Submission to the UN Human Rights Committee Review of India

We write in advance of the Committee’s review of India to highlight some areas of concerns regarding India’s compliance with the International Covenant on Civil and Political Rights (hereafter “The Covenant”). We hope our submission will inform your consideration as the Committee drafts its list of issues for the adoption at the 126th session, Geneva, 1 to 26 July 2019.

We call on the Committee to urge the Government of India to address the following key issues under the Covenant:

Right to Bodily Integrity, Accountability (Articles 2, 6, 7, 9 and 10)

Public officials in India continue to enjoy effective immunity for serious human rights violations. Government officials, including members of police and armed forces, enjoy protection from legal proceedings as the Criminal Code and other legislation require government permission to initiate prosecutions against them. This has prevented proper accountability for human rights violations such as torture, enforced disappearances, and extrajudicial killings by the police, paramilitaries, and the army.

Violence involving armed militants has increased in Jammu and Kashmir. In February 2019, a suicide bomber killed over 40 security force personnel; the Pakistan-based armed group Jaish-e-Mohammad claimed responsibility for the attack. In 2018, militants killed at least 32 policemen and several other people on suspicions of being police informers. In June, unidentified gunmen killed prominent journalist Shujaat Bukhari, editor of the Rising Kashmir, outside the newspaper’s office in Srinagar.

At the same time, there has been little accountability for human rights violations by security forces in Kashmir. The Office of the United Nations High Commissioner for Human Rights released its first-ever report on the human rights situation in Kashmir in June 2018. The report described impunity for human rights violations and lack of access to justice and noted that the Armed Forces (Jammu and Kashmir) Special Powers Act (AFSPA) and the Jammu and Kashmir Public Safety Act (PSA) impede accountability for human rights violations.[1] But the government dismissed the report, calling it “fallacious, tendentious and motivated.”[2]

The AFSPA, which is also in force in several states in India’s northeast, is used to deploy the military to operate in areas declared to be “disturbed” because of an ongoing insurgency. The law provides soldiers immunity from prosecution for serious human rights abuses unless sanctioned by the defense ministry. Successive governments have failed to review or repeal the law despite repeated recommendations from several government-appointed commissions, UN bodies and experts, and national and international rights groups.

In addition, section 197 of the Code of Criminal Procedure protects police including federal armed police and public officials from prosecution (except for sexual offenses) unless sanctioned by the home ministry. Federal forces such as the Central Reserve Police Force, Central Industrial Security Force and Border Security Force are deployed to support local police in law enforcement in several areas of India including to combat an armed rebellion by Maoist groups in central India.

Security forces in the Maoist-affected central Indian state of Chhattisgarh have been implicated in serious human rights violations including sexual assault. Police have often attempted to discredit human rights activists by describing them as Maoists or Maoist supporters, and journalists, lawyers, and civil society activists in the state faced arrest and harassment.[3]

Under India’s federal structure, policing is the responsibility of state governments. Despite Supreme Court orders, several states are yet to implement long-pending police reforms, resulting in continuing impunity for police abuses including torture and extrajudicial killings. In many cases, investigating authorities, mainly the police, fail to take steps that could have helped ensure accountability for abuses including custodial deaths.[4]

People with intellectual or psychosocial disabilities continue to be arbitrarily detained in government and privately owned mental hospitals and institutions across the country where they face unsanitary conditions, risk physical and sexual violence, and experience involuntary treatment, including electroshock therapy, often with little judicial oversight.[5]

Recommendations to India

• Repeal the Armed Forces (Special Powers) Act and replace it with a rights-respecting law.
• 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 prosecution.
• Repeal all legal provisions providing effective immunity to the security forces, including section 197 of the Criminal Procedure Code.
• Repeal the Jammu and Kashmir Public Safety Act, which allows preventive detention for two-year renewable periods for offenses defined by vague and overbroad terms, and violates international due process standards.
• Recognize institutionalization based on disability as a form of discrimination and institutionalization without consent of the individual as a form of arbitrary detention. Create and implement a de-institutionalization policy and a time-bound action plan for de-institutionalization, based on the values of equality, independence, and inclusion for persons with disabilities.
• Establish guidelines and monitoring mechanisms to improve conditions and prohibit arbitrary detention and involuntary treatment in mental hospitals and state and organization-run residential care institutions.

