What is the Universal Declaration of Human Rights, which is marking its 75th anniversary?

 

A relatively compact document, the declaration consists of a preamble and 30 articles setting out fundamental rights and freedoms.

Seventy-five years ago on Sunday, the UN General Assembly approved the Universal Declaration of Human Rights at a meeting in Paris – laying one of the foundation stones of the international order that emerged following the horrors of World War II.

The declaration was proclaimed as “a common standard of achievement for all peoples and all nations.” In practice, it hasn’t always turned out that way over the subsequent decades. As the document turns 75, U.N. human rights chief Volker Türk said this week that the world is at a “somber moment in history,” wracked by conflicts and crises. But he insisted that “human rights have not failed.”

What is the Universal Declaration?

A relatively compact document, the declaration consists of a preamble and 30 articles setting out fundamental rights and freedoms. Article 1 states that “all human beings are born free and equal in dignity and rights.” And Article 2 says that everyone is entitled to all the rights and freedoms the declaration sets out, “without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Other articles state that “everyone has the right to life, liberty and the security of person,” and that no one “shall be held in slavery or servitude” or “subjected to torture or to cruel, inhuman or degrading treatment or punishment.”

The declaration says that “all are equal before the law” and that everyone is entitled to “a fair and public hearing by an independent and impartial tribunal.” And it says that “everyone has the right to seek and to enjoy in other countries asylum from persecution.” The declaration enshrines the rights to freedom of religion; to freedom of opinion and expression; and to freedom of peaceful assembly. And it says that everyone has the right to education.

Why and how was it drawn up?

The declaration was born of the “never again” sentiment among political leaders after two world wars and the Holocaust. On top of the U.N. Charter, the document that founded the United Nations in 1945, countries decided to draw up what the U.N. calls a “road map” to guarantee the rights of every individual.

A formal drafting committee was chaired by Eleanor Roosevelt, the widow of U.S. President Franklin D. Roosevelt, and consisted of members of the new Commission on Human Rights from eight countries, selected to reflect geographical distribution.

Over 50 U.N. member countries participated in the final drafting in 1948, and the U.N. General Assembly approved the result on Dec. 10, 1948, with eight countries abstaining but none voting against. Human rights group Amnesty International notes that the declaration was drawn up at a time when much of the world’s population lived under colonial rule but says that “its drafting ultimately could not be controlled by the powerful alone.” It says that smaller nations “outmaneuvered the large,” ensuring that the final text promised human rights for all without distinction, and that female delegates ensured equal rights for men and women were affirmed.

The declaration isn’t a treaty and isn’t legally binding in itself, but the principles it sets out have been incorporated into many countries’ laws and it is viewed as the basis for international human rights law.

It is recognized as having inspired and paved the way for more than 70 human rights treaties at global and regional levels, according to the U.N. “It inspired the decolonization movement, it inspired the anti-apartheid movement and it inspired freedom fighters all around the world, be it on gender issues, be it on LGBTIQ+ issues, be it against racism,” U.N. High Commissioner for Human Rights Türk said on Wednesday.

“If we did not have it, we would be even in a more serious situation because then you would have different standards, and let’s also be very clear: It is the universal standard,” he said. He acknowledged that some have said it doesn’t apply to a specific religion, culture or region, but called that “absolute nonsense.” Türk’s own job emerged from one of the agreements that built on the 1948 declaration: the Vienna Declaration and Program of Action of 1993.

What is the situation now?

The 75th anniversary comes as human rights are challenged in the war between Israel and Hamas, Russia’s war in Ukraine, internal conflicts in Myanmar and Sudan and in a host of other places and situations.

U.N. Secretary-General Antonio Guterres said the universal declaration has been “too often misused and abused.” “It is exploited for political gain and it is ignored, often, by the very same people,” Guterres said in a speech in February to the U.N. Human Rights Council – itself frequently criticized because of some member countries’ own poor rights records. “Some governments chip away at it. Others use a wrecking ball.” Still, Amnesty International says the declaration “is living proof that a global vision for human rights is possible, is doable, can be realized.” And Türk says despite the many times the declaration has been ignored or exploited, it is still relevant, and the world should honour its successes and learn from its failures. “Human rights are inherent to every human being. Leaders who ignore this truth imperil the people they are meant to serve,” he said.

Source: Indian Express, 10/12/23

A prison diary from Tihar, by Natasha Narwal and Devangana Kalita

 

In these times of suffering brought on by the pandemic, it is imperative for the Indian judiciary and the state to ensure the right to life of the people it continues to hold in its custody and not let prisons become graveyards of human rights and dignity.

“Aisa lagta hai kabr mein aa gaye hain, na koi awaaz bahar ja sakti hai, na koi awaaz andar aa sakti hai” (It feels like we have entered a grave, no one can hear us and we cannot hear anyone) — a piercing observation made by one of our co-inmates last year, as we lived the deadly second wave of the pandemic inside Tihar’s women’s prison, Jail No.6. With the third wave currently unfolding, urgent attention must be paid to the terrible conditions under which one of the most neglected groups of this country is surviving — India’s prison population. The latest NCRB data tells us that 76 per cent of prisoners are undertrials with a stark overrepresentation of Dalits, Adivasis, Muslims and other minority communities amongst both undertrials and convicts.

The days of incarceration when the second wave was devastating lives outside and inside, its pain and horror, continue to haunt us. Tihar’s women’s prison witnessed a massive spread of the virus. We watched helplessly as cases emerged from one overcrowded ward after another. We mourned the deaths of our co-inmates far away from their homes. We waited in restless dread for the next day’s five-minute phone call for what news it may bear of our loved ones outside. We began to confront the fear of our own deaths inside that wretched place. On contracting the virus, a prisoner would be shifted to the “Corona ward”, while the barrack where the case was detected would become a “quarantine” barrack for the next 14 days where the inmates inside were locked up 24/7. Since cases kept emerging from every barrack, most of us lived in a state of permanent quarantine. We spent many heart-breaking days and nights listening to the shattering cries of little children when their barrack came to be quarantined.

