Ambassador João Cravinho
Head of EU Delegation to India
Re: EU-India Local Human Rights Dialogue on January 22, 2013
We are encouraged by the European Union’s ongoing efforts to engage on human rights issues with India and are writing ahead of your dialogue on January 22 to update you on some key issues.
The Indian government took some positive steps toward human rights protection in the past year, including the passage of a new law to protect children from sexual abuse; a proposal to amend an existing law to extend to all types of industry; an existing ban on employment of children under 14 in hazardous jobs; and a new law guaranteeing free and compulsory primary education. Prosecutions for the deadly 2002 Gujarat riots have resulted in nearly 100 convictions, bringing justice at last to some victims and their families.
Unfortunately, the Indian government has failed to make any significant progress on any of the issues related to human rights violations and impunity flagged by Human Rights Watch last year ahead of the EU-India Summit. Those issues include:
· Failure to revoke the abusive Armed Forces (Special Powers) Act (AFSPA), which permits soldiers to commit serious human rights violations with effective immunity.
· Failure to enact legislation to prevent torture in custody and hold perpetrators accountable.
· Failure to take meaningful action to address conflicts related to access to land and other resources. In July, violence between indigenous Bodo tribes and Muslim migrant settlers in Assam, who have clashed in the past over access to land and resources, resulted in the deaths of at least 97 people and displaced over 450,000.
· Failure to properly implement existing laws and introduce additional reforms to protect women and children and other marginalized communities, particularly Dalits, tribal groups, and religious minorities.
· Unreasonably slow progress in implementing reforms to make the police more accountable and ensure that they are properly trained and able to perform their duties.
Ending Impunity for Human Rights Violations
Armed militant groups and government forces have been implicated in numerous abuses against civilians.
Government officials continue to enjoy impunity for human rights abuses. India’s Criminal Code and other legislation allow government officials, including members of the police and armed forces, protection from prosecution for alleged rights abuses by requiring government permission to initiate legal action against them. This legal protection has prevented proper accountability for human rights violations such as arbitrary arrests, torture, sexual assault, and extrajudicial killings by members of the police, paramilitaries, and armed forces.
The Border Security Force (BSF) deployed at the Bangladesh border to contain smuggling, trafficking and other illegal activities has been routinely accused of killings, torture and ill-treatment of both Indian and Bangladeshi border residents. Although killings dropped significantly after the troops were ordered to exercise restraint in 2011, there has been no effort to prosecute those BSF personnel implicated in serious human rights violations.
In Jammu and Kashmir and in the northeastern states, the government deploys the Indian army under the Armed Forces (Special Powers) Act (AFSPA) to contain cross-border militancy. There have been repeated allegations of extrajudicial killings and enforced disappearances during these operations, but AFSPA continues to shield the security forces from accountability by forbidding prosecution of soldiers without approval from the central government, which is rarely granted.
Police in India are often overworked and undertrained, and restricted from proceeding against criminals that enjoy political or other influential patronage. Despite repeated calls for urgent police reform, the government has failed to take steps to improve working conditions as well as hold police accountable for torture, the use of coerced or fabricated evidence, and extrajudicial killings.
During your meetings with senior government officials during the EU-India Human Rights Dialogue, we urge you to ask the Indian government to:
- Repeal the Armed Forces (Special Powers) Act.
- Remove legal immunity granted under the Criminal Procedure Code to security forces for violations of fundamental rights, including torture and ill-treatment, sexual assault, and extrajudicial killings.
- Implement police reform as recommended by the Supreme Court including the establishment of a complaint mechanism to address police abuse.
- Enact the pending Prevention of Torture Bill, but only after ensuring it conforms with the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The law should not include any provisions that would grant officials effective immunity from investigation and prosecution.
Protecting the Rights of Women, Children, and Other Vulnerable Groups
Government efforts to protect India’s most vulnerable communities fall far short of the measures needed. While India has in place laws and policies aimed to provide protection, implementation remains inadequate. Several state governments are failing to channel adequate resources toward programs designed to reduce child and maternal mortality, poverty, and starvation.
Dalits, tribal communities, and religious minorities continue to suffer deeply entrenched discrimination. Persons with disabilities also continue to face tremendous challenges relating to access to education, health, and employment despite India’s ratification of the Convention on the Rights of Persons with Disabilities in 2007 and national laws designed to protect them.
The government tasks the National Human Rights Commission, the state human rights commissions and the commissions to protect women, children, religious minorities, Dalits and tribal groups with independent oversight of human rights-related policies and initiatives. However, these remain seriously underfunded and lack sufficient personnel, particularly at the state level, to conduct meaningful independent investigations. In fact, many state governments have failed to establish such commissions.