Freedom of Expression, Peaceful Assembly, Association (Articles 19, 21, and 22)

Indian authorities have harassed and at times prosecuted activists, lawyers, human rights defenders, and journalists for their criticism of government actions and policies. Laws prohibiting sedition, defamation and terrorism are frequently used to chill peaceful expression.[6] Foreign funding regulations are used to target nongovernmental organizations critical of the government.

Journalists face increasing pressure to self-censor due to threat of legal action, smear campaigns and threats on social media, and even threats of physical attacks.

Police in Maharashtra state arrested nine prominent civil rights activists and human rights defenders in 2018, falsely accusing them of being members of a banned Maoist organization and of inciting violent protests.[7] In Manipur state, police threatened and harassed activists, lawyers, and families pursuing justice for alleged unlawful killings by government security forces.[8]

There have been retaliatory legal ­act­ions against activists who discuss India’s human rights abuses at international forums. In September 2016, Indian authorities detained a Kashmiri human rights activist after stopping him from traveling to the UN Human Rights Council in Geneva.[9] In August 2018, Tamil Nadu state authorities arrested activist Thirumurugan Gandhi under the Unlawful Activities Prevention Act, the key counterterrorism law, allegedly for describing police abuses against protesters opposing a copper factory at the Human Rights Council.[10]

Laws such as the Foreign Contribution (Regulation) Act are used to shut down ­foreign funding for civil society organizations critical of the ­aut­horities. These include several prominent domestic human rights organizations working to protect the rights of some of the poorest and most marginalized communities.[11] Organizations such as Greenpeace India and Amnesty International India have also been targeted for their work. India was among the 38 countries included in the UN Secretary-General’s ninth annual report documenting reprisals and intimidation against civil society.[12]

Indian authorities are increasingly using draconian laws such as sedition to crack down on dissent. Sedition has been used against cartoonists, students, activists, and journalists among others for protected speech and activities ranging from peaceful protests to cheering for a rival team during a cricket match or refusing to stand in a movie theater during the national anthem. The police have failed to abide by Supreme Court rulings that incitement to violence is a necessary element for the sedition law to be applied. Government data from 2014 to 2016 shows 179 sedition arrests, but no charge sheet had been filed by the end of 2016 in over 70 percent of the cases, and only two of the accused had been convicted. As Human Rights Watch and others have documented, the very process of investigation and prosecution becomes the punishment.[13] 

Successive Indian governments have also failed to prevent private actors from abusing laws criminalizing expression to harass individuals expressing minority views, or to protect such speakers against violent attacks by extremist groups. Too often, officials have given in to interest groups who, for politically motivated reasons, say they are offended by a certain book, film, or work of art. The authorities then justify restrictions on expression as necessary to protect public order, citing risks of violent protests and communal violence.[14]

At the same time, Indian authorities have yet to properly investigate and prosecute those responsible for the killings of progressive writers and activists Govind Pansare, Narendra Dabholkar, and M.M. Kalburgi, and journalist Gauri Lankesh. All four were allegedly killed by militant Hindu nationalists.[15]

State governments resort to blanket internet shutdowns either to prevent violence and social unrest or to respond to an ongoing law and order problem. India has the highest number of internet shutdowns globally, 306 since 2012.[16] These blanket and open-ended restrictions curtail freedom of expression and interfere with other fundamental rights. The UN Special Rapporteur on the protection and promotion of freedom of expression and opinion has issued several calls to end internet shutdowns in India and other countries where they are common.[17]

In December 2018, the government proposed new Information Technology (Intermediary Guidelines) Rules empowering the authorities to order internet companies like Facebook and Twitter to remove content from their platforms within 24 hours. The rules, if passed, will require companies to proactively identify and remove “unlawful information or content” via automated means, which would likely cause intermediaries to err in favor of takedowns, resulting in unnecessary censorship of free expression. The rules would also require all companies to enable tracing of the origin of information on their platforms. This would weaken encryption used by messaging platforms to protect the privacy and data security of their users.[18]

