HUMAN RIGHTS IN INDIA

Don’t shelve human rights
A few - depressingly few - Commonwealth leaders are currently agonizing about whether or not to attend CHOGM 2013 in Sri Lanka. The most important of those leaders is Indian Prime Minister Manmohan Singh. But whichever way he falls on that question, an even bigger one looms - a question whose answer will be of existential significance to the Commonwealth itself.

Should Sri Lanka be allowed (as precedent would suggest) to become "chair in office" of the Commonwealth for the next two years? 

The Commonwealth is a strange organization. A faintly embarrassed legacy of colonialism self-consciously committed to building, encouraging and monitoring human rights, the rule of law, democratic accountability and anti-racism among its members. When it acts on those principles it can justify its existence - indeed it was those principles which motivated its stance on apartheid, which remains one of its proudest achievements. 

But if this CHOGM meeting passes with nothing more than a few ritual denunciations of Sri Lankan crimes, then we face the prospect of a Commonwealth being steered, under the apparently wilful tunnel vision of its secretary general Kamalesh Sharma, into a stagnant and becalmed irrelevance - with the tarnished figure of a beaming Mahinda Rajapaksa at its head. 

Can the Commonwealth really allow itself to be "led" for the next two years, at least nominally, by a regime likely to be the focus of increasingly strident calls for some kind of independent international inquiry into allegations of war crimes and crimes against humanity: a public process which could well start as soon as next March with a formal resolution at the UN Human Rights Council in Geneva. 

Clearly India, by virtue of its geographical location and its political and cultural history, is the most important country in this whole question, after Sri Lanka itself. In the interests of regional stability apart from anything else, India has to confront the crimes and push for truth and justice - the preconditions for peace, reconciliation and political solutions to long-standing injustices. 

But there are huge questions for Britain and Australia too. There is an understandable and fairly widespread suspicion of the "ABCs" (Australia, Britain and Canada) among many of the less powerful developing nations of the Commonwealth. But it is an irony that in this case Britain and Australia are using that suspicion as a smokescreen to hide behind. 

The privately claimed justification for the British and Australian position (unlike the more honourable Canadian one) is that they cannot be too forth-right about Sri Lanka's crimes, in case the less economically powerful, non-white, Commonwealth countries perceive that they are "pulling rank". 

But that stance is profoundly dishonest. A more important factor is that Australia in particular - but also the UK - are extremely reluctant to seriously confront the real concerns over the ongoing repression in Sri Lanka, the brutal repression of the Tamils, the sectarian attacks on Muslims and the suppression of any dissent. They are reluctant to do that because if they admit how bad things are in Sri Lanka, they lose any excuse they have for sending Sri Lankan asylum seekers back. 

If the Commonwealth is to foster and adhere to the principles of justice and human rights, then Britain and Australia should apply those principles to their treatment of asylum seekers. 

Instead we see that the international conspiracy of silence behind which the Rajapaksa regime hid - while unleashing its war against its own innocent Tamil citizens under the cover of its war with the Tamil Tigers - still exists. 

And that is the final irony in all of this. The Sri Lankan government justified its brutal final offensive - and bought the silence of the world - by using the West's rhetoric of "global war on terror". Then in the aftermath of war, in 2010, Rajapaksa made a speech to the United Nations in which he turned that on its head - effectively warning the West to back off. 

"If history has taught us one thing, it is that imposed external solutions breed resentment and ultimately fail," he said. "Ours, by contrast, is a home-grown process, which reflects the culture and traditions of our people." 

It was a clever speech that still resonates with many non-aligned countries outside the ABCs. But it was a piece of rank hypocrisy. This "anti-imperialist" rallying cry was written for Rajapaksa by a western public relations company, Bell Pottinger, which is very close to the UK Conservatives. Rajapaksa had hired and installed them in his office to advise him. We even have secretly shot footage of a Bell Pottinger employee boasting about it. 

So while the UK and Australia hide their reluctance to confront Sri Lanka's crimes behind a phoney commitment to the "greater good" of the Commonwealth, Rajapaksa hides his guilt behind a phoney veneer of "anti-imperialism". 

