violation of civil / human rights in india: Honor Civil Rights of Indians

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Editor: Nagaraja.M.R.. Vol.08..Issue.04........28/01/2012

“There is a higher court than the court of justice and that is the court of conscience It supercedes all other courts. ”
- Mahatma Gandhi

Editorial : Honor Civil Rights of Citizens of India

The indian public servants must learn to respect Fundamental rights , Human Rights of Indian Citizens. They must allow the citizens to perform their fundamental duties without hindrance.

Preamble to the Constitution of India

“ WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:

JUSTICE, social, economic and political;

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

Main article: Fundamental Rights in India

The Fundamental Rights, embodied in Part III of the Constitution, guarantee civil rights to all Indians, and prevent the State from encroaching on individual liberty while simultaneously placing upon it an obligation to protect the citizens' rights from encroachment by society.^[19] Seven fundamental rights were originally provided by the Constitution – right to equality, right to freedom, right against exploitation, right to freedom of religion, cultural and educational rights, right to property and right to constitutional remedies.^[20] However, the right to property was removed from Part III of the Constitution by the 44th Amendment in 1978.^[21]^{[note 2]}

The Fundamental Rights are not absolute and are subject to reasonable restrictions as necessary for the protection of public interest.^[24] 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.^[28] 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.^[29] 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.^[30] 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.^[31] 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.^[32]

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. Background:

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
ALRC
Hong Kong

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.

On institutions to promote and protect human rights, India should:

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.

On discrimination and protecting vulnerable populations, India should:

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.

On access to palliative care, India should:

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.

On human rights treaties and UN special procedures, India should:

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.

The Universal Declaration of Human Rights

PREAMBLE

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,
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.

Friday, January 20, 2012

Honor Civil Rights of Indians

PREAMBLE

Article 1.

Article 2.

Article 3.

Article 4.

Article 5.

Article 6.

Article 7.

Article 8.

Article 9.

Article 10.

Article 11.

Article 12.

Article 13.

Article 14.

Article 15.

Article 16.

Article 17.

Article 18.

Article 19.

Article 20.

Article 21.

Article 22.

Article 23.

Article 24.

Article 25.

Article 26.

Article 27.

Article 28.

Article 29.

Article 30.

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