On India's Independence Day, this analysis of the audit of India's human rights report after 28 years makes for a sad reading..—.India celebrates the 78th anniversary of its Independence from colonial yoke. A recent United Nations audit of the human rights situation in the country, however, tells a sad tale. .Twenty-eight years after the last audit of India's human rights report by the United Nations makes for a sad reading..Concluding observations on the fourth periodic report .On July 22, 2024, the UN Human Rights Committee (UNHRC) adopted concluding observations after consideration of the fourth periodic report of India at its meetings earlier..For reasons of brevity, one is only focusing attention on a few issues..At the outset, the UNHRC regretted that while the Supreme Court of India had given effect to the provisions of the International Covenant on Civil and Political Rights (ICCPR) in its Orders, in cases of disparity with domestic law, the ICCPR did not prevail..Also, it regretted that India had 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..“Twenty-eight years after the last audit of India's human rights report by the United Nations makes for a sad reading..The UNHRC noted that the provisions of Article 9 of the ICCPR on the right to liberty and security of person were only applied in India if consistent with Article 22 of the Indian Constitution, which focused on the "protection against arrest and detention in certain cases" and authorises preventive detentions..Also read: UNHRC's examination of India's periodic report after 28 years: Part 8.The UNHRC expressed its concern that, according to information received, Article 22, together with the declaration to Article 9 of the ICCPR, had led to serious human rights violations during pretrial and preventive detentions..On the National Human Rights Commission (NHRC), the UNHRC regretted the lack of implementation of the majority of the recommendations by the Global Alliance of National Human Rights Institutions (GANHRI), which had deferred India's reaccreditation since 2023..The UNHRC Committee was concerned by the impact on the independence of the commission of the involvement of police officers in investigations of human rights violations, by the NHRC's lack of authorisation to investigate human rights violations allegedly committed by the armed forces and by the one-year temporal limitation from the date of the alleged violation, applicable to complaints..Counter-terrorism and security measures and accountability for serious human rights violations.India reported that certain "disturbed areas" suffer from terrorism and insurgency, leading to an acute "law and order situation" necessitating the involvement of the armed forces, which operate under the Armed Forces (Special Powers) Act, 1958 and the Jammu and Kashmir Armed Forces (Special Powers) Act, 1990..The UNHRC noted that while these measures could constitute emergency measures, India had not officially declared a public emergency, as provided in Article 4 of the ICCPR and General Comment no. 29 on 'states of emergency'..The UNHRC was concerned that provisions of such Acts and related counter-terrorism legislation were not in compliance with the ICCPR. The UNHRC was particularly concerned by the provisions of counter-terrorism legislation regarding the: a) extensive powers to use lethal force; b) preventive detention without charge or judicial review for exceptionally long periods; and c) extensive power granted to executive bodies under broadly and vaguely defined terms, including designating individuals responsible for acts that are "likely to threaten" or "likely to strike terror in people", which could infringe the presumption of innocence and be misused against dissidents and activists..Also read: Monsoons set to add the torment of high humidity to the woes of intense heat of prisoners.As a result of this legislative framework and its application, the UNHRC remained concerned that the application of counter-terrorism legislation for decades in "disturbed areas" such as districts in Manipur, Jammu and Kashmir and Assam and other territories, had led to widespread and grave human rights violations, including excessive use of force leading to unlawful killings, arbitrary detention without formal charges for years, habeas corpus petitions that are not dealt with expeditiously, sexual violence, forced displacement and torture and ill-treatment..“The UNHRC noted that the provisions of Article 9 of the ICCPR on the right to liberty and security of person were only applied in India if consistent with Article 22 of the Indian Constitution..It was stated that India review existing counter-terrorism legislation, including the Armed Forces (Special Powers) Act, 1958, the Jammu and Kashmir Armed Forces (Special Powers) Act, 1990, the National Security Act, 1980, the Unlawful Activities (Prevention) Act, 1967, the Jammu and Kashmir Public Safety Act, 1978 and the Chhattisgarh Special Public Security Act, 2005, that does not comply with the ICCPR and ensure its compliance with its obligations under the ICCPR, as well as the principles of legal certainty, predictability, necessity and proportionality..It was underlined that India: (a) Ensure that counter-terrorism legislation is not invoked or applied to unjustifiably limit any right enshrined in the covenant, including the rights to life, liberty and security of person, procedural guarantees, such as the presumption of innocence, and freedom of expression and association and to crack down on human rights defenders, journalists, peaceful protesters and political opponents, among others..(b) Ensure that persons suspected of or charged with terrorist acts or related offences are provided, in law and practice, with all appropriate legal and procedural safeguards, including against arbitrary detention; that their detention be reviewed in a prompt, thorough and impartial manner by relevant judicial authorities, including through effective habeas corpus; and that anyone arbitrarily detained is released without conditions and adequately compensated..