The rest of the Commonwealth, led by India, needs to confront both of these false postures. Instead they must ask, without fear or favour, whether the Commonwealth can really allow a regime accused of war crimes, crimes against humanity and the continuing repression of its own people, to become chair of the Commonwealth for the next two years.

Commissions and their omissions

What did international pressure and globalisation have to do with the setting up of commissions for human rights and socially excluded sections? A lot. Under pressure from countries and businesses wanting to engage with India as it opened its doors to the market economy, the idea of setting up commissions was first mooted in 1992. In fact, it was in that year that the then Union Home Minister S.B. Chavan informed the Rajya Sabha about the proposed human rights commissions. He said they were to be set up to “counter the false and politically motivated propaganda by foreign and Indian civil rights agencies.” So, even at the very outset, the primary intent was to keep the West happy rather than improve the rights situation within the country. If some pluses have accrued they are just incidental.

So, thanks to the global community, the Protection of Human Rights Act, 1993 (PHRA) became a reality, broadly applying the Paris Principles laid down by the UN Commission on Human Rights and the UN General Assembly. With the PHRA in place came the Human Rights Commissions, followed by, among others, Commissions for Minorities, Scheduled Castes, Scheduled Tribes, Women, Children and People with Disabilities at the national and state level. It was implicit that these bodies would serve to provide India the pro-human rights image that it sought on the global front. Though these quasi-judicial outfits were government-sponsored and government-funded, there was a feeling that their citizen-centric functions would steer them towards their stated goal — of providing quick redress to marginalised citizens in the face of extensive red tape and tedious court proceedings in the country. As a result, each time blatant violations take place, be it custodial torture or rape, caste or class atrocities, or farmer suicides, citizens look towards these institutions for justice.

But on the ground have the national and state-level commissions delivered? A recently released report by Poorest Areas Civil Society (PACS) and Participatory Research in India (PRIA) documents the work of five commissions and reveals serious shortcomings. A social audit on state human rights commissions by Human Rights Law Network (HRLN) last year also throws light on their institutional and infrastructural problems.

Through data, material available in the public sphere, and filing of RTIs, the studies have collected a wealth of information which point to systemic bottlenecks that have rendered these vital institutions largely ineffective, save for some exceptions. For instance, the PACS-PRIA report notes that the offices of these commissions are mostly located amidst government offices in state capitals or bigger cities far removed from the districts where their presence is more required. The second Administrative Reforms Commission, 2009, in its 12th report had earlier observed that the commissions have not been able to accomplish the mandates to a meaningful extent, and called for making the institutions more vibrant, responsive and accountable.

So what are the inbuilt constraints eating into these institutions that on paper have immense potential? HRLN’s social audit, ‘Rugged Road to Justice,’ says that the commissions in India are heavily under government patronage, whether at the Centre or in the States. As a result, instead of being answerable to an independent authority as laid out in the Paris Principles, they report to the Ministry of Home Affairs. At the national level, the Ministry is also in-charge of the police, immigration, laws for terrorism and insurgency, security and communal harmony. The complaints made to the commission by stakeholders most often deal with these very authorities. “There has been no recorded evidence of the National Human Rights Commission (NHRC) or the State Human Rights Commissions (SHRCs) taking suitable action against the government of the day or of moving a court to action,” the audit report reveals. And this brings to the fore the basic question of the independence of the institutions.

Arbitary appointments

As far as these statutory bodies are concerned, their independent functioning is further corroded by the way appointments of chairpersons and members of the commissions are made, which is often according to the whims and fancies of the government of the day. It is also often a parking ground for retired judges or civil servants who are appointed instead of persons with professional experience and track records in particular fields. Rights commissions depend on government budgetary allocations. It was found that this varies drastically from state to state and it has been suggested that commissions prepare a five-year plan with clear deliverables and budgets. During the study, PACS and PRIA found that the National Commission for Women with a nation-wide mandate received a budget of over one crore in 2010-11, while the Madhya Pradesh State Women’s Commission received the same amount in 2009-10. In contrast, Bihar and Odisha were struggling with limited allocations of Rs 30 lakh and Rs 55 lakh respectively. Further, the report pointed out that a detailed analysis of budgetary provisions in all commissions revealed that most of the funds were spent in running offices, paying salaries and meeting administrative expenses. The actual activities and the mandate of the commission utilised a very limited proportion of the funds.