Protection of Women and Girls
The nationwide demonstrations and global uproar over the death of a 23-year old student who was gang raped and assaulted on December 16 is a grim reminder that women and girls across the country suffer pervasive sexual violence.
While the government has created a commission to review existing laws, it also needs to reform the criminal law and procedure, as well as provide improved treatment of survivors to ensure justice for sexual assault victims. Many police officials fail to register complaints of rape or pressure families to “compromise” a rape case. Police also often do not investigate rape cases and re-traumatize victims who approach them for help through their hostile or inadequate response, leading to under-reporting of rape and sexual assault. This is particularly problematic when women from marginalized communities such as Dalits or tribal groups suffer sexual assault. The government has yet to properly address rape as a weapon during communal violence.
Even when police investigations lead to prosecution, doctors, lawyers, and judges in many parts of the country have for decades reinforced damaging social stereotypes against victims by using the degrading and unscientific “finger test” to either describe rape survivors as “habituated to sex” or contest their testimony. India does not have any uniform protocol for the medical treatment and examination of survivors of rape.
Even though India has made progress in reducing maternal mortality overall, disparities in maternal health access, especially in remote rural and tribal areas remain. Conditional cash assistance programs for maternal health exclude mothers under age 18 and mothers with more than two live births, who face greater health risks during pregnancies.
Protection of Children
Children in India remain at risk of abuse, with a large number forced into dangerous forms of labor, and without proper access to health care and education. A new law to protect children from sexual abuse—Protection of Children from Sexual Offences Act—was passed by the parliament in 2012, but proper implementation is crucial in order for it to be effective.
Schools continue to remain at risk of attack by Maoist armed groups. In a welcome step, the government announced in December 2012 that schools should no longer be used by security forces as barracks or bases, but some states have yet to enforce the order.
Protection of Dalits, Tribal Communities, and Religious Minorities
Dalits and tribal groups remain vulnerable despite constitutional provisions and laws designed to protect them, as the European parliament noted in its December 13 resolution. Dalit and tribal women face multiple discrimination on the basis of caste and gender, including sexual abuse with impunity by members of dominant castes.
The EU and member states should follow-up on the resolution that calls for prioritizing programs addressing caste discrimination, including in education, and with particular focus on protecting the rights of women and girls.
Despite legal guarantees, religious minorities also remain at risk from discrimination and abuse. The government has also failed to make any significant progress on implementing the recommendations to address the economic, social, and educational challenges of India’s Muslim community highlighted by the Sachar committee report in 2006.
We urge you to encourage the Indian government to:
- Ensure that the commissions to protect human rights and those responsible for monitoring the rights of religious minorities, women, children, Dalits and tribal groups have the capacity for independent investigations. Appointed members should be experts and selected in a transparent manner.
- Ensure that the Criminal Law (Amendment) Bill, 2012, incorporates international standards to criminalize all acts of sexual violence, including both penetrative and non-penetrative forms of sexual assault, and marital rape.
- Develop a uniform national protocol for the medical treatment and examination of survivors of sexual assault, and to eliminate the use of the “finger test.” There should be provisions for appropriate support services, including psycho-social counseling, legal aid, emergency medical care and reproductive health services responsive to the effects of sexual violence, including unwanted pregnancies and sexually transmitted diseases.
- Respect the Convention on the Rights of the Child and ensure that the treatment for children in conflict with the law be restorative and reformative and that arrest, detention or imprisonment of a child be used only as a measure of last resort.
- Explicitly address the prohibition of sexual violence in police and military regulations, codes of conduct, and training materials.
- Provide disaggregated data and status information on all vulnerable groups including minorities, indigenous people, Dalits, people with disabilities, LGBT people, migrants, and internally displaced persons.
- Take immediate steps to eliminate abuses against Dalits, tribal groups, religious minorities, and other marginalized communities, provide concrete plans to implement laws and government policies to secure their protection, and monitor development programs that have largely failed to reach target groups.
Strengthening Civil Society, Encouraging Free Speech
The Indian government rightly praises having a large, independent and vocal civil society. However, the authorities have shown increased intolerance for criticism by such groups. In 2012, it used a colonial-era sedition law repeatedly to silence dissent. In May, in the southern state of Tamil Nadu, police filed “sedition” complaints against thousands of people who peacefully protested the construction of a nuclear power plant. In September, police in Mumbai arrested political cartoonist Aseem Trivedi based on a complaint by an individual that his cartoons mocked the Indian constitution and the national emblem.
The central government also tightened restrictions on internet content under the IT (Amendment) Act 2008, justifying them on the basis that they were essential to contain threats to public order. Following widespread public criticism after police in Maharashtra state arrested two women over a harmless post on a social networking web site, the government in November tightened the criteria for such arrests in order to avoid such incidents in the future. While this was a welcome move, it does not do enough to prevent potential official abuse of the Act’s provisions by unreasonably restricting freedom of speech.
