Honor Civil Rights of Indians
“There is a higher court than the court of justice and that is the court of conscience It supercedes all other courts. ”
- Mahatma Gandhi
Are Wars Inevitable?
By William T. Hathaway
"We've always had wars. Humans are a warring species. Without an army to defend us, someone will always try to conquer us."
These assumptions have become axioms of our culture. They generate despair but also a certain comfort because they relieve us of the responsibility to change.
Some politicians and pundits declare that human nature makes peace impossible, that war is built into our genes. They point to research by evolutionary biologists that indicates our closest genetic relatives, the chimpanzees, make war. Therefore war must be part of our heredity.
It's true that in certain situations chimpanzees do raid neighboring colonies and kill other chimps. Those studies on killer apes got enormous publicity because they implied that war is hardwired into human nature. Most scientists didn't draw those conclusions from the evidence, but the mass media kept reinforcing that message.
Further research, however, led to a key discovery: The chimps who invaded their neighbors were suffering from shrinking territory and food sources. They were struggling for survival. Groups with adequate resources didn't raid other colonies. The aggression wasn't a behavioral constant but was caused by the stress they were under. Their genes gave them the capacity for violence, but the stress factor had to be there to trigger it into combat. This new research showed that war is not inevitable but rather a function of the stress a society is under. Our biological nature doesn't force us to war, it just gives us the potential for it. Without stress to provoke it, violence can remain one of the many unexpressed capacities our human evolution has given us. Studies by professors Douglas Fry, Frans de Waal, and Robert Sapolsky present the evidence for this.
Militarists point to history and say it's just one war after another. But that's the history only of our patriarchal civilization. The early matriarchal civilization of south-eastern Europe enjoyed centuries of peace. UCLA anthropologist Marija Gimbutas describes the archeological research in The Civilization of the Goddess. No trace of warfare has been found in excavations of the Minoan, Harappa, and Caral cultures. Many of the Pacific islands were pacifistic. The ancient Vedic civilization of India had meditation techniques that preserved the peace, and those are being revived today to reduce stress in society: www.permanentpeace.org.
Our society, though, has a deeply entrenched assumption that stress is essential to life. Many of our social and economic structures are based on conflict. Capitalism's need for continually expanding profits generates stress in all of us. We've been indoctrinated to think this is normal and natural, but it's really pathological. It damages life in ways we can barely perceive because they're so built into us.
We don't have to live this way. We can reduce the stress humanity suffers under. We can create a society that meets human needs and distributes the world's resources more evenly. We can live at peace with one another. But that's going to take basic changes.
These changes threaten the power holders of our society. Since capitalism is a predatory social and economic system, predatory personalities rise to power. They view the world through a lens of aggression. But it's not merely a view. They really are surrounded by enemies. So they believe this false axiom they are propagating that wars are inevitable.
In the past their predecessors defended their power by propagating other nonsense: kings had a divine right to rule over us, Blacks were inferior to Whites, women should obey men. We've outgrown those humbugs, and we can outgrow this one.
Hunger Is A ‘Weapon of Mass Destruction’, Says Jean Ziegler
By Siv O'Neall
"Every five seconds, a child under 10 dies of hunger. – Thirty-five million people die each year from hunger or its immediate aftermath. – One billion people are permanently and severely malnourished and the situation is becoming increasingly catastrophic." (Jean Ziegler)
In his latest book “Mass Destruction – the Geopolitics of Hunger”, Jean Ziegler talks about the current state of the world and the neoliberal politics of starvation of the poor, which has led to a crisis situation amounting to calculated murder. What we are witnessing today is the worst hunger crisis in human history is. And it is all because of human greed, colossal mismanagement for profit.
Professor Ziegler deals in detail with the various causes of the current worldwide hunger disaster, which could have been avoided. This crisis is not determined by fate – or, to use Ziegler’s own word – ‘La famine n’est pas une fatalité’. The world could perfectly well provide food for 12 million people, almost the double of the present population of 7 million.
So what made this murderous situation possible where thousands of people are dying (37,000 every day) from lack of food and clean water? La famine n’est pas une fatalité. It could have been avoided. It should not be happening.
The agroindustry is killing off small farmers – some countries are fighting back
The goals of the ‘cold monsters’ (les monstres froids) of the agroindustry, Archer Daniels Midland (ADM), Cargill and Bunge, et al. is to suck the life out of small farmers all over the world, especially in Africa and southern Asia.
The exceptional development that is taking place today in Latin America is liberating it from the grip of neoliberalism. This can only emphasize the point that the horrible famine that is seen in Africa and south Asia should never have happened. Latin America is forcefully fighting against dependency on the International Monetary Fund (IMF), The World Bank and the World Trade Organization (WTO) – the three horsemen of the Apocalypse, in Jean Ziegler’s own words.
Redistribution of land from large estates with huge tracts of uncultivated areas to small farmers has proven extremely effective in raising the standard of living, in helping the poorest of the poor in several Latin American countries. These countries have wrenched themselves free from the killer treaties like NAFTA, CAFTA and FTAA, created exclusively for rich North America to take over the natural resources in the southern hemisphere.
The United States is intimately tied in with the Transnational Corporations (TNC) and they are firmly determined to end up owning the world. The way they proceed is to first take over the valuable commodities everywhere, in Latin America as well as in Africa and now also in India. Let us not forget that Latin America used to be quite naturally counted on as the backyard of the U.S. The leftist liberation movements to the south of its borders have been a bad blow to the deeply rooted feelings of superiority and selfrighteousness that Americans have always taken for granted.
Latin American countries have now created trade treaties of their own, like MERCOSUR and ALBA. However, It remains to be seen how well MERCOSUR will be able to stand up to U.S. imperialism.
Organized hunger has been made the order of the day, without any visible protest
It was done step by step, in the deepest secrecy, since the Main-Stream Media (MSM) did not even touch on the subject, if they knew about it at all. And all the time we were thinking: ‘There must be a way back. This can not go on.’ And then it went on. And it got worse. And worse.
The transnational corporations essentially own the western governments and they are running the world for the profit of their own cabal, and for profit alone.
The small farmers, the subsistence farmers who produced enough food to provide for their families and for selling at the market for a modest income, are being ruined, by careful planning.
The Three Horsemen of the Apocalypse of organized hunger, the supra-state organizations IMF, The World Bank and the WTO carry out the wishes of the major food companies. The major three are Cargill, Archer Daniels Midland (ADM) and Bunge. These cold monsters are able to fix the prices of food through the powers they have given themselves as cartels or monopolies.
The small farmers in Africa and elsewhere needed help to go on with their hard work to support their families and to produce food for the country. Droughts, military conflicts, political crises, natural catastrophes, man-made emergency situations, all these contributed to recurrent food crises.