Another serious lacuna facing all the commissions was that of institutional capacity. It was found that in most cases, the staff of the commissions comprised largely of peons, drivers and assistants. Specialists who can deliver on the mandate of the particular commission were conspicuous by their absence. This serious lack of competencies in jurisprudence, investigation, data collection, documentation, communication and capacity development were visible when accomplishments of these commissions were carefully studied.

The studies also pointed out that often stakeholders get confused on who to approach as the commissions have overlapping scope. As a result those seeking relief were shunted from one to another. “A Scheduled Caste Muslim woman belonging to three socially excluded groups must get her rights and entitlements without any inconvenience due to confusion between commissions about their scope of work. The minority commission should not send her to a women’s commission and a women’s commission must not send her to a Scheduled Caste commission for claiming her entitlements. There needs to be clarity on which commission would serve as her ultimate recourse,” Sister Sudha Varghese, vice chairperson, State Commission for Minorities, Bihar, reiterated at the national consultation.

Many of the commissions were also found to be faulting on their public disclosures. A large number of them did not bother to update their websites or uplink annual reports. The PACS and PRIA study, while looking at Scheduled Caste commissions in Uttar Pradesh, Bihar and Madhya Pradesh, found that no annual report was available for Uttar Pradesh or Bihar, while for Madhya Pradesh, the latest available report was as old as 2009-10.

At the very root of the problem is that the commissions do not perceive themselves as independent, nor do they seek the autonomy that the Paris Principles wanted to bestow on them. They believe they are answerable to governments and not to citizens. Unless this mindset changes, there is very little hope that things will change for the better.

Protection of Human Rights

Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal  and egalitarian which are applicable to everyone and everywhere. These rights may exist as natural rights or as legal rights, in local, regional, national, and international law. The doctrine of human rights in international practice, within international law, global and regional institutions, in the policies of states and in the activities of non-governmental organizations, has been a cornerstone of public policy around the world. According to Section 2(1) (d) of Protection of Human Rights Act 1993, 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 of India. The recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world. There are three generations of human rights. First-generation is civil and political rights (right to life and political participation), second-generation is economic, social and cultural rights (right to subsistence) and third-generation is solidarity rights (right to peace, right to clean environment and right to development). World’s Human Rights day is being observed across the world on 10^th December every year.

Historical Perspective

The Magna Carta (1215 AD) issued by King John of England was one of the earliest document on human rights.  One of the oldest records of human rights is the statute of Kalisz (1264), giving privileges to the Jewish minority in the Kingdom of Poland such as protection from discrimination and hate speech. The ancient world did not possess the concept of universal human rights. The true forerunner of human rights discourse was the concept of natural rights which appeared as part of the medieval Natural law tradition that became prominent during the Enlightenment with such philosophers as John Locke, Francis Hutcheson, and Jean-Jacques Burlamaqui, and featured prominently in the political discourse of the American  and the French Revolution. The two major revolutions occurred during the 18th century, in the United States (1776) and in France (1789), leading to the adoption of the United States Declaration of Independence and the French Declaration of the Rights of Man and of the Citizen respectively, both of which established certain legal rights. Additionally, the Virginia Declaration of Rights of 1776 and United States Declaration of Independence, 1776 encoded into law a number of fundamental civil rights and civil freedoms. These were followed by developments in philosophy of human rights by philosophers such as Thomas Paine, John Stuart Mill and G.W.F. Hegel during the 18th and 19th centuries. The system of slavery which is violative of human rights was abolished in Britain by enacting Slavery Abolish Act 1833 and the United States all the northern states abolished the institution of slavery between 1777 and 1804.

