On 4 May 2017, Mukul Rohatgi, the attorney general of India, told the United Nations Human Rights Council (UNHRC) that the ancient Sanskrit phrase, “Vasudhaiva Kutumbakam”—the world is one family—was “reflected in the Indian tradition of openness and diversity; coexistence and cooperation.” Rohatgi was leading the Indian delegation at India’s Universal Periodic Review (UPR)—a process by which the UN takes stock of the human-rights record of its 193 member states. With broad strokes, Rohatgi painted a picture celebrating the Indian government’s ostensible commitment towards the “promotion and protection of human rights in all parts of the world.” A closer inspection of his rhetoric, however, reveals stark contradictions between the situation that Rohatgi presented, and both, the reality of the human-rights compliance in India, as well as statements that he has previously made as the highest law officer of the country.
That day, India, led by Rohatgi, presented its third UPR report before the UNHRC. The review, which the UNHRC initiated in 2008, takes place once every four years. It is conducted by the UPR Working Group, which consists of all 47 countries that comprise the UNHRC, although any UN member state can participate during the review. The review is based on a report submitted by a national government, declaring the efforts it has made to meet its human-rights obligations along with reports that are submitted by other organisations and stakeholders. These include reports by human-rights treaty bodies—which monitor the implementation of international human-rights agreements—the country’s national human-rights institution, and civil-society organisations. (Disclosure: The Commonwealth Human Rights Initiative, where both of us are presently working as programme officers, was a member of a civil-society coalition called the Working Group on Human Rights in India and the UN, which submitted a report on India’s human-rights record to the UNHRC.)
These reports and the questions raised in advance by members of the UNHRC set the stage for Rohatgi’s presentation of India’s human-rights record. He presented India’s commitment to and fulfilment of its human-rights obligations on a plethora of issues. These included, among others, the Armed Forces (Special Powers) Act, and the repeated instances of custodial violence and sexual assault. Rohatgi’s speech was doublespeak: his claims before the UNHRC contradicted his submissions in India, and the omission of the human-rights violations in the country was conspicuous. Below is a list of five claims that Rohatgi made, and the inconsistencies or inaccuracies from which they suffer.
Free speech and civil society
Rohatgi began his submissions by attributing India’s continuing “endeavours towards observance of human rights” to, among other reasons, its “free and vibrant media” and “vocal civil society.” Yet, both national and state governments have been guilty of silencing those voices.
Through colonial laws, such as the provisions on sedition and criminal defamation in the Indian Penal Code, the governments have acted to stifle political dissent and curb speech that do not align with its views. There are several instances of both central and state governments using these laws—which are vaguely worded and provide a sweeping ambit—in this manner from the year preceding the review itself. According to a report published on the news website The Hoot, 11 cases of sedition and 27 cases of defamation were filed in the first quarter of 2016. These include the arrests of student leaders of the Jawaharlal Nehru University in February 2016 for allegedly seditious speeches—for which a chargesheet is yet to be filed—during a protest against the execution of Mohammad Afzal, who was convicted for his alleged role in the terrorist attack against the Parliament in December 2001. In September 2016, Khurram Parvez, a Kashmiri human-rights activist was prevented from attending an UNHRC meeting and then arrested from Srinagar under the Public Safety Act. (He was released 76 days later, after the state’s high court quashed his detention as illegal and an abuse of power.)
The government’s use of the Foreign Contribution Regulation Act (FCRA) is a strong indicator of its clamp down on civil society organisations. According to its website, the FCRA regulates the inflow of foreign contributions to an individual, association or company and prohibits the acceptance of such a contribution if it is “detrimental to national interest.” Using its discretionary powers to freeze resources, the central government has prevented or hindered the work of civil-society organisations, especially those that are headed by individuals who have previously challenged the government or the ruling party. A few examples of the organisations that the government has pulled up include the non-governmental organisations Sabrang Trust and Citizens for Justice and Peace, both of which work with survivors of the Gujarat riots of 2002 and are headed by Teesta Setalvad, a lawyer and activist who is a vocal critic of the Modi government; and Lawyers Collective, a legal-activism organisation headed by senior advocates Indira Jaising and Anand Grover.