IMF was ready to extend big loans, BUT with strings attached. Structural adjustment programs would follow and the people were the victims. There was now less money for the governments to spend on education, health care, food aid to the desperately poor, infrastructure – and the list goes on. Unemployment and poverty increased and new loans were needed, if only to pay off the interest on the old loans to the tiger sharks, ‘les requins tigres’ – Jean Ziegler’s term. Now the third world countries are enslaved in a vicious spiral of debts.
There is of course also disastrous corruption among the leaders of the countries in need that prevents the money from many well-intentioned NGOs from getting into the right hands.
To add to the many problems small farmers are faced with, there is also the other product of Western greed – big companies buying up land for huge plantations whenever the farmers are forced to sell at a ridiculously low price. And so those former poor but proud subsistence farmers are now forced to work for a pittance for the big landlords who, instead of producing food to feed the native people, grow cotton, green beans, coffee, tea, cocoa, peanuts and other crops to sell to the rich countries. And these foods for the wealthy are often produced by small children, severely exploited by cruel farmers. Slave labor conditions are the rule.
Jean Ziegler points out in ‘Destruction massive’, p.327
“The ideologues of the World Bank are infinitely more dangerous than the sad marketing agents Bolloré, Vilgrain (French investors in Africa) and company. With hundreds of millions of dollars of credits and subsidies, the World Bank funds the theft of arable land in Africa, Asia, Latin America.”
Food has to be imported – all for the profit of the big corporations. Poor people can not afford buying imported food at artificially high prices. Children go hungry, pregnant mothers are undernourished and so their babies are born with what can be called birth defects. Very importantly, their brains are insufficiently developed and this deficiency can never be recovered. A large number of the infants die before the age of two.
Malnutrition is rampant and it causes unimaginably horrible diseases, such as noma, which is far less known than the killer diseases such as malaria, dysentery, cholera, tuberculosis, diphtheria and other infectious diseases. Noma is not an infectious disease but it has been proven that it is due to severe and chronic malnutrition.
For the United States and their mercenary organizations, the IMF, the World Bank and the WTO the UN declaration of the Universal Right to Food has no importance whatsoever. It is very simply ignored.
Attempts by global structures to make the right to food a human right
"The ‘United Nations’ is a term that appeared for the first time in 1941. It was tied to the combat against hunger. The World War was raging and U.S. President Franklin D. Roosevelt and British Prime Minister Winston Churchill met on the battleship USS-Augusta in the Atlantic off Newfoundland. What came out of that meeting was the first major attempt to create a document declaring the basic freedoms of man, including Freedom from want and Freedom from fear.
“US President Franklin D. Roosevelt on January 6, 1941, in an address known as the Four Freedoms speech proposed four fundamental freedoms that people "everywhere in the world" ought to enjoy:
1. Freedom of speech and expression
2. Freedom of worship
3. Freedom from want
4. Freedom from fear
"His inclusion of the latter two freedoms went beyond the traditional US Constitutional values protected by its First Amendment, and endorsed a right to economic security and an internationalist view of foreign policy.”
From The Atlantic Charter which was an outcome of the meeting on the USS-Augusta, articles 4 and 6 state:
“Fourth, they will endeavor, with due respect for their existing obligations, to further the enjoyment by all States, great or small, victor or vanquished, of access, on equal terms, to the trade and to the raw materials of the world which are needed for their economic prosperity;
“Sixth, after the final destruction of the Nazi tyranny, they hope to see established a peace which will afford to all nations the means of dwelling in safety within their own boundaries, and which will afford assurance that all the men in all the lands may live out their lives in freedom from fear and want;” (Destruction massive, pp. 139-140)
Jean Ziegler talks about the origin of the world food programs, p. 201:
FAO [the Food and Agriculture Organization] and the World Food Programme (WFP) are the big and beautiful legacy of Josué de Castro. These two institutions are threatened with ruin.
They were born, as we have seen, when the great awakening of consciousness took place in Europe that was emerging from the night of fascism: the FAO in 1945, the WFP in 1963.
The sad fate of those two organizations, however, is that they were both rendered fairly helpless when the current economic crisis took hold of the world. The mandate of the WFP is precisely to eliminate hunger and poverty in the world, but with a severely reduced budget, how were they going to reach their goal?
Jean Ziegler writes (p. 216):
“On October 22, 2008, the 17 heads of state and government from the euro zone countries gathered at the Palais de l'Elysée in Paris. At 6 o’clock, Angela Merkel and Nicolas Sarkozy appeared on the front steps of the palace, in front of the press. They declared to the reporters: "We have to free 1,700 billion to remobilize the interbank lending and to raise the floor of auto-financing of the banks by 3 to 5%." Before the end of the year 2008, subsidies from the countries in the euro zone for emergency food aid decreased by almost 50 %. The WFP budget was about $ 6 billion. It fell in 2009 to $ 3.2 billion.
“For 2011, WFP evaluates its minimal needs to $ 7 billion. Until early December 2010, they had received $ 2.7 billion. This loss in revenues has had dramatic consequences.”
Jean Ziegler goes on to say:
“For the United States and its mercenary organizations – the World Trade Organization (WTO), the International Monetary Fund (IMF) and the World Bank – the
right to food is an aberration. To them, there are no human rights except civil and political.
“Behind the WTO, the IMF, the World Bank, the Washington government and its traditional allies, appear of course the huge private transcontinental companies. The increasing control these transcontinental corporations exert on vast sectors of food production and trade have of course significantly affected the exercise of the right to food.” (Destruction massive, p. 155)
Food for fuel
Another highly important factor in the increasingly catastrophic problem of hunger in the world is of course the use of food for fuel, which has been dealt with in some detail in the essay ‘Food for fuel, a sure way of creating a hunger crisis’ By Jean Ziegler and Siv O'Neall
It is of course perfectly clear to anybody who thinks with his brain, that growing sugar cane, wheat, corn or other food crops in huge plantations for the use of making ethanol for energy, first of all takes land away from small farmers and, secondly, ruins useful food to put gasoline in SUVs that we don’t really need.
In addition to this obvious truth, there is the crucial fact that the making of ethanol uses up more energy than it produces. It also gives off an enormous amount of carbon dioxide in the process.
Explosive increase in food prices beginning in 2007
The stage is open to the real tiger sharks, the financial speculators. Without the slightest shade of a moral conscience, they speculate on the value of a harvest, on land value, on currencies. Is it going up or down? In either case, they win, since they always hedge their bets. The noxious ‘futures trading’ has opened up the commodity market to conscience-free sharks who care only for the fast buck. These men are not dealing in any real product. They don’t sell or buy grain or anything whatever. They just speculate in the fate of these commodities, land, currencies.
The prices of corn, rice and wheat are literally exploding because of market speculation on the basic commodities. This is the Market neoliberalism that was once made out to be the self-regulating force of the Free Market.
The governments can well see the abyss that is open in front of them, but they obediently bail out the banks when the gamblers cause a total breakdown and the banks go bankrupt.
