International Covenant on Civil and Political Rights

In Final Report, UN Human Rights Committee Notes Concerns Over Minority Discrimination in India

The report specifically recommended the adoption of national legislation to expressly outlaw violence and lynching by “cow vigilantes”.

New Delhi: The UN Human Rights Committee has expressed concern about discrimination and violence against minorities, while cautioning that there was regression in India in its attitudes towards foreigners and that special powers for disturbed areas and counter-terror legislations were not in line with the International Covenant on Civil and Political Rights (ICCPR).

On Thursday, the UN Human Rights Committee, a body of independent experts that monitors the implementation of the ICCPR, released its report on India’s adherence to the covenant.

Since becoming a state party in 1979, India has undergone three ICCPR reviews, with the last one in 1997.

The fourth review took place about two weeks ago, led by attorney general R. Venkataramani and solicitor general Tushar Mehta, who headed the Indian delegation to Geneva.

Over two days, July 15 and 16, the Indian delegation engaged in a “constructive dialogue” with the UN Human Rights Committee.

“During the discussions, the members of the Human Rights Committee spoke appreciatively of the traditions and ethos of India, rooted in principles such as pluralism, non-violence, and diversity, which are in line with the essence of human rights,” said the external affairs ministry’s press note.

On July 25, ten days later, the Human Rights Committee published its report outlining its findings on India’s implementation of the ICCPR.

While the report acknowledged some legislative advancements by the Indian government, it primarily focused on “principal matters of concern” and “recommendations”.

One of the concerns highlighted was that India’s National Human Rights Commission had not been accredited with ‘A’ status by the Global Alliance of National Human Rights Institutions since 2023.

“The Committee is concerned by the impact on the independence of the Commission of the involvement of police officers in investigations of human rights violations, by the Commission’s lack of authorisation to investigate human rights violations allegedly committed by the armed forces and by the one-year temporal limitation from the date of the alleged violation, applicable to complaints,” said the report of the committee’s concluding observations.

A large part of the report was devoted to concerns over the treatment of minorities in India.

“The Committee is concerned about the very high levels of violence against religious minorities, such as the incidents in Manipur since May 2023, and the riots in Gujarat in 2002, and the resulting lack of accountability for human rights violations, including extrajudicial killings,” it wrote.

Additionally, it expressed alarm over the “demolitions of religious minorities’ places of worship and private homes following the riots during Ram Navami processions in 2022, most of them belonging to Muslims, and the reports of violence and lynching by “cow vigilantes” against Muslims and Christians”.

The report specifically recommended the adoption of national legislation to expressly outlaw violence and lynching by “cow vigilantes”.

The committee also highlighted its apprehension about the “application of national security and counter-terrorism laws to target religious minorities and about reports of public officials engaging in hate speech and inciting public violence against religious minorities”.

There were also concerns expressed about widespread internet shutdowns. “The Committee is also concerned about the misuse of vague and broadly formulated provisions of legislation, such as on counter-terrorism, which according to information received is misused for the arbitrary arrest and prosecution of minority groups, journalists and other individuals expressing minority or dissenting views and exercising their right to peaceful assembly”.

The UN committee expressed particular disappointment with India regarding its treatment of foreign nationals seeking refuge over the past two decades. “Despite the tradition of the State party of openness and of welcoming refugees and asylum-seekers, the Committee regrets that the situation has seriously deteriorated since the previous Concluding Observations”.

It voiced concern over the increasing anti-migrant hate speech, including by public officials, which has become increasingly violent, particularly towards Muslims, including Rohingyas from Myanmar, who are publicly identified as threats to national security.

Besides, the committee was troubled by deportations to Myanmar, including plans to deport more than 5,000 asylum-seekers from the Kuki and Chin communities.

It raised concerns about certain provisions of the Armed Forces (Special Powers) Acts and counter-terrorism legislation, stating they do not comply with the covenant.

It highlighted that the prolonged application of counter-terrorism laws in “disturbed areas” such as Manipur, Jammu and Kashmir, and Assam has resulted in widespread and severe human rights violations.

The committee urged India to meet its obligations under the covenant and to ensure that counterterrorism and other security measures in these areas are temporary, proportionate and subject to judicial review. Additionally, it called for India to establish a mechanism to acknowledge responsibility and uncover the truth regarding human rights violations in these regions.

Incidentally, the UN Human Rights Committee noted that India’s new criminal code, the Bharatiya Nyaya Sanhita, 2023, did not have any offence of ‘torture’.

“Amend the new Criminal Code, the Bharatiya Nyaya Sanhita, 2023 to establish a specific crime of torture, in accordance with article 7 of the Covenant with sanctions commensurate with the gravity of such offence,” said the report.

Modi Government Extending Its Repression of Activists to Diaspora Critics: Human Rights Watch

Prime Minister Narendra Modi often attends mass gatherings of diaspora party supporters abroad to celebrate Indian democracy, while his government has targeted people it claims are “tarnishing the image” of the country.

New York: Indian authorities are revoking visa privileges to overseas critics of Indian origin who have spoken out against the ruling Bharatiya Janata Party (BJP)-led government’s policies, Human Rights Watch said today.

Prime Minister Narendra Modi often attends mass gatherings of diaspora party supporters in the United States, Europe, Australia and elsewhere to celebrate Indian democracy, while his government has targeted people it claims are “tarnishing the image” of the country.

The Overseas Citizens of India (OCI) status is available to foreign citizens of Indian origin or foreigners married to Indian nationals to obtain broad residency rights and bypass visa requirements, but does not amount to citizenship.

Many of those whose OCI visa status was revoked are Indian-origin academics, activists and journalists who have been vocal critics of the BJP’s Hindu majoritarian ideology.

Some have challenged their exclusion in Indian courts on constitutional grounds seeking protection of their rights to speech and livelihood.

“Indian government reprisals against members of the diaspora who criticise the BJP’s abusive and discriminatory policies show the authorities’ growing hostility to criticism and dialogue,” said Elaine Pearson, Asia director at Human Rights Watch.

“The authorities seem intent on expanding politically motivated repression against Indian activists and academics at home to foreign citizens of Indian origin beyond India’s borders.”

The BJP-led government has in recent years become more cautious about the visa status for overseas Indians. In 2021, the government downgraded the privileges of the 4.5 million OCI cardholders by re-categorising them as “foreign nationals”, and requiring them to seek special permission to carry out research and journalism, or visit any area in India listed as “protected”.

Over the past decade, the government has cancelled over 100 permits and deported some status holders for allegedly showing “disaffection towards the Constitution”.

This has heightened concerns for OCI cardholders whether living in India or abroad, many of whom have older parents and other strong personal ties to India.

In 2022, after the authorities revoked his status, Ashok Swain, an Indian-origin Swedish academic, appealed to the Delhi high court, which quashed the order, stating that the government had not provided any reasons for its action.

In July 2023, the Indian consulate in Sweden sent Swain a fresh order cancelling his OCI status because of his social media posts “hurting religious sentiments” and “attempting to destabilise the social fabric of India”, without providing specific evidence to substantiate those allegations.

When Swain challenged the order in September 2023, the authorities claimed they had received “secret” inputs from security agencies. In February 2024, Swain’s X (formerly Twitter) account was blocked in India and subsequently hacked.

“My case has been used as an example to scare or to force other academics outside India to not be critical of the regime,” Swain told Human Rights Watch. “They want to create fear because people want the opportunity to go back to the country.”

Indian authorities have also prevented academics who are OCI cardholders from entering the country. On February 23, the authorities barred Nitasha Kaul, a British professor at the University of Westminster in London from entering India.

Kaul said immigration authorities did not provide any reasons but a Ministry of External Affairs spokesperson later said in response to questions about her case that “the entry of foreign nationals into our country is a sovereign decision”.

Unidentified government officials also told the media that Kaul had “shown animus” toward India.

Kaul has been a vocal critic of the BJP and its affiliated groups, and in 2019 she testified before the United States House Committee on Foreign Affairs about human rights violations in Jammu and Kashmir.

Kaul told Human Rights Watch that she has received numerous rape and death threats online from pro-BJP trolls in India and overseas.

“In addition to this, they have called me jihadi and a terrorist,” she said. “There has been a vast amount of deliberate disinformation suggesting that because my work is critical of the ruling party in India, that makes me pro-Pakistani.”

In some cases, the authorities have openly cited criticism of BJP government policies as evidence to revoke the visa status. In response to a petition by a British activist, Amrit Wilson, challenging her cancellation, the government cited her social media posts about Kashmir and her article condemning the police’s excessive use of force against protesting farmers in 2020 and 2021.

Indian authorities are increasingly using what appear to be politically motivated tactics against the around 25 foreign reporters with OCI status working in India as of January 2024, embroiling them in opaque bureaucracy or simply denying them permission to continue reporting.

Vanessa Dougnac, a French journalist who had lived in India for 22 years, said she left the country after the Ministry of Home Affairs sent her a “show cause” notice in January, saying it intended to cancel her OCI card because she did not have a permit to work as a journalist and her news reports created a “biased negative perception of India”.

Dougnac was denied permission to work as a journalist in 2022, and said the ministry had not responded to her “repeated requests” for an explanation or review of its decision.

In 2023, the authorities revoked the OCI status of an American journalist shortly after the journalist published a report about criminal actions by an Indian company. The journalist, who did not wish to be identified, told Human Rights Watch: “No specific allegation was made against me, and no evidence has been produced despite several requests.”

In 2022, the authorities deported the American-Sikh journalist Angad Singh. After Singh brought a lawsuit challenging the decision, the government told the Delhi high court that he “presented a very negative view of India’s secular credentials” in a 2020 documentary about the 2019-20 protests against the country’s amended citizenship law.

