The United Nations member states have recommended India to bring some changes in its stand on various human rights issues at the UN Human Rights Council’s Universal Periodic Review process on November 10, 2022.
Through these recommendations the member states expressed their concerns regarding how India deals with gender-based violence, protecting human rights defenders, upholding civil society freedoms, the protection of minority communities and vulnerable groups, and ending torture in custody.
They have called for tougher stands on the above issues.
The Universal Periodic Review (UPR), which is conducted every four years, is a mechanism for evaluating member states’ human rights records. Any member state may query the state being reviewed and offer suggestions. Every UN member states participate in the review process. The process also recommends suggestions to enhance the human rights conditions in the concerned country.
This is India’s fourth UPR review on Thursday, the last was held in 2017. During the meeting the member states emphasized more on lessening the broad implementation of India’s “anti-terror” laws.
The recommendations made concerns especially regarding Unlawful Activities (Prevention) Act (UAPA), which is believed as targeting minority groups and human rights activists, and not permitting them a chance for a fair trial.
130 member states made 339 recommendations during the meeting and exposing some of the nation’s most pressing human rights issues.
The Indian delegation was led by solicitor general Tushar Mehta. The delegation commenced the meeting and made a series of short presentations about government policies protecting the rights of many marginalized communities.
The recommendations will be collaborated in a report which would also include India’s response to each of the concerns. The final report will be adopted next week. Following are the various concerns the UN member states raised.
Restrictions on civil society
The states suggested for an urgent review of India’s anti-terror laws to make freedom of expression more effective.
The United States representative, Michele Taylor lashed out at India, saying that “despite legal protections, discrimination and violence based on gender and religious affiliation persist”. She also recommended reducing the “broad applications” of the Unlawful Activities Prevention Act (UAPA) and related laws against human rights activists, journalists, and religious minorities. “The application of anti-terror legislation has led to prolonged detentions of human rights defenders and activists, often in a pre-trial status,” she said in Geneva.
Canada agreed with the US in saying that the UAPA was pliable with international human rights laws to make media freedom effective.
The US also called for “transparency of license adjudications related to the Foreign Contribution Regulation Act (FCRA) and create easier pathways for NGOs to appeal adverse government decisions on FCRA licenses”.
Estonia recommended that India should review the FCRA and UAPA to “ensure freedom of expression, assembly and association and the protection of civil society organisations and human rights defenders”.
Similar recommendations were made by other European countries, including Ireland, Germany, Switzerland and Belgium. Luxembourg asked for the release of “all detained human rights defenders”. Italy conveyed that India should “ensure a safe and enabling environment for civil society, as well as freedom of expression and media freedom and ensure accountability for violations”.
Finland recomended boosting the implementation of the Whistleblowers Protection Act, 2014 and giving universal protection to all whistleblowers.
India’s response: Mehta stated that India welcome the role of human rights defenders (HRDs), civil society groups and journalists, and asserted, “At the same time, the activities of HRDs should be in conformity with the law of the land”.
He also observed that the Indian government has “always condemned” harassment, intimidation, smear campaigns, and violent attacks against human rights defenders, activists, journalists, and their family members. He cited the Right to Information Act and the Whistleblowers Act as tools for empowering legislations. “In addition, they can also approach the judiciary for redressal of violations,” he said.
Strongly defending the FCRA provisions, Mehta said that actions “were taken against some organisations due to their illegal practices, including malafide rerouting of money and wilful and continuing violations of extant legal provisions, foreign exchange management rules and tax laws of India”.
“It is important to reiterate that civil society organisations are permitted to operate in India but must do so in accordance with law,” he further said.
India’s solicitor general responded to criticism of the abuse of anti-terror laws by stating that regulations like UAPA, the Armed Forces (Special Powers) Act (AFSPA), and the National Security Act “deal with the menace of terrorism and protect the sovereignty and integrity of India”. He stated that there were “adequate safeguards inbuilt against any potential misuse”.
Freedom of expression and opinion
There was a strong consensus among various European and Latin American nations that India needed to improve its freedom of expression and the right to peaceful assembly.
Lithuania recommended review if India’s national regulations to reinforce freedoms of expression, peaceful assembly and association. The Czech Republic advocated for removal of crimes of sedition and criminal defamation in the Indian Penal Code “in order to be in line with international standards on freedom of expression”.
Regarding journalists’ protection, Greece suggested efforts to shore up the legal framework for the freedom of expression, “including strengthening a safe space for journalists and civil society organisations”.