(c) Ensure that counter-terrorism and other security or counter-insurgency-related measures in disturbed areas are temporary, proportionate, strictly necessary and subject to judicial review..(d) Establish a mechanism with guarantees of independence, transparency and genuine investigation power to initiate a process to acknowledge responsibility, ascertain the truth and foster and preserve memory regarding human rights violations in disturbed areas..Also read: How the State uses 'national security' to spellbind the process of justice.The UNHRC was concerned that the requirement of mandatory prior authorisation of the government for the prosecution of the members of the security and armed forces in the context of counter-terrorism and security and military operations creates a climate of widespread impunity regarding allegations of human rights violations..In this regard, the Supreme Court of India in 2016 stated that allegations of extrajudicial killings "must be thoroughly enquired into"; however according to reports, out of the 1,528 documented instances of extrajudicial killings in Manipur from 1979 to 2012, only 39 first information reports (FIRs) were registered, of which not all have been scheduled for trial, due among other reasons refusal of sanction for prosecution..Right to life.The UNHRC expressed concern that India continues to impose a high number of death penalty sentences, including on offences not involving intentional killing; and that according to information received, persons belonging to socio-economically marginalised communities and religious minorities are disproportionately affected..UNHRC called for de facto moratorium on the death penalty.Given the UNHRC's General Comment no. 36 (2018) on the right to life, India should refrain from carrying out executions by keeping a de facto moratorium and take concrete steps towards adopting a de jure moratorium and the abolition of the death penalty..“UNHRC has asked India to ensure that anyone arbitrarily detained is released without conditions and adequately compensated..The UNHRC remained concerned by reports about 324 custodial deaths between 2019 and 2022; threats and intimidation to families of victims inquiring about such deaths; cases of rape by police officers of female and male detainees, particularly members of minorities and the refusals of the police to register rape complaints; and torture..The committee was concerned by the absence of an offence of torture in the new criminal code, the Bharatiya Nyaya Samhita, 2023. The UNHRC regretted that while India had already indicated a commitment to ratify the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in the previous dialogue in 1997, ratification is still pending..India should eradicate torture and ill-treatment.It should in particular:.Also read: "Sorry state of affairs", says SC while quashing Delhi HC interim Orders staying bail for more than a year.(a) Amend the new criminal code, the Bharatiya Nyaya Samhita, 2023 to establish a specific crime of torture, in accordance with Article 7 of the ICCPR with sanctions commensurate with the gravity of such offence..(b) Conduct thorough, independent and impartial investigations into all allegations of torture and ill-treatment and deaths in custody in accordance with the Istanbul Protocol and the Minnesota Protocol; prosecute perpetrators, including of law enforcement officers; and, if they are convicted, punish them with sanctions commensurate with the gravity of the crime; provide victims with full remedy and redress, including rehabilitation..(c) Take all measures necessary to prevent torture and other cruel, inhuman or degrading treatment or punishment, including by strengthening the human rights training provided to judges, prosecutors, law enforcement officials and forensic medicine personnel, and including training on international human rights standards, such as the Méndez Principles..(d) Ensure that all persons deprived of their liberty have access to an independent, secure and effective complaints mechanism for the investigation of allegations of torture and ill-treatment; and guarantee the protection of complainants against reprisals..(e) Consider ratifying the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and its Optional Protocol..Liberty and security of person, administration of justice and fair trial.The UNHRC regretted that decisions of the Supreme Court relevant to the implementation of provisions of the ICCPR have not been effectively or fully executed. The UNHRC is also concerned about information received regarding cases of police arbitrarily arresting persons or detaining individuals for custodial interrogation without identifying themselves or providing arrest warrants..“The Supreme Court of India in 2016 stated that allegations of extrajudicial killings "must be thoroughly enquired into"..While the Supreme Court has provided extensive guidelines to grant compensation for violations of human rights, victims of unlawful arrest or detention rarely receive it..The committee is also concerned by the fact that despite the efforts made by India to strengthen the legal aid framework, individuals accused of criminal offences have limited access to legal aid, particularly in police stations; by initiatives for non-lawyers to provide legal aid; and by reports of poor-quality legal aid..Also read: Incarceration of Khurram Parvez and Irfan Mehraj has made human rights work in Kashmir extremely difficult, FIDH's Juliette Rousselot.The UNHRC was also concerned by information about foreign nationals confined in prison after having completed their terms of sentence while waiting for repatriation..Furthermore, the UNHRC regretted the application of the Unlawful Activities Prevention Act, 1967 to Arundhati Roy in response to her comments on Kashmir made at a conference in 2010, and to Sheikh Showkat Hussain accusing him of aiding secessionist movements in Kashmir..In accordance with the committee's General Comment no. 35 (2014), the State party should:.