Also read: The MEA’s Hyper-Sensitive Rebuttals to Foreign Criticism Hurt Its Own Credibility

Foreign writers, journalists, academics and activists have been increasingly denied access to India for seemingly political reasons, Human Rights Watch said.

In March 2022, British anthropologist Filippo Osella, who had visited India regularly for over 30 years, was turned away by immigration authorities despite holding a valid research visa.

Others denied entry include an Australian writer, Kathryn Hummel; a Pakistani academic, Annie Zaman; a former Swiss diplomat and activist, Kurt Vogele; Mukunda Raj Kattel, director of Asian Forum for Human Rights and Development; and Aaron Gray-Block and Ben Hargreaves, both Greenpeace activists.

The International Covenant on Civil and Political Rights (ICCPR), to which India is a party, addresses in article 13 the rights of aliens lawfully in a country, and non-discrimination against “all persons”, including non-nationals, in article 26.

The Covenant does not recognise non-nationals having a right to enter or reside in a country, a decision left to the state.

However, the United Nations Human Rights Committee, the international expert body that monitors compliance with the ICCPR, has stated in its General Comment No. 15 on the status of aliens, that, “in certain circumstances an alien may enjoy the protection of the Covenant even in relation to entry or residence, for example, when considerations of non-discrimination … arise.”

The General Comment further provides that if the legality of an alien’s “stay is in dispute, any decision on this point leading to his expulsion or deportation ought to be taken in accordance with article 13. It is for the competent authorities … in good faith and in the exercise of their powers, to apply and interpret the domestic law, observing, however, such requirements under the Covenant as equality before the law” in accordance with article 26.

Distinctions are permissible only when based on reasonable and objective criteria.

“Foreign governments eager to partner with India on trade and security should take note that the Indian government is increasing repression to hide a deteriorating human rights situation,” Pearson said.

“These governments should press the Modi administration to interact with its critics to bring about reform instead of intimidating them into silence.”

This article was republished from Human Rights Watch on a Creative Commons license. It was lightly edited for style and spelling.

In Considering Bail for a Pregnant Woman, the Personhood of Her Fetus Has to Be a Factor

Courts and conventions have been mindful of the fact that the unborn child is innocent of all wrongdoing and ought not be subjected to the distressful conditions that inhere in detention.

During the recent bail hearing at the Delhi high court for Jamia Millia Islamia student Safoora Zargar, presiding judge Rajiv Shakhdher had asked for the legal regime on the rights of an unborn child.

Zargar’s counsel, Nitya Ramakrishnan, prepared a note for the consideration of the court detailing the position in law – municipal and international – on the rights of the unborn child, and its independent ‘personhood’.

Zargar is pregnant and Ramakrishan had submitted that apart from the unwarranted nature of the police charges against her under the Unlawful Activities (Prevention) Act, her incarceration as an undertrial is both unnecessary and harmful to her health and the health of the foetus – which the state is duty bound to protect.

In the event, the high court granted bail without going into the merits as the Delhi Police, which had resisted the grant of bail all along, conceded the plea on humanitarian grounds when Justice Shakhdher took up the matter for hearing on Tuesday afternoon.

Zargar is one of several activists involved in the peaceful protests against the Citizenship (Amendment) Act against whom the police in Delhi and Uttar Pradesh have filed serious criminal charges under different sections of the law.

The Wire is publishing the note submitted by Nitya Ramakrishan (with minor editing) as it sheds light on a hitherto neglected aspect of the rights of women detainees and prisoners who happen to be pregnant.

Is the fetus a person? This is a question that has vexed moral philosophers and legal practitioners for many decades and in this context, the ‘viability’ of the fetus was a term that came to be. ‘Viability’ is primarily a medical assessment, simply stated, of the possibility of fetal survival outside of the mother’s body. The possibility or probability of the fetus surviving, with or without life support, has been the medical standard of ‘viability’.

The legal connotations have mainly arisen in the conflict between a mother’s assertion of her right to terminate a pregnancy and the state’s justification to legislate on the subject. Beginning with the celebrated case of Roe v. Wade (1972) decided by the US Supreme Court, fetal rights have generally been part of the discourse on abortion. By a majority, Roe v. Wade upheld in principle the mother’s right to terminate an unwanted pregnancy as part of her constitutional right to privacy, yet it recognised other interests including that of the State, in protecting life – of the fetus and of the mother. It ruled that these interests grew as the fetus approached and attained viability. To balance the competing interests, Roe v. Wade set stages to the decision:

1. For the stage prior to approximately the end of first trimester, the abortion decision and its effectuation must be left to the judgment of the attending physician of the mother;

2. For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health; and

3. For the stage subsequent to viabililty, the State, in promoting of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for preservation of life and health of the mother

While being chary of specifying any definitive threshold of viability, the US Supreme Court reasoned that at 24-28 weeks the fetus could be said to be viable.

With advances in medical science, the threshold of viability was lowered both in medical and legal terms. The United States Supreme Court, in Planned Parenthood v. Casey (1992) upheld Roe v. Wade as far as the state’s interest in protecting the potential human in the fetus but rejected the trimester test of viability. Currently, 20-24 weeks is considered the point at which a fetus may be said to be viable, i.e., capable of survival outside of the mother’s body.

Safoora Zargar will complete 23 weeks of pregnancy as on June 22, 2020.

The Indian Supreme Court has also adopted the central principle of viability of a fetus as enunciated in Roe v. Wade, in paragraph 23 of its judgment in Suchita Srivastava v. Chandigarh Administration (2009).

As said earlier, the debate has arisen predominantly in the context of the mother’s right to abortion and the state’s regulation of her choice. This context is not germane to present case where the mother is ready, willing, and keen to bear the child. Yet, two principles emerge quite clearly and distinctly:

1. First, the safety, security, and personhood of the fetus is secondary only to the interest of the mother, and her health, depending upon the stage. The subordination of the fetus, even to the mother’s interest, is not absolute.

2. Second, jeopardy to the fetus can never be in the State’s interest. And, the life, health, and safety of the fetus, far from being in thrall to any act, decision, or policy of the State, is actually entitled to protection from the State. The State’s powers with respect to childbirth are all geared to protect and enhance life, and not to threaten

Independently of the aforesaid context, fetal rights have recognition in international and national law even if not always spelt out with such a nomenclature.

Fetal right to protection in international law

The Universal Declaration of Human Rights (the UDHR), which was adopted by the UN General Assembly on December 10, 1948, in its very first preambular paragraph recognises the inherent dignity and equal and inalienable rights of all members of the human family, without any of its affirmations being qualified by age or limited to the born.

The concern for an unborn child who is innocent of any wrongdoing is also evidenced by Article 6 of the International Covenant on Civil and Political Rights (the ICCPR) which puts a categorical bar on the execution of pregnant women.

In keeping with the spirit of the UDHR and the Declaration of the Rights of the Child 1959, the Convention on the Rights of the Child (the CRC) was adopted on November 20, 1989. It is imperative to highlight the relevant clauses of the CRC:

“Preamble – Bearing in mind that, as indicated in the Declaration of the Rights of the Child, “the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth” [emphasis supplied]

Article 6:

1. States Parties recognize that every child has the inherent right to life.

2. States Parties shall ensure to the maximum extent possible the survival and development of the child.

Article 24:

1. States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.

2. States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures:

(d) To ensure appropriate pre-natal and post-natal health care for mothers;”

India signed the Convention on the Rights of the Child in 1992. It is settled law (Vishaka v. State of Rajasthan (1997) that international and human rights norms are to be read into our fundamental rights.

Indian domestic law on the personhood of the fetus

Indian domestic law recognises the personhood of an unborn child in many ways. The statutes that do so are summed up by the Delhi high court in Prakash & Ors. v. Arun Kumar Saini (2010) (a case relating to compensation for the death by accident for a child yet to be born), particularly in paragraphs 16 and 17 of its judgment, excerpts from which are quoted below:

“16. The rights of an unborn child are well recognized in various legal contexts which are as under: –

(i) Section 6 of the Limitation Act, 1963 provides that where a person entitled to institute a suit or make an application for execution of the decree is, at the time from which the prescribed period is to be reckoned, a minor, he may institute the suit or make the application within the same period after the disability has ceased. Explanation to Section 6 reads thus:

Explanation: – For the purposes of this section, ‘minor’ includes a child in the womb.

(ii) Section 20 of the Hindu Succession Act, 1956 recognizes, the rights of a child in the womb. Section 20 reads thus:

Section 20. Right of child in womb:

A child who was in the womb at the time of the death of an intestate, and who is subsequently born alive shall have the same right to inherit to the intestate as if he or she had been born, before the death of the intestate, and the inheritance shall be deemed to vest in such a case with effect from the date of the death of the intestate.”

(iii) …( A quote from Mulla, omitted here)

(iv) In the Indian Succession Act, 1925, ‘minor’ is defined under Section 2(e), which reads as follows:

Section(2)(e) “minor” means any person subject to the Indian Majority Act, 1875, who has not attained his majority within the meaning of that Act, and any other person who has not completed the age of eighteen years; and “minority” means the status of any such person;”

Section 7 of the Indian Succession Act provides that the domicile of origin of every person of legitimate birth is in the country in which at the time of his birth his father was domiciled and in the case of a posthumous child, in the country in which his father was domiciled at the time of the father’s death. Section 112 of the Indian Succession Act recognizes the rights of a person coming into existence after the death of a testator.

(v) …(omitted here)

(vi) Sections 312 to 316 of the Indian Penal Code provide for punishment for the offences of miscarriage; for doing any act with intent to prevent child being born alive; for causing death of quick unborn child by act amounting to culpable homicide etc.