According to the Software Freedom Law Centre, there have been 682 internet shutdowns in India, majorly in Jammu and Kashmir. Two countries strongly observed that India need to improve its record on this front.
Switzerland recommended leaving any measure that slows down or blocks Internet connection”. Costa Rica said that India should “guarantee freedom of expression and the right to information, eliminating restrictions to access information online and on social networks”.
India’s response: Tushar Mehta defended that the constitutional guarantee for the fundamental right to freedom of speech and expression was not absolute in nature and subject to reasonable restrictions. He further said that these restrictions were consonant with Article 19(3) of the International Covenant on Civil and Political Rights.
Mehta referred to the Supreme Court’s order to read down Section 66A of the Information Technology Act as “unconstitutionally vague,” explaining that Indian courts have stated that such restrictions must not be excessive or disproportional.
Mehta noted that “imposing reasonable restrictions enables the state to regulate the freedom of expression when it comes to hate speech or when it comes to an offence”.
Anti-conversion laws and attacks on minorities
Even in the past UPRs, the European Union members urged for the repeal of anti-conversion laws implemented by various state governments.
Referring the same, the Dutch representative said that India should “take measures to prevent the abuse of so-called ‘anti-conversion’ laws, ensuring that such laws do not infringe upon the constitutionally-guaranteed freedom of religion and belief”.
Other countries urged India to ensure that legislations are not in conflict with constitutional provisions. The US asked India to condemn and address hate speech against minorities.
Among developing countries, South Africa urged the Indian government to hold “accountable public officials who advocate religious hatred that constitutes incitement to discrimination, hostility, or violence”.
India’s response: India’s second highest law officer, Tushar Mehta said that legislations implemented by the state governments do not permit conversions from one religion to another “by the use of force, inducement, allurement or fraudulent means”.
“Referring to such legislation as anti-conversion law would be a misnomer,” Mehta said. He said that the Supreme Court had upheld the constitutional validity of Freedom of Religion Acts passed by state governments.He also added that India “not only respects but celebrates diversity”.
“The provisions embodied in the Indian constitution related to freedom of religion have evolved over the years through robust legislation and spirited interpretation by the constitutional courts,” said Mehta.
AFSPA repeal
The Norwegian delegate suggested that the law be changed to be in compliance with international treaties, while Belgium called for the withdrawal of AFSPA from the jurisdictional areas where it is still fully or partially in effect.
India’s response: Responding to this, Mehta said that AFSPA is “periodically reviewed” based on the requests of state governments and information from the central agencies “based on ground situation”. He iterated that the Act had been completely taken off from the states of Tripura and Meghalaya in the previous years. This year, AFSPA was also removed from several districts in Assam, Nagaland and Tripura, added Mehta.
Death penalty
Seventeen countries called for India to put a ban on the death penalty. Many of them asked India to consider signing the Second Optional Protocol to the International Covenant on Civil and Political Rights aimed at the abolition of the death penalty.
India’s response: Disagreeing with the recommendation, solicitor general Mehta defended India’s stand by saying that the death penalty is “only imposed in rarest of rare case when the alternative option is unquestionably foreclosed when the crime committed is so heinous that it shocks the conscience of society”.
Kashmir
Reversing the weakening of Article 370, adhering to UNSC resolutions, allowing the Office of the United Nations High Commissioner for Human Rights to visit, and releasing journalists, HRDs, and others were the four suggestions made by Pakistan in relation to Kashmir.
Longtime Pakistani ally Turkey called for peace but avoided bringing up any human rights abuses in Kashmir. “Finally, regretting that solid peace and cooperation has not taken root between India and Pakistan even 75 years after their independence; we wish for a fair and lasting peace in Kashmir,” said the Turkish official.
India’s response: In response, Solicitor General Mehta argued that Jammu, Kashmir, and Ladakh “were and will always be an integral and inalienable part.”
He asserted that people have been able to “realize their full potential” as a result of the 2019 constitutional reforms, the security environment has ” improved significantly” despite “cross-border terrorism,” and there has been a ” restoration of democracy at ground level.”
Rights of marginalized sections of society
Unsurprisingly, 44 nations brought up the issue of women’s rights, which was possibly the main point of discussion. By urging India to “continue its efforts to secure safety and security of women, remove all forms of discrimination against women, and promote their empowerment,” North Korea, the day’s first member state speaker, set the tone for the discussion.
India’s response: In his two subsequent interventions, the SG did not specifically address the concerns of women, children, or other communities. In their earlier remarks, the other delegation members from other ministries had made mention of the focused continuing government policies.