Our barrack mate and co-accused, Gulfisha, suffered high fever, severe head and body ache, sleeplessness and loss of appetite. Identified as “symptomatic”, she was put in a tiny suffocating cell with two other inmates. Her Covid was never detected because no RTPCR tests were available — only a limited number of antigen tests were being conducted. Testing kits were in short supply, along with all other equipment such as sanitisers, masks, gloves, PPE suits. Barracks full of symptomatic patients were given a liberal supply of paracetamols, cetirizine, cough syrups and various other drugs through untrained inmates who had to work as paramedics in the absence of a requisite number of trained medical staff.

During the initial days of the outbreak, access to mulaqaats/phone calls/letters/newspapers was terminated. Imagine contracting the virus, being shoved into an overcrowded diseased barrack or a lonely cell all alone, provided negligible medical attention and allowed no contact with your family or friends at a time when you most desperately need it. It was only after the intervention of the Delhi High Court that some of these facilities were resumed inside prison and vaccination of inmates was undertaken. Family and legal mulaqaats in prison have remained suspended through most of the last two years. Even as the facility of e-mulaqaats came to be instituted in August 2020, families of most inmates do not possess smartphones or the digital literacy for accessing the same. Additionally, as a result of courts becoming online and visits by judges or government bodies being discontinued during the pandemic, the impunity that rests in the hands of the jail administration has come to be strengthened. The minimal mechanisms of redressal available to prisoners with regard to discrimination and abuse by prison staff have thus ceased to exist.

Indian prisons have always been overcrowded. In Delhi for example, against a sanctioned prison population of 10,024, the three jails — Tihar, Mandoli and Rohini — have around 19,000-20,000 prisoners. The infrastructure and facilities simply do not exist inside prisons to be able to handle and mitigate a pandemic of this scale. The Supreme Court of India took suo motu cognisance of this issue and on March 23, 2020, issued guidelines for state/UT-wise formation of High Powered Committees (HPC) for the decongestion of prisons. However, the criteria decided by the HPCs of different states for interim release of prisoners, instead of being based on the fundamental principle of equality of all human life, create an arbitrary categorisation of prisoners that deserve to live, based on nature/severity of offence, number of years of sentence but not factors like age, health, comorbidities and other vulnerabilities. So, despite being at “high risk” of mortality, because an undertrial/convict may be charged under certain laws like UAPA, sedition, NDPS or is a foreigner, they are not entitled to interim bail/parole. The online functioning of courts meant that trials couldn’t commence or remained suspended, further prolonging the incarceration for undertrials charged under these sections.

Such unfair criteria in the grant of interim bail are the reason why Father Stan Swamy was not granted bail last year and died in custody, and G N Saibaba, a 90 per cent disabled former Delhi University professor continues to be incarcerated after having contracted Covid once again in Nagpur Jail. These are the names we know but our prisons are filled with hundreds of such undertrials and convicts who are most at risk from the virus but have been denied access to any form of interim relief. Like Elsie, who was from Bolivia and lived in our ward. Despite her co-morbidities, as a foreigner and an NDPS undertrial, she was not eligible for the HPC’s interim bail criteria and died inside prison, thousands of miles away from her two little children whose faces she longed to see. She was put to rest inside prison premises as her family did not have the resources to reclaim her body. Even in death, there was no freedom.

In these times of suffering and despair brought on by the pandemic, it is imperative for the Indian judiciary and the state to ensure the right to life of the people it continues to hold in its custody and not let prisons become graveyards of human rights and dignity.

Written by Natasha Narwal , Devangana Kalita

Source: Indian Express, 24/01/22

The right to sit must be the beginning

 The lack of access to seating works as a strong impediment to women’s participation in India’s workforce.

On September 13, the Tamil Nadu (TN) assembly passed the amended Tamil Nadu Shops and Establishments Act, 1947, making it mandatory for shops, storefronts, and commercial establishments to provide employees with seating facilities. TN is the second state to do so after Kerala. With most establishments having no chairs or stools for salespersons who work for over 10 hours a day, often with no toilet or tea breaks, workers developed various physical ailments (and most of the workers are women). These rules defy every tenet of labour rights and human dignity, and are often compounded by paltry wages and scant benefits.

While granting workers the right to sit is a positive move, India has a long way to go. The shops and establishments acts are state-specific, and regulate the terms of employment and conditions of service of employees. However, labour rights experts are demanding more: National legislation to protect the fundamental rights of employees because issues such as the lack of access to seating and toilets are related to occupational health and safety. Such provisions should have been added to the Occupational Safety Health Working Conditions Code, 2020. At present, the Code is applicable to establishments that have more than 10 employees.

The lack of access to seating works as a strong impediment to women’s participation in India’s workforce. Indian women face many barriers to their entry into the labour market. The denial of basic working conditions adds to those problems, and forces them out of the workforce. This not only undermines India’s economic growth and development trajectory, but denies a chance for 48% of its population to fulfill their dreams and potential.

Source: Hindustan Times, 26/08/21

Nobel Peace prize to World Food Programme recognises hunger as violation of human rights

 

Amidst all the media attention to the exceptional violence of wars, terrorism and genocides, we tend to forget the millions of hunger victims who die in a slower, less spectacular form of violence. Hunger is not inevitable: It is man-made and there are victims and perpetrators.

In May 2018, a remarkable addition was made to the UN Security Council resolutions on civilian protection in armed conflicts. Building on previous UN resolutions on humanitarian laws, human rights and protecting civilians and vulnerable populations, Resolution 2417, for the first time, recognised the need to “break the vicious cycle between armed conflict and food insecurity”. This pathbreaking resolution also added credence to the Sustainable Development Goal of eradicating hunger adopted by the UN in 2015.