(vii to ix) …(omitted here)

(x) Black’s Law Dictionary refers to “rights of unborn child”, thus: “The rights of an unborn child are recognised in various different legal contexts;

e.g. in criminal law, murder includes the unlawful killing of a foetus (Cal. Penal Code Section187), and the law of property considers the unborn child in being for all purposes which are to its benefit, such as taking by will or descent. After its birth, it has been held that it may maintain a statutory action for the wrongful death of the parent. In addition, the child, if born alive, is permitted to maintain an action for the consequences of prenatal injuries, and if he dies of such injuries after birth, an action will lie for his wrongful death. While certain States have allowed recovery even though the injury occurred during the early weeks of pregnancy, when the child was neither viable nor quick, Sinkler v. Kneale, 401 Pa.267,167 A.2d.93; Smith v. Brennan, 31 N.J.353, 157 A.2d.497, other States require that the foetus be viable before a civil damage action can be brought on behalf of the unborn child.”

(xi) The legal status of unborn persons is discussed in Salmond on Jurisprudence, 11th Edition, at pages 354 and 355, the relevant portion of which reads as follows:

Though the dead possess no legal personality, it is otherwise with the unborn. There is nothing in law to prevent a man from owning property before he is born. His ownership is necessarily contingent, indeed, for he may never be born at all; but it is nonetheless a real and present ownership.

A child in its mother’s womb is for many purposes regarded by a legal fiction as already born, in accordance with the maxim, Nasciturus pro jam nato habetur. In the words of Coke: “The law in many cases hath consideration of him in respect of the apparent expectation of his birth”. Thus, in the law of property, there is a fiction that a child en ventre sa mere is a person in being for the purposes of (1) the acquisition of property by the child itself, or (2) being a life chosen to form part of the period in the rule against perpetuities.”

The rights of the child in the womb, in the matter of succession, are well protected by laws of the land.

17. This Court is of the view that the rights of an unborn child are recognised in various different legal contexts; e.g. in criminal law causing death of foetus has been held to be an offence under Sections 312 to 316 of the Indian Penal Code, and the law of property considers the unborn child in being for all purposes which are to its benefit, such as taking by will or descent. This Court is in respectful agreement with the judgments of Andhra Pradesh High Court in the case of Oriental Insurance Co. Ltd. (supra) and Kerala High Court in the case of Manikuttan (supra), and holds that an unborn child aged five months onwards in mother’s womb till its birth is treated as equal to a child in existence. The unborn child to whom the live birth never comes is held to be a ‘person’ who can be the subject of an action for damages for his death. The foetus is another life in woman and loss of foetus is actually a loss of child in the offing. [emphasis supplied]. The appellants are, therefore, entitled to compensation for the loss of foetus.”

Even half a century earlier, in Jabbar & Ors. v. State(1965), the Allahabad high court, speaking through Justice M. H. Beg (as he then was) while upholding the conviction of the appellant under Section 304 A of the Indian Penal Code, for causing death of a child in mother’s womb held:

“15. As he then was an unborn child can be regarded as a living entity with a life of its own. The word “person” is defined in the Shorter Oxford English Dictionary in two ways: firstly, it is defined as “an individual human being” or “a man, woman, or child”; and, secondly, as “the living body of a human being”. I do not think that it can be denied that an unborn child in advanced stages of pregnancy has a being or life of its own and that it has a body. It may be that its life and body are not independent of the mother’s existence so that the unborn child cannot be said to have a separate exist-once. The word “person” has not been defined in such a way as lo involve a separate existence or the living creature spoken of as “a person”. As there is no such technical definition, 1 prefer to adopt the ordinary meaning of the term “person” as including a “child” whether born or unborn. Even if the child is unborn and within the womb of the mother, it is capable of being spoken of as a “person” if its body is developed sufficiently to make it possible to call it a “child”. The post mortem report shows that the child had developed sufficiently to have an identity of its own as a child? That would, in my opinion, be enough to satisfy the definition of the term “person” as used in Section 304a, I.P.C.”

The concern for the life and safety of the fetus is also clear from the injunction against executing a sentence of death upon a pregnant woman in Section 416 Cr.P.C. as it originally stood. The mandatory prescription by a 2009 amendment that any death penalty on such a woman shall be commuted by the High Court, is a further recognition of the fetus’s right to its mother even when she is found guilty of the greatest crime.

Fetal rights and the mother’s imprisonment

While several prescriptions and exhortations exist in health-related documents for the care of the fetus, the issue has received particular attention in the context of the imprisonment of the mother. The dominant principle seems to be that imprisonment should be the last resort.

In a judgment dealing with the condition of children who are in jail because of their mothers’ imprisonment, the Supreme Court in R.D. Upadhyaya v. State of Andhra Pradesh (2007) after referring to the Draft Prison Manual framed by the ‘National Expert Committee on Women Prisoners’, headed by Justice Krishna Iyer, issued guidelines, at para 45 inter-alia directing that

“childbirth in prison should be avoided as far as possible and measures of temporary release/parole including suspended sentence should be made to enable expectant prisoner to have her delivery outside prison.”

The Gujarat high court in State of Gujarat v. Jadav @ Jatin Bhagvanbhai Prajapati (2016), speaking through Justice M.R. Shah (as he then was) even while convicting and sentencing in appeal, a woman to seven years imprisonment for a dowry death, simultaneously suspended her sentence for about ten months on account of her pregnancy.

It is respectfully submitted that the underlying principle behind all these rulings, guidelines and instruments is the welfare and safety of the fetus. The concern is that the fetus should receive the healthiest possible environment to develop and be born alive, and thereafter, receive the best possible nurture and care, integral to which is the mother’s mental and physical health. It is not a mere concern for the mother’s health. A pregnancy does make a woman vulnerable physically, but it is not an illness, which calls only for her protection for her own sake. The predominant concern is thus for the unborn child which is innocent of all wrongdoing and ought not be subjected to the distressful conditions that inhere in detention.

Appendix

International instruments/resolutions and documents that frown upon imprisoning a pregnant woman

The recognition that imprisonment of a mother is hazardous to the unborn child is also found in several international resolutions/documents.

1. United Nations Rules for the Treatment of Women Prisoners and Non- custodial Measures for Women Offenders (a.k.a. the Bangkok Rules) adopted by the UN General Assembly by consensus in 2010:

Emphasises that, when sentencing or deciding on pretrial measures for a pregnant woman or a child’s sole or primary caretaker, non- custodial measures should be preferred where possible and appropriate, with custodial sentences being considered when the offence is serious or violent;

Rule 64: Non-custodial sentences for pregnant women and women with dependent children shall be preferred where possible and appropriate, with custodial sentences being considered when the offence is serious or violent or the woman represents a continuing danger, and after taking into account the best interests of the child or children, while ensuring that appropriate provision has been made for the care of such children.

2. Eighth UN Congress on Prevention of Crime and Treatment of Offenders, 1990

Section C, 5 (f): the use of imprisonment for certain categories of offenders, such as pregnant women or mothers with infants or small children, should be restricted and a special effort should be made to avoid the extended use of imprisonment as a sanction for these categories

3. Body of Principles for the Protection of All Persons under Any Form of Detention of Imprisonment. General Assembly Resolution 43/173, December 1988.

Principle 5.2: Measures applied under the law and designed solely to protect the right and special status of women, especially pregnant women and nursing mothers, children and juveniles, aged, sick, or handicapped persons shall not be deemed to be discriminatory. The need for, and the application, such measures shall always be subject to review by a judicial or other authority.

The following are Europe specific documents, but it is submitted that they are nevertheless relevant and instructive

4. Council of Europe Parliamentary Assembly Recommendation 1469 on Mothers and Babies in Prison

Recommendation 5.3: to recognise that custody for pregnant women and mothers of young children should only ever be used as a last resort for those women convicted of the most serious offences and who represent a danger to the community

5. UNODC and WHO Europe Report on Women’s Health in Prison 2009

Recommendation 58: to protect the health of the mother and of the newborn child pregnancy should be in principle an obstacle to incarceration, both pre-trial and post-conviction, [emphasis added] and pregnant women should not be imprisoned except for absolutely compelling reasons. When a woman in prison is found to be pregnant, the need for her imprisonment should immediately be reviewed and continue to be reviewed throughout her pregnancy. Pregnant women in prison should be considered for non-custodial measures throughout their remaining prison term.

Other jurisdictions and regional human rights instruments also recognise the need for fetal protection too.

6. The Arab Charter on Human Rights 2004

The Arab Charter on Human Rights adopted in May 2004, though not yet in force, recognizes the inherent right to life of every human being. Article 7 of the Arab Charter further provides that

Article 7:

1. Sentence of death shall not be imposed on persons under 18 years of age, unless otherwise stipulated in the laws in force at the time of the commission of the crime.

2. The death penalty shall not be inflicted on a pregnant woman prior to her delivery or on a nursing mother within two years from the date of her delivery; in all cases, the best interests of the infant shall be the primary consideration.

7. The American Convention on Human Rights 1969

The American Convention on Human Rights which entered into force in 1978 also contains the following provisions that relate to the right of the unborn child:

Article 1. Obligation to Respect Rights.

…

2. For the purposes of this Convention, “person” means every human being.

Article 3. Right to Juridical Personality.

Every person has the right to recognition as a person before the law.

Article 4. Right to Life.

1. Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.

…

5. Capital punishment shall not be imposed upon persons who, at the time the crime was committed, were under 18 years of age or over 70 years of age; nor shall it be applied to pregnant women.