Recommendations to India

• Amend the Foreign Contribution (Regulation) Act so that it does not interfere with basic freedoms of association and assembly and cannot be misused to prevent the protected activities of civil society organizations.
• Amend the Unlawful Activities Prevention Act to ensure that restrictions on organizations are consistent with the right to freedom of association. 
• Repeal sedition, criminal defamation and other criminal laws frequently misused to silence peaceful dissent.
• Drop all pending charges and investigations against those who are facing prosecution for the exercise of their rights to freedom of expression, association, and assembly.
• Withdraw the draft amendments proposed to the Information Technology (Intermediary Guidelines) Rules.
• End the use of blanket or open-ended internet shutdowns and be more transparent in the issuance and extension of these shutdown orders.

Right to Vote (Article 25)

In India, people with intellectual or psychosocial (mental health conditions) disabilities continue to be denied the right to vote. Article 16(b) of the Representation of the People Act (1951) disqualifies a person who “is of unsound mind and stands so declared by a competent Court” from registering to vote.[19]

Recommendation to India

• Repeal article 16(b) of the Representation of the People Act (1951).

Protection of Marginalized Groups (Articles 14, 17, 18, 26 and 27)

In March 2019, the UN High Commissioner for Human Rights noted, “[W]e are receiving reports that indicate increasing harassment and targeting of minorities – in particular Muslims and people from historically disadvantaged and marginalised groups, such as Dalits and Adivasis.”[20]

There is growing insecurity and fear among minority groups in India. Minority communities, especially Muslims and Dalits, have been targeted by extremist Hindu groups affiliated with the ruling Bharatiya Janata Party (BJP) in the name of cow protection.[21] Instead of taking prompt legal action against the attackers, police frequently filed complaints against the victims under laws banning cow slaughter.

Dalits continue to be discriminated against in education and in jobs. There has been increased violence against Dalits, in part as a reaction to their more organized and vocal demands for social progress and to narrow historical caste differences.[22]

Despite legal prohibitions, the practice of “manual scavenging”—cleaning of human excreta—a caste-designated occupation that is mainly imposed upon Dalits, particularly Dalit women, persists. The state has institutionalized the practice with local governments and municipalities employing manual scavengers, putting the health and lives of sanitation workers at serious risk.[23] In July 2018, a report by the UN Special Rapporteur on the human rights to safe drinking water and sanitation, noted the existence of the caste-based discriminatory practice and recommended that the government establish a monitoring system for the national sanitation programs, “in order to control possible trends of increases in manual scavenging practices, ensuring that this practice is not carried out in a caste-discriminatory manner.”[24]

In 2018, the government in Assam state published a draft of the National Register of Citizens, aimed at identifying Indian citizens and legitimate residents following repeated protests and violence over irregular migration from Bangladesh. The potential exclusion of over four million people, many of them Muslims, from the register has raised concerns over arbitrary detention and possible statelessness.[25]

Tribal communities remain vulnerable to displacement because of mining, dams, and other large infrastructure projects.[26]

In September 2018, the Supreme Court upheld the constitutionality of the biometric identification project, Aadhaar, saying the government could make it a requirement for accessing government benefits and filing income tax, but restricted it for other purposes.[27] However, in February 2019, the government passed amendments to the Aadhaar Act through an ordinance, bypassing the parliament, paving the way for its use by private parties. Human Rights Watch and other rights groups have repeatedly raised concerns that Aadhaar registration requirements have prevented poor and marginalized people from getting essential services that are constitutionally guaranteed, including food and health care.[28]

Six years after the government amended laws and put in place new guidelines and policies aimed at justice for survivors of rape and sexual violence, girls and women continue to face barriers to reporting such crimes.[29] Girls and women with disabilities face additional barriers in accessing justice, including because of stigma associated with sexuality and disability.[30] Medical professionals continue to perform the degrading “two-finger” test to make derogatory characterizations about whether the victim was “habituated to sex,” despite the 2014 guidelines by the Ministry of Health and Family Welfare for medico-legal care for survivors of sexual violence, which eliminated the test.