UNO and Human Rights

The provisions of the United Nations Charter provided a basis for the development of international human rights protection. The preamble of the charter provides that the members "reaffirm faith in fundamental human rights, in the equal rights of men and women" and Article 1(3) of the United Nations charter states that one of the purposes of the UN is: "to achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion". Article 55 provides that the United Nations shall promote that the UN shall promote the universal respect for, and observance of human rights and fundamental freedoms for all.

The Universal Declaration of Human Rights (UDHR) was adopted by the United Nations General Assembly in 1948. Although the UDHR was a non-binding resolution, it is now considered to have acquired the force of international customary which may be invoked in appropriate circumstances by national and other judiciaries. The UDHR urges member nations to promote a number of human, civil, economic and social rights, asserting these rights as part of the "foundation of freedom, justice and peace in the world." The declaration was the first international legal effort to limit the behaviour of states and press upon them duties to their citizens following the model of the rights-duty duality. International humanitarian law also deals with human rights. The Geneva Conventions came into being between 1864 and 1949 as a result of efforts by Henry Dunant, the founder of the International Committee of the Red Cross. The conventions safeguard the human rights of individuals involved in armed conflict, and build on the Hague Conventions of 1899 and 1907.  Within the UN machinery, human-rights issues are primarily the concern of the United Nations Security Council and the United Nations Human Rights Council, and there are numerous committees within the UN with responsibilities for safeguarding different human-rights treaties. The most senior body of the UN in the sphere of human rights is the Office of the High Commissioner for Human Rights. The United Nations Human Rights Council, created at the 2005 World Summit to replace the United Nations Commission on Human Rights, has a mandate to investigate violations of human rights. The Human Rights Council is a subsidiary body of the General Assembly and reports directly to it. It ranks below the Security Council, which is the final authority for the interpretation of the United Nations Charter. The Council is based in Geneva, and meets three times a year; with additional meetings to respond to urgent situations. Economic and Social Council (ECOSOC) of UNO is the main body to carry out the functions of protection of human rights. On the basis of ECOSOC directives UN Commissioner for human rights, UN Commissioner for refugees was established. The UNO General Assembly passed several UN Conventions and treaties like Complete Elimination of Discrimination against Women (CEDAW), Child Right Convention 1989, and Elimination of Racial Discrimination etc. There are several UN Human Rights Committees to monitor the implementation of UN Conventions. The Committees includes, the Human Rights Committee, the Committee on Economic, Social and Cultural Rights, the Committee on the Elimination of Racial Discrimination, the Committee on the Elimination of Discrimination against Women, the Committee Against Torture, the Committee on the Rights of the Child, the Committee on Migrant Workers. The Universal Declaration of Human Rights 1948, International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights together called as Bill of Rights which deals with the core of International Human Rights Law.

Human Rights and Indian Constitution

Dr. B.R. Ambedkar, the crusader of human rights and chairman of drafting committee of Indian Constitution incorporated several provisions of human rights in Indian Constitution under Part III of Fundamental Rights from Article 14 to 32 and Directive Principles of State Policy from Articles 36 to 51 like Right to Equality, Right to Freedom, Right against Exploitation, Minorities Educational Cultural Rights and Right to Constitutional Remedies. Articles 14 to 18 of the Constitution guarantee the right to equality to every citizen of India. Article 14 embodies the general principles of equality before law and prohibits unreasonable discrimination between persons. Article 14 embodies the idea of equality expressed in Preamble. Article 15 relates to prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. Article 16 guarantees equality of opportunity in matters of public employment. Article 17 abolishes ‘Untouchability’. Article 18 abolishes titles, Article 19 deals with freedom of speech and expression and article 21 to Right to life and liberty. The Supreme Court of India is having the power of judicial review and can strike down any legislation and executive orders which are violative of provisions of Indian Constitution. In case of violation of fundamental human rights the citizens can move to Supreme Court under Article 32 and High Courts under Article 226 for restoration of rights by operating the writ jurisdiction of judiciary. The preamble of the Constitution of India encapsulates the objectives of the Constitution-makers to build a new Socio-Economic order where there will be Social, Economic and Political Justice for everyone and equality of status and opportunity for all. This basic objective of the Constitution mandates every organ of the state, the executive, the legislature and the judiciary working harmoniously to strive to realize the objectives concretized in the Fundamental Rights and Directive Principles of State Policy.