8. The African Charter on Human and Peoples’ Rights, 1981 and the African Charter on the Rights and Welfare of the Child, 1990

The African Charter on Human and Peoples’ Rights entered into force in 1986 also mirrors such inclusive provisions and recognizes in Article 4 that “human beings are inviolable.” In this vein, the African Charter on the Rights and Welfare of the Child, entered into force in 1999, relies on the principles of the rights and welfare of the child enshrined in the CRC and adopts the definition of “child” as being “every human being below the age of 18 years.” It also provides the following provisions on the fetal right to protection:

Article 5. Every child has an inherent right to life. This right shall be protected by law. States Parties to the present Charter shall ensure, to the maximum extent possible, the survival, protection and development of the child. Death sentence shall not be pronounced for crimes committed by children.

Article 30. States Parties to the present Charter shall undertake to provide special treatment to expectant mothers and to mothers of infants and young children who have been accused or found guilty of infringing the penal law and shall in particular:

…

(e) ensure that a death sentence shall not be imposed on such mothers.

Despite numerous judgments on prison reform generally and prison reform related to women, it appears that directives are observed more in the breach.

9. Ministry of Women and Child Welfare Report on Women in Prison– June 2018

Notes the severe lack of appropriate facilities for women in Indian prisons and recommends at 5.6.1 that, in case of pregnant prisoners, the provisions of the National Modern Prison Manual must be followed strictly to make arrangements for temporary release for delivery of children in a hospital outside the prison. Suspension of sentence may be considered in the case of casual offenders. Information about a woman’s pregnant status should also be made to the Court that has ordered detention, to enable the Court to grant bail (where appropriate) or modify the detention order as deemed necessary.

Fetal protection is an objective, that can best be served by precaution and care. That precaution would make pregnancy a major ground for releasing the mother on bail.

What We Talk About When We Talk About Citizenship in India

It is entirely possible for millions of rightful Indian citizens to be lost in the labyrinths of the documentation process and be unable to produce the necessary documents that prove their citizenship, thereby being rendered non-citizens.

The release of the final draft of Assam’s National Register of Citizens (NRC), on July 30, has opened a Pandora’s box in the state. Although the Supreme Court has directed the government not to take any coercive action against those whose names do not figure in the NRC final draft, the threat of deportation hangs like Damocles’s sword over the heads of almost 40 lakh people. The sheer number of people being rendered stateless makes it one of the biggest human rights issues in post-independence India.

In these volatile times, when questions of citizenship and nationality frequently become fodder for identity and electoral politics, several questions – some immediate and others far-reaching – have cropped up pursuant to the release of the final draft: Who are these people? What will happen to them eventually? Will they be deported, and if yes, to where? Will they be put in detention camps? Why are these people not citizens, and if they are not, then who is? What makes an individual a citizen or a national, or stateless?

Citizenship and nationality

For many, the term ‘citizenship’ implies one’s national identity determined by birth, ancestry, ethnicity, culture and upbringing. Citizenship and nationality are often used interchangeably without realising their differences, with current right-wing, immigrant-bashing movements worldwide even construing citizenship as nationalism. So to understand who those left out of the Assam NRC are or what will happen to them, it is imperative to understand the nuances of the concept of citizenship itself and other concepts that are routinely conflated with citizenship.

Whereas citizenship and residency are legal concepts, nationality is an ethnic or racial concept, which implies the membership of a state a person acquires by birth, adoption, marriage or descent.

Legally speaking, citizenship indicates the relationship between an individual and a nation-state. Citizenship confers upon an individual certain rights such as protection by the state, right to vote and right to hold certain public offices, among others, in return for the fulfilment of certain duties/obligations owed by the individual to the state. Countries around the world have established different systems and rules that govern the attribution of citizenship, the major ones being by birth, by naturalisation or by marriage. Most countries follow one of the two following systems: jus soli or jus sanguinis. Jus soli is a Latin term meaning law of the soil. Many countries follow jus soli, more commonly known as birthright citizenship. Under this concept, citizenship of an individual is determined by the place where the individual was born. So a child of an immigrant is a citizen as long as he/she is born in the country of immigration. The US follows the jus soli system to determine citizenship. Therefore, whoever is born in the US and is subject to its jurisdiction is automatically granted US citizenship.

Jus sanguinis is when a person acquires citizenship through descent, i.e. through their parents or ancestors independent of where he/she is born. For example, a child born in India must have at least one parent who is an Indian citizen to be conferred citizenship. Prior to an amendment to the Citizenship Act, 1955 on December 3, 2004, people born in India were given citizenship regardless of the citizenship held by parents. After the commencement of the Citizenship (Amendment) Act, 2003, anyone born in India must have at least one Indian parent to get citizenship by birth. A person born outside India can obtain citizenship by descent through parents and a foreigner married to an Indian citizen can obtain Indian citizenship after being ordinarily resident in India for seven years before making the application.

One cannot change nationality but can change citizenship upon compliance with legal formalities of the country whose citizenship one seeks to acquire. An individual is a national of the state he/she is born in, can be a citizen of another state and be a resident of a third state. One can be a resident of a state and still not be a citizen. Even though legal residents enjoy many rights akin to citizens, such as the right to work, travel or study within that country, there are certain rights which are exclusive to citizens only (such as the right to buy property or to vote in the Indian context). For example, an Indian national, i.e. an individual born in India, can be an American citizen (holding a US passport) and a British resident (British residence permit). Many countries permit dual citizenship, thereby allowing their citizens to acquire citizenship of another country.

Citizens and non-citizens in India

Are India’s 1.3 billion people then ‘citizens’ under the law? How does one prove one’s citizenship? Under the Citizenship Act, 1955 the Central government may maintain a national register of Indian citizens and issue national identity cards to every citizen. To comply with this law, the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003 framed by the Central government made it mandatory for the registrar general of citizen registration to establish and maintain a national register of Indian citizens (NRIC) and issue national identity cards to every citizen whose particulars are entered in the NRIC. However, successive governments in India have failed to implement these provisions.

People wait to check their names on the final draft of the state's National Register of Citizens after it was released, at an NRC Seva Kendra in Nagaon on Monday, July 30, 2018. Credit: PTI

Assam is the only state that has the NRC, which was first prepared in 1951. Credit: PTI

With the government now finalising the Assam NRC draft, the next step that is likely to follow is the preparation of the NRIC. In the absence of any national identity card, the need of the hour is for the government to specify which documents can serve as proof of citizenship as the Citizenship Act, 2003 is silent in this regard. In a country like India, where documentation is restricted to a privileged few, proving that one’s parent is an Indian citizen to claim citizenship is an uphill task for millions. So, it is entirely possible for someone to be considered a non-citizen for lack of documents although she/he is a rightful citizen.

This brings us to the question: do non-citizens have any rights before the courts of law? A simple answer to this is, yes. The Indian constitution guarantees certain fundamental rights to citizens and non-citizens alike. The framers of the constitution envisaged certain rights to be inalienable human rights and therefore the constitution guarantees such rights (Article 14: right to equality; Article 20: right to protection against punishment for retroactive laws, double jeopardy and self-incrimination; Article 21: right to protection of life and liberty; Article 22(1), (2): right of protection against arrest and detention in certain cases; Article 24: prohibition of employment of children in factories, mines and hazardous employment; Article 25: right to freedom of religion) to all persons irrespective of their citizenship status.

Those who do not make it to the final NRC in Assam will not be able to appeal directly to the Tribunal; they can present their case only when the government makes a reference of the matter to the Tribunal.

What remedy does somebody who is declared a non-citizen have against the all mighty state? In exercise of the powers conferred by the Foreigners Act, 1946, the Central government made the Foreigners (Tribunals) Order 1964 under which tribunals were constituted to decide whether a person is or is not a foreigner. Under the existing law, only the government or the registering authority can move an application before the tribunal against a person suspected to be illegally staying in India. Individuals cannot by themselves move the Foreigners Tribunals and present their case that they are not staying illegally.

Those who do not make it to the final NRC in Assam will, therefore, not be able to appeal directly to the Tribunal; they can present their case only when the government makes a reference of the matter to the Tribunal. The only ray of hope for non-citizens is, therefore, the fundamental rights discussed above that are conferred on all persons irrespective of citizenship status. Deportation or detention without following the due process of law will tantamount to violation of the constitution. Since India is a party to the International Covenant on Civil and Political Rights, the Convention on the Elimination of all Forms of Discrimination against Women and the Convention on the Rights of the Child, it cannot deport the millions in Assam who have failed to make it to the NRC or render them stateless. Such actions would be inconsistent with the spirit of Article 51(c) of the Indian constitution, which directs that India should foster respect for international law and treaty obligations.

Rights of immigrants and refugees

What rights do people who cross borders illegally have? Should they be sent back simply because they are non-citizens, without acknowledging how and why they were made non-citizens in the first place? Article 15 of the Universal Declaration of Human Rights, 1948 (UNDHR) confers upon every individual the right to have a legal connection with a state. It mandates that “Everyone has the right to a nationality. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.”

The 1951 Refugee Convention builds on Article 14 of the UNDHR, which recognises the right of individuals to seek asylum from persecution in other countries. An asylum seeker who is granted leave to remain in a country gets the status of a refugee. A refugee may enjoy certain rights and benefits in the host country in addition to those provided for in the Refugee Convention.

Rohingya refugees who fled from Myanmar wait to be let through by Bangladeshi border guards after crossing the border in Palang Khali, Bangladesh October 9, 2017. Credit: Reuters/Damir Sagolj

Many states all over the world continue to prosecute and render their citizens stateless regularly. The Myanmar crisis last year, when thousands of Rohingyas were persecuted and chased from their homes, led to a huge influx of refugees in the subcontinent, including in India. The Indian government has resisted taking the refugees in, and even contended before the Supreme Court that the Rohingya refugees living in India are a potential threat to national security. The Centre could possibly take the same stance with those who will eventually fail to make it to the final NRC.