In fact, the UN Special Rapporteur on freedom of assembly and association, in his report, which was submitted to the central government in April 2016, heavily criticised India’s FCRA laws for contravening international law and the country’s human-rights obligations. The report stated that the provisions under the FCRA, which restrict foreign funding on grounds such as “economic interest of the State” and “public interest,” created an “unacceptable risk that the law could be used to silence any association involved in advocating political, economic, social, environmental or cultural priorities which differ from those espoused by the government of the day.” More than ten countries at the UPR recommended that India should amend its FCRA provisions to allow civil society organisations to function independently. By denying access to foreign funds for non-governmental organisations, the government thwarts the efforts by the civil society to hold it accountable and work for the marginalised and disadvantaged people of the country.
Secularism and protection of minority communities
Rohatgi reiterated the government’s motto—“Sabka Saath, Sabka Vikas” (All Together and Development for All)—at the UPR. The attorney-general also unequivocally stated that “India is a secular state with no state religion” and that “safeguarding the rights of minorities forms an essential core of our polity.”
However, recent incidents of violence and vigilantism affirm a rather different reality. This was reinforced by the fact that as many as 13 different countries intervened to question Rohatgi on this issue of protection of minorities. In 2015, Mohammad Akhlaq, a 50-year-old Muslim man, was beaten to death by a mob in Dadri, in Uttar Pradesh, over the suspicion that he had stored beef in his house. Since then, there have been numerous instances of self-styled cow-protection activists attacking people, especially Muslims and Dalits. This includes an incident in July 2016, when four Dalit men were violently beaten in Una, a town in Gujarat, for skinning a dead cow. Both the Dadri and Una incidents were condemned widely across the country, but did not reduce the increasing prevalence of these type of attacks. The threats to minority communities are not limited to the emergence of the cow-protection movement in India. In March 2016, a mob allegedly attacked a church in Raipur, in Chhattisgarh, fearing religious conversion and shouting slogans of “Jai Shree Rama!” On 5 May 2017, the day after Rohatgi’s speech, around 1,000 dominant-caste Thakurs in Shabbirpur village in Uttar Pradesh, assisted by police officers, allegedly attacked a Dalit neighbourhood in the village and set 25 houses on fire.
To add weight to his claims at the UPR, Rohatgi also added that “some of India’s most famous institutions of academic excellence are minority institutions.” Back home, he has argued otherwise. In 2016, Rohatgi withdrew an appeal against an Allahabad High Court decision, which held that the Aligarh Muslim University is a non-minority institution. The appeal had been filed by the previous government led by the Congress party. In April 2016, he stated before the Supreme Court that “the previous stand was wrong” and that he was “distancing” himself from AMU. He said that he “changed my mind two months ago” and submitted before the court that “AMU is not a minority university.”
Torture and custodial violence
In India’s previous UPR in 2012, the most frequent recommendation made to India was for it to ratify the Convention against Torture. Since then, the National Crime Records Bureau recorded more than 300 cases of deaths in police custody. In 2015, the NCRB data noted 97 custodial deaths, including six caused to due to physical assault by police. More than two-thirds of these deaths occurred when the police acted on its own, without judicial custody. The NCRB data, however, records only 94 instances of human-rights violations by the police in 2015. Of these, 12 were dismissed as false cases. Among the remaining 82 cases, charge sheets were filed against only 34 of these complaints. Not a single case resulted in a conviction.
This did not prevent Rohatgi from claiming that the “the concept of torture is completely alien to our culture and it has no place in the governance of the nation.” Less than a month before the UPR, Rohatgi defended an army officer in Kashmir who had tied Farooq Dar, a civilian, to a military jeep’s bonnet, as a human shield. Rohatgi stated that the officer “did a smart thing and defused a nasty situation,” and that “the army should be applauded.” On 22 May 2017, Major Nitin Leetul Gogoi, the major who made the decision to use a human shield, was awarded with a Chief of Army Staff’s commendation card for “sustained efforts in counter-insurgency operations.”