National Human Rights Commission (NHRC)

            The National Human Rights Commission (NHRC) was set up under the Protection of Human Rights Act, 1993. It is headed by a former Chief Justice of Supreme Court of India. Presently Justice KG Balakrishnan is chairman of NHRC. One of the primary functions of NHRC is to receive complaints and initiate investigations into violations of human rights by public servants by acts of commission and omission or through negligence on their part and to prevent violation of human rights. During the year 2012-13, 80,764 cases were registered for consideration and the Commission disposed off 66,346 cases. The Commission also transferred 7,045 cases to the State Human Rights Commissions (SHRCs) for disposal as per the Protection of Human Rights Act, 1993 (as amended by the Protection of Human Rights (Amendment) Act, 2006). During the said period, the Commission recommended payment of interim relief in 275 cases amounting to Rs. 8.67 crore. The Chairperson of the National Commission for Scheduled Castes, the National Commission for Scheduled Tribes and the National Commission for Women are deemed to be Members of the Commission for the purpose of discharge of functions of the programmes and projects taken up by NHRC. These functions were assigned to the Statutory Full Commission which includes Chairperson of the National Commission for Minorities also. The Chairperson of the National Commission for Protection of Child Rights is a special invitee to the Statutory Full Commission meetings. The Statutory Full Commission meetings are being convened on a quarterly basis. It is now an accepted proposition that good governance and human rights go hand in hand.  As per the information received from the State Governments, 23 States have so far set up SHRCs. The NHRC holds regular interactions with the SHRCs to explore and further strengthen areas of cooperation and partnership. NHRC is a member of the International Coordinating Committee (ICC) of National Institutions for the Promotion and Protection of Human Rights, and a Founder Member of the Asia Pacific Forum (APF) of National Human Rights Institutions. The Commission has been encouraging the efforts of non-governmental organizations (NGOs) and institutions working in the field of human rights. In this regard, the Commission has set up a Core Group with selected NGO representatives as members to serve as a monitoring mechanism. The National Human Rights Commission has been holding Camp Commission sittings in the States to ensure speedy disposal of cases towards ensuring the better protection and promotion of human rights. The NHRC also appoints rapporteur to report the commission on human right violation. A number of efforts have been made to abolish the system of manual scavenging and   to ameliorate the living and working conditions of manual scavengers as well as safai karamcharis.   Legislation was passed in 1993 namely, The Employment of Manual Scavengers and Construction of Dry Latrines Prohibition Act, 1993 which inter-alia prohibits use of dry latrines and provides for imprisonment for one year and or a fine up to Rs.2000/- on those who employ manual scavengers for cleaning dry latrines. The National Scheme for Liberation and Rehabilitation of Scavengers (NSLRS) aims to liberate the manual scavengers from the obnoxious practice of carrying night soil manually. 

Government Initiative

India is a signatory to several international UN conventions on Human Rights. Indian Parliament enacted Protection of Human Rights Act 1993 and set up Nation Human Rights Commission (NHRC). In order to protect the human rights of children, SCs, STs, BCs, Minorities, Women and Safai Karmcharis set up National Commission for Protection of Children’s Rights, National Commission for Schedule Castes, National Commission for Schedule Tribes, National Commission for Minorities, National Commission for Women and National Commission for SafaiKarmcharis. State Human Rights Commissions and Human Rights Courts were also set up in the country under the provisions of Protection of Human Rights Act 1993. Government has also taken several initiatives, welfareprogrammes and development activities for protection and promotion of human rights of people. The civil and criminal laws of our country also have in –built mechanisms to safeguard the rights of the individuals and provide special protection to the most vulnerable sections of society. The Government also set up Human Rights Courts for protection o human rights.  Several human rights legislations were enacted by the Indian Parliament in tune with the letter and spirit of fundamental rights and Directive Principles of state policy enshrined in the Constitution. Some of the important legislation includes Prohibition of Sati Act, Dowry Prohibition Act, Untouchability Offences Act, Civil Rights Act, Prevention of Atrocities against SCs and STs Act, Juvenile Justice Act and Legislation on Prevention of sexual abuse of Children and Women.