The government also continues to use the Foreign Contributions Regulation Act (FCRA) to restrict access to foreign assistance by domestic nongovernmental organizations.
We request you to urge the Indian authorities to:
- Repeal the sedition law.
- Amend the FCRA so that it does not interfere with basic freedoms of expression and association and cannot be misused to choke the protected activities of civil society organizations.
- Amend section 66A of the IT Act, which is overly broad and open to misuse, and respect free speech and expression.
Access to Palliative Care
Millions of people with incurable illnesses in India spend their last days in enormous unnecessary suffering because of lack of access to pain relieving drugs. Morphine, a key medication for treating cancer pain, is not available even in many specialized cancer hospitals, as a result of excessively restrictive drug regulations. While the government has recently taken some steps to improve availability of palliative care, it should reform drug regulations to ensure morphine is accessible to all patients who need it and to ensure the availability of palliative care for patients with incurable illnesses.
Reinstating Moratorium on Death Penalty
In November, the Indian government ended its eight-year unofficial death penalty moratorium by hanging the Pakistani national Ajmal Kasab convicted for his role in the 2008 Mumbai attacks that killed 166 people and wounded more than 300 others. Since his hanging and the December rape and killing of a student in New Delhi, some political leaders have intensified their calls for the execution of others on death row, as well as for the imposition of the death penalty on those convicted of rape.
The EU has long supported an absolute ban on the death penalty, and has been an active promoter of its abolition around the world. Human Rights Watch also opposes the death penalty in all circumstances. We urge you to encourage the Indian government to reinstate the death penalty moratorium with a view to permanent abolition of capital punishment.
Supporting Human Rights Abroad
Last year, as a member of both the UN Security Council and the UN Human Rights Council, India took some positive steps toward promoting human rights and accountability. In March, in a significant change from its previous position, India voted for a United States-led resolution at the Human Rights Council calling for post-war reconciliation and accountability in Sri Lanka.
On Syria too, after abstaining in October 2011, India supported action in the UN Security Council supporting resolutions in February and July 2012. But unfortunately, India abstained on Human Rights Commission resolutions on Syria that condemned human rights violations and supported the work of the UN Commission of Inquiry.
Finally, we urge the EU to engage with India on behalf of a number of concrete global human rights issues and urge that India use its increasing global influence and its membership at the Human Rights Council to address human rights problems in other countries.
Very concretely, we urge you to encourage India to support efforts at the UN to advance accountability for war crimes and crimes against humanity committed in 2009 in Sri Lanka, persistent and uncorrected human rights crimes in North Korea, and war crimes by all parties to the ongoing armed conflict in Syria.
When it adopted the EU Strategic Framework on Human Rights and Democracy last June, the EU pledged to “place human rights at the center of its relations with all third countries, including its strategic partners.” While we welcome the local EU-India human rights dialogue as a vehicle for engaging with Indian authorities on human rights issues, we call on the EU to ensure that human rights concerns are also raised in all other meetings with Indian authorities, including in public statements and comments.
We thank you for your consideration.
EU Advocacy Director
Human Rights Watch
Human Rights Watch
EU Member States Embassies to India
High Representative of the European Union for Foreign Affairs and Security Policy and Vice-President of the European Commission, Baroness Catherine Ashton
EU Special Representative for Human Rights, Mr. Stavros Lambrinidis
Head of Cabinet to the High Representative, Mr. James Morrison
Advisor to the High Representative on Asia, Mr. Miguel Ceballos Baron
Managing Director for Asia and Pacific, EEAS,Mr. Viorel Isticioaia-Budura
Director for Asia and Pacific, EEAS, Mr. Gerhard Sabathil
Head of Division for India, Nepal, and Bhutan, EEAS, Ms. Maria Castillo Fernandez
Director of Human Rights and Democracy Unit, EEAS, Ms. Véronique Arnault
Human Rights Desk Officer for Asia, EEAS, Mr. Christian Behrman
Chair of the EU’s Political and Security Committee, Amb Olaf Skoog
Chair of the EU’s Working Party on Asia (COASI), Mr. Boguslaw Majewski
Chair of the EU’s Working Party on Human Rights (COHOM), Mr. Engelbert Theuermann
President of the European Parliament, Mr. Martin Schulz
Vice-President of the European Parliament responsible for Democracy and Human Rights, Mr. Edward McMillan-Scott
Chair of the European Parliament’s Foreign Affairs Committee, Mr. Elmar Brok
Chair of the European Parliament’s Subcommittee on Human Rights, Ms. Barbara Lochbihler
Chair of the European Parliament’s Delegation for relations with India, Sir Graham Watson