The recent announcement of the 2020 Nobel Peace Prize to the World Food Programme (WFP), one of the largest humanitarian organisations addressing hunger and promoting food security, is a step forward in recognising the seriousness of the global food crisis. It draws attention to the sustained efforts to fight hunger and famine from the grassroots to the highest levels of global governance. While recognising those who struggle to ban nuclear weapons, restrict arms production and arms trade, and prevent conflict through diplomacy may seem directly relevant for the peace prize, putting focus on the consequences of war is also an important part of working towards peace and the well-being of people.

UNSCR 2417 had very clearly prepared the ground to focus world attention on the after-effects of war, including continued suffering of food-insecure people and severely undernourished children. The Nobel committee has further stressed the link between armed conflict and hunger — something that the WFP also recently reminded us of. Almost 80 per cent of all chronic malnourished children inhabit countries affected by armed conflict. The ongoing coronavirus pandemic has exacerbated the problem of food insecurity and famines. It is anticipated that the number of hungry people could increase to 270 million under the impact of the pandemic, with the most acute suffering and starvation experienced in conflict zones.

Wars constrain people’s mobility, create black markets and restrict people’s access to food, making it either unavailable or too expensive. War-related displacement causes people to be removed from their cultivable land so that they cannot grow food, and it diverts resources from people’s welfare towards the war effort. War parties control what goes in and out of areas under their jurisdiction, and can use withholding of food as a weapon of war. Providing people with food in an emergency situation may seem like a very short-term measure. At the same time, providing for basic needs is necessary for promoting trust in society and for the focus to shift to education, work and rebuilding lives. This is also important for preventing the outbreak of new hostilities and armed conflicts.

Apart from the significance of the connections between war and hunger, we also believe that eradicating hunger needs to be a focus in its own right. Amidst all the media attention to the exceptional violence of wars, terrorism and genocides, we tend to forget the millions of hunger victims who die in a slower, less spectacular form of violence. Hunger is not inevitable: It is man-made and there are victims and perpetrators. Those perpetrators include — but are not restricted to — state actors who, through what they do or what they fail to do, contribute to starvation.

Hunger has been India’s bane in colonial times and also since Independence. While debates about the Bengal and other British-era famines are getting some attention now, we need to focus on the hunger threats and food insecurity that independent India continues to face. In 1947, India’s biggest challenge was to find enough grains to feed its population of around 300 million, when only 10 per cent of the cultivated area had access to irrigation, and mineral fertilisers were an unaffordable luxury. Though a modern, technology-driven economy was introduced, the lack of domestic food production continued to be supplemented by importing grains from all over the world — an embarrassing situation for a proudly non-aligned nation that became the largest importer of food aid, especially from the US.

The Green Revolution changed the situation drastically since the late 1960s but acute hunger crisis, famines and malnourishment are reported regularly, along with farmer suicides. State policies and accountability are the bigger part of the problem, along with the occurrence of frequent natural disasters and lack of public attention to this issue. The ongoing coronavirus pandemic has further exacerbated the threat of hunger, ever since the lockdown was introduced and millions of daily-wage earners lost their livelihood, giving rise to massive reverse migration. To add to these known precarities, the impact of climate change on the future of crop production is not even fully known yet.

The World Food Programme has delivered food aid and worked to alleviate hunger in many parts of the world, including India. Recognising its work at this critical juncture is not only a much-needed act of appreciation, but an urgent warning that we all need to heed. The world faces a severe food crisis as the threat of famines and starvation is magnified during the ongoing pandemic. This slow violence on vulnerable populations will weigh on our collective conscience, if we do not recognise hunger as the ultimate violation of basic human rights and dignity, and join hands to eradicate it.

This article first appeared in the print edition on October 13 under the title “A prize for waging war on hunger”. Parashar is Associate Professor in Peace and Development Research at the School of Global Studies, Gothenburg University, Sweden. Orjuela is Professor in Peace and Development Research at the School of Global Studies, Gothenburg University, Sweden

Source: Indian Express, 13/10/20

What is Human Rights Day?

Human Rights Day 2019: The theme for this year is 'Youth Standing Up for Human Rights', under which the UN aims to celebrate the potential of youth as agents of change, amplify their voices and engage a broad range of global audiences in the promotion and protection of rights.

Human Rights Day is observed on December 10 every year. It is the day when the United Nations General Assembly adopted the Universal Declaration of Human Rights (UDHR).

UDHR is a document proclaiming the inalienable rights which everyone is entitled to as a human being, irrespective of race, colour, religion, sex, language, political or other opinion, national or social origin, property, birth or any other status. It is the most translated document in the world, and is available in over 500 languages.

The theme for the year 2019 is ‘Youth Standing Up for Human Rights’, under which the United Nations aims to celebrate the potential of youth as agents of change, amplify their voices and engage a broad range of global audiences in the promotion and protection of rights.

Youth have been chosen for the campaign led by the Office of the High Commissioner for Human Rights (OHCHR) since their participation is essential to achieve sustainable development for all, they play a crucial role in positive change and empowering them to better know and claim their human rights will generate benefits globally.

Human rights and sustainable development are correlated to Sustainable Development Goals (SDGs) in the sense that human rights are driven by progress on all SDGs and SDGs are driven by advancements on human rights.

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Source: 10-12-2019

A national register of exclusion

There are few parallels anywhere else of the state itself producing statelessness in the manner that it is doing in Assam

By requiring long-term residents of Assam to prove their citizenship by negotiating a thicket made up of bewildering and opaque rules and an uncaring bureaucracy, the Indian state has for the past two decades unleashed an unrelenting nightmare of wanton injustice on a massive swathe of its most vulnerable people.