(a) Take necessary measures to ensure that the decisions of the Supreme Court related to the implementation of the provisions of the covenant are duly and promptly executed..(b) Investigate promptly, thoroughly and impartially cases of arbitrary detention, prosecute perpetrators and punish them with penalties commensurate with the gravity of the offence, if convicted. Victims should have access to effective remedies and adequate compensation..(c) Ensure that detained and arrested persons suspected of or charged with terrorist acts or related offences are provided, in law and in practice, with all appropriate legal and procedural safeguards in accordance with the ICCPR, including against arbitrary detention and provide effective access to skilled legal aid lawyers..(d) Ensure that foreigners who have completed their sentences are released and repatriated, ensuring that the principle of non-refoulement is respected..Undertrials.The UNHRC was concerned that more than 75 percent of the prison population was undertrial in 2022, with a disproportionate number of Muslims, Dalits and Adivasis and people living in poverty..“Of the 1,528 documented instances of extrajudicial killings in Manipur from 1979 to 2012, only 39 FIRs were registered, of which not all have been scheduled for trial..The UNHRC took note of the measures adopted by India to facilitate timely judicial proceedings, but it is concerned about the extraordinarily lengthy pretrial detention periods, judicial delays and case backlogs, as well as the insufficient number of judges and magistrates..The figures of the undertrial prison population are also exacerbated by the priority given to jail over bail, the difficulty of obtaining bail, as well as arbitrary arrests and illegal detentions..The committee is also concerned about the reversal of the presumption of innocence with respect to bail applications by those accused of terrorism offences under the Unlawful Activities (Prevention) Act 1967..Also read: Casual and mechanical staying of bail Orders disastrous for human liberty, says SC.In light of the UNHRC's General Comment no. 35 (2014), on liberty and security of person, the State party should significantly reduce the use of pretrial detention including through the wider application of non-custodial measures as an alternative to incarceration; and ensure that all detained persons are afforded in practice all the fundamental legal and procedural safeguards from the outset of their detention. In particular, it should:.(a) Ensure that persons being held in pretrial detention are informed of their rights, that they have prompt access to counsel, that criminal charges are promptly filed— when relevant— and that trials are held expeditiously and in public..(b) Increase the availability of and recourse to alternatives to pretrial detention, in the light of the Tokyo and Bangkok rules, including by giving due consideration to such alternatives, particularly when delays in investigations or trials are unavoidable, and promote and ensure effective access to the right to bail..(c) Ensure that pretrial detention is exceptional, only imposed when necessary and for a period that is as short as possible; that detention is imposed without any discrimination; and that statutory limits on detention are strictly enforced..(d) Establish systematic and regular judicial monitoring of the duration of pretrial detention and provide effective access to judicial review of the legality of detention and to remedies for those unlawfully held in custody beyond statutory limits..“The UNHRC regretted the application of the Unlawful Activities Prevention Act, 1967 to Arundhati Roy in response to her comments on Kashmir made at a conference in 2010..(e) Increase the financial, technical and human resources provided for the administration of justice and support its effective and timely functioning..Treatment of persons deprived of liberty.While the UNHRC took note of the measures taken by India to improve conditions in prisons, it remained concerned about the extreme overcrowding of detention centers and deplorable conditions regarding, among other, access to adequate medical services, including for mental care; hygiene and sanitation; adequate nutrition and drinking water; and the possibility to contact family, counsel and diplomatic or consular officers (for foreign detainees)..Also read: Why Mahesh Raut needed an interim bail on top of regular bail to attend his grandmother's funeral.The UNHRC was also concerned by the lack of capacity to provide adequate conditions of confinement of pregnant and lactating women and children; and access to sanitation and hygiene. It was also concerned by reports about juveniles being detained with adults, especially in rural areas..India should significantly and promptly reduce overcrowding in prisons, and other places of detention, including through the wider application of non-custodial measures as an alternative to imprisonment, as mentioned above. It should also:.Prohibition of torture and other cruel, inhuman or degrading treatment or punishment and liberty and security of person.(a) Intensify its efforts to ensure that conditions of detention fully comply with relevant international human rights standards, including the Mandela and Bangkok rules, the UN Rules for the Protection of Juveniles Deprived of their Liberty and the UN Standard Minimum Rules for the Administration of Juvenile Justice; assuring an adequate access to health services (including mental health), food, drinking water, hygiene and sanitation; as well as rehabilitation and reintegration support services..(b) Ensure adequate access to counsel and diplomatic or consular officers when required, as well as regular family visits..(c) Guarantee that women deprived of their liberty, particularly those who are pregnant and those with dependent children, receive adequate care and services that meet their specific needs and take account of the best interests of their children..Part 2 will be published next week.