Apart from Assam and West Bengal being destinations of immigrants from Bangladesh, India has generally remained an immigration destination for immigrants and refugees from all over South Asia and beyond. The second half of the past century itself saw India welcoming, sometimes actively and at other times reluctantly, refugees from Tibet, Pakistan, Bangladesh, Bhutan, Sri Lanka and Myanmar, among many others. India has signed neither the 1951 United Nations Refugee Convention nor its 1967 Protocol, but it continues to host a significant population of refugees and stateless persons taking into consideration the humanitarian dimension of such problems.

So far, the Indian government has been unable to deport the Rohingya refugees because of a petition before the Supreme Court challenging the proposed deportation as a gross violation of the fundamental rights contained in Article 14 (right to equality before the law) and Article 21 (right to life) of the Indian constitution. As the NRC debate raises political mercury levels in Assam and beyond, it is imperative for the Central and state governments to ensure that India continues to follow in the path that its constitution’s framers envisaged for it: a tolerant, liberal country that values human rights and equality of all persons before the law.

Atasi Ghosh is an advocate at the Calcutta high court. She holds law degrees from the University of Calcutta, the University of Cambridge and the University of Law, Leeds.

Preparing Self-Defence in Penal Proceedings Is Basic Human Right, Says CIC

The Central Information Commission has directed the home ministry to provide passport stamping details to an IT employee who claims he has been implicated in a criminal case that took place when he was not present in the country.

New Delhi: In a landmark judgement, the Central Information Commission (CIC) has directed the Bureau of Immigration /Intelligence Bureau to provide passport stamping and travel details to a man who had appealed to them for being booked in a criminal case of physical assault in Chennai, despite him not being present in the country when the crime supposedly took place. It maintained that “a man preparing for his self-defence in penal proceedings exercises his basic human right”.

Agencies which come under the Ministry of Home Affairs (MHA) had sought exemption under Section 24 of the RTI Act – that allows intelligence and security agencies not to disclose any information unless it pertains to allegations of corruption or human rights violations against them – and refused to provide him the information.

Claims of implication

In his application filed on August 31, 2016 under the Right to Information Act with BoI/IB, which come under the Ministry of Home Affairs, M. Dinesh had stated that he was an information technology professional working for a private company in Chennai. Dinesh had also stated that he had been deployed in Abu Dhabi and Dubai between December 20, 2013 and March 28, 2015, when a man had filed a (false) complaint of “physically threatening” against him at a police station in Chennai.

Dinesh contended that that despite his telling the police about it, a false complaint was registered against him due to “extraneous reasons” and he was taken to the police station at 2 am on January 6, 2016. The same evening, he said, he told the inspector in-charge that he was not present in the country during the days mentioned in the complaint and also showed him the immigration stamps on his passport to support his claim.

The cop pressed charges over and above this and Dinesh was sent to 15 days in judicial custody. He was able to secure bail only on January 11, 2016, central information commissioner Yashovardhan Azad recorded in his order.

Travel details sought to fight case in court

Following this episode, Dinesh urged the home ministry to provide him the details of his passport with the particulars of departure and arrival stampings. He had also submitted that the stampings in his passport were not clear enough to be submitted as evidence before a court of law in his case.

However, Dinesh’s request was denied by the MHA saying there was no corruption or human rights violation charge against BOI/IB. In his application, Dinesh submitted that his “human rights were violated” and he was “illegally arrested and remanded in false case by Tamil Nadu police”.

‘Stamping on passport was not clear’

Stating that it was in the capacity of the Bureau of Immigration to provide the “arrival and departure details” of his passport, he had asked that it be directed to do so.

During the hearing, Azad recorded that both the parties were present and heard. He said Dinesh, who claimed to have been implicated in a false case, sought “details of his immigration clearance and record of travel to prove his innocence on the strength of plea of alibi”. He also submitted that the date of stamping recorded on his passport was not clear.

Exemption under Section 24 of RTI Act

The public information officer for MHA pleaded that since the information sought did not relate to allegations of corruption and human rights violation, the appellant was not entitled to secure any information, particularly because the agencies were covered under Section 24 of the RTI Act.

However, on the applicability of Section 24(1) of the RTI Act, Azad noted that it does not apply to certain organisations and the law clearly states that “nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the central government or any information furnished by such organisations to that government: provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section.”

Therefore, Azad said, the present RTI request must satisfy two pre-conditions. “Firstly, the information sought must relate to allegations of corruption/human rights violations and the same must not be expressly barred under the specific exemptions enumerated under Section 8 of the RTI Act.”

CIC’s reasons for why ‘appellant was entitled to information sought’

In view of the arguments of both the sides, Azad held that “the appellant is entitled to information sought”. Giving the grounds for his decision, he said, “The expression ‘human rights’ is defined in Section 2(d) of the Protection of Human Rights Act, 1993. “Human rights” means 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.

Also, he said, Article 21 of the constitution of India guarantees a right to lead a dignified life with personal liberty. Article 14 guarantees equality before law to all citizens. In a catena of judicial pronouncements, the right to a have a fair trial is held to be an embodiment of the Article 14 read with Article 21.

Further, he said, since India is a signatory to the International Covenant on Civil and Political Rights and the same has been ratified since April 10, 1979. Article 14 of this covenant lays down that “All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.”

In light of all these provisions and the fact that everyone charged with a criminal offence has the right to “have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing”, the CIC said he was left with no doubt that “a man preparing for his self defence in penal proceeding exercises his basic human right” and that “any impediment in the same would invariably be a breach of human right.”

‘Violation’ of human rights in a broader manner

Azad also said the term ‘violation’ as preceding the term ‘human right’ in proviso to Section 24 of the RTI Act has to be understood in a broader manner so as to cover any past or ongoing violation of human rights. “It is not necessary that the breach of human rights has to be conclusively proved by the information seeker. A credible allegation of breach of human right, which weighs favourably with the Commission warrants disclosure of information,” he said.

The CIC also took cognisance of the fact that “had the stamps affixed on the passport of appellant been clearly identifiable, no need would have arisen for seeking information from the public authority.” He therefore said, “the present case can also be viewed as a simple case of hardship which needs a sympathetic redressal by the public authority.”

‘Declining fair opportunity to arrange self-defence material would be a breach of appellant’s human rights’

In this case, Azad said the appellant was also not seeking information related to any third party but his own travel details to prove his innocence in a criminal proceeding. “The information sought is crucial to the appellant for a fair opportunity of self defence. The commission is not considering the culpability or innocence of the appellant in the criminal case set up against him; but declining a fair opportunity to arrange for material of self defence would certainly breach the human right of appellant.”

Also, he said, the exceptions carved out in Section 8 of the RTI Act – which pertains to disclosure of information which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the state, relation with foreign State or lead to incitement of an offence – prohibiting dissemination of information sought were not an impediment in the present case. As such, the commission directed the PIO to provide complete information sought with four weeks to the appellant.

Upholding World Bank’s Immunity in Case Against Gujarat Fishermen Will Have Long-Term Ramifications

Such a decision by US Supreme Court would allow, even encourage the International Finance Corporation – World Bank’s lending arm – to continue to act irresponsibly without worrying about consequences.

Such a decision by US Supreme Court would allow, even encourage the International Finance Corporation – World Bank’s lending arm – to continue to act irresponsibly without worrying about consequences.

The power plant has damage marine environment and productive fishing grounds. Credit: Reuters

The stacks of the 4150 MW coal-powered plant run by the Coastal Gujarat Power Ltd (CGPL) tower above the makeshift shacks of the Wagher fishing community that resides on the flat coastal stretches of Mundra in the Kutch district of Gujarat. The plant – one of the largest coal plants dependent on imported coal – has recently been in the news for its poor economic viability and is up for sale for Re 1. In April, the Supreme Court disallowed the CGPL to claim a compensatory tariff to accommodate the rise in Indonesian coal prices. But another story related to this project is unfolding in the US and has far greater ramifications for investor accountability in such projects.

Even before the CGPL, popularly referred to as the Tata Mundra Power Plant, was made operational, there was good reason to believe that it would pose a significant threat to the surrounding neighbourhood and the environment. The company initiated construction of a different cooling technology than what was environmentally approved in 2007. The adoption of the once-through cooling system instead of closed cycle cooling through towers meant that the power plant could use up to 100 times more sea water and permanently damage marine environment and productive fishing grounds where the Bombay duck fish is caught.

The International Finance Corporation (IFC), the private lending arm of the World Bank Group, provided $450 million for the plant. Over the years, studies and fact finding initiatives have pointed to several project violations such as coal ash dumping and release of contaminated warm water that has impacted fish catching and agriculture in the area. The communities living in the vicinity of the project thus blamed the IFC for damage to their lives, livelihoods and property, as without the loan, the project would not have had been established and the subsequent damage to the environment would never have happened.

The road to the Supreme Court

The affected fishing communities first approached the Compliance Advisor Ombudsman (CAO), a forum of the IFC, for addressing claims of its stakeholders in June 2011. The case was formally registered in February 2012 and the compliance appraisal was completed by July 2012. The CAO was of the opinion that a number of issues that had been raised by the complainants merited further enquiry. Since then, the project has been monitored by the CAO, but that has not provided any effective remedies.

Secondly, as the CAO was not a legal enforcement mechanism, the fishing communities decided to seek justice through a class action lawsuit in the US district court for the District of Columbia. The case was fought by Earth Rights International, a non-governmental organisation that engages in pro bono environmental litigation in the US.