Distressing cycle

The official presumption that they are foreigners has reduced several million of these highly impoverished, mostly rural, powerless and poorly lettered residents to a situation of helplessness and penury. It has also caused them abiding anxiety and uncertainty about their futures. They are required to persuade a variety of usually hostile officials that they are citizens, based on vintage documents which even urban, educated, middle-class citizens would find hard to muster. And even when one set of officials is finally satisfied, another set can question them. And sometimes the same official is free again to send them a notice, starting the frightening cycle afresh.

On February 2 and 3, I was in Guwahati listening to heart-breaking accounts from 53 people from 13 districts of Assam. This was as part of a people’s tribunal on the National Register of Citizens (NRC), along with Justice Venkate Gopala Gowda, Colin Gonsalves, Monirul Hussain and Sanjoy Hazarika. What emerged were numbing stories of unyielding official bias and arbitrariness, of the denial of elementary “due process” and, above all, the complete absence of public compassion. Even old men frequently broke down as they spoke of all that they had endured.

It emerged that the names of many persons were dropped from the draft NRC only because of minor differences in the spelling of Bengali names in English in different documents. We encountered several instances where the variation of a single letter, for example between Omar and Onar, was enough to rule that a person is a foreigner. Likewise, the rural unlettered are typically vague about their dates of birth. A person could be excluded from citizenship if she told the tribunal that she was 40 when her documents recorded her to be 42.

Tougher on women

Women are especially in danger of exclusion from the citizenship register. Typically, they have no birth certificates, are not sent to school, and are married before they become adults. Therefore, by the time their names first appear in voters’ lists, these are in the villages where they live after marriage, which are different from those of their parents. They are told that they have no documents to prove that they are indeed the children of the people they claim are their parents. There were cases of being excluded from citizenship on this ground alone.

Impoverished migrant workers often travel to other districts of Assam in search of work, as construction workers, road-builders and coal-miners. In the districts to which they migrate, the local police frequently record their names as illegal immigrants from Bangladesh. The police then mark them out as illegal immigrants. They receive notices from foreigners’ tribunals located in districts where they might have worked years earlier, far away from their home districtsthey have to travel to for every hearing, adding further to their costs.

The NRC is not the only institution through which the state challenges them to prove their citizenship. A second process began in the mid-1990s when the then Chief Election Commissioner T.N. Seshan, as a one-time measure, directed officials to identify “doubtful voters” by marking a “D” against their names on the voters’ list. This would temporarily bar them from voting or standing for elections, until an inquiry was completed.

But this temporary measure became permanent. The power was vested permanently with junior officials who could doubt the citizenship of any person at any time without assigning any reason. Those with the dreaded “D” beside their names had no recourse for appeal under the rules, with years passing without any inquiry. The “D” also debarred them from being included in the draft NRC.

A third process empowers the Assam Police to identify anyone it suspects to be a ‘foreigner’. Again, all that the police claim in most cases is that the person was unable to show them documents establishing his or her citizenship. People consistently deny that the police even asked them from documents. Why would they not show them these, when they all know the dangers of not allaying the suspicions of the police?

Opaque processes

All cases referred by the police are heard by Foreigners’ Tribunals (FTs). Earlier, retired judges were appointed to these tribunals. The Bharatiya Janata Party government has appointed many lawyers (often members of the ruling party or the Rashtriya Swayamsevak Sangh) who have never been judges. There are now FTs in which not a single person has been declared an Indian citizen over several months. Many allege that both the police and presiding officers in FTs work to fulfil informal targets to declare people foreigners.

Even if a person finds her name in the NRC, the police can still refer her case to an FT; an election official can even deem her to be a “D”-voter. Article 20 of the Constitution includes as a fundamental right that “no person shall be prosecuted and punished for the same offence more than once”. But this principle has been waived for FTs. We found that even after an FT had confirmed a person to be an Indian citizen, another FT and often the same FT can again issue notice to the same person to prove her legitimate citizenship once more. A person is never be allowed to feel secure that the state has finally accepted that she is an Indian citizen.

In this way, the sword permanently hangs low over their heads. Who will be challenged before which institution to prove that they are Indian citizens? Will they or their loved ones be stripped of their citizenship rights, and by processes that are opaque, unreasonable and discriminatory?

No person in any one of the testimonies that we heard was given legal aid by the state, which is bound to deploy lawyers paid by the state to fight their cases in the FTs and higher courts. People instead spoke of panic spending, of enormous amounts of money to pay lawyers, as well as for costs of travel of witnesses who they bring with them to testify in their favour. For this, they have had to sell all their assets or borrow from private moneylenders. The large majority of them are poorly educated and very impoverished, doing low-paid work such as drawing rickshaws, or working as domestic work or farm labour.

With the entire burden of proving citizenship on their shoulders and the arbitrary and opaque multiple forums to which they are summoned, people deprived of both education and resources are caught in a Kafkaesque bureaucratic maze from which they find it hard to emerge.

Trapped at the crossroads of history, their destinies depend on institutions that treat them with undisguised hostility and bias. There are indeed few parallels anywhere in the world of the state itself producing statelessness on the scale and in the manner that it is doing in Assam.

Harsh Mander is a human rights worker, writer and teacher

Source: The Hindu, 5/02/2019

The view from the outside

As a democracy, India must have a better record of upholding human rights

The role that India can and should play on the world stage is a topic that elicits much excitement and, of late, hyper-nationalism. It is often stated that it is time for India, as the world’s largest democracy, to take on an increasingly significant mantle in the international realm. Aspects such as economic and military power have been the usual focus of this debate. However, an important component of this enhanced stature necessarily relates to the safeguarding and protecting of human rights. In India, there is a blind spot in relation to rights and the intersection with foreign relations and policy discussions, and ignoring this has its perils.