Jean Ziegler writes (p. 78):
"The speculative madness of the predators of the globalized financial capital has cost Western industrial states in 2008-2009, $ 8,900 billion in all. Western states have in particular paid trillions of dollars to bail out delinquent bankers."
Neoliberals claim that no regulations are needed, because the market is regulating itself. That way they are free to speculate, to trade indefinitely and, in many cases, without even paying capital gains taxes, without any insight or any rules. There are of course also the tax-free havens where speculators can gamble with their billions without the slightest insight or taxation.
The whole point is to the neoliberal sharks that the rich must get richer and the poor must be made powerless. The numbers of the poor have been increasing drastically ever since the beginning of neoliberalism in the eighties (exploratory beginnings in Latin America already in the seventies, with catastrophic results). Poor people are made to be so invisible, so voiceless that they can be totally disregarded. Which is precisely the goal of neoliberalism.
It is mind-blowing how the world can have come to a situation where it is being run by hungry sharks with no understanding of how the world economy can function in a rational way. The gamblers follow no rules whatsoever, except profit, and humanitarian considerations have no place in this casino.
What Jean Ziegler is doing in such an expert and passionate way in his latest book is denouncing the monstrosities of the world we live in, using his typical forceful style, with his trademark of genuine human empathy. He is explaining how we got to be where we are and what has to be done to remedy the gross negligence of human rights.
We can no more sit lethargically in our comfortable homes, watching the blatant propaganda that is fed to us through the Main-Stream Media, listening to the biased reports about the U.S. wars that are fought, so they tell us, in the name of freedom and democracy. The truth is that the wars are fought to make huge profits for the arms industries and all the big corporations. Take over lands and nations by war or by insidious so-called ‘aid’ that ensnares the nations in a net of debts that it is impossible to get out of.
After reading Jean Ziegler’s book, one is convinced that the time has come to act on what we know to be the truth. The West is corrupt to the gills and, if we the people are too lethargic, ignorant or frightened to do something NOW, then the pillars of the world will crumble. And that will be the end.
Despite this, the concept of democracy and republic is incomplete, as reiterated in the Constitution, unless justice, liberty and equality are ensured to the people, without exceptions. The integrity of the nation and the dignity of its people depend on this. It is in that the country has to shed its colonial hangovers, and if required reinvent itself, as a nation where these fundamental notions implied in the term 'democratic republic' remain not just as mere words mentioned in the basic law, but realisable guarantees, for which the state should not spare any of its resources.
A recent video that was mentioned in the country's media, of the officers from the Border Security Force (BSF) brutally assaulting a suspected cross-border cattle smuggler is to the point. The nationality of the victims apart, such an incident should not have happened on the first place. That it happened shows that the country's elite border guards have no respect to the country's basic law or to their operative mandate. The video is an exception only to the extent that it was probably for the first time that such an act by the BSF stationed along the Indo-Bangladesh border has been video documented. The AHRC and its partner organisation based in West Bengal, MASUM, on more than some 800 separate occasions, reported similar incidents to the authorities, urging them to take action against the BSF officers, and suggesting that the incessant practice of manifest forms of custodial violence - ranging from torture to extra-judicial execution and rape - shows the moral wilt in the force which in itself is a threat to the security of the nation. The incident is ample proof to the fact that the agency today operates in an environment of impunity. Impunity has no place in a democratic republic.
Despicable forms of impunity are enjoyed not just by the BSF. Widespread practice of torture by the state police officers casts a dark shadow upon the very notion of the republic. The country is yet to wakeup to the reality that the practice of torture, in its entire manifest forms, is incompatible with what has been guaranteed in the Constitution. While a considerable number of people in the country, including some respectable officers within the Indian Police Service, reiterate that the present state of affairs within the law enforcement agencies cannot coexist with the demands of a modern democratic republic, there is hardly any debate within the country as to what should be done to bring about a change to this unacceptable status quo. Even the country's civil society has ignored to engage with the subject, but for a few exceptional human rights organisations, which is a minority, in relation to the large number of human rights groups that operate in India, enjoying the relatively free space that the country guarantees for human rights work. Fair trial guarantees and the basic presumption of innocence cannot coexist with the practice of torture.
When the law enforcement agencies become incompatible to undertake their responsibility according to the demands of a democratic state, it challenges not only the very concept of democracy, but also encourages inequality and therefore injustice. The recent incident reported from Balangir district, Orissa state of the torching of 40 Dalit houses by the members of a militant dominant caste is an alarming reminder to the fact that prejudices based on inequality still haunts the realisation of the true republic. The fact that an alarmingly high percentage of children from the marginalised and minority communities living in the impoverished rural backdrops of at least five states in the country do not have, nor do they expect, any hope to be saved from the certain death due to starvation and malnutrition reiterates that injustice is the practice though justice is the guarantee. A country with its law enforcement agencies enjoying impunity cannot be of any use to check this injustice.
So is the situation of the country's judiciary. That the judiciary too, and with that the country's justice framework has failed, is today no more the 'hyperbole' of human rights organisations. The country's law minister himself has reiterated this reality. In a country where its judiciary cannot expect the prosecution to be capable of assisting the court in its quest to find the truth, or a court where the trial can take anywhere between two to ten years to conclude, or worse, where the judiciary itself can guarantee that only seventy percent of its judges are honest, justice has no life. There cannot be percentages awarded to justice. There can only be either justice or injustice.
The annual remembrance of the day in which the country and its people declared for themselves a sovereign socialist secular democratic republic should not remain a day on which parades are held and speeches made. It must be also a day of introspection. Of what it implies by the sovereignty of the people, and by it, to what extent is India truly a democratic republic.
So far injustice has remained an impediment to the complete realisation of the republic. Failing to address it is as bad as undermining the republic.
The Asian Human Rights Commission (AHRC) and its partner organisation, the Banglar Manabadhikar Suraksha Mancha (MASUM), have been documenting and reporting cases of extreme forms of brutality committed by the Border Security Force (BSF) stationed along the Indo-Bangladesh border in West Bengal state. The latest is a video of extreme torture by the BSF of a civilian that reportedly happened on 16 January 2012. The video shows blood-chilling torture, committed by the BSF. The incident is a shame and the brutality documented alarming, suggesting that the officers require psychiatric assistance, a condition that challenges their very legitimacy to guard the country's border.
Since the past eight years, MASUM is reporting directly and through international human rights organisations like the AHRC, cases against the BSF to the Indian authorities. So far MASUM has reported about 800 cases. These are cases of torture and other forms of custodial violence, rape, murder, extortion and corruption. The AHRC is not aware of any open and credible action taken against any of the officers mentioned in these cases, though every possible detail has been provided to the authorities.
