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International Human Rights Standards: How Does India Measure Up?

International Human Rights Standards: How Does India Measure Up?

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By Dilip Lahiri, ORF ISSUE BRIEF.
By Dilip Lahiri, ORF ISSUE BRIEF.

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Published by: Global Human Rights Academy on May 19, 2013
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| www.orfonline.org | May 2008
ISSUE BRIEF 
INTERNATIONAL HUMAN RIGHTS STANDARDS: HOW DOES INDIA MEASURE UP?
C
hina’s fulsome praise for India’s human rights recordon April 14, 2008 in the first session of the UN Hu-man Rights Council’s new system of Universal Pe-riodic Review (UPR) would have come as a respite for theIndian delegation even as India was being subjected to hardand searching questions on torture in police custody, extra- judicial killings and child labour by representatives of severalmembers of Western delegations of the Human Rights Coun-cil. While some recent openness and improvement in China’sown human rights record is there for all to see, this endorse-ment of India’s human rights record is perhaps not the bestrecommendation for India at a time of intense internationalcriticism of China’s current repression in Tibet. China is alsolikely to expect a quid pro quo from India when China’s ownsituation comes up later before the Council.The UPR is the crown jewel of the UN human rights sys-tem. So far, scrutiny has been limited to the periodic reportswhich countries are required to provide on their implemen-tation of each UN human rights Convention to which theyare a party. These reports are then examined by treaty bodiesconsisting of independent experts who report their findingsand recommendations to the state concerned and the UNGeneral Assembly. But the UN Charter and the UniversalDeclaration of Human Rights, which are the mother textsfrom which the various human rights instruments havebeen elaborated, are not treaties requiring implementationreports. This allowed Malaysia, for example, which is notparty to either the Convention on the Elimination of AllForms of Racial Discrimination (CERD), or the InternationalCovenant on Civil and Political Rights, to act as if it had nointernational obligation not to discriminate between Malay,Chinese and Indian Malaysians, whereas the obligation isunambiguous under the Universal Declaration which hasacquired the status of customary international law. Simi-larly, while India has regrettably not ratified the Conventionagainst Torture, the international prohibition of torture isclear in the Universal Declaration of Human Rights.The UPR is designed to “undertake a universal periodicreview, based on objective and reliable information, of thefulfillment by each State of its human rights obligationsand commitments in a manner which ensures universalityof coverage and equal treatment with respect to all States”. All 192 UN member States are to be covered within thefour-year UPR cycle, including each member of the HumanRights Council during their terms on the Council. The UPR is based, not only on the state’s reports on implementationof human rights instruments to which it is party, but alsoits commitments and obligations under the UN Charter, theUniversal Declaration, as well as customary internationallaw. Apart from the State’s own report, the review by the Hu-man Rights Council considers information contained in thereports of various UN human rights treaty bodies and othermechanisms, as well as credible and reliable informationprovided by other relevant stakeholders, including NGOs,national human rights institutions, human rights defenders,academic research institutes, regional organizations, as well
Observer Research Foundation is a public policy think-tank that aims to influence formulation of policies for building a strong and prosperousIndia. ORF pursues these goals by providing informed and productive inputs, in-depth research and stimulating discussions. The Foundation issupported in its mission by a cross-section of India’s leading public figures, academics and business leaders.
 
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International Human Rights Standards:How Does India Measure Up?
ORF ISSUE BRIEF
By Dilip Lahiri
 
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| www.orfonline.org | May 2008
ISSUE BRIEF 
INTERNATIONAL HUMAN RIGHTS STANDARDS: HOW DOES INDIA MEASURE UP?
as civil society representatives.It should have been no surprise, therefore, that India’snon-conformity with international human rights bench-marks received more concentrated exposure during the UPR than they have ever had in the past in the course of the frag-mented consideration of its implementation reports underindividual Conventions. Pointed questions were raised aboutIndia not ratifying the Convention against Torture, not beingParty to the Conventions on the Rights of Migrant Workersand their families, on refugees and stateless persons, the ILOConventions on the abolition of child labour, on the rightsof indigenous and tribal people, and the Government’s per-sistent refusal to cooperate with the Council’s special pro-cedures with respect to torture,the treatment of human rightsdefenders, contemporary forms of racism and racial discrimination(read Dalits and caste discrimina-tion), extrajudicial, summary andarbitrary executions, sale of chil-dren, child prostitution and childpornography, and arbitrary deten-tions. Most persistent were ques-tions about the lack of implemen-tation of India’s comprehensiveconstitutional and legal frameworkfor protecting human rights. All this does not at all mean thatIndia is an international scoff-lawon human rights. India‘s recordon human rights, warts and all,is certainly no worse than that of the majority of UN members, andwould probably still be rankedamong the top third. Indeed thereis widespread international ap-preciation and admiration for thesweeping proactive legal and administrative provisions thathave been put in place for the promotion and protection of the full range of internationally recognized human rights,whether in terms of outlawing egregious forms of caste dis-crimination, or affirmative action programmes in favour of historically disadvantaged sections of the population andvulnerable sections such as women, children and the dis-abled.But India’s Achilles heel has always been implementa-tion and what has been described as a “culture of impunity”when faced with routine violations of the laws and regula-tions in terms of atrocities against Dalits, deaths in policecustody, encounter killings and disappearances or commu-nal violence, as reported almost every day in India’s own me-dia. The international legal obligation undertaken by Indiaunder the various human rights conventions is not only torespect the prescribed rights and prohibitions, but also “toensure” that they are enforced on the ground. Good lawsand regulations are of course necessary for this, but not suf-ficient. No one believes that the Indian administrative or lawand order apparatus is helpless in implementing the lawsand regulations in place, if not fully, at least in substantialmeasure. When this is not done, the charge by Indian andforeign NGOs of official encouragement of the culture of im-punity by deliberate non-implementation of the law by theGovernment’s own designated enforcement agents becomesdifficult to refute. Another self-inflicted problem,more emotional than substantive,is the Government’s extreme sen-sitivity to external criticism, possi-bly due in good part to the style of functioning of the polity and me-dia, where every issue is politicized,and any stick is good enough tobeat the Government with. In thisenvironment, criticism in UN foraof inadequate action to eradicateexisting and self-acknowledgedsocial ills and iniquities could wellbe seen as the Government’s fail-ure to protect India’s interests andhonour from external interferenceon matters of domestic concern.It is also an implicit admission ininternational fora of its failure atdomestic governance.Perhaps public and politicalopinion needs to be educated torecognize that the erstwhile inter-national system of exclusive national jurisdiction over do-mestic affairs has been overtaken to some degree, at leastin the field of human rights, by the UN Charter, the Bill of Rights, customary international law and Conventions whichIndia has herself participated in formulating. Under these wehave agreed, in exercise of our own sovereignty, to cede theright to other countries to examine India’s domestic recordof compliance with international human rights benchmarksdrawn up with our agreement and participation. Compli-ance with these standards is not a matter of dragging a horseto the water. Here the horse itself is keen to drink, sincethese human rights standards are almost all incorporated inIndian law and embody our aspirations to a kinder, gentler
India’s Achilles heel has alwaysbeen implementation andwhat has been described asa “culture of impunity” whenfaced with routine violationsof the laws and regulationsin terms of atrocities andrape against Dalits, deathsin police custody, encounterkillings and disappearancesor communal violence, asreported almost every day inIndia’s own media.
 
