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India: UN Rights Council Should Tackle Impunity

Government Scrutinized for Failing to Protect Minority Rights

(New York) - The United Nations Human Rights Council (HRC) should insist that the Indian government take strong steps to hold accountable members of its security forces responsible for torture, arbitrary detentions, killings, and “disappearances,” Human Rights Watch said today. The HRC should also demand that the government fulfill its responsibility to protect and support vulnerable communities, including Dalits, tribal groups, religious minorities, and women.

India’s human rights record comes under the first-ever Universal Periodic Review (UPR) when the HRC meets in Geneva on April 10, 2008.

“India is a vibrant electoral democracy with an abysmal human rights record,” said Brad Adams, Asia director at Human Rights Watch. “Victims of abuse in India are counting on the Human Rights Council to put maximum pressure on the government to address these problems.”

In its submission to the UPR, India said it has adopted various measures for the protection of human rights, including the training of government officials, armed forces, prison officials, and law officers. It said that such measures have had a “beneficial effect” and that there has been a “decline of complaints of human rights violations even from areas affected by insurgency and terrorist activities and violence.”

While Human Rights Watch welcomes the government’s efforts to properly train its security forces and other officials, human rights violations remain rampant. Security forces in India continue to be responsible for grave human rights abuses during counter-insurgency operations, such as in Jammu and Kashmir, Assam and Manipur. Serious abuses are being committed in the many states where there is a violent campaign by Maoist “Naxalite” groups. Further, the government is ignoring the crime of forced disappearances from past conflicts in Punjab and Nagaland.

Extrajudicial executions, often disguised as encounters with armed criminals, have become the norm and are widely reported in Indian media. Torture and arbitrary detentions continue, not just in insurgency-affected areas, but also in most police stations in the country. Yet India continues to provide effective immunity from prosecution to its security forces and other public officials. When investigations are started, they are often blocked. The army and other special forces, in particular, remain almost completely above the law.

Human Rights Watch called on the HRC to demand that India remove all immunity clauses in Indian law, such as that in section 197 of the Criminal Procedure Code. India should also accept the recommendation of various government-appointed experts and repeal the Armed Forces (Special Powers) Act, which has allowed widespread human rights violations by security forces with impunity.

“India likes to tell the world that it has a world class legal system that allows it to solve its own problems, but the reality on the ground is far different,” said Adams. “Killers and torturers in the army and police do their work with official protection, degrading the law and taking the shine off of India’s claim to be an emerging world leader. Now is the time to repeal antiquated laws that protect abusers.”

In its submission for the UPR, India claimed that it has “embarked on a programme of affirmative action which is, perhaps, without parallel in scale and dimension in human history.” The policies are intended to end discrimination against Scheduled Castes and Tribes, and provide quotas in jobs, education and political representation. India cited policy initiatives and legislation, including the recent Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, which recognizes customary land rights of these communities.

These efforts are welcome and the necessary foundation for reform. However, India has failed to effectively implement these policies and laws. Dalits, tribals and other so-called backward classes continue to suffer severe discrimination, exploitation and violence. They are routinely denied access to land, water and shelter, forced to work in degrading conditions, and abused at the hands of the police and private actors belonging to so-called higher caste groups. These vulnerable groups also have unequal access to services, employment opportunities, justice mechanisms, and development programs. Protection for Dalits, tribals and other groups is limited because officials and police responsible for abuses or failing to discharge their duties to protect vulnerable persons routinely go unpunished.

India has repeatedly refused to substantively engage with the UN Committee on the Elimination of Racial Discrimination, disputing its claim that discrimination on the ground of caste is fully covered by the International Convention on Elimination of All Forms of Racial Discrimination.

“In its report to the Human Rights Council, India has cited numerous laws and policies to protect human rights,” said Adams. “But as victims, lawyers and activists in India tell us every day, human rights abuses are rampant in India because there is little will in the government to properly implement these laws. While these are fine words on paper, those facing ‘faked encounter killings’ or ‘dowry deaths’ need effective action.”