Every case report includes a narrative of the incident, the name of the BSF officers involved, that of the outpost and battalion where the officers were stationed, the name of the police station having jurisdiction over the place where the incident happened, the name of the witnesses and their statements as recorded by MASUM, and the name and other details of the victim. This information is sent to officers, including but not limited to the Director General of the BSF, Union Home Minister, the National Human Rights Commission (NHRC), the Chief Minister and Home Minister of West Bengal, Inspector General of Police and the District Magistrate having jurisdiction upon the area where the incident happened. These cases reported globally are available at AHRC's Urgent Appeals website where cases from India are reported.
Each one of these communication calls for specific actions to be taken in the incident, at the very minimum, recording the complaint of the victim and the statements of the witnesses. However, according to the information available to the AHRC, not in a single case the BSF command has initiated a credible enquiry or taken effective corrective measures against the officers. Neither has the BSF nor the government cared to acknowledge the receipt of these communications. The response from the NHRC also has been thus far disheartening.
The NHRC's action is always to direct the state police to investigate the case. The reports prepared by the West Bengal state police, always absolve the BSF from responsibility and accuses the victim as a cross-border smuggler or someone who tried attacking the BSF, when stopped for questioning. The AHRC and MASUM have been repeatedly contenting that such reports are farce and would do further damage to the morale of the BSF and of the people living along the Indo-Bangladesh border. The proof is the video.
It is a cruel joke, that the Raninagar police have claimed that they have not investigated the incident, as late as today, since they are yet to get a complaint regarding the event. Perhaps the West Bengal police have a new Criminal Procedure Code that requires them to receive a formal complaint to act upon a gruesome crime. Or is the response underlining the fact that the state police always shy away from taking any action against the BSF? The AHRC has been requesting the Government of West Bengal that it should seriously consider the fact that the rank and file of the state police stationed in areas where the BSF operates is suffering from a high degree of demoralisation.
When the video was aired yesterday through local television channels in West Bengal, the administration has taken 'action'. This is the suspension of eight BSF officers and the transferring of the District Magistrate (DM) and the Superintendent of Police (SP) of Murshidabad district. While the response is appreciated, the AHRC is of the opinion that this is not enough.
The official defensive statement by the BSF, that the video could be as old as 15 years, is nothing but irresponsibility in print. The security agency that is mandated to protect the country's border should have the minimum knowledge, that mobile telephones with a camera, now though common, was exceptionally rare 15 years ago. The BSF does not have a case that their officers exposed in the video are serving in the same outpost for the past 15 years. If the video is not of an incident that happened on 16 January, then on what reason was the officers stationed at Charmurasi border outpost suspended?
The video shows officers, identifiable in person, violating every code of their operative mandate, in some of the most brutal and inhuman manner. It shows the alarming wilt of discipline among the officers. Any agency, having such sick officers posted on duty has serious reasons to consider overhauling its operative structure to ensure basic discipline. In the BSF however, such actions are unlikely to happen. At the most the case would end, probably after a decade, with some punitive actions taken against the officers who are now placed under suspension.
The DM and the SP, of Murshidabad should have known that such incidents are common. They cannot content otherwise, since the MASUM and the AHRC together have sent these officers some 800 cases during the past eight years. These two officers have the legal responsibility to answer for what is in the video since had their office been diligent enough such incidents would not have repeated. In a case reported by the AHRC and MASUM on 19 October 2012, the victim in the case was stoned to death by the BSF. The incident happened within the jurisdiction of Raninagar Police Station. No action has been taken on this case so far. The details of the case are available at AHRC-UAC-210-2011.
The Inspector General (IG) of the BSF is also responsible for the incident since the IG's office is bound by 'command responsibility'. In the same vein, the Inspector-General commanding the South Bengal Frontier unit of the BSF and the Commandant and under whom the officers involved in the incident served are also to be punished. Command responsibility is no legal fiction. It is legal norm, which applies in this case without exception.
Most importantly the question that needs to be answered now is that what allows the BSF to perpetuate such horrendous forms of violence against unarmed civilians? Had the BSF been operating in compliance with the Border Security Force Act, 1968 and its Rules 1969, such incidents would not have happened. It shows that discipline and commitment to duty is not ensured within the rank and file in the force. Violence by the BSF against unarmed civilians and other forms of corruption and crimes committed by the BSF with impunity is a threat to the border security of the nation. Such a BSF is a threat to the entire country.
If experience were of any value, one need to see whether, at least in this occasion there would be a transparent investigation and adjudication. If national security is of any interest to the government, it should prove it by taking actions in all cases reported to the government, of crimes committed by the BSF. The AHRC is willing to once again submit to the Government of India a dossier containing details of the cases documented by the AHRC involving the BSF.
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
and to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.”
Fundamental Rights of Citizens of India
The Fundamental Rights are not absolute and are subject to reasonable restrictions as necessary for the protection of public interest. In the Kesavananda Bharati v. State of Kerala case in 1973,[note 4] the Supreme Court, overruling a previous decision of 1967, held that the Fundamental Rights could be amended, subject to judicial review in case such an amendment violated the basic structure of the Constitution. The Fundamental Rights can be enhanced, removed or otherwise altered through a constitutional amendment, passed by a two-thirds majority of each House of Parliament. The imposition of a state of emergency may lead to a temporary suspension any of the Fundamental Rights, excluding Articles 20 and 21, by order of the President. The President may, by order, suspend the right to constitutional remedies as well, thereby barring citizens from approaching the Supreme Court for the enforcement of any of the Fundamental Rights, except Articles 20 and 21, during the period of the emergency. Parliament may also restrict the application of the Fundamental Rights to members of the Indian Armed Forces and the police, in order to ensure proper discharge of their duties and the maintenance of discipline, by a law made under Article 33.
Fundamental Duties of Citizens of India
The Fundamental Duties of citizens were added to the Constitution by the 42nd Amendment in 1976, upon the recommendations of the Swaran Singh Committee that was constituted by the government earlier that year. Originally ten in number, the Fundamental Duties were increased to eleven by the 86th Amendment in 2002, which added a duty on every parent or guardian to ensure that their child or ward was provided opportunities for education between the ages of six and fourteen years. The other Fundamental Duties obligate all citizens to respect the national symbols of India, including the Constitution, to cherish its heritage, preserve its composite culture and assist in its defense. They also obligate all Indians to promote the spirit of common brotherhood, protect the environment and public property, develop scientific temper, abjure violence, and strive towards excellence in all spheres of life. Citizens are morally obligated by the Constitution to perform these duties. However, like the Directive Principles, these are non-justifiable, without any legal sanction in case of their violation or non-compliance., Indian History, World Developments and Civics, p. There is reference to such duties in international instruments such as the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights, and Article 51A brings the Indian Constitution into conformity with these treaties.
