisations, are sufficient to address concerns regarding privacy and freedom of speech,” the report stated.

There were some words of praise for India, with states like Nepal, Mauritius, Bangladesh and Sri Lanka largely giving a free pass to New Delhi. There was also appreciation for India’s Aadhar programme from Sierra Leone and Malaysia. Rohatgi had flown to Geneva straight after defending the government’s position before the Supreme Court for making Aadhaar mandatory for several schemes, including filing taxes.

Laos commended “efforts” by India to further enhance rights to education, while Singapore commended “significant” achievement of “halving the number of rural households without drinking supply”.

At the end of the interventions by the states, Rohatgi said his delegation, made up of officials from different ministries, “will return with ideas that have been generated today for further strengthening our system since we do believe that observance and promotion of human rights is work in progress”.