While India cites secularism as the fundamental tenet of its constitution and touts policies and institutions established for the protection of minority rights, including the National Commission for Minorities, religious minorities continue to face discrimination, particularly in access to housing and employment and to suffer violent attacks from Hindu militant groups. For example, in December 2007 hundreds of churches and Christian homes were destroyed in attacks by Hindu militants in Orissa state in eastern India. The Indian government has yet to hold perpetrators accountable for riots in which Muslims came under attack from Hindu mobs. It has failed to implement the Srikrishna Commission recommendations on the 1992-93 communal riots in Mumbai. The commission proposed action against police responsible for instigating or participating in the violence. The government has taken little action to address the 2002 attacks on Muslims in Gujarat. The violence started after 59 people died when a train carriage carrying Hindus caught fire during a Muslim mob attack. In a retaliatory spree led by Hindu militant groups, hundreds of Muslims were slaughtered, tens of thousands were displaced, and their property was destroyed. In March 2008, the Supreme Court directed the Gujarat government to set up a special investigation team (SIT) to further probe 14 cases from the 2002 riots. As the court said: “If in the name of religion, people are liquidated it is essentially a slur and blot on society governed by the Constitution of India which in its Preamble refers to secularism.”

Human Rights Watch also called on the HRC to press India to strengthen its official human rights mechanisms. The Indian government often refers to a number of “Ombudsman type institutions,” particularly the National Human Rights Commission (NHRC), that it says ensures the protection of human rights. However, these institutions are weak, under-staffed, and often ignored. The national and state governments often do not act upon the findings and recommendations of these bodies.

The NHRC itself has complained about restrictions that prevent the commission from performing a meaningful role in addressing impunity. Under section 19 of the Human Rights Protection Act, when the NHRC receives a complaint of a human rights violation by the armed forces, it cannot independently investigate the case but can only seek a report from the central government and make recommendations. The state human rights commissions are invariably poorly funded and stacked with political appointees, making them ineffective in addressing ongoing human rights violations.

India also urgently needs to reform its policing systems. Junior police officials operate in abysmal working conditions, which make it more likely that they will succumb to corruption and brutality. Senior officers, on the other hand, complain of improper interference from politicians. There is an urgent need for proper training in criminal investigations and access to forensic tools for evidence gathering, which will decrease the pervasive culture of torture and mistreatment during interrogation to obtain forced confessions.

“Adequate resources and political support must be given to India’s human rights commissions to investigate abuses,” Adams said. “And so long as police officers live in terrible conditions and effectively are permanently on duty, the police are likely to be part of the problem instead of part of the solution.”

In discussing its commitment to international human rights norms, India claimed in its report to the UPR that “voluntary pledges and commitments made by India have been fulfilled and the rest are being carried out in earnest.”

India has still not invited the UN’s Special Rapporteur on torture, the Special Rapporteur on extrajudicial, summary or arbitrary executions, or the Working Group on arbitrary detention to conduct in-country missions.

India has also ignored recommendations by UN bodies on human rights. For example, in 1997 the UN Human Rights Committee expressed concern about legislation such as the Armed Forces Special Powers Act, the Public Safety Act, and the National Security Act. It also expressed concern that criminal or civil proceedings against members of the security forces, acting under special powers, could not be commenced without permission from the central government, contributing to a climate of impunity and depriving people of a remedy. Several treaty bodies, including CERD and the Committee on the Rights of the Child, have expressed concern about human rights violations by security forces, including custodial deaths, rape, torture, and arbitrary detention. The Working Group on enforced or involuntary disappearances has reported on cases related to insurgencies in Punjab, Jammu and Kashmir, and in the northeastern states. India has failed to address these concerns.

India is yet to ratify the Convention against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment. Human Rights Watch welcomed the fact that India has signed the Convention on Enforced Disappearances and looks forward to its prompt ratification, but urged the government to take concrete measure to effectively address allegations of widespread disappearances in Punjab, Jammu and Kashmir.

“As the world’s largest democracy, India should set the standard for the Universal Periodic Review at the Human Rights Council,” said Adams. “India must make credible commitments to uphold its constitutional and international obligations and provide justice to those who continue to suffer human rights abuse.”

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