INDIA: Human rights without justice a utopia
A Submission by the Asian Legal Resource Centre on the Universal Periodic Review (Second Cycle) of India
1.1 The first Universal Periodic Review (UPR) of India was on 10 April 2008. The Working Group of the Human Rights Council on the UPR has prepared the conclusions and recommendations made by the delegations that participated in the interactive dialogue on the UPR of India.i The Government of India after examining the recommendations responded to the recommendations on 25 August 2008.ii
1.2 Protection, promotion and fulfilment or human rights requires an effective architecture of justice delivery. The interactive dialogue in 2008 demonstrated the lack of understanding and focus of this fundamental, thereby missing out vital issues in India like (i) decades long court delays in adjudication; (ii) lack of competence and independence of the country's prosecution and law-enforcement agencies; and (iii) widespread and omnipresent corruption that prevents the reach of government welfare programs to the poor.
1.3 Though some of the stakeholders' reports, including the one submitted by the ALRC highlighted these aspects; it was not a point of discussion during the interactive dialogue. This lack of focused engagement on some of the vital issues that adversely affects human rights in India is reflected in the concluding recommendations, thereby rendering nine out of 18 recommendations, broad and general, which even if complied would not have a direct, immediate and positive impact upon the lives of the people in the country.
1.4 The concluding recommendationsiii on India could be summarised into four main limbs:
i. Curb entrenched practice of torture by an effective domestic mechanism;
ii. Take effective actions to prevent all forms of discrimination, including those based on caste, gender or against the minorities;
iii. Ensure that development priorities respect the needs of the extremely poor and marginalised, in particular children and take affirmative actions to prevent distress migration of the rural poor;
iv. An overall improvement in the architecture of justice delivery.
1.5 The government's response to the Council to the recommendations was mixed as expected of concurrence and denial. The domestic implementation of the recommendations has been almost absent, or at the most, half-hearted. This submission attempts to assess the compliance of India of the four main limbs of the recommendations from the first review and to once again suggest issues that should be seriously considered during the second cycle of the UPR of India.
2. On torture:
2.1 India has not ratified CAT. There has been no serious debate within the Indian parliament concerning ratification, an essential requirement in a dualist system that practices parliamentary democracy. This is despite promises, by none other than the Prime Minister, that the country would ratify the convention, as early as 2009.iv
2.2 India has not moved forward since then on the issue other than the introduction of a Bill in the parliament, the Prevention of Torture Bill 2010.v The Lok Sabha passed the Bill on 6 May 2010. The Rajya Sabha, constituted a Parliamentary Select Committee to review the Bill. The Committee suggested wide-ranging changes to the Bill.vi The Bill is now with the government and nothing is heard about it since then.
2.3 It is expected that the government would highlight the Bill as an important and vital step forward towards the ratification of CAT and the criminalisation of torture in India. However, the ALRC, like the Parliamentary Select Committee, is of the opinion that the proposed law is eyewash. The law requires substantial revision, including its definition of 'torture', which currently fails to meet the definitional standard prescribed in the CAT. The proposed law limits the operation of the definition to "causing grievous hurt" or "danger to life, limb or health (mental or physical)".
2.4 An action against torture will require prior sanction from the government as per Section 6 of the Bill. The rider in Section 6 is a limiting clause that could delay or even deny prosecutions. The bill also enforces a period of limitation of six months for filing a complaint vide Section 5.vii
2.5 In the meanwhile the practice of torture continues unabated, and is widespread in India. The ALRC has documented more than three hundred cases of torture from India during the period 2008-11. Torture happens in all forms of custody - judicial, police, military and inside prisons. The number of successful prosecution is extremely low, estimated to be one case for every 125 cases.
2.6 Rampant use of torture and the lack of prosecution demoralises the law enforcement officers. It creates a culture of fear and discourages victims from filing complaints. There is no government agency in India that specialises in providing psychological assistance to victims of torture. There is no independent agency to investigate complaints of torture either.
2.7 The use of torture as a common tool for criminal investigation has a direct bearing upon maintaining law and order and upon criminal trials. The use of enforced confessions as the primary tool for criminal investigation is one of the reasons for the mere 4% rate of conviction since the past two decades.
2.8 Law-enforcement agencies are neither capable nor equipped to deal with the increasing and diverse security threats the country face. This is reflected in their operative legal framework. The Indian Police Act, 1861 is the product of the colonial rule that fits the requirements of a police force essential to run a colony.
2.9 India's police today is unfit to serve a democracy. The police are under resourced; lacks training and is unfit to operate in a democratic state. The government conceive the law enforcement agencies as rule enforcers and not as a public service. In international fora the government maintains the position that since the country's judiciary is largely independent, corrective measures could be taken through the courts to address the problems in policing and that it serves as a strong deterrent against torture.
2.10 The D.K. Basu judgment quoted by the government during the first session is an example.viii But the ALRC wishes to reiterate that all the cases documented by the ALRC since the D.K. Basu judgment, some 790 cases of torture, violates the dictum in the case. Yet, NOT a single police officer or a state government has been held on contempt by the court. On a similar vein, the Police Complaints Authority to be constituted by virtue of yet another judgment, the Prakash Singh case, is not constituted in most states so far.ix
2.11 It is therefore expected that during the UPR, the interactive dialogue would focus among other issues, requesting the government of India to reform the operative framework of its law enforcement agencies. Towards this end, it is not enough that the agencies provided with adequate physical and financial operative resources, but further, torture has to be criminalised and an independent agency that is not associated with the police, should be constituted in every state of India to accept and investigate complaints of torture.
3. On caste-based discrimination
3.1 Caste-based discrimination is the Indian variant of apartheid and continues unabated in India.x The stoning to death of 22-year-old Swapna, and her husband, 28-year-old Sunkari Sriniwas on 23 May 2010 by Swapna's family near Krishnajiwadi village, Nizamabad, Andhra Pradesh state is one more proof to the stark reality of the continuing practice of caste-based discrimination and caste prejudices in India. Swapna belongs to a Hindu dominant caste family. Her parents and relatives were opposed to Swapna's marriage with Sriniwas, a Dalit.
3.2 While India has been defiant and opposed to national and international criticism on everything related to caste-based discrimination, it has refused to show similar sensitivity in dealing with the issue at the domestic level. Though the country had enacted laws to counter caste-based discrimination, of which some are currently under review, like the Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989; it is a reality, the implementation of these legislations are half hearted and often left at the mercy of caste-prejudiced law enforcement officers.
3.3 Though India boasts about some of its senior bureaucrats, a former President, Chief Ministers and judges, including the former Chief Justice, as members of the Dalit community, in reality, the effect has been only symbolic. The ordinary Dalit continues to face discrimination and social stigmatisation throughout the country. The fact that the parents of a woman went to the extent of stoning their own daughter to death for marrying an untouchable Dalit, underlines the fact that mere legislations will not end caste-based discrimination. The incident also is the grim reminder to the fact that caste prejudice is deep-rooted in India. To deal with such a deep-rooted violence mere law making is not enough.
3.4 A legal text is only the mere codification of certain principles, norms and rules. In punitive jurisprudence, a law could also be a deterrent against a crime. But the deterrence factor of the crime, in this case, caste-based discrimination as referred to in the Act, depends upon the effectiveness in the execution of the law. This is where India and its entire justice institutions and policies have failed.