Track record on human rights

Recently, India’s Deputy Permanent Representative to the United Nations expressed concern over the “politicisation of human rights as a foreign policy tool”, while addressing the work of the UN and the Human Rights Council. If part of the argument that India seeks to make is that it is a torchbearer of democracy and should therefore have a greater say, including on issues such as UN reform, an integral part of the case to be made relates to upholding international laws and standards pertaining to human rights. So, how does this stand up to scrutiny?

Within the country, many lawyers, activists, academics and human rights organisations have pointed to the deteriorating climate in relation to human rights. But how is the track record on human rights perceived outside the country, particularly by international law and human rights experts appointed as part of the UN human rights machinery? It is instructive to assess the record of UN independent experts towards India. For clarity, this assessment excludes the Human Rights Council, made of a group of states which can run the risk of allegations of partisanship based on membership. Instead, only statements of UN Independent Experts or Special Rapporteurs are examined, being thematic or subject matter experts on specific aspects of law (such as freedom of expression, extrajudicial executions, human rights defenders, etc.).

Negative statements

On January 11, four UN Special Rapporteurs — on summary executions, torture, freedom of religion, and the situation of human rights defenders — issued a statement drawing attention to “extrajudicial” killings in Uttar Pradesh. In a strongly worded call, the UN experts expressed concern about the “patterns of events”, including arrest, detention and torture prior to summary executions of 59 individuals since March 2017. This enhanced and negative scrutiny by Independent Experts follows on the heels of the first ever UN report on human rights violations in Kashmir, conducted by the Office of the High Commissioner for Human Rights — an indicator of how far the situation has deteriorated, as well as the inevitable enhanced scrutiny. A review of the press releases by the UN human rights office from 2010 to date shows that there have been 26 critical statements (mostly by UN experts, with some by the UN High Commissioner for Human Rights). Nine were issued in 2018, which was the year that saw the highest number of negative statements on India in the period examined. The statements have dealt with a number of issues, including the Assam National Register of Citizens process (in photo), online hate speech, the killing of journalist Gauri Lankesh, jailing of human rights defenders, deportation of Rohingya refugees, and excessive police response to protests.

These statements indicate a few things. First, there has been enhanced scrutiny by international experts of the deteriorating human rights environment in India, particularly in 2018. Second, the magnification of domestic rights violations in the international sphere is inevitable. Third, the metric of human rights and compliance with international law cannot be dismissed.

Inevitably, there will be the counterarguments, many of which can be addressed. Yes, this is not a comparison to other countries, but based on self-made claims of enhanced stature in the international arena — so how we fare in the eyes of international experts is important. No, this is not a question of external interference which can be dismissed out of hand — these statements are extremely serious, not issued lightly and are an integral part of the machinery of accountability for human rights violations in the international realm and will be a part of India’s human rights record for posterity.

India’s record of upholding human rights is abysmal; it must do better. The primary consideration should be the welfare and rights of individuals within the purview of the state. The secondary consideration should be perception and the place that India wants for itself in terms of stature and prestige. From both perspectives, the respect of the rights of individuals must be non-negotiable.

Priya Pillai is an international lawyer, with expertise in human rights 

Source: The Hindu, 18/01/2019

Manipur shows the way

Its anti-lynching law breaks important ground in attempting to control hate crimes and ensure police action 

Six months have passed since the Supreme Court — anguished by what it described as ‘horrific acts of mobocracy’ — issued a slew of directions to the Union and State governments to protect India’s ‘pluralist social fabric’ from mob violence. The court felt compelled to act in the shadow of four years of surging hate violence targeting religious and caste minorities. It also urged Parliament to consider passing a law to combat mob hate crime.

The Union and most State governments have done little to comply with the directions of India’s highest court. But Manipur became the first to pass a remarkable law against lynching, late last year. It did this after a single horrific video-taped lynching of a Muslim youth with an MBA degree stirred the public conscience.

Comprehensive in definition

The Manipur law closely follows the Supreme Court’s prescriptions, creating a nodal officer to control such crimes in every State, special courts and enhanced punishments. But its weighty significance lies in that it breaks new ground in some critical matters concerning hate violence in India, and shows the way in which the Union and other governments need to move if they are serious about combating hate crimes.

Its definition of lynching is comprehensive, covering many forms of hate crimes. These are “any act or series of acts of violence or aiding, abetting such act/acts thereof, whether spontaneous or planned, by a mob on the grounds of religion, race, caste, sex, place of birth, language, dietary practices, sexual orientation, political affiliation, ethnicity or any other related grounds .…”

The law, however, excludes from its provisions solitary hate crimes. For the law to apply instead it requires that these hate crimes are undertaken by mobs (defined as a group of two or more individuals, assembled with a common intention of lynching), thereby excluding from its provisions solitary hate crimes. When we look back at the last four years, the majority of hate crimes were indeed by mobs of attackers and onlookers, but we also saw solitary hate murders, such as of the Bengali migrant Mohammad Afrazul in Rajasthan. This restriction of numbers is arbitrary, since the essence of what distinguishes these kinds of crimes is not the numbers of attackers but the motivation of hate behind the crimes; therefore, provisions of this law should apply to all hate crimes, not just lynching, regardless of the numbers of persons who participate.

On the public official

The most substantial and worthy contribution of the law is that it is the first in the country dealing with the protection and rights of vulnerable populations which creates a new crime of dereliction of duty of public officials. It lays down that “any police officer directly in charge of maintaining law and order in an area, omits to exercise lawful authority vested in them under the law, without reasonable cause, and thereby fails to prevent lynching shall be guilty of dereliction of duty” and will be liable “to punishment of imprisonment of one year, which may extend to three years, and with fine that may extend to fifty thousand rupees”.