Tata Mundra power plant. Credit: Wikimedia Commons

The case was filed in April 2015 by local fishermen and farmers, the trade union Machimar Adhikar Sangharsh Sangathan and the panchayat. The district court, in Buddha Ismail Jam and Others vs IFC, reasoned that the IFC had absolute immunity from suits and proceedings unless the same had been expressly waived. The court opined that the immunity had not been waived in this case, and thus ruled in favour of the IFC.

The plaintiffs challenged the decision of the district court and filed an appeal at the US court of appeals for the District of Columbia. The majority upheld the decision of the district court, but Pillard J. was of the opinion that the cases on the basis of which the decision was based should be re-evaluated by a full bench. However, the full bench, on September 26, refused to do the same, leaving the fishing communities with no other alternative but to approach the US Supreme Court.

Is the ‘absolute immunity’ rule justified?

When the UN, the first international organisation with a legal personality, was established in 1945, a need of creating privileges and immunities for international organisations arose for the first time. Pursuant to that, the US Congress enacted the International Organisation Immunities Act, 1945 (IOIA). The IOIA prescribed the same level of immunities from suits and other judicial processes as was enjoyed by foreign governments, which, during that time period, meant absolute immunity. Since then, the absolute nature of immunity has been made more and more restrictive by the drawing of a difference between sovereign and commercial Acts. In 1976, the US Congress enacted the Foreign Sovereign Immunity Act (FSIA) which adapted the restrictive approach and excluded commercial activities altogether from the broad scope of sovereign immunities. Therefore, the question before the US Supreme Court is likely to be whether the standard which existed in 1945 should be applied to the present case, or should the subsequent changes in the law also be taken into consideration.

Interestingly, there are two conflicting decisions of the circuit courts on this point which will have to be reconciled by the US Supreme Court. The US court of appeals for the District of Columbia, in Atkinson vs Inter-American Development Bank, was of the opinion that the international organisations enjoyed absolute immunity, just as the sovereigns did in 1945. Contrastingly, the US court of appeals for the third circuit in OSS Nokalva Inc vs European Space Agency was of the opinion that the international organisations fall under commercial activities as per the FSIA. The law is meant to be dynamic and evolve with time, and this would require the US Supreme Court to apply the same standard of immunity to international organisations as is present in the FSIA, i.e., restrictive immunity.

US Supreme Court. Credit: Reuters

The IFC has argued so far that since its activities are purely commercial in nature, the restricted immunity rule as per the FSIA will open up a floodgate of litigation against it and have a chilling effect on its lending abilities. As rightly pointed out by one of the amicus curiae for the plaintiffs, such an argument clearly indicates that the shield of immunity granted to the international organisations for effective functioning is now being used as a sword to waive off claims of the people whose lives it has affected. Commercial activities, especially of the kind engaged in by the IFC, has immense human rights implications, and if the people cannot bring forth claims against it, there will never be any accountability on their part. Instead of taking a negative stand on immunity, the IFC should instead ensure that it operates in a responsible manner so that the floodgates of litigation remain closed.

Possible implications of the court’s decisions

With the fisherfolk geared up to go to the US Supreme Court, it seems that a clear legal standing with respect to the jurisdictional immunity of international organisations will finally be reached. If the court decides to uphold the IFC’s immunity, it will be a blow to the long-standing struggles of the fishing communities of Gujarat and many other parts of the world where the IFC has invested in detrimental projects. It would allow or even encourage the IFC to continue acting in a negligent and irresponsible manner without having to worry about consequences.

Such a decision would be a violation of customary international law since the affected people have a right of access to effective remedies under the International Covenant on Civil and Political Rights. A decision in favour of the IFC would allow the continuation of an outdated and dangerous legal concept of absolute immunity in these times of global environmental risks and social inequality.

If the court decides in favour of the project affected people, it would reaffirm the faith that the IFC and similar organisations are not above the law. The IFC will have to mandatorily comply with its own social and environmental policies. The damage to the lives, livelihoods and properties of the affected people may be restored to some extent. Most importantly, it will provide access to justice to non-state actors affected by the decisions of international organisations.

Debayan Gupta, Krithika Dinesh, Manju Menon and Kanchi Kohli are with the Centre for Policy Research-Namati Environmental Justice Program.

Bhopal Killings Are a Reminder of India’s Failure to Act on Extrajudicial Executions

Weak probes into extrajudicial killings, the failure to prosecute those involved and the absence of a compensation system for the victim’s families shows how the government and courts have failed to take effective measures to end encounter deaths.

Weak probes into extrajudicial killings, the failure to prosecute those involved and the absence of a compensation system for the victim’s families shows how the government and courts have failed to take effective measures to end encounter deaths.

Representational image. Credit: PTI

There is a willing suspension of disbelief in India – both in society and in the courts – when it comes to putting an end to extrajudicial executions, euphemistically known as encounter deaths. The contradictory statements from official sources on both the Bhopal and the Malkangiri killings make it “curiouser and curiouser,” just as Alice exclaimed in Alice’s Adventures in Wonderland & Through the Looking-Glass.

The Supreme Court stayed a judgment of a five-judge bench of the Andhra Pradesh high court in 2009, and since then the apex court has not been able to take up the matter for further hearing even when the life and liberty of citizens are at stake.

The Andhra Pradesh high court had stated that FIRs must be registered against police officers if they cause a death of a person in an encounter. More importantly, the court stated that the police were not authorised to file closure reports without judicial scrutiny.

Justice J.S. Verma, the former chief justice of India and the former chairperson of the National Human Rights Commission (NHRC), while delivering the 24th Dr. Ramanadham Memorial lecture in 2009, expressed his surprise at the Supreme Court’s ex-parte stay on the court’s order, which came in response to a petition filed by the Andhra Pradesh Police Association.

He pointed that the interim ex-parte stay violated Articles 20, 21 and 14 of the constitution and went against Article 359 (emergency provisions), which clearly lays down that Articles 20-21 are non-derogable). He further stated that “difficult” circumstances such as terrorism or insurgency could not be a justification for encounters.

International human rights law prohibits the arbitrary deprivation of life under any circumstances. Article 3 of the Universal Declaration of Human Rights states that “everyone has the right to life, liberty and security of person.” Article 6 of the International Covenant on Civil and Political Rights (ICCPR) holds that “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life” and Article 4 of the ICCPR states that this right cannot be waived “even in times of public emergency threatening the life of the nation.”

Moreover, under Article 2(3)(a) and (b) of the ICCPR, state parties are obliged to ensure that remedies are available to the victims of human rights violations and that those remedies are effective. Extrajudicial killings clearly contravene the right to life.

The government ratified the ICCPR in 1979, and by ratifying an international treaty which enshrines the right to life, India is obliged not only to respect the right to life in principle, but also to take effective measures to ensure that extrajudicial killings do not occur in practice. Although the right to life is enshrined under Article 21 of the Indian constitution, the prevalence of extrajudicial killings demonstrates that the government and the courts have failed to take effective measures to ensure that the right to life is respected in practice.

Extrajudicial killings have long been a part of India’s socio-political landscape. In the 1960s the euphemism ‘encounter killings’ began to be used to describe extrajudicial killings because of the frequency with which officials would claim that the deceased had been killed in an encounter with the police.

As an interest in the protection of human rights increased during the 1970s, a number of unofficial inquiries into ‘encounter’ killings were conducted. The Tarkunde inquiry in Andhra Pradesh investigated 19 cases of people who were officially recorded as being killed in ‘encounters’ in 1975 and 1976.

The inquiry concluded that the police had shot all 19 people in cold blood. In Punjab, the Punjab Civil Rights Committee investigated the ‘encounter killing’ of eight members of an armed opposition group between 1970 and 1976. The committee concluded that each of the eight men had been “murdered by the police.” The committee also commented on the lack of an official investigation into the deaths and noted that both the state and central governments had turned down the requests of relatives and associates of the deceased to hold judicial inquiries into the killings.

Extrajudicial killings, however, are not a historical phenomenon and are not restricted to particular areas of the country. As seen in both Bhopal and Malkangiri, they continue to the present day and occur throughout India.

A number of factors compel the conclusion that the government has adopted a policy that effectively sanctions the commission of extrajudicial killings by its police officers, the army and other security personnel.

Firstly, the government has failed to ensure an adequate investigation of all complaints and reports of extrajudicial killings. Proper investigation is, of course, a critical factor in the prevention of extrajudicial killings, and without the adequate investigation of complaints, there exists little hope for prosecuting and convicting the perpetrators.

The government has, however, not demonstrated a commitment towards ensuring that all such complaints are adequately investigated. More importantly, there is no independent body in India that is empowered to investigate such complaints. The NHRC has not proven to be an effective body in combating extrajudicial killings. Its ineffectiveness is further exacerbated by the government’s failure to give adequate consideration and attention to the body’s recommendations in relation to human rights violations generally, including recommendations in relation to extrajudicial killings.

For example, although the NHRC has issued guidelines to be followed by police in all cases of encounter killings, it is clear that the guidelines are generally not put into practice. The government has also done little to ensure that the guidelines are followed.

Secondly, the government has failed to ensure the prosecution of those who commit extrajudicial executions. The government’s failure in this regard extends beyond the mere failure to prosecute as the Indian law, through the doctrines of sovereign and official immunity, actually protects officials who commit human rights violations.

Moreover, under the Code of Criminal Procedure, 1973 a sanction from the central or the state government is required to arrest or institute criminal prosecutions against public servants, including police officers and members of the civil or armed forces. The government has ignored repeated calls to amend the law to ensure that public officers who violate human rights are no longer protected from prosecution.

Thirdly, entrenched problems within the judicial system contribute to the climate of impunity that allows extrajudicial killings to occur. The reality of the Indian judicial system is that long delays are the rule rather than the exception, and such delays are measured in years rather than months. Such delays impede the process of bringing to justice those who commit extrajudicial killings, in many cases making conviction impossible due to the length of time that has passed. The failure to ensure that cases of extrajudicial killings are concluded within a reasonable period of time contributes to the climate of impunity that allows extrajudicial killings to continue to occur throughout India.