The absurdity of Rohatgi’s statement before the UNHRC was not lost on the international community either. Thirty-six countries raised the issue of torture during India’s UPR session, urging the government to ratify the UN Convention against Torture by enacting the Prevention of Torture Bill that has been pending before the parliament since 2010.
Armed Forces (Special Powers) Act
Till July 2016, the Indian armed forces could operate with an impunity conferred upon them by the Armed Forces (Special Powers) Act, or AFSPA. Among other provisions permitting an excessive use of force, the act allows all armed forces personnel the authority to shoot to kill based on the mere suspicion that it is necessary to do so in order to maintain public order. The act was in operation in Jammu and Kashmir and six north-eastern states. In 2012, the families of the victims of alleged fake encounters conducted by the armed forces in Manipur filed a petition before the Supreme Court, seeking an investigation into 1,528 cases of these allegedly fake encounters. Four years later, the court passed an interim order in the petition that effectively removed the impunity granted under the act.
In Geneva, the human-rights violations arising out of the operation of the act continued as a matter of discussion from the previous UPR as well as in the questions raised in the present one. Rohatgi sought to dispel the concerns about the operation of the act referring to the Supreme Court’s July 2016 order, stating that it had upheld its constitutionality and “laid down strict guidelines.” He added that the guidelines prevented the use of “excessive force” and stipulated that the act did not confer “blanket immunity for perpetrators of unjustified deaths or offences.” Rohatgi sought to justify the continuing operation of the act stating that the question of its repeal was “a matter of on-going vibrant political debate in my country.”
At one end of the spectrum of this debate, seeking additional protection for the armed forces under the law, is the attorney general himself. On 12 April 2017, Rohatgi, while arguing a curative petition—the last available option for reviewing a Supreme Court order—against the July order, stated that the army’s actions “cannot be dissected later on like an ordinary murder appeal” and that the “actions taken by the Army during operations cannot be put to judicial scrutiny.” On 27 April 2017, the Supreme Court dismissed the petition.
Violence against women
Rohatgi spoke of the Maternity Benefits (Amendment) Act 2017 and the government’s initiatives such as the “Beti Bachao Beti Padhao” campaign, which aims to prevent sex-selective abortions and promote education of girls, as an indicator of India’s progress in women empowerment. He also stated that India had “enacted a range of laws to address sexual assault and other gender based crimes.” However, his speech failed to acknowledge that on the issue sexual assault and violence against women, vast gaps remain between the legal framework and ground realities. His failure to adequately address these concerns was glaring, considering it was one of the issues most frequently raised by other nations during India’s UPR.
A 2014 study titled, Crime Victimisation and Safety Perception, conducted by the Commonwealth Human Rights Initiative—an international non-governmental organisation working towards the realisation of human-rights in the commonwealth countries—in Delhi and Mumbai, revealed that of the 125 cases of sexual harassment recorded in the study, only 11 were reported to the police, and not a single FIR was registered. This is despite the provision of section 166A of the Indian Penal Code, which mandates that the non-registration of crimes against women is a punishable offence.
Eleven countries recommended that the government move to criminalise marital rape, which continues to not be a crime in the country. According to Dilaasa, a crisis counselling centre designed specifically to respond to the needs of women facing violence within their homes and families in Mumbai, 60 percent of married women that approached them report sexual violence, with forced sex being its most common form.
A discernible pattern is emerging from India’s previous two reviews before the UNHRC, of a defensive approach. This was evident in the previous edition of the UPR in 2012, when India sent Goolam Vahanvati, the former attorney general, to present its report. Since then, the government’s position seems to be shifting towards denial, by not acknowledging the existing human-rights crises in India. Moreover, India’s decision to send its attorney general, which seems indicative of a defensive position, belies the notion of the UPR as an exercise in dialogue and constructive political engagement. It was telling that two days before presenting India’s report before the UNHRC, Rohatgi stated before the Supreme Court that “one cannot have an absolute right over his or her body.” Indeed, after hearing Rohatgi at the UPR, one is tempted to live in the country that he described. But for that country to be India, the government needs to take its human-rights obligations as sincerely as Rohatgi claimed it does before the UNHRC.
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