3.5 The ALRC has documented cases over the past three years, where atrocities committed against the Dalits were refused to be registered as crimes at police stations. This is also reflected in the low number of cases registered across India for offenses punishable under the SC & ST Act.xi The general failure of the law-enforcement mechanism in the country coupled with the caste prejudice of the officer who runs the system poses a double walled challenge to a complainant who would want to register and investigate his complaint and prosecute a person who has committed a crime that is covered under the Act.
3.6 In addition to the lack of willingness of the government to root out caste prejudice is the omnipresence of the caste-prejudiced mind in government policies. One example is the continuing practice of manual scavenging. In spite of a dozen laws preventing manual scavenging the practice continues in India due to more than one reason, of which an important one is the lack of adequate sanitary facilities in most parts of the country. Investment in proper sanitation facilities is a factor overlooked even in the national capital, New Delhi.
3.7 The ALRC expects that the government of India will be encouraged in the UPR to take affirmative actions, beyond legislations, like implementing mandatory requirements of acceptance of complaints, prompt investigations and fast prosecutions of crimes committed against the oppressed castes (Dalits).
4. Need for an all-inclusive policy of development
4.1 The Republic of Korea engaged India during the 2008 UPR upon India's policies on development. Today unfortunately a South Korean registered entity, the POSCO (formerly Pohang Iron and Steel Company), accounts to the single largest destruction of natural environment and displacement by a foreign direct investment led industrial project in India. The project negates all premises of sustainable development, respect to the rights of indigenous communities and enforces distress migration and violates the guarantees of the acclaimed The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006.
4.2 The ALRC has reported cases where the POSCO itself has been allegedly employing criminals to silence anti-POSCO movements. Human rights activists who oppose break-neck-speed development are accused by the state government as anti-state forces or Naxalites or Maoists and are arrested and detained indefinitely. This is a pattern observed throughout the country.
4.3 It is from states, like Orissa, Madhya Pradesh, Bihar, Uttar Pradesh and West Bengal that large numbers of people migrate to other parts of the country, in search for job and livelihood. A substantial number of them end up being exploited and work as bonded labourers. Of the worst affected are women and children.
4.4 When the representatives of the ALRC met Justice Ms. Sheela Khanna, the Chairperson of Madhya Pradesh State Commission for Protection of Child Rights to seek intervention on this scenario as well as to address child malnutrition that is rampant among the children of the tribal community in the state, the Chairperson opined that those children brought to the Nutrition Rehabilitation Centres should be asked to produce their horoscope and if they are found to become worthy citizens of the state by a Brahmin priest reading their horoscope, then only state resources should be spent to recover their life.xii
4.5 Development is essential for any country to progress. What is required however is to bring transparency, accountability and public audit into development schemes that the private and public sector are competing to implement in India. Even before conceiving a project, it must be mandatory to conduct a public audit of the project proposal. It is built into a reasonable extent in the local self-governance framework in India. However, corruption has so far prevented this proviso from being properly implemented.
4.6 The ALRC expects that the second cycle of the UPR would be an opportunity where India is urged to bring functioning, transparent mechanisms to prevent widespread corruption in India, which is the singular factor that denies benefits of development and government welfare schemes to the rural poor. Instead of stifling whistleblowers like those who use the Right to Information Act, 2005 - which is a widespread pattern in India - the country should provide a safety mechanism to protect them.
5. On justice architecture and draconian legislations like the Armed Forces (Special Powers) Act, 1958
5.1 The Prime Minister of India, addressing the sixth annual convention of Information Commissioners in New Delhi said that the government would be critically reviewing the Right to Information Act, 2005 (RTI) so that the legislation does not "affect the deliberative process in the government". In his speech delivered on 14 October 2011, addressing the conference the Prime Minister indicated some areas where the law should be recalibrated according to the government, so that genuine public interests could be upheld. The Prime Minister also emphasised the need to protect RTI activists as they are often subjected to extreme forms of threats.xiii The risk is higher in states where the AFSPA is enforced.
5.2 The AHRC congratulates the government for its openness to acknowledge that improvement in administration - translate into governance - and prevention of corruption can only be realised through legal and administrative reforms aided by technology. However, such reforms to materialise, drastic reforms of the justice-rendering framework is required.
5.3 The most important of all is the drastic change that need to be brought into the functioning of the courts. The country's judiciary will take at least 365 years to complete the present backlog of cases. The present Chief Justice of India, Justice Mr H S Kapadia has reaffirmed this, stated by twenty-two of his predecessors, in May 2010. Yet, neither the judiciary, nor the government has made it a realistic priority to address the backlog of cases. In essence, the judiciary is incapable of delivering justice.
5.4 When the investigative limb of the state suffers from low morale, inefficiency and the lack of public appreciation and the adjudicative limb suffers from enormous amounts of delay and incapacitated to deal with the sheer volume of work; chaos, confusion and inefficiency is a natural consequence. Translating this into the context of maintaining the rule of law implies that injustice is the norm and justice an exception in the society. Drastic measures are required to bring an end to this 'organised lawlessness'. The resultant environment is exploited not only by armed secessionist forces that operate in India, but also by the law-enforcement agencies that enjoy impunity.
5.5 Where the government feels that its writ is threatened and the integrity of the state challenged, a draconian legislation like the AFSPA is not an answer. The AFSPA is synonymous with injustice, discrimination and impunity. The law has attracted, repeatedly, wide-ranging criticisms from jurists, human rights activists, and even politicians within India and abroad.xiv
5.6 The ALRC has documented more than two hundred cases, over the past eight years, where the state agencies operating under the statutory impunity provided by the Act has committed serious human rights violations in states like Manipur.xv So far not a single military or police officer has been prosecuted for the human rights abuses they have committed under the cover of impunity provided by this law.
5.7 A discussion on the fundamental that for a country to protect the principles of the rule of law requires functioning justice institutions, that could accept and investigate complaints and deliver justice is absent in India. However, India today is at a crossroad. Should India fail in nurturing human rights and democratic values, it can adversely impact the region and can have global consequences.
5.8 The ALRC expects that the second UPR on India will be an opportunity to encourage the government to redefine its restructuring priorities so that reforming justice institutions would be the priority for the government, thereby doing justice to its voluntary pledge the country has made to its people and to the international community.
28 November 2011
INDIA – UPR Submission
In its submission for its first Universal Periodic Review in April 2008, India said that its “approach towards protection and promotion of human rights has been characterized by a holistic, multi-pronged effort.” It cited the Indian constitution and numerous government policies to demonstrate its commitment to the protection of rights.
However, India is yet to introduce adequate laws and properly implement existing policies to protect marginalized communities, particularly Dalits, tribal groups, religious minorities, women, and children.There is an urgent need for the state to addresshuman rights violations, including all forms of sexual assault against women,communal violence, enforced disappearances in conflict areas, extrajudicial killings, the persistent use of torture, and increasing attacks against human rights defenders. Tying many of these issues together is the widespread lack of accountability for human rights abuses, and the corresponding problems of access to justice and adequate compensation.
