States not taking India’s worsening human rights record seriously: Reflections on India’s UPR
10 December 2022
Sonja Biserko, Marzuki Darusman, Stephen Rapp
In June 2022, we the authors – who have led efforts internationally to investigate serious human rights violations and to seek accountability for the victims and survivors of these violations in multiple country situations around the world – published a comprehensive report on alleged violations against India’s Muslims since 2019, building on documentation by reputable media, academic institutions, civil society groups and United Nations organs. We found that there is credible evidence to suggest that a wide range of international human rights of Muslims communities have been violated by the authorities in India. We argued that the situation showed a state-led systemic targeting of Indian Muslims because of their religion and status as a minority. We also found that most of the abuses and violations had remained unaddressed by domestic institutions, leaving victims with no effective remedy. Virtually no steps had been taken to investigate and prosecute the perpetrators, allowing impunity to flourish. This lack of domestic remedy remains true to this day.
Several reputable human rights groups too have repeatedly raised alarm about the deterioration of the situation in India faced by religious minorities, Dalits, Adivasis, as well as human rights defenders, despite repeated calls to prevent and remedy rights violations and secure accountability. This amounts to serious inaction on the part of Indian authorities. It speaks equally to the lack of action by the international community, particularly the states. Despite ample warnings and the serious regression in human rights situation especially for religious minorities under the Hindu nationalist Bharatiya Janata Party, the international community has been slow to heed the alerts and take urgent action to prevent massive violations of human rights.
India’s human rights record was reviewed recently by the Human Rights Council, in a peer review process that is repeated every 5 years, for all UN members. At the recent Universal Periodic Review of India, 130 member states made 339 recommendations highlighting some of the most urgent human rights concerns in the country. We welcome the fact that 21 countries urged India to improve its protection of freedom of religion and right of religious minorities, with several raising concern over increasing violence and hate speech and discriminatory policies. Yet, some of the important issues received only little to no attention from the state delegations , despite extensive reporting and advocacy by civil society, as well as UN experts, included:
- continued detention under anti-terror legislations and harassment of human rights defenders and journalists, including the case of the custodial death of Father Stan Swamy;
- lack of investigation and prosecution of public figures accused of hate speech, incitement to genocide and violence against minority communities;
- denial of freedom of religious beliefs, expression and education of Muslim girls and women with a ban on wearing hijab while attending education institutions;
- provisions in domestic law that either deny right to fair trial (such as Unlawful Activities Prevention Act, National Security Act, Public Safety Act) or those that prevent accountability for serious abuses, such as Armed Forces Special Powers Act and Section …of Indian Penal Code;
- discriminatory legislations and policies targeted at religious minorities, such as the Citizenship Amendment Act, the National Register of Citizens in Assam, and India’s failure to ratify the Refugees Convention and Convention on Statelessness;
- worsening restrictions on basic freedoms in Jammu & Kashmir affecting journalists, human rights defenders and citizens
Indian delegation’s response to these issues, when raised, was marked by evasion, misinformation and often bluster. Responding to concerns about the treatment of human rights defenders, the head of the delegation, while conceding the important role played by human rights defenders, warned that the activities of the human rights defenders should be in
conformity with the law of the land. He justified the lawfulness of the Unlawful Activities Prevention Act, by claiming it provides for state responsibility to protect citizens against terrorism. There was similar fending off of criticism of the use of Foreign Contribution Regulation Act, by blaming NGOs of breaking local laws, and of anti-conversion laws in place in many Indian states, by claiming that these in fact promote freedom of religion. There was little attempt by the Indian delegation to engage seriously even with the conservative concerns raised during the review. Against such response, it appears unlikely that the recommendations of most relevance to minorities will be supported and implemented by India – a conclusion supported by India’s poor track record of implementing the most critical recommendations of past UPR cycles.
India’s response to past criticism of its human rights record externally, has also been cavalier. India has mostly attempted to ride out the criticism by claiming ‘the largest democracy’ label, or that its domestic institutions, including judiciary and media, are independent and robust, thus it does not need external review. India’s stance on any question about its human rights situation has been to consistently argue that it is an internal matter and should be treated as such.
What is worrying though is how accommodating the international community has been of these bad faith responses. Lack of external pressure has meant that abuses continue, and that there is no justice for victims or accountability for perpetrators at domestic or international levels.
Human rights, especially the most serious violations, are not an internal issue for governments, but a concern for international community, as a whole. The challenge is that formal spaces for international accountability for even these most serious crimes are by and large absent when they concern India. Despite India’s commitment to the contrary, it is not a state party to the Rome Statute of the International Criminal Court, the principal fora for accountability for international crimes. It has also not acceded to the individual complaints mechanisms contained in international treaties, such as the International Covenant for Civil and Political Rights (ICCPR), thus closing off those quasi-judicial options too for victims to bring cases. Its engagement with United Nations independent mandate holders too has been passive to say the least. That leaves administrative avenues for accountability, such as Global Magnitsky international human rights legislations now in place in several countries. Recent analysis goes to show that despite the existence of several instances of sanctionable offences from India, perpetrators from India have not figured on the list of those sanctioned.
The situation for the over 250 million-strong Muslims and other religious minorities in India, continues to worsen. With several state-level elections imminent and national elections scheduled for early 2024, the situation for India’s minorities is likely to deteriorate further. Beyond its horrendous human cost, any deterioration will further destabilise the already volatile South Asia region.
As a way forward, we propose initiation of formal investigations by a competent, independent and impartial body, mandated by the UN, which would conduct in-depth investigations into the allegations we uncovered in our report with a view to ensuring accountability in the future, as well to act on the early-warning signs emerging in India, to prevent future atrocities. This would require a sustained effort from all stakeholders, including the states, international civil society, and the UN mandate holders.
As the world observes the International Human Rights Day, we hope that the international community will prioritise human rights and the responsibility to protect over political considerations, take action to investigate past and ongoing human rights violations against Muslims and other minorities in India and demand that India live up to its obligations to prevent the commission of even greater atrocities against the minorities.