Equally pathbreaking is that it removes the protection that is otherwise extended to public officials charged with any offence committed while acting in their discharge of official duty. At present, no court can take cognisance of such an offence except with the previous sanction of the State government. The Manipur law means that now no prior sanction is required to register crimes against public officials who fail in their duties to prevent hate crimes such as lynching.

In almost every incident of hate crime that the Karwan e Mohabbat, a campaign of solidarity for victims of such crimes, has investigated, the police acted brazenly in ways that would have been deemed crimes by public officials if a law such as the Manipur law had been in force. They arrived late deliberately, or watched even as the crimes were under way without restraining the mobs; they delayed taking those injured to hospital and on occasion even ill-treated them, ensuring their death; and after the hate crimes, they tended to register criminal cases against the victims and to defend the accused.

If police officers knew that they could be punished for these crimes (which would also put them at risk of losing their jobs), it is very unlikely that they would have acted in this way. They would have prevented, or stopped in their tracks, these hate crimes, and protected the victims.

I would also include in the crimes of dereliction of duty deliberately protecting criminals during investigation after the hate crime. I would also, most importantly, incorporate command responsibility, so that officials and also those who have directed them to betray their constitutional duties are criminally liable..

The second momentous contribution of the Manipur law is that it does away with the requirement of prior state sanction before acting on a hate crime. All hate crimes today should attract Section 153A of the Indian Penal Code, which is related to fostering enmity between people on the basis of religion, race, language and so on. But registering this crime requires prior permission of the State government, and most governments use this power to shield perpetrators of hate crimes who are politically and ideologically aligned to the ruling establishment. The Manipur law does away with this requirement, which would make acting against hate crimes far more effective and non-partisan.

The third substantial feature is that it clearly lays down the duty and responsibility of the State government to make arrangements for the protection of victims and witnesses against any kind of intimidation, coercion, inducement, violence or threats of violence. It also prescribes the duty of State officials to prevent a hostile environment against people of the community who have been lynched, which includes economic and social boycott, and humiliation through excluding them from public services such as education, health and transport, threats and evictions.

Rehabilitation

The last substantial contribution of the law is requiring the state to formulate a scheme for relief camps and rehabilitation in case of displacement of victims, and death compensation. Again, in most cases of lynching, we have found that States have only criminalised the victims, never supported the survivors who live not just in loss and fear, but also in penury.

But the law needs to prescribe a much more expansive framework of mandatory gender-sensitive reparation on an atonement model, requiring the state to ensure that the victim of hate violence is assisted to achieve material conditions that are better than what they were before the violence, and that women, the elderly and children are supported regularly with monthly pensions over time.

Even with these caveats, the Manipur government has broken new ground, being the first government in the country to hold public officials criminally accountable if they fail to prevent hate crimes. If emulated by the Union and other State governments, such a sterling law could substantially prevent hate attacks, ensure public officials are faithful to their constitutional responsibilities and victims, and that their families and communities are assured of protection and justice.

This is the India we must claim — of safety, fairness and fraternity.

Harsh Mander, a human rights worker, writer and teacher, convenes the Karwan e Mohabbat

Source: The Hindu, 17/01/2019

In Good Faith: The rights side of 70

The Universal Declaration of Human Rights, 1948, holds lessons for a more equitable future.

In his famous book, Man and the State, the French philosopher Jacques Maritain draws attention to the universal essence of human rights above ideologies. He says, “The recognition of a particular category of rights is not the privilege of one school of thought at the expense of the others; it is no more necessary to be a follower of Rousseau to recognise the rights of the individual man than it is to be a Marxist to recognise the economic and social rights.” At the time Maritain was writing these lines, he was deeply concerned with the political and philosophical situations of Europe and the world post World War II and during the Cold War. The practical challenge for a philosopher like Maritain was to formulate the means which could help people around the world to discuss their differences while respecting and assuring human dignity for everyone on the planet. Maritain was right to underline that a dignified life was based on the establishment of the basic needs and rights of every individual independent of his or her race, language, culture, religion or nationality. The core idea of this optimistic philosophy — that states and peoples can discuss practical issues and arrive at mutual agreements despite ideological differences — probably had an effect on René Cassin, the French legal scholar, who was later awarded the Nobel Peace Prize for his efforts in drafting the final version of the Universal Declaration of Human Rights in 1948.

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In his speech to the UNESCO General Council in 1947, Maritain asked the key question about the challenge of overcoming obstacles posed by diverse cultures and ideological differences throughout human history. “How,” he asked, “can we imagine an agreement of minds between men who come from the four corners of the globe and who not only belong to different cultures and civilisations, but are of antagonistic spiritual associations and schools of thought?” Unsurprisingly, the members of the Human Rights Commission, under the leadership of Eleanor Roosevelt (First Lady of the United States from March 1933 to April 1945), charged with the drafting of the declaration, were all well aware of the importance of this challenge. In that sense, from the very beginning, their task was as much philosophical as it was judicial. As such, in the manner of Maritain, who was in search of a new universal ethics, the commission members extended the theoretical foundations of the Universal Declaration of Human Rights beyond “the narrow limits of the Western tradition”. Maintaining that human rights transcend religious and cultural differences, Cassin, nonetheless, recognised that they embodied generations of rights expressed by their humanistic and natural law foundations. Moreover, neither Cassin, nor the other drafters of the Universal Declaration were unaware of the contributions and influences of ancient philosophies and religions to the modern understanding of rights. However, influenced by the spirit of the French Revolution and its revolutionary motto “Liberté, Égalité, Fraternité”, Cassin identified the four foundational blocks of the Universal Declaration of Human Rights as “dignity, liberty, equality, and brotherhood”. By “dignity”, developed in the first two articles of the universal declaration, Cassin referred to all the values which were shared by individuals beyond their sex, race, creed and religion. As for “liberty”, it included articles three to 19, and emphasised on rights related to individual life, liberty and personal security. Under “equality”, Cassin understood rights related to the public sphere and political participation (articles 20 to 26), and, under “brotherhood” were economic, social and cultural rights (articles 27 and 28). Finally, the three last articles (28, 29 and 30) focused on the conditions in which these could be realised in society and the state.