Numerous women in India have shared their accounts on social media of workplace sexual harassment and assault, as part of the global #MeToo movement. These public accounts highlight the urgent need to fully implement the Sexual Harassment of Women at Workplace Act of 2013. The sexual harassment complaint against the sitting chief justice of the Supreme Court of India in April 2019 by a former junior assistant showed how women who complain, especially against powerful men, face significant barriers to justice.[31] The Supreme Court was widely condemned for flouting procedures and failing to give the complainant a fair hearing. The complainant had also outlined how she and her family members were dismissed from their jobs and she alleged that they now faced a false criminal case. Some other women who complained against powerful men also became vulnerable to criminal defamation cases filed against them by men they named.[32]

Children from socially and economically marginalized communities, mainly Dalit, tribal and Muslim communities, continue to face discrimination in government schools despite the Right to Education Act, leaving them further vulnerable to being forced into the worst forms of labor or into early marriage. Weak monitoring mechanisms fail to identify and track children who attend school irregularly, are at risk of dropping out, or have dropped out.[33]

People with disabilities experience a range of barriers to education, health care and other basic services, and are at risk of violence and discrimination. Several Indian incapacity laws classify people with psychosocial or intellectual disabilities as being of “unsound mind,” stripping them of their legal capacity—the right to give consent or make decisions about one’s life.[34] 

In September 2018, India’s Supreme Court decriminalized homosexual sexual relations, striking down a colonial-era law, and paving the way for full constitutional protections for lesbian, gay, bisexual, and transgender (LGBT) people. In April 2014, the Supreme Court also recognized transgender individuals as a third gender and asked the government to treat them as a minority eligible for quotas in jobs and education. However, in December 2018, the lower house of the Indian parliament passed the Transgender Persons (Protection of Rights) Bill, 2018, which is inconsistent with the 2014 Supreme Court ruling and fails to adequately protect the community, including transgender people’s right to self-identify.

Recommendations to India

• Implement Supreme Court directives on preventing communal violence and ensuring that individuals responsible for mob attacks are held accountable.
• Ensure prompt and impartial investigation and prosecution of the perpetrators and instigators of communal attacks and investigate alleged police inaction in responding to vigilante violence, including by so-called cow protection groups.
• Strictly enforce the anti-manual scavenging law, including against local government officials who engage in caste discrimination in the workplace.
• Identify everyone engaged in manual scavenging to ensure that they receive entitlements provided by the 2013 Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, including financial assistance, scholarships, housing, alternative livelihood support and other important legal and programmatic assistance.
• Ensure that the National Register for Citizens (NRC) does not lead to statelessness of vulnerable communities living in Assam for years and that during the process of claims and appeals, the people excluded from the NRC are not deprived of any government services, nor targeted or stigmatized in any manner.
• Revoke plans to amend the Aadhaar Act in violation of Supreme Court’s directions. Ensure that the law does not exclude the poor and marginalized people from access to essential services.
• Enforce the Criminal Law (Amendment) Act 2013 and policies announced to help survivors of sexual violence, including girls and women with disabilities.
• Enact a witness protection law, which includes protection for women and girls, and their families, who face retaliation for filing criminal complaints of sexual violence.
• Ensure that all parties, state and non-state, implement the Sexual Harassment at Workplace (Prevention, Prohibition, and Redressal) Act, 2013. This includes all levels of the judiciary and other authorities with constitutional power. 
• Encourage all Indian states to adopt and implement the Ministry of Health and Family Welfare Guidelines and Protocols for Medico-Legal Care for Survivors/Victims of Sexual Violence.
• Develop clear indicators to improve the detection of and response to discrimination in schools. Implement the Right to Education Act to ensure that all children have access to equal, equitable, and quality education in a child-friendly environment without any kind of discrimination.
• Recognize the legal capacity of all persons with disabilities on an equal basis with others and the right to exercise it. Remove clauses that allow for plenary or limited guardianship. Instead provide accommodations and access to support where necessary to exercise legal capacity.
• Withdraw the Transgender Persons (Protection of Rights) Bill, 2018 in its current form, and work with LGBT groups to ensure that any new law is in line with the 2014 Supreme Court judgment in NALSA v. India and international standards.