Fourthly, successive governments have failed to establish an adequate compensation system in India. The families of victims of extrajudicial killings have no statutory right to compensation. An effective compensation system would operate to deter government officials from committing or authorising extrajudicial killings, and encourage the families of the victims to bring their cases to court. In failing to provide an adequate compensation, the government is failing to meet its obligations under international law.

Fifthly, it is well documented that the armed and security forces are rarely held accountable for the commission of extrajudicial killings. Moreover, a perpetrator is more likely to be held accountable by way of an internal disciplinary hearing than under the general law. Although it is very difficult to obtain accurate information about such hearings, it seems clear that the punishments awarded – if at all – for serious human rights violations are grossly inadequate. If a member of the army or security forces commits a serious human rights violation, it constitutes a serious criminal offence and that person should be charged under the general law and tried in a public court.

Finally, the government has failed to satisfactorily demonstrate its opposition to extrajudicial killings. Indeed, there is evidence that both the central and state governments actively encourage the practice. For example, there is evidence that the central and state governments have funded non-state actors in Punjab, Kashmir and Chhattisgarh who commit extrajudicial killings and have also rewarded police officers who do the same.

Such actions strengthen the conclusion that the government has adopted an official policy sanctioning the commission of extrajudicial killings.

It is clear that the government has failed to establish effective mechanisms to ensure the accountability of the police, security forces and the army. Moreover, the government steadfastly refuses to change laws that have been rightly condemned as operating to protect those who commit extrajudicial killings. The government must be reminded of its obligations under the national and international law. The right to life is the most fundamental right and its continued abuse in India through the commission of extrajudicial killings must not be tolerated.

Ravi Nair is director of the South Asia Human Rights Documentation Centre. He can be reached on ravinairsahrdc@gmail.com.

UN Shaky on Journalists’ Right to Information

To promote transparency, the UN has proposed a Freedom of Information Act to help journalists access information, along with the creation of a UN special envoy to ensure the safety of journalists worldwide.

To promote transparency, the UN has proposed a Freedom of Information Act to help journalists access information, along with the creation of a UN special envoy to ensure the safety of journalists worldwide.

At least 700 journalists have been killed worldwide in the past decade, the vast majority of which go unresolved. Credit: Reuters

At least 1,189 journalists have been killed worldwide since 1992, the vast majority of which go unresolved. Credit: Reuters

United Nations: UN Secretary-General Ban Ki-moon, one of the strongest advocates of press freedom, is facing two politically-sensitive issues which are beyond his decision-making jurisdiction: a proposal for a Freedom of Information Act (FOIA) aimed at providing journalists with the right to access information, and the creation of a UN Special Envoy ensuring the safety of journalists worldwide.

Asked about the FOIA, UN deputy spokesperson Farhan Haq told the Inter Press Service (IPS): “The secretary-general supports the idea of transparency. But this would be an issue for member states.”

Under applicable staff regulations and UN policies, disclosure statements are confidential and will be accessible to, and used by the secretary-general, the ethics office or by offices or persons specifically authorised in writing by the secretary-general, according to the UN.

Still, the Paris-based UN Educational, Scientific and Cultural Organisation (UNESCO), which is mandated to oversee press freedom, defines Freedom of Information (FOI) as the right to access information held by public bodies.

According to UNESCO, the FOI is an integral part of the fundamental right of freedom of expression, as recognised by Resolution 59 of the UN General Assembly adopted in 1946, as well as by Article 19 of the Universal Declaration of Human Rights (1948), which states that the fundamental right of freedom of expression encompasses the freedom to “to seek, receive and impart information and ideas through any media and regardless of frontiers”.

FOI has also been enshrined as part of “freedom of expression” in other major international instruments, including the International Covenant on Civil and Political Rights (1966) and the American Convention on Human Rights (1969), says UNESCO.

Asked about the proposal for a UN special envoy to deal with the safety of journalists, UN spokesperson Stephane Dujarric told IPS , “In order to appoint such a person, the general assembly or the security council would have to give the secretary-general a mandate.”

“I know that a number of non-governmental organisations have spoken to member states about the drafting of such a resolution,” he added.

But since most member states remain undecided, there has been little progress on either of the two proposals, according to diplomatic sources.

In a letter to the secretary-general, a coalition of over 100 NGOs has said, a special envoy, if approved by the general assembly, “would bring added attention to the risks faced by journalists and, by working closely with the secretary-general, would have the political weight and legitimacy to take concrete action to protect journalists and to hold UN agencies accountable for integrating the action plan into their work.”

The media and human rights organisations in the coalition include the Committee to Protect Journalists (CPJ), Reporters Without Borders (RSF), Freedom House, Index on Censorship, International Federation of Journalists, Media Watch and World Association of Newspapers and News Publishers.

Asked if there are any member states who have openly declared their support for the proposal for a special envoy, Delphine Halgand, US director for the Paris-based Reporters Without Borders (RSF), told IPS: “Yes, we met a lot of member states these last few months.”

“A permanent group of friends of UN ambassadors was created in spring and are now working continuously on the proposal”. This group is co-chaired by France, Greece and Lithuania. “And that’s an important step.”

Spain declared its support publicly but many others have supported it in private, Halgand said.

Ian Williams, UN correspondent for Tribune and a senior analyst for Foreign Policy in Focus, told IPS that while impunity is one of the managerial prerogatives of senior UN officials, freedom of information will be honoured as much in the breach as the observance—whatever the official policy.

Time and time again the response of UN bodies like the Office of Internal Oversight Services (OIOS) to the release of embarrassing information has been to launch an investigation into who leaked the news, he noted.

“And it has not been to honour them for efforts for FOI. Nonetheless, it should be repeated as often as possible to remove any excuses,” he added.

“The Haitian cholera debacle should be a warning that keeping the lid on often just builds up steam and causes explosions,” said Williams, who was president of the UN Correspondents’ Association (UNCA) in 1995 and 1996 and who is planning to release his next book titled UNtold: the Real Story of the UN.

But even then, there would be exclusions, he pointed out. Successful diplomacy, for example, depends upon exchanges of hypothetical offers, which could easily be derailed, if the details are leaked.

“But while it is a diplomat or UN official’s job to keep things secret, it is the media’s job to deliver information, so there will always be a tension. There are personnel matters that should be confidential, but preserving staff confidentiality should not be half a cover for hiding unethical or criminal behavior,” said Williams, who also writes for Salon, AlterNet and MaximsNews, among many others.

Jim Wurst, a former president of UNCA and author of the newly-released book titled The UN Association-USA: A Little Known History of Advocacy and Action, told IPS that FOIA is a good idea because the UN, like other large institutions, has serious transparency problems.

“Anything that forces the UN to fulfill its obligations to the people of the world is worth pursuing,” he added

On the proposal for a UN special envoy, Wurst said: “I’m torn on this one.”

He said journalists — like so many other non-combatants including medical professionals and aid workers — are increasingly being deliberately targeted by combatants. “It’s not a new problem but it is getting worse. It’s basically become standard behavior.”

On the other hand, anything that gives off the whiff of outsiders manipulating the actions of journalists is a non-starter. “I trust CPJ and RSF will always put the integrity of journalists first,” said Wurst.

According to the New York-based CPJ, 1,189 journalists have been killed since 1992, the five deadliest countries being Iraq (174 killed), Syria (94), the Philippines (77), Algeria (60) and Somalia (59).

Still, says CPJ, the killers of journalists go free nine times out of 10 – “a statistic that has scarcely budged since 2012.” The killings have been attributed not only to rebel forces and terrorist groups but also to governments in power.

Chakravarthi Raghavan, a veteran journalist and a former UN bureau chief for Press Trust of India (PTI), told IPS, FOIA raises the question whether it is to apply to the UN secretariat, or all UN organs, and the UN system as a whole.

If it applies to all UN organs, he pointed out that the UN Security Council (UNSC) has its own rules of procedures – for public sessions, meetings only of members, and its actions under Chapters VI and VII (decisions and actions under VII is binding on all members, and non-members) of the charter are independent of the UN General Assembly (UNGA).

Would an FOIA try to encompass UN System, UN Specialised Agencies, and those with some ambiguous status vis-a-vis the UN (the International Monetary Fund, World Bank, the World Trade Organisation?, he asked.

An FOIA (whether in the US, or in India where there is a right to information law, or UK etc) comes with some judicial authority getting jurisdiction to ensure observance when information is not provided, said the Geneva-based Raghavan, editor-emeritus, South-North Development Monitor SUNS, who has been covering trade, finance and development issues since 1978.

And who will be the authority to ensure that the UN Secretariat observes the FOIA, and adjudicate on the disputes?, he asked.

As for a UN special envoy to ensure safety of journalists, he said, such an envoy could raise the profile and draw and mobilise public attention and that of all governments – and will undoubtedly be of some utility.

But it also raises the question how the institution will recognise and distinguish between genuine journalists and those engaged in other activities under the guise of journalists, and whether it will involve some kind of license to practise journalism?, said Raghavan.

“These were questions that arose here a few years back when the idea of ‘protecting’ journalists, and issuing them badges or some identification to recognise a “journalist” arose.”

These are difficult questions, and one has to take care that either initiative does not end up in fact as a barrier or problem for the professionals, he warned.

However, a UN special envoy, focussing on these issues and reporting to the UNGA, and to the human rights council will provide high visibility, particularly if the media, in its own self-interest, reports on and publicises them.