Human Rights and the Environment

       The Constitution (Forty-second Amendment) Act 1976, added a new Part IV-A, dealing with “Fundamental Duties” in the Constitution of India. Article 51-A of this Part enlists ten fundamental duties. It is interesting to note that this Part was added on the recommendations of Swarn Singh Committee bringing the Constitution of India in line with Article 29(1) of Universal Declaration of Human Rights. There are two basic conceptions of environmental human rights in the current human rights system. The first is that the right to a healthy or adequate environment is itself a human right (as seen in both Article 24 of the African Charter on Human and Peoples' Rights, and Article 11 of the San Salvador Protocol to the American Convention on Human Rights). The second conception is the idea that environmental human rights can be derived from other human rights, usually – the right to life, the right to health, the right to private family life and the right to property. This second theory enjoys much more widespread use in human rights courts around the world, as those rights are contained in many human rights documents. The onset of various environmental issues, especially climate change and global warming have created potential conflicts between different human rights. Human rights ultimately require a working ecosystem and healthy environment, but the granting of certain rights to individuals may damage these. Such as the conflict between right to decide number of offspring and the common need for a healthy environment, as noted in the tragedy of the commons. Environmental rights revolve largely around the idea of a right to a livable environment both for the present and the future generations.  Primarily, Indian Constitution makes two fold provisions. On the one hand, it gives directive to state for protection and improvement of environment. On the other hand the citizens owe a constitutional duty to protect and improve natural environment. There are enough provisions in the Indian Constitutions to protect the environment. Government has also taken various steps for protection of environment. What is required- is to enhance mass consciousness regarding protection of environment. We would not only be conscious about our fundamentals rights of getting clean environment but also fundamental duty to protect it. If human civilization has to be protected from annihilations, pollution must be prevented.

Environment rights and Indian Constitution includes Article 21 which constitute right to get pollution free water and air. Article 48 of Directive Principles of State Policy directs that the State to take steps to organize agriculture and animal husbandry on modern and scientific lines. Again Article 48-A requires the State to take steps to protect and improve the environment and to safeguard the forests and wildlife of the country. Article 51-A says that it shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures. By showing deep concern about healthy environment for leading a healthy life the Supreme Court observed, that, "Art. 21 protects right to life as fundamental right. Enjoyment of life and its attainment including their right to life with human dignity encompasses within its ambit, the protection and prevention of environment, ecological balance free from pollution of air and water, sanitation without which life cannot be enjoyed. Any contra acts or actions would cause environmental pollution. Environmental, ecological, air and water pollution etc should be regarded as amounting to violation of Art. 21. 

Role of Judiciary in Protection of Human Rights

            Judiciary in every country has an obligation and a Constitutional role to protect Human Rights of citizens. As per the mandate of the Constitution of India, this function is assigned to the superior judiciary namely the Supreme Court of India and High courts. The Supreme Court of India is perhaps one of the most active courts when it comes into the matter of protection of Human Rights. It has great reputation of independence and credibility. The judiciary must therefore adopt a creative and purposive approach in the interpretation of Fundamental Rights and Directive Principles of State Policy embodied in the Constitution with a view to advancing Human Rights jurisprudence. The major contributions of the judiciary to the Human Rights jurisprudence have been two fold: (1) the substantive expansion of the concept of Human Rights under Article 21 of the Constitution, and (2) the procedural innovation of Public Interest Litigation. The Supreme Court enhanced the scope of Article 21, Right to life and liberty by interpreting it to Right to safe environment and Right to health.