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All You Need To Know About UN Human Rights Review Where Countries Questioned India’s Human Rights Record

The Logical Indian Crew

May 5th, 2017

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Courtesy: The Wire | Image Credit: UNA

Speaking at the 27th session of the Universal Periodic Review (UPR) working group at the UN Human Rights Council (UNHRC) in Geneva, Attorney General Mukul Rohatgi said in his opening remarks that India is a secular state with no state religion.

The UPR is an examination of human rights performance of all 193 UN member states. It takes place every five years where representatives from each country are required to respond to questions submitted by different states in an interactive dialogue. Rohatgi is one of the 112 speakers for India’s third attendance at UPR.

The report will be formally adopted on 9 May 2017. The UN’s 2012 review can be read here.

Below is a breakdown of the key issues raised by different states about India.

Restrictions on civil society

Various states including the US, Norway, Australia, Germany, Ireland, and the Czech Republic questioned India’s suppression of foreign funds for voluntary agencies.

The interventions came as India claimed at the UNHRC that it takes “pride in our vibrant civil society, media and impartial judiciary.”

Ireland suggested that India reviews the Foreign Contribution Regulations Act (FCRA) in light of the restrictions on activists and human rights defenders working with minority rights groups, journalists and children.

The same was echoed by Germany and the Czech Republic, while expressing concerns over the treatment of minorities and NGOs. They recommended that India reviews FCRA, implements Human Rights commitments, and looks into “arbitrary shutdown of NGOs”.

Defending India, Rohatgi did not refer to the concerns raised about the FCRA specifically, but maintained his stand that activities of human rights defenders and NGOs should be “within the Indian law”.

Several Western countries, including Italy, the Vatican, Canada and the Netherlands, expressed concerns over the misuse of anti-conversion laws which fuel violence against persons belonging to religious minorities.

The UK recommended that India enact the Prevention of Communal and Targeted Violence Bill which was dropped by the previous UPA government.

The country also came under fire from Pakistan over the treatment of minorities.

In his opening statements, the AG mentioned Article 30 of the constitution which gives minorities the right to establish and administer educational institutions. “Some of India’s most famous institutions of academic excellence are minority institutions,” he said, “safeguarding the rights of minorities forms an essential core of India’s policy.”

AFSPA

The US welcomed the Supreme Court’s 2016 judgement on the Armed Forces Special Powers Act (AFSPA) which observed that the Indian army and paramilitary personnel cannot use “excessive and retaliatory force” in Manipur and such instances must be probed. At the same time, the country also criticised the continued impunity on abuse allegations against security personnel.

The Swiss diplomat suggested that Indian revises AFSPA “to bring it into line with the obligations of the International Covenant on Civil and Political Rights to combat impunity”.

In line with previous reviews, AFSPA was a key concern among various nations. The topic was raised in the 2012 UPR as well.

In his reply, Rohatgi pointed out that AFSPA is an “ongoing debate” in the country and whether this Act should be repealed or not is a “vibrant political debate in India.”

He argued that the Act was functional in areas which are near international borders, and is implemented to only deal with “exigent circumstances like terrorism”.

Citing the SC’s 2016 order, he said that the Act does not allow for “blanket immunity for perpetrators of unjustified deaths or offences.”

Pakistan raised the issue of Kashmir and called for a ban on the use of pellet guns by the Indian security personnel and requested for a UNHRC probe into Jammu and Kashmir.

Rohatgi argued that violence in Kashmir is because of its “neighbours’ actions” and India has zero tolerance to terror. He said, “The entire state of Jammu and Kashmir is an integral part of India and hence, any such description as ‘India Occupied or Indian Administered Kashmir’ is invalid and artificial.”

Racial attacks against African nationals

Following the attacks on African nationals at Greater Noida in March, African heads of missions had threatened to go to the UNHRC.

During its intervention, the Haitian delegate called upon the Indian government to bring specific laws to deal with “racial attacks” against African nationals, at the same time create awareness to prevent “Afrophobia”.