The writer can be contacted at thalifdeen@aol.com

Detaining Migrant Children is a Gross Violation of Their Rights

States need to think of alternatives instead of locking up children on the move.

Credit: Unicef/The Conversation

Children represent around a quarter of all migrants worldwide. While in June 2015, one in ten migrants reaching the Macedonian border from Greece was a child, in October 2015 it was one in three.

Without regular status and the protection that comes with it, children on the move are particularly vulnerable to exploitation, violence and abuse. The unknown social and cultural environment, as well as their age and level of development, often make it impossible for them to be aware of and assert their rights.

Rather than opening regular, safe and cheap channels for migration, states continue to erect walls, use barbed wire fences and systemically detain migrants, including children. For too many children, their experience is all too often linked to their status as immigrants, rather than their age. While there is little reliable data on how many migrant children are being detained, there is evidence that it is happening around the world.

Detention is rarely justified

The Universal Declaration of Human Rights as well as the International Covenant on Civil and Political Rights proclaim the right to the liberty and security of persons. This applies to everyone subject to the jurisdiction of a state and to all forms of detention, including for immigration purposes.

States use a wide range of reasons to justify detention of migrants: health and security screening, identity checks, preventing absconding and facilitating removal. But freedom should be the default position for these migrants, as it is for citizens and legal residents. Detention should only occur when a person represents a demonstrated individualised risk to public security or may abscond from mandatory proceedings. In most cases, such a risk cannot be individually demonstrated and detention cannot be justified as necessary, reasonable or proportionate.

Children are also entitled to the protection afforded to them by the Convention on the Rights of the Child (CRC), which is the most ratified UN human rights treaty, lacking only one ratification in the whole of UN membership – the US. The CRC proclaims that “no child shall be deprived of his liberty arbitrarily” and asserts that all institutions should ensure that “the best interests of the child shall be a primary consideration”.

Detention for administrative purposes can never ever be in the best interests of a child. It harms their physical and psychological well-being and has adverse effects on their development. It might aggravate trauma experienced before arriving in the transit or destination country. The constant control and surveillance may be very disturbing for a child, increasing already high levels of mental distress. Children deprived of their liberty often have difficulties understanding why they are being “punished” despite having committed no crime.

Separation from community and from the outside world can make a child feel isolated and decrease their confidence. The often poor hygienic conditions and unbalanced diet will have negative consequences on physical well-being and development. Often children and adults are detained together, which puts children at further risk. Housing migrant children and adults in the same detention structure can lead to physical and sexual violence and abuse, while disrespectful staff may further exacerbate a child’s feelings of humiliation and so further impact their development.

How to protect lone children

Children can make migratory journeys on their own, sometimes having been separated from their parents or other adult relatives en route. These unaccompanied minors or separated children are vulnerable to becoming victims of human rights violations, such as sexual and economic exploitation and trafficking, and their situation requires special attention.

Unaccompanied children should never be detained purely on the basis of their migratory or residence status, or lack thereof, nor should they be criminalised solely for reasons of irregular entry or presence in the country. They should be treated as children first and placed in the alternative care system, either with a family or under institutional care. Under no circumstances should they be left on their own, as this leaves them vulnerable to violence.

States should systematically appoint an independent and competent guardian as soon as the unaccompanied or separated child is identified and maintain such guardianship arrangements until the child has either reached the age of majority or has permanently left the jurisdiction of the state. The guardian must not only take care of administrative processes related to the immigration status, but ensure that he or she advocates for the child’s rights and best interests.

The guardian should be independent of the immigration authorities and should have the authority and means to appoint a lawyer to represent the child in all proceedings affecting their rights. States should undertake every effort to quickly reunite children with other family members, if considered in their best interests, taking into account their own opinion and how they see their future.

Provide alternatives

The detention of children with their parents is often justified by states using Article 9 of the CRC, which affirms that children shall not be separated from their parents against their will. Yet, Article 2 of the CRC provides that “children [shall] not to be punished for the acts of their parents, legal guardians or family members”. Absurdly, I have personally observed families detained in the same detention centre, but separated in three groups (women, girls and infants, male teenagers, adult males), with only one daily hour of common family time.

A decision to detain migrants who are accompanied by their children should therefore only be taken in very exceptional circumstances: the vast majority of families with children should be offered alternatives to detention. Such non-custodial measures may include registration or reporting requirements, deposit of documents, a reasonable bond or a guarantor, and supervised release.

When applying alternatives to detention, states need to make sure they respect children’s rights, including to education, to the enjoyment of the highest possible standard of health, to an adequate standard of living, to rest, leisure and play, to practice their own religion and to use their own language.

Detaining children because they or their parents are migrants can never be in their best interests. Irregular migration is not a crime and very few of those children present any danger to society. Children should be treated as children first and non-custodial alternatives to detention should be offered to all such unaccompanied children and to families with children.

A longer version of this article was co-published with Unicef as part of the Children on the Move research watch project.

François Crépeau is full professor director at the Centre for Human Rights and Legal Pluralism, Hans & Tamar Oppenheimer Chair in Public International Law, McGill University

This article was originally published on The Conversation. Read the original article.

Petition Challenges Sedition Law in Supreme Court

The misapplication of the sedition law inhibits opposition against the ruling party and violates freedom of expression, in addition to harassing the accused.

The present practice of misapplication of the sedition law aims to crush all opposition to the ruling political party and though a very small number of sedition cases leads to actual conviction, it harasses the accused.

Amnesty International India tweeted this image in response to the recent sedition charges slammed against them./Twitter

Concerned at the increasing number of ‘sedition’ cases being filed across the country, the latest being the slapping of this charge against Amnesty India for organising a debate on Kashmir, a writ petition was filed on Wednesday challenging this provision in the Indian Penal Code.

Petitioners Common Cause, a NGO and S.P. Udayakumar (anti-nuclear activist against whom sedition charges have been made) through advocate Prashant Bhushan said that there has been an increase in the number of cases of sedition against intellectuals, activists, students, with the latest being the sedition charge on Amnesty India.

The petition wants the Supreme Court to address the misuse and misapplication of IPC Section 124 A (sedition law) by the Centre and various state governments leading to routine persecution of students, journalists and intellectuals engaged in social activism. It submitted that these charges are framed with a view to instill a fear and to scuttle dissent and are in complete violation of the scope of sedition law as laid down by constitution bench judgment of the Supreme Court in the Kedarnath vs State of Bihar case. The judgment said that only those acts which involve incitement to violence or violence itself, constitute a seditious act.

In the petition, a prayer is being made for the issuance of an appropriate writ, order or direction, making it compulsory for the concerned authority to produce a reasoned order from the director general of police (DGP) or the commissioner of police, as the case maybe, certifying that the ‘seditious act’ either led to the incitement of violence or had the tendency or the intention to create public disorder, before any FIR is filed or, any arrest is made on the charges of sedition against any individual.

In the various cases that have been filed in the recent years, the charges of sedition against the accused have failed to stand up to judicial scrutiny. The petitioner is therefore seeking a strict compliance of the Constitutional Bench judgment of Supreme Court in Kedarnath in which the scope of sedition as a penal offence was laid down and it was held that the gist of the offence of sedition is “incitement to violence” or the “tendency or the intention to create public disorder”.

It was submitted that those actions which do not involve violence or tendency to create public disorder, such as organisation of debates/discussions, drawing of cartoons, criticism of the government etc., do not constitute the offence of sedition.

Section 124A IPC says “whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government established by law in India shall be punished with imprisonment for life to which fine may be added or with imprisonment which may extend to three years.

The petitioners regretted that though more than 50 years after the Kedarnath judgment, Section 124A of IPC is being allowed to be put to use irrespective of whether or not the alleged act or words are, in fact, seditious acts, or words constituting a “tendency to cause public disorder or incitement to violence”. In carrying out arrests and slapping charges, the police and the governments have rarely, if ever, respected this restriction. Successive governments have blatantly used Section 124A to stifle the voice of dissent and to further their political goals.

Quoting statistics they said according to the National Crime Records Bureau (NCRB) Report, 2014 as many as 47 sedition cases were reported in 2014 alone, across nine Indian states. Many of these cases did not involve violence or incitement to violence, which is a pre-requisite for a sedition charge. It was submitted that as per the NCRB figures total of 58 persons were arrested in connection with these cases, but the government has managed only one conviction.

It said in 1979, India ratified the International Covenant on Civil and Political Rights (ICCPR), which sets forth internationally recognised standards for the protection of freedom of expression. However, misuse of sedition law under Section 124A and arbitrary slapping of charges continue to restrict speech in ways inconsistent with ICCPR. In the Kedarnath judgment the apex court unequivocally narrowed the scope of Section 124A, but it continues to be misused. Thereby, making it imperative that this court issues necessary directions and guidelines to uphold its decision in Kedarnath which is also compatible with India’s international obligations.

The petitioner acknowledges that words which directly provoke violence or which directly threaten the maintenance of public order may deserve censure. However, that is not what the misapplication of sedition law seeks to achieve. The present practice of misapplication of sedition law violates the Kedarnath judgment. It further aims to crush all opposition to the ruling political party. Its regular use continues to have a chilling effect on the freedom of speech and expression in the country. It was submitted that though a very small number of sedition cases leads to actual conviction, it causes harassment of individuals till the time judgment comes out, which in various cases takes many years to come.

Meanwhile, persons charged with sedition have to live without their passport, are barred from government jobs, and must produce themselves in the court at all times as and when required. A person so charged also has to spend money on regular legal fee. The charges have rarely stuck in most of the cases, but the process itself becomes the punishment. The petitioners prayed for a review of all pending sedition cases and for criminal complaints for sedition made before a judicial magistrate with a view to curb the misuse and misapplication of sedition law.