UNHRC’s examination of India’s periodic report after 28 years: Part 7

The seventh article in the series related to the fourth periodic report submitted by India under Article 40 of the International Covenant on Civil and Political Rights (ICCPR) examines the government of India's claims on two separate but equally important issues, manual scavenging in India and the gradual erosion of the right to peaceful protest..—.Read Part 1 here..Read Part 2 here..Read Part 3 here..Read Part 4 here..Read Part 5 here..Read Part 6 here..THE flagship of the United Nations treaty body system will be examining India's fourth periodic report in all probability on July 15 and 16, 2024. The Human Rights Committee (HRC) is the treaty body tasked to monitor compliance with the International Covenant on Civil and Political Rights (ICCPR)..This article examines two separate but equally important issues: India's submissions on manual scavengers and the restrictions on peaceful protests..Manual scavenging.Manual scavenging is an abomination. A blight on any society that claims it is 'civilized'..In Issue No. 8 (c) of the questions given to the government of India, the UNHRC requested the government of India to report on the "continued employment of Dalits as manual scavengers, including by local government officials, despite the legal prohibition of such practice, and ensuing deaths.".The government of India, in Para 25 of its reply, claims: "To eliminate the practice of manual scavenging to provide for rehabilitation of persons working as manual scavengers, the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 (Manual Scavengers Act) was enacted repealing the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993..“There are 2,600,000 workers involved in cleaning community dry latrines, 770,000 sewer cleaners and 36,176 railway cleaners in India.."The Act specifically prohibits direct or indirect engagement or employment of any person for hazardous cleaning of a sewer or a septic tank. The law establishes an institutional structure for the identification of persons working as manual scavengers both in rural and urban areas.."It also provides for the constitution of vigilance committees and monitoring committees at the Central and the state level to advise and oversee holistic implementation of the Act including rehabilitation of those working as manual scavengers.."Recognising continued existence of insanitary latrines as the primary reason behind the prevalence of the dehumanising practice of manual scavenging, the new law mandates the local authorities to ensure elimination of insanitary latrines.".Also read: Years after manual scavenging was banned, it is a shame that SC has to intervene, say activists.In Para 26 of its reply, the government of India states, "National Safai Karamcharis Finance and Development Corporation organises sensitisation workshops in municipalities for engineers, sanitary workers and contractors on safe cleaning of sewers and septic tanks.."The Ministry of Housing and Urban Affairs released a Standard Operating Procedure for cleaning sewers and septic tanks in 2018. A total of 62,904 manual scavengers have been identified between December 6, 2013 to January 31, 2020. To ensure that no insanitary (sic) latrine is left in the country, under the Swachh Bharat Mission, 107.105 million individual sanitary toilets in rural areas and 6.257 million in urban areas have been constructed and are being converted into sanitary latrines.."The Ministry of Social Justice and Empowerment has launched a mobile application 'Swachhata Abhiyan' in 2020 under which any person can upload the details, including photographs of the insanitary latrine and manual scavenger, if any, engaged in its cleaning.."A National Action Plan is being formulated in consultation with the Ministry of Housing and Urban Affairs and Department of Drinking Water and Sanitation, Ministry of Jal Shakti to eliminate manual cleaning of sewer system and septic tanks and rehabilitation of workers engaged in manual cleaning.".The reality of manual scavenging.Manual scavenging is an egregious and grave violation of the human right to life and is a major discriminatory practice in India..The government of India claims that there is "no report of practice of manual scavenging currently in the country" owing to the introduction of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013..However, the Supreme Court of India as recently as October 2023, directed the Union government to ensure that manual scavenging is eradicated in a phased manner, pointing out the deficiencies in the surveys conducted by the government in 2013 and 2018 to ascertain the number of manual scavengers..In the same vein, the Karnataka High Court took suo moto cognisance of media reports of manual scavenging in the state, requesting for a formal public interest litigation to be submitted to address the lack of the implementation of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 in Karnataka..Moreover, the Madras High Court and the Bombay High Court have also emphasised on the urgent need to eliminate manual scavenging through effective implementation of the 2013 Act..Also read: Legal pitfalls in combatting manual scavenging: A critical analysis.Contrary to the government's claim that there are only 62,904 manual scavengers in India, the Safai Karmachari Andolan, a movement for the elimination of manual scavenging, reports that there are 2,600,000 workers involved in cleaning community dry latrines, 770,000 sewer cleaners and 36,176 railway cleaners in India..