A member of the Indian delegation, in a prepared statement, replied to the incidents of attacks as “unfortunate” and “painful”. Citing historical tied between the two nations, especially the support of Indian leaders towards colonial struggle, he claimed that Indian leadership had “pro-actively” reached out to African diplomatic missions and instructions were given for increasing security in areas with high concentration of African nationals.

The Indian official also reiterated India’s earlier stand that the incidents cannot be termed as racist. “All criminal acts can’t be termed as racist,” he asserted. Stating that India was the land of Gandhi and Buddha, he added, “we cannot have a racist mindset”.

Ratification of Convention Against Torture (CAT)

During its second UPR in 2012, the most frequent recommendation made to India was to ratify Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

Five years hence, nearly all the UN member states, including developing nations like Turkey, South Africa, Burkina Faso, and Kazakhstan, reminded India of this obligation.

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

In his reply, Rohatgi said that India is committed to ratifying CAT, however, he gave no explanation as to why the ratification hasn’t happened since 1997.

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

LGBT rights

India’s close allies, including Canada, Ireland, Norway, Israel and Sweden, called upon the country to “same-sex” relations by revoking section 377 of the IPC.

https://twitter.com/IsraelinGeneva/status/860165901626339330

Rohatgi attributed the responsibility to the judiciary, referring to the Supreme Court’s rejection of Delhi High Court judgement that decriminalised section 377. He further mentioned that a curative petition remains pending in the SC which is likely to be heard soon.

However, the AG remained silent on the apex court’s ruling that the repeal of section 377 should be done through the Parliament.

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

In his opening statement, Rohatgi had said that India has been at the forefront of recognising the equal rights of transgender persons. “In April 2014 the Indian Supreme Court gave a landmark judgment directing the government to declare transgender persons as a ‘third gender’ and included them as an “Other Backward Class” entitled to affirmative action benefits. The Court also reinforced that they should have all rights under the law, including marriage, adoption, divorce, succession and inheritance,” he stated.

Marital rape

Nearly all states recommended India to prevent violence against women, but many western nations stressed on India’s failure to recognise marital rape.

The Swedish delegate said that marital rape is not yet criminalised in India despite many calls for criminalisation, including from the UN.

Similar views were echoed by Iceland, Ireland, Australia, Belgium, Canada and Slovenia, with most calling for the removal of the exception related to marital from the definition of rape in Section 375 of the IPC.

Last year, Union Minister for Women and Child Development Maneka Gandhi had said the concept of marital rape, as understood in internationally, cannot be applied in the Indian context.

In his opening statement at UPR, the attorney general had said that “inclusive and equitable development is the key to securing a life of dignity, security, empowerment and freedom for all,” adding that the government has been taking efforts for women empowerment.

Internet shutdown

In his opening remarks, Rohatgi said, “An important plank of India’s development agenda, as well as of its push towards good governance and the creation of a knowledge society, has been the Digital India programme. This programme visualises transforming India into a digitally empowered society through increased connectivity, better access to knowledge, delivery of services, and e-governance through digital means.”

But many states, including Sweden, noted that although the Indian government was working towards digitisation in the country, “blocking of websites and network disruption occur in entire regions on the pretext of national security concerns”.

Earlier this week, internet services of all telecom networks and also mobile communications except state-run BSNL was shut down for 72 hours in Kashmir. Reports suggest that internet was shut down 31 times across Indian in 2016. Four months into 2017, the internet has already been shut 14 times.

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

There were other recommendations made to the Indian delegates like recognising scheduled tribes/Adivasis as indigenous people, whereas India was lauded by states like Nepal, Mauritius, Bangladesh, and Sri Lanka.

Mauritius praised India for its cultural and religious freedom, while Sierra Leone and Malaysia appreciated its Aadhaar programme.

India’s opening statement can be read in its entirety here.

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