Impunity for serious human rights violations
The government of India has not implemented its UPR Recommendation 1 to expedite theratification of the Convention against Torture and its Optional Protocol.The Prevention of Torture Bill is still at a draft stage. India also failed to implement UPR recommendation 12 to ratify the Convention against Enforced Disappearance. Human Rights Watch has long documented a pattern of impunity, often permitted under Indian law. Since the first UPR, Human Rights Watch has documented an ongoing failure to prosecute those responsible for past human rights violations, such as during counter-insurgency operations in Punjab from 1985-1996, as well as continuing violations in conflict areas such as Jammu and Kashmir, Manipur, and Assam. There have been allegations of violations during security operations that began in 2009 against Maoist insurgents operating in central and eastern India. Abuses include arbitrary arrests and detention, torture, extrajudicial killings, and the harassment of civilians caught in the conflict.
A series of Indian laws also make it difficult or impossible to prosecute state officials and agents implicated in abuses. In particular, police and paramilitary forces are protected under section 197 of the Criminal Procedure Code, which provides that no court will recognize any offense alleged to have been committed by a public servant in the discharge of an official duty without the express approval of the central or state government. Military personnel are provided with additional immunity when they are deployed in areas of internal conflict under the Armed Forces Special Powers Act (AFSPA). Permission to prosecute is rarely granted, even when an investigation shows strong evidence of human rights violations.
With legal cover provided to police and armed forces, abuses such as extrajudicial killings occur often during counter-insurgency operations, for which the Supreme Court expressed its concern in January 2011.However, in most cases the police or army's explanation of an "armed encounter" goes uninvestigated, although many officials privately admit to Human Rights Watch that extrajudicial executions are widespread. The failure to implement police reform has created an overworked and undertrained force that often resorts to torture to gather evidence, and uses extrajudicial killings when it cannot secure convictions. Without proper accountability mechanisms, these violations have become the norm.
Although the Indian government claims that it has internal systems of inquiry and punishment to tackle violations by security forces, details of any prosecutions or convictions through such measures are seldom available. Using the Right to Information Act, Kashmiri activists discovered in September 2011 that in 50 cases where the government sought permission to prosecute, 26 were refused, while a response is awaited in 16 others.
Due to interventions by the Supreme Court, some arrests have been made in relation to the attacks on Muslims in Gujarat in 2002. In November 2011, thirty-one people were convicted for the killing of 33 people, most of them women and children, in the village of Sardarpura in Gujarat’s Mehsana district in March 2002. This was one of the nine cases investigated and prosecuted under Supreme Court supervision after it became evident that the Gujarat police had shown no real inclination to investigate and file charges against the perpetrators.
Government of India’s Actions to Address Impunity
Various inquiries have been set up to address issues of impunity and accountability, particularly in areas of armed conflict. However, the findings of such committees are often not publicly disclosed and are routinely ignored. For instance, a 2004 committee appointed by Prime Minister Manmohan Singh following protests in Manipur has recommended the repeal of the Armed Forces Special Powers Act. Although the report was leaked, it is yet to be officially accepted or acted upon.
Kashmiri political leaders have also repeatedly called for repeal of AFSPA. In August 2011, an official inquiry by the State Human Rights Commission in Jammu and Kashmir confirmed allegations by human rights groups that victims of enforced disappearances may have been buried in unmarked graves. The government had claimed that the graves contained only the remains of unidentified Pakistani militants. The commission recommended forensic tests for proper identification, but a proper investigation will require the cooperation of the army and paramilitary units that were involved in these operations.
The Indian government is yet to enact the Prevention of Torture bill, which was introduced to ratify the Convention against Torture. The draft bill falls short of international standards by permitting certain officials immunity from prosecution, not giving victims adequate time to file complaints, and not ensuring that all forms of inhuman and degrading treatment are under the purview of the law. A parliamentary committee has reviewed the bill and submitted its recommendations to the cabinet.
In recent years, the political leadership of India, including the prime minister, has repeatedly said that there will be “zero tolerance” of human rights abuses. In a positive step to end the profiling of Muslims as terrorism suspects, the political leadership has repeatedly emphasized that targeting on religious grounds is wrong. There have been fresh investigations into terror attacks that were previously attributed to Muslim groups, where members of the majority Hindu community have been arrested and prosecuted.
The government has committed to enacting the Communal Violence (Prevention, Control and Rehabilitation of Victims) bill, which is intended to prevent and control communal violence, ensure speedy investigation and trials, and provide prompt rehabilitation of victims.
While civil society welcomed the openness and collaboration demonstrated by the governmentduring the visit of the UN Special Rapporteur on human rights defenders in January 2011, it also notedthat some crucial mandate holders such as the rapporteurs on torture, extrajudicial, summary or arbitraryexecutions, children, racial discrimination, or the Working Group on arbitrary detention have madenumerous requests for country visits and have not yet received a response.
State Institutions to Promote and Protect Human Rights
India boasts of its independent judiciary, which has a strong voice in protecting human rights. However, lower courts tend to support the authorities in accepting questionable charges in terror-related cases. Judicial delays due to overload mean that the appeals process can linger while a person remains in custody. Human Rights Watch considers that the implementation of UPR Recommendations 3 and 4 requires further efforts.
The government of India refers to the National Human Rights Commission (NHRC) as its symbol of commitment to the protection of human rights. In its 2008 submission to the UPR, the government described the independence of the NHRC as at a par with the Supreme Court of India. However, the NHRC has very limited capacity to independently investigate allegations of abuse, and relies on relevant government departments to provide information. It uses police investigators to investigate allegations against the police. The NHRC is prohibited by law from investigating violations by the armed forces under section 19 of the Human Rights Protection Act. It can only seek a report from the central government and make recommendations. Since such reports are sought from the very agency accused of the violation, they rarely uncover abuses. The NHRC remains largely inaccessible to the poor, its inquiry procedures cumbersome, and often those who testify against state officials are not adequately protected against retribution.
In 2008 the government also claimed that there were a number of state human rights commissions that protected rights. However, in reality almost all state commissions are inadequately staffed, with almost no capacity or political will to conduct independent investigations.
The government also referred to other national commissions created to protect the rights of women, religious minorities, Dalits and tribal communities, and children. However, members and chairpersons of these commissions are political appointees and this is often reflected in their functioning, with some more effective than others.
Protection of Women
Gender training for the lower and higher judiciary is ongoing but remains inadequate. For example, in rape trials, many lower criminal courts and appellate courts have for decades reinforceddamagingsocial stereotypes against victims by describing them as “habituated to sex” based on archaic and degrading medical examinations such as the “two-finger test.” In some cases the fact that they are identified as “habituated to sex” has resulted in the courts discrediting victims’ testimony, affecting the outcome of the trial.