However, the concept of rights — long recognised in historically significant laws, charters and constitutions such as the Magna Carta (1215), American Declaration of Independence (1776), Bill of Rights (1791) and the French Declaration of Rights of Man and the Citizen (1789), and at the foundation of the Universal Declaration of Human Rights of 1948 — did not succeed in overcoming the approaches of the states and individuals who distinguished between “themselves” and “others”. Let us not forget that out of then 58 members of the United Nations, only 48 ratified the universal declaration while Saudi Arabia, South Africa, the Soviet Union, Poland, Ukraine, Yugoslavia, Byelorussia and Czechoslovakia abstained, because they were worried that the moral appeal of the document would endanger the sanctity of their domestic laws and regulations.

Consequently, despite Maritain’s call for the universality of human rights and Cassin’s insistence on their indivisibility, the Cold War rivalry between the two blocks and the admission of the newly independent states in the UN, ended with the adoption of two covenants in 1966 on civil and political rights, on the one hand, and, economic and social rights, on the other hand. However, despite the tireless struggles of three generations of individuals and institutions, and the impact of globalisation on human rights, the Universal Declaration is considered as a lantern of hope viewed from afar by political prisoners and refugees around the world. And yet, the philosophy of human rights continues to propel humanity into the future, where many still believe that justice, rights and peace can be constructed. Therefore, if the lessons of the Universal Declaration of Human Rights are not learned, and if we do not consider the past 70 years, which separate us from the foundation of this monumental document as a positive journey; the future generations will have great difficulties in overcoming the challenges of the next 70 years.

Source: Indian Express, 17/12/2018

Smoke and Mirrors : India’s Human Rights report at the UN

The final conclusions of UPR on India, like all such reviews, need to be read not in cold print, but between the lines

The career Indian diplomat is a grandmaster in the art of obfuscation. However, the mendacity of the submissions by the Indian delegation during the examination of India’s record during the Universal Periodic Review (UPR) of its human rights record convinced only the naïve back home – and some duplicitous governments in the United Nations.

The final conclusions of UPR on India, like all such reviews, need to be read not in cold print, but between the lines. At the outset, it must be remembered that when it comes to the implementation of universal rights and norms on human rights, the “United Nations” must in fact be read in reverse – it is “Nations United”, countries against their peoples. Most would rather ignore their populations’ clamour for accountability and rights. This, in spite of the valiant efforts of the present UN High Commissioner for Human Rights and the under-resourced but intrepid UN Human Rights machinery. Most governments do the human rights tango only when it suits their expedient geo-political realities.

India’s report starts with a big fat lie. “When drafting its national report, India followed a broad-based consultative approach involving various stakeholders.” The consultations were in fact perfunctory. No draft report prepared by the Government of India was made available to the few human rights NGO representatives invited to the consultations. Some of the invitees can be charitably described as Government-organised NGOs (GONGOs). One such “consultation” even included a self-confessed NGO collaborator of the Intelligence Bureau!

India’s attempt at dissimulation regarding its abysmal record on torture was superb. Per its report, “India reiterated its commitment to ratify the Convention against Torture. In this context, the Government requested the Law Commission of India to give a comprehensive report covering all aspects of criminal law so that necessary amendments could be made in India’s Penal Code, Code of Criminal Procedures and Evidence Act, prior to carrying out the ratification process.”

Not to be outdone, the National Human Rights Commission of India in its submission to UPR sought to convey that the delay in ratification was only five years. India signed the convention in 1997. It is now 2017. Forget any substantive knowledge of human rights; in the NHRC, even elementary arithmetic is a casualty.

An assortment of countries – from Botswana, Norway, Guatemala and Italy to Lebanon, South Africa, Sweden, the United States of America and Kazakhstan, made bland calls for the ratification of the Convention Against Torture. Australia and Germany were more nuanced and precise, calling on India to “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 2010, a badly drafted and weak Prevention of Torture Bill was passed in the Lok Sabha. The Rajya Sabha sent it to a select committee where it was much improved. However, there were no takers for the improved bill in the Union Home Ministry or the Law Ministry, and the bill was allowed to lapse. So much for compliance with international law.

The Government of India’s UPR submission added that the Law Commission of India is now seized of the matter. A laughing matter, one might add – we are only too aware of the fate of reports prepared by the Law Commission.

Similar attempts at obfuscation characterised India’s reporting on the death penalty, the Aadhaar card, malnutrition, minority rights, women’s rights, the Armed Forces Special Powers Act (AFSPA), and the excessive use of force, among other issues.

The UPR is a peer review process. The questions and recommendations from the European Union countries, with a few honourable exceptions, were pathetic. The process underscored the lack of any meaningful EU-wide policy or consultation on human rights. Clearly, the agenda item on human rights in the EU-India bilateral dialogue exists only in the febrile imaginations of many European chanceries.

This should come as no surprise, as not just one but all the EU member states have, as Adam Smith and Napoleon succinctly put it, become “a nation of shop keepers”. As the recession-plagued, two-legged predatory carpetbaggers from Europe eye the vast Indian market, human rights are conveniently overlooked.

This was exemplified by the final communiqué of the 13th India-EU Summit on March 30, 2016 in Brussels. Most of the discussion on Human Rights centred on the case of two Italian marines and the 14 Estonian and six UK Guards sentenced to prison by an Indian court.

The fact that last year’s summit was held after a gap of four years indicates the “warmth” that the EU now enjoys in South Block, and explains its profound silence on human rights. It remains to be seen if the grandiose formulation on human rights in the EU-India Agenda for Action-2020 is worth the paper it is written on.