“The government of India claims that there is "no report of the practice of manual scavenging currently in the country"..Further, the government's claims on the deaths of manual scavengers have been repeatedly falsified. The media has reported the deaths of sewer workers, sanitation workers and labourers, all of whom are employed as manual scavengers in various states across India..Despite these deaths, the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 has registered zero convictions until 2020, only one reported conviction in 2023, and zero to date in some Indian states, as pointed out by the Karnataka High Court..The poor implementation of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 and the lack of effective policies to curb manual scavenging has resulted in failure to rehabilitate workers and compensate families of workers who lost their lives, allowing the egregious practice to continue..Restrictions on the right to protest peacefully.Issue No. 27 (c) of the UNHRC's questions, asks for information about the "arbitrary application of Section 144 of the Code of Criminal Procedure (CrPC) to prevent peaceful assemblies, debates and conferences at which criticism of the State may be expressed, and the prohibition of assemblies of five or more people under Section 144 of the Code of Criminal Procedure of Jammu and Kashmir"..Section 144 of the erstwhile CrPC corresponds to Section 187 of the now-applicable Bharatiya Nyaya Sanhita 2023 (BNS)..In its reply, the government of India in Para 139 states: "Section 144 of the CrPC bestows power on certain officials as a measure to preserve law and order. The Order under this Section is open to judicial review which is a potent tool for any person aggrieved by such an action.."In Anuradha Bhasin versus Union of India, the Supreme Court of India has clearly summarised the legal position of this section being remedial and preventive in nature for the danger so contemplated. The magistrate is duty bound to balance the rights and restrictions based on the principles of proportionality to not suppress legitimate expression of opinion or grievance of any democratic rights.".Also read: Why is it Important to Preserve and Protect our Freedom of Speech, Expression and Right to Protest.As of May 2024, there have been several instances of indiscriminate usage of Section 144 of the CrPC across the country (recently in Telangana and West Bengal), so much so that the former Chief Justice of India U. U. Lalit expressed concern over the rampant usage of Section 144 of the CrPC in the country..Section 144 of the CrPC has been widely abused by all political parties when in power. An analysis of the ratio decidendi of the Supreme Court and high court decisions in the last decade can provide clarity on the current scope of the right to expression and peaceful assembly in India..In Mazdoor Kisan Shakti Sangathan versus Union of India, the Supreme Court defined and limited the scope of the right to protest by ordering that it be regulated in a manner that avoids causing inconvenience to other individuals..Similarly, in Amit Sahni versus Commissioner of Police, the Supreme Court held that the right to protest can only be exercised in certain 'designated places' and that it did not extend to the occupation of public ways and spaces indefinitely..When the appellant argued that the protest blocked the public way and caused severe inconvenience to the commuters, the Supreme Court recognised the right to peacefully protest but held that it cannot compromise the public use of space..In Jawaharlal Nehru University versus Geeta Kumari, the Delhi High Court confirmed the limitation of the right to protest by upholding the constitutional validity of an Order proscribing the places and modes of protest. .The court held that by protesting within 100 meters of the administrative block, the protesters caused inconvenience to others..It is necessary to scrutinise the conditions under which the right is restricted and the nature of those restrictions given the undeniable importance of this right in a democratic society, as India states it is..Also read: Can Protesters Block a Road? An incomplete log of Protest Jurisprudence.Indian courts stand to benefit from adopting the internationally accepted three-prong test, established by the European Court of Human Rights in Handyside versus United Kingdom. .It comprises (a) legal prescription, (b) the pursuit of legitimate aim and necessity, and (c) proportionality in a democratic society..This framework determines the legitimacy of restrictions on the right to freedom of speech and expression, including the right to peaceful assembly..By mandating legal prescription, the three-prong test ensures that the limitation of the right to peaceful protest is not arbitrary or vague or overbroad and promotes legal certainty..The test might be useful to examine the essence of Section 144 of the CrPC. Section 144 aims to prevent 'unlawful assembly' which has three interpretations:.First, an assembly whose very purpose of existence is unlawful, second, an assembly whose purpose is lawful but adopts unlawful means to achieve their purpose and finally, an assembly whose purpose and mode are both lawful, however, stands the risk of turning unlawful due to external factors..Thus, Section 144 of the CrPC is vague in its definition and constitutes over-breadth in character..Another issue to consider is the object of protection under Section 144 of the CrPC. Does the provision intend to prevent the violation of a person's rights or prevent inconvenience to them?.Further, can the right to peaceful protest be restricted solely on the ground that it might cause an inconvenience to others? Is not inconvenience in body, mind and spirit the very essence of the function of a protest?.