The NHRC has the power to take action on its own (suomoto) of reports to investigatehuman rights violations. But the commission has failed to use this power effectively. For example, the Indian government’s maternal healthcare program is administered in a blatantly discriminatory manner in many parts of the country, with no action from the NHRC. In many states, the Indian government’s flagship JananiSurakshaYojana (Safe Motherhood Program) provides cash assistance for poor pregnant women to give birth in health facilities, only up to two live births, and limits such assistance to mothers above age 18, completely excluding young mothers and mothers with more than two children, even though they face considerably higher health risks during pregnancy.
Access to Palliative Care
In 2009, a Human Rights Watch study found that hundreds of thousands of patients with cancer and other serious health conditions in India unnecessarily suffer from severe pain every year because they cannot get access to effective, safe, and inexpensive medications that could relieve their suffering.
Although about 70 percent of cancer patients in India are diagnosed when their cancer is advanced and they are unlikely to still respond to curative treatment, more than half of India’s regional cancer centers (which receive government support) do not offer palliative care or effective treatment for moderate to severe pain.
The central government recommended in 1998 that all states and union territories simplify regulations around access to morphine, an essential medication for treatment of moderate to severe pain, but only 14 states and territories have done so to date. All others maintain highly restrictive regulations that interfere with proper medical practice.
Attacks on Education
In investigations carried out between 2008- 2010, Human Rights Watch documented that the education of tens of thousands of India’s most disadvantaged and marginalized children is being disrupted by the ongoing conflict between Maoist (“Naxalite”) insurgents and police and other security forces. The Maoists have targeted and bombed government schools. In 2009, at least 36 schools in Jharkhand state and 23 schools in Bihar state were attacked. The government’s failure to repair the bombed schools promptly prolongs the negative impact of these attacks on children’s education.
Meanwhile, security forces continue to occupy government school buildings as bases for their anti-insurgency operations, sometimes only for a few days but often for periods lasting months or years. In 2010, at least the following number of schools had long-term occupations from security forces: 30 in Bihar, 31 in Chhattisgarh, 20 in Jharkhand, 16 in Tripura, and an unknown number in Assam.
Both the Maoist attacks and the government occupation and use of schools place students at unnecessary risk and interfere with the right to education.
Recommendations to be made to the Indian government:
On addressing impunity, India should:
- Repeal all legal provisions providing effective immunity to government officials such as section 197 of the Criminal Procedure Code.
- Repeal the Armed Forces Special Powers Act.
- Vigorously investigate and prosecute officials who order, commit, or tolerate human rights violations, including torture, custodial killings, faked armed encounter killings, and enforced disappearances.
- Ensure in drafting the Prevention of Torture Bill that no immunity from prosecution is provided, that adequate time is given for victims to be able file complaints, and to ensure that all forms of inhuman and degrading treatment are also brought under the purview of the law.
- Engage in immediate efforts at police reform and establish transparent accountability mechanisms.
- Ensure prompt prosecutions in case of communal violence and enact a strong law to protect against such acts.
- Ensure all individuals have equal access to justice and right to remedies, and examine and remedy the shortcomings in the effectiveness of existing justice mechanisms.
- Amend the Human Rights Protection Act to allow the National Human Rights Commission to independently investigate allegations of abuse by members of the armed forces.
- Empower the NHRC, the state human rights commissions and other national commissions to function independently, infull autonomy, and to have the capacity for independent investigations.
- Provide victims and their beneficiaries with reparations through a prompt and effective procedure that redresses the entire scope of the violations.
- Ensure that the NHRC and other national and state commissions are more responsive to civil society complaints and interventions.
- Provide comprehensive human rights education and training at all levels of governmentand across sectors, and the armed forces.
On women’s rights, India should:
- Enact a comprehensive law against all forms of sexual assault against women and children and provide reproductive and mental health services to survivors of sexual assault.
- Ensure that maternal health care programs do not discriminate against women with more than two children or mothers under the age of 18.
- Provide disaggregated data and status information on all vulnerablegroups including minorities, indigenous people, Dalits, people with disabilities, LGBT people, migrants, and internally displaced persons.
- Enact rehabilitation laws to ensure the protection of communities displaced by development, infrastructure, or mining projects.
- Take immediate steps to ensure that all regional cancer centers offer palliative care services.
- Take immediate steps to ensure all states and territories implement simplified morphine regulations.
- Promptly ratify the Convention against Enforced Disappearance.
- Issue a standing invitation to UN special procedures to conduct country visits to India and respond positively to the nine special procedures that have made requests for country visits.
- Facilitate, as a matter of priority, the visits to India of the Special Rapporteur on torture, the Working Group on arbitrary detention, and the Working Group on enforced or involuntary disappearances.
On attacks on education facilities, India should:
- Comply with court orders that all security forces vacate all educational institutions and school buildings, and ensure that the security forces do not unlawfully occupy such institutions in the future.
- Cooperate with states affected by Maoist attacks to prepare rapid advance systems, so that when Maoist attacks on schools occur, schools are quickly repaired or rebuilt, and destroyed educational material replaced, so that children can return to school as soon as safely possible. During reconstruction, students should receive their education in an alternative locale.
Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,
Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,
Whereas it is essential to promote the development of friendly relations between nations,
Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom,
Whereas Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms,
Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge,
Now, Therefore THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.
- All human beings are born free and equal in dignity and rights.They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
- Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.
- Everyone has the right to life, liberty and security of person.
- No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.
- No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
- Everyone has the right to recognition everywhere as a person before the law.
- All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.
- Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.
- No one shall be subjected to arbitrary arrest, detention or exile.
- Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.
- (1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.
- (2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.
- No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
- (1) Everyone has the right to freedom of movement and residence within the borders of each state.
- (2) Everyone has the right to leave any country, including his own, and to return to his country.
- (1) Everyone has the right to seek and to enjoy in other countries asylum from persecution.
- (2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.
- (1) Everyone has the right to a nationality.
- (2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.
- (1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
- (2) Marriage shall be entered into only with the free and full consent of the intending spouses.
- (3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
- (1) Everyone has the right to own property alone as well as in association with others.
- (2) No one shall be arbitrarily deprived of his property.
- Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
- Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
- (1) Everyone has the right to freedom of peaceful assembly and association.
- (2) No one may be compelled to belong to an association.
- (1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
- (2) Everyone has the right of equal access to public service in his country.
- (3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.
- Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.
- (1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
- (2) Everyone, without any discrimination, has the right to equal pay for equal work.
- (3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
- (4) Everyone has the right to form and to join trade unions for the protection of his interests.
- Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.
- (1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
- (2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.
- (1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.
- (2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.
- (3) Parents have a prior right to choose the kind of education that shall be given to their children.
- (1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
- (2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
- Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.
- (1) Everyone has duties to the community in which alone the free and full development of his personality is possible.
- (2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
- (3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.
- Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.