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| www.orfonline.org | May 2008
ISSUE BRIEF 
INTERNATIONAL HUMAN RIGHTS STANDARDS: HOW DOES INDIA MEASURE UP?
and more humane society. The discomfort of being namedand shamed occasionally for not doing what we should bedoing on our own under our own laws could well be a spurto moving faster on the path along which we ourselves wantto progress.It is worth noting, in this context, that the internationalsystem is moving gradually, but quite definitively, to imple-ment what Kofi Annan described as the international com-munity’s “responsibility to protect” actual or potential vic-tims of massive atrocities and violations of human rights,by force if necessary. The legal cover used, whose moral im-perative is difficult to question, but whose disingenuousnessmakes many uncomfortable, is for the UN Security Councilto decide, whether or not based onthe factual situation, that a partic-ular situation of human rights vio-lations is a threat to internationalpeace and security, and to take co-ercive action under Chapter VII of the UN Charter. But this could bethe thin end of the wedge. Whathappens if the Security Councilcannot take a decision in such asituation, either due to lack of therequired nine vote majority, ora veto by a permanent member? Would the international commu-nity then stand by and let the mas-sive atrocities proceed, or couldany country then legitimately de-cide, even if for altruistic motives,that the technicality of a UN votecould not frustrate the interna-tional community’s “responsibilityto protect”, and that it would in-tervene on its own, or with a “co-alition of the willing”, to dischargethis international responsibility?The above digression from India’s human rights recordwas only intended to bring out the salience which humanrights issues have attained in the international system andthe cost in terms of influence and standing in the interna-tional community that may be incurred by being seen to beunmindful of international human rights obligations or re-fusing to extend due cooperation to established multilateralmechanisms for monitoring the promotion and protection of human rights. In India’s case it would be totally gratuitousto incur such costs since we are in broad agreement withthe system’s objectives and could not hide our failings evenif we wanted to. Perfection may be distant, and is not reallyexpected; but the effort must be seen to count.The following are some initial steps that would help tocorrect the reputation for disingenuous self-righteousnessand evasion of the real situation that India is increasinglydeveloping internationally on human rights:First, we must improve implementation of the commit-ments we have undertaken. The culture of impunity has tobe frontally attacked. Action must include prompt and visibleprosecution under our laws of those committing atrocitieson Dalits, tribals and, particularly, their women; this must beaccompanied by punishment and disciplinary action againstthe district administration and police who do not takeprompt and effective action to apprehend and prosecute theperpetrators of such crimes, andfor cases of custodial or encoun-ter deaths and disappearances intheir jurisdiction. Statistics of suchprosecutions should be includedin our implementation reports toUN treaty bodies complementaryto our customary enumeration of our comprehensive laws and regu-lations.Secondly, India must ratify theConvention against Torture with-out further delay. Non ratificationafter signing provides us no lee-way, since the Vienna Conventionon the Law of Treaties requiressignatories to abide by the letterand spirit of the treaty even if notratified.Thirdly, India should try to getout of the longstanding, sterile andlegalistic stalemate with the UN asto whether or not caste discrimi-nation falls within the ambit of ra-cial discrimination of CERD which explicitly defines suchdiscrimination as that due to descent, or whether or notScheduled Castes and tribes are indigenous people of whomwe claim to have none in India. The controversy becomesparticularly moot in a situation where India fully recognizesthat discrimination against Dalits and tribals does indeedcontinue to exist in India, declares that we are prepared vol-untarily to discuss the issue and provide material on it, butinsists that we will never agree to acknowledge the existenceof racial discrimination in India by submitting informationon this issue to the Committee for the Elimination of allforms of Racial Discrimination. While it is understandablefor the biter against apartheid in South Africa to be upset
India should try to get out of the longstanding sterile andlegalistic stalemate with theUN as to whether or not castediscrimination falls within theambit of racial discriminationof CERD, which explicitlydefines such discriminationas that due to descent, orwhether or not ScheduledCastes and tribes areindigenous people of whom weclaim to have none in India.

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