“The MS Act has registered zero convictions until 2020, only one reported conviction in 2023 and zero to date in some Indian states..The degree of restrictions imposed on the three interpretations of an unlawful assembly must inarguably vary in terms of proportionality. .Also read: Protests are a legitimate use of public spaces.In the first interpretation, there can be unanimous agreement on the indiscriminate use of Section 144 of the CrPC; in the second interpretation, less so; and in the third one, even less..The test allows restrictions only when it pursues a legitimate lawful aim and is the least restrictive means available. Additionally, the requirement of necessity ensures a high threshold for the restriction of the right..The US follows the strict scrutiny test to determine the constitutionality of certain laws. The test consists of two prongs: It must have a compelling government interest and should be narrowly tailored..It is a primarily liberty-oriented test that guarantees the mostly unobstructed exercise of the first amendment to the US Constitution..The jurisprudence on the right to peaceful protest in India raises several important questions among which is the crucial issue of fundamental rights and duties of citizens in a democratic society..As inferred from precedents, Indian courts have always prioritised maintaining order, in contrast to their counterparts that prioritise liberty..While public order is certainly a concern, the self-proclaimed world's largest democracy— the Indian State— ought to accord more value to the autonomy and liberty of its citizens..By qualifying a citizen's right to protest based on their place, method and cost, the court is unnecessarily and arbitrarily impeding the citizens' participation in democratic governance..Indian courts and the government can afford to adopt a more liberty-protective approach in interpreting the right to protest..The 'right to protest' draft guidelines.It is imperative that the Union of India not only recognises but actively guarantees every Indian citizen the right to peacefully protest through any non-violent form of expression and mode. All protests must be without weapons or firearms, as defined in the Arms Act, 1959..A constitutionally safeguarded legitimacy to dissent is a necessary pre-condition for any genuine democratic system to flourish as it plays an important role in the civil, political, social, economic and cultural life of its citizens..Also read: A constitutional appraisal of non-violent disruptive protests.Therefore, as a democratic State, the Indian Union is required to provide its citizenry with ambient and inclusive conditions to conduct rightful collective and individual demonstrations (such as protests) within a reasonable distance from the power centres that it intends to influence or pressurise..“Is not inconvenience in body, mind and spirit the very essence of the function of a protest?.In order to ensure public peace and tranquility, any expression of legitimate dissent in the form of protests, demonstrations, and other modes must take place in good faith, with due permission from the concerned authorities, and being mindful of the well-being and rights of all its direct and indirect stakeholders..The application of Section 144 of the CrPC(and its other relevant provisions, as well as those of the Indian Penal Code, 1860) to maintain 'law and order' must be done exceptionally, and not as a norm, but reserved for cases of well-founded fear..In unavoidable exceptions, where the use of force and detention is necessary, the highest officer on duty must record the reasons in writing immediately. The situation must be promptly reported to the appropriate personnel and ensure that it is routinely practiced to prevent an arbitrary abuse of authority..The police are duty-bound to act speedily if any grievances arise out of modes of dissent, legitimate or otherwise, as the case may be. They must aim to deliver justice to those in need, irrespective of the aggrieved person's social, cultural, economic, political or religious status..A suitable legal provision in line with the updated Central Civil Service Conduct Rules, 2014, must be enacted to shield officers and field workers performing their duties from undue political pressure or any other undesirable interference that could prejudice their work..“Indian courts and the government can afford to adopt a more liberty-protective approach in interpreting the right to protest..The police's power to arrest persons for the 'breach of peace' and 'public mischief' must be clearly spelled out in the law to ensure its fair and reasonable use..Also read: Why civil protests must necessarily disrupt the status quo.It is the responsibility of governmental bodies such as the army and the police to ensure that potentially draconian Sections of any law, such as the powers to 'disperse an unlawful assembly' are understood in context and used judiciously, reasonably, non-arbitrarily and sparingly..It is undeniable that a governmental body such as the police must refrain from repeatedly using emergency measures (provided by Section 144 of the CrPC) to prolong their temporary nature..“As inferred from precedents, Indian courts have always prioritised maintaining order, in contrast to their counterparts that prioritise liberty..Any effective democracy evolves in nature and must adopt its domestic laws to align itself with international legal wisdom and best practices..Therefore, international precedents must be used as effective guiding principles to plug legislative gaps in the domestic legal framework, to wholly incorporate those best practices in the nearest possible future.

UNHRC’s examination of India’s periodic report after 28 years: Part 7

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