The Islamic member countries grouped under the Organisation of Islamic Countries (OIC) were at their vacuous best. The Pakistan formulation on the use of pellet guns in Kashmir was spot on. However, Pakistan being the sole country to raise the issue ensured that the question was dead on arrival.

The African group of countries was no better. With the notable exception of honest Rwanda and brave Toussaint’s Haiti from the Caribbean, African countries’ threat in April 2017 to raise the issue of pervasive racism against people of African origin in India at the UN Human Rights Council evaporated in Geneva.

India will provide further responses to the review when the Human Rights Council meets again in September 2017. Will Member States be more rigorous in their questions? Will India’s responses go beyond empty rhetoric and promises? It will, only if Indian citizens monitor their representatives’ performance at the international high table and call out their government on the yawning gap between its words and actions. We must keep the pressure on.

Ravi Nair is with the South Asia Human Rights Documentation Centre and is available at ravinairsahrdc@gmail.com

Source: Indian Express, 24-05-2017

Doing the right thing

ndia must break its silence on the humanitarian disaster in Syria, particularly Aleppo

Shiv Visvanathan has written an important article, “Death in Aleppo” (The Hindu, Dec. 16), describing India’s foreign policy with reference to the massacres in Syria, particularly in Aleppo, as “a piece of empty piety”. He is anguished about and critical of the silence that India has maintained over these killings. He says our foreign policy is devoid of compassion. He is right.

The professor seems to be exasperated at what can at best be described as our a-moral stand in the face of heartless and cold-blooded killings in that unfortunate land. India has prided itself on its humane approach to issues. At the same time, it has been India’s axiom to not interfere in the affairs of other countries, and not to be involved in events in countries with which it is not directly concerned or which do not directly affect its interests.

The moral imperative

As the principal architect of the policy of non-alignment, Jawaharlal Nehru was determined to keep India aloof from conflicts elsewhere, so that the country could devote its efforts and energy to the task of developing its economy. In this he was largely successful by not lining up with either of the two politico-military blocs. At the same time, he had declared, where peace was threatened or justice denied, India would not keep silent. Here, his record was mixed. He spoke up strongly at the time of the Suez crisis of 1956, but took a less-than-neutral stand on the Hungarian revolt the same year. The contrast was stark. While his Hungarian policy was flawed on moral grounds, it could be justified on the ground of national interest.

This writer, like many others of his fraternity in the Indian Foreign Service, is a strong votary of the realistic or pragmatic school of diplomacy. National interest does and must trump every other consideration. Often this approach seems, and is, of dubious morality, but if national interest dictates it, the government of the day must pursue national interest.

In the case of Syria, the situation is extremely complicated. The civil war is in its sixth year. More than 4,00,000 lives have been lost, millions have been displaced, an entire generation of children has gone without experiencing childhood and has been denied education. The loss of priceless heritage of humankind can never be recouped. It is a civil war, and at the same time it is more than a civil war. External elements, regional and extra-regional, have jumped into the fray for their own agendas, without caring about the Syrian people. Every single regional country is involved, and nearly all Western nations as well as Russia have joined in. There is a difference of motives among those who want Bashar al-Assad out. Nobody really knows just how many militia groups are fighting in Syria; many are fighting among themselves, much to the delight of the regime in Damascus. Ironically, there is now an unstated consensus that dethroning Mr. Assad is not a priority; in fact, forget about him and concentrate on defeating the Islamic State.

In such a situation, it makes sense for India not to get involved. The civil war will go on for decades. Why should we stick our neck out? We have remained more or less neutral though our stand was somewhat pro-regime in the past.

There is, however, no reason for India to show indifference to the merciless slaughter of innocent lives in Syria. It is true that there is nothing we can do to influence the course of events there. It is also true that the region is of importance to us; prolonged instability, which might become even worse in the months ahead, with the change in administration in Washington, is not in our interest. Thus, we have a legitimate reason not to do or say anything that might upset any of our friends, such as we have. On the whole, it seems to this writer that we ought to break our silence on the humanitarian situation.

When Somalia was being racked by civil war in the early 1990s, India was a member of the United Nations Security Council. There was a strong sentiment among the international community that something had to be done to stop the massacres. We joined in authorising the Council to take action that eventually did not produce the desired result; nevertheless, India did support all the resolutions even though it amounted to intervening in the internal affairs of a UN member state. And we did that guided by moral or ethical grounds. Similarly in Syria, we ought not to fight shy of condemning the terrible loss of lives. Expression of our outrage at the sufferings of the Syrian people would be perfectly in order.

Crocodile tears

One problem in dealing with the Syrian situation has been that the major players are only thinking of their interests and constituencies. Even resolutions that are being proposed on humanitarian matters have unhidden political agendas. One side wants to hold only the other responsible for the tragedy. One side is engaged mainly in propping up the regime, and the other is interested only in toppling the regime; both sides are shedding crocodile tears at the human suffering.

India could and should have taken the initiative of tabling a resolution in the UN Security Council, denouncing and deploring the goings-on in Syria, at the same time scrupulously abstaining from any language smacking of supporting or criticising any of the parties involved in the conflict. We are not a member of the Security Council at present, but there is nothing to prevent a non-member from introducing a draft resolution. Perhaps it is a bit late for us to take this initiative now. But we must issue a statement, welcoming the unanimity shown by the Security Council in adopting the Franco-Russian draft resolution mandating the deployment of observers to monitor the evacuation from Aleppo. And it is certainly not late to deplore the atrocities being perpetrated in Aleppo and elsewhere in Syria. There is no reason for us to maintain our silence on this tragedy.

Chinmaya R. Gharekhan is a former diplomat

Source: The Hindu, 23-12-2016