The recent decision of the Supreme Court of India barring Mr. Umar Khalid and Mr. Sharjeel Imam, from applying for bail for a year, to put it mildly, is astounding. They have both been under-trials for over 5 years. Other commentators have called into question much of the reasoning of the Supreme Court in their rejection of the bail application. Their sound criticism does not bear repetition here.
This piece only seeks to underline both the apparent ignorance and pusillanimity of the political class, and most of civil society in not educating public opinion for the need and ability to access remedial international human rights mechanisms when domestic judicial or executive remedies are unequal to the task of undoing a wrong.
The unused architecture of international human rights remedies
Reference here is to the First Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) by ratification. India has been a party to the main ICCPR treaty since 1979, it is among the countries that differentiate the acceptance of substantive rights from the acceptance of international individual complaint mechanisms.
The First Optional Protocol establishes a mechanism allowing individuals to submit complaints to the UN Human Rights Committee if they claim their rights under the ICCPR have been violated by a state party.
In South Asia, the countries that have become a party to the First Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) by ratification or accession are Bangladesh, Maldives, and Sri Lanka. Bangladesh acceded to the Protocol, which entered into force for the country on December 6, 2000.Maldives acceded to the Protocol, which entered into force for the country on September 21, 2011. Nepal acceded to the Protocol on May 14, 1991.Sri Lanka acceded to the Protocol, which entered into force for the country on October 3, 1997.
Other South Asian countries such as India and Pakistan have not signed or ratified the First Optional Protocol to the ICCPR.
In its concluding observations on the fourth periodic report of India, the UN Human Right Committee in September 2024 stated, “5. The Committee regrets that, while the Supreme Court of India gives effect to the provisions of the Covenant in its sentences, in cases of disparity with domestic law, the Covenant does not prevail. The Committee also regrets that the State party maintains its declarations and reservations to articles 1, 9, 12, 13, 19 (3), 21 and 22 of the Covenant and that it does not intend to become a party to the two Optional Protocols (art. 2).”
Earlier in August 1997, the UN Human Right Committee stated, “The Committee, noting that international treaties are not self-executing in India: recommends that steps be taken to incorporate fully the provisions of the Covenant in domestic law, so that individuals may invoke them directly before the courts. The Committee also recommends that consideration be given by the authorities to ratifying the Optional Protocol to the Covenant, enabling the Committee to receive individual communications relating to India.”
In this context the general comment no 33 of the UN Human Rights (UNHRC) offers guidance to States to observe their obligations correctly.
Lack of access to individual complaints
By not ratifying this protocol, India does not recognize the competence of the UN Human Rights Committee to receive and consider "communications" (complaints) from individuals within its jurisdiction who claim their rights under the ICCPR have been violated.
During recent dialogues with UN experts, Indian representatives confirmed there are no plans to sign up for the First Optional Protocol. The government maintains that its domestic judicial system, including the independent Supreme Court and High Courts, provides sufficient remedies for human rights violations.
UN Treaty Bodies and a few civil society organizations have consistently recommended that India ratify the protocol to enhance accountability and provide an international layer of protection for citizens, especially given concerns over the implementation of ICCPR provisions at the domestic level.
Implications for individuals in India
As India is not a party to the First Optional Protocol, individuals in India cannot petition the UN Human Rights Committee for relief if they believe their civil or political rights (such as freedom of speech, right to a fair trial, or freedom from torture) have been infringed. And so, they must rely solely on domestic legal remedies, such as filing writ petitions in Indian courts under the Constitution.
India has maintained its declarations and reservations to Articles 1, 9, 12, 13, 19(3), 21 and 22 of the ICCPR; and that it does not intend to become a party to the two Optional Protocols.
Yet, while the ‘individual complaints’ route is not available, access to the ‘Special Procedures’ mechanism is available. It beggars rational comprehension that all the Indian NGOs visiting Geneva, do not use these mechanisms in any meaningful manner. And it is not necessary to visit Geneva at all! All it requires is access to email or even snail mail. Similar is the track record of Indian trade unions, whose complaints under the ILO conventions are few and far between. Truly, we are a ‘workers’ paradise’.
A few political parties have spoken out against the denial of bail to Umar Khalid and Sharjeel Imam. Useful but woefully inadequate. The Congress, the centre point of the INDIA Alliance gave birth to the draconian legislation that these two and many hundred other political dissenters are being held under. No mea culpa here! The least that all political parties that seek a democratic India is to publicly espouse and commit to the repeal of the Unlawful Activities (Prevention) Act, 1967 (UAPA) to start with.
The Supreme Court has been sagacious in two of its recent judgments, one pertaining to the suspension of sentence of the ruling Bharatiya Janata Party (BJP) ex-leader accused of rape in one case and murder in another case. In the second case, it stayed its own earlier order related to large-scale mining in the ecologically sensitive Aravalli hills. It is only hoped that it brings to bear the same level of scrutiny to its order regarding the rejection of the Bail of Umar Khalid and Sharjeel Imam.
