Rights in Retreat

By Devendra Saxena

Human rights’ is probably the most abused phrase in the international political lexicon. The US, which is mindful of human rights violations in places as far afield as India, China and Venezuela, keeps mum when small children die on its border with Mexico or when the Israeli Army kills more than 20,000 [25,000] civilians in Gaza, with active US support.

Sadly, such hypocrisy is the hallmark of most of the Western world. The United Nations has defined human rights as rights that all humans have, simply because they exist as human beings -such rights are not granted by any State or other agency.

Human rights are inherent to all human beings, regardless of nationality, sex, ethnic origin, colour, religion, language, or any other status. They range from the most fundamental -the right to life- to those that make life worth living, such as the rights to food, education, work, health, and liberty.

Adoption of the Universal Declaration of Human Rights (UDHR), by the United Nations General Assembly, in 1948, has made protection of human rights a universal obligation. UDHR has been reinforced by two covenants – the International Covenant for Civil and Political Rights, and the International Covenant for Economic, Social and Cultural Rights – which, taken together are called the International Bill of Rights.

These covenants enjoin all States to recognise human rights as inalienable, indivisible and interdependent. Under international law, these conventions cast an obligation upon all States to respect, protect and fulfil human rights. The UNGA has created the Human Rights Council as the key UN intergovernmental body responsible for protection of human rights.

The Human Rights Council reports directly to the UNGA, and is mandated to address situations of human rights violations, and respond to human rights emergencies. The most innovative feature of the Human Rights Council is the Universal Periodic Review. This unique mechanism involves a review of the human rights records of all 193 UN member states, once every four years. The Office of the High Commissioner for Human Rights (OHCHR), serves as the secretariat for the Human Rights Council.

The High Commissioner for Human Rights exercises principal responsibility for UN human rights activities. The High Commissioner is mandated to respond to serious violations of human rights, and to undertake preventive action. Individuals, whose rights have been violated can file complaints directly to Committees overseeing human rights treaties. Almost all countries have incorporated human rights in their local laws.

Chapter three of the Indian Constitution defines the six Fundamental Rights, viz. the right to equality, right to freedom, right against exploitation, right to freedom of religion, cultural and educational rights, and right to constitutional remedies. No law can be enacted to take away or abridge a fundamental right, and all laws are void to the extent they impinge on a fundamental right. In addition to the Courts, we also have the National Human Rights Commission (NHRC), set up under the Protection of Human Rights Act 1993.

The Commission enquires into complaints of violation of human rights or negligence in the prevention of such violation by a public servant. NHRC is headed by a Chairperson, ordinarily a former Chief Justice of India. The Paris Principles of the UN which the NHRC is required to follow are: Mandate and competence, Autonomy from Government, Independence guaranteed by a Statute or Constitution, Pluralism, Adequate resources; and adequate powers of investigation. Mirroring the NHRC all States have State Human Rights Commissions (SHRCs).

However, the record of NHRC and SHRCs vis-à-vis enforcement of fundamental rights does not inspire much confidence. Annual Reports of the NHRC are not publicly available after 2018-19; looking at the latest monthly statistics one finds that there is a huge backlog of cases in crucial spheres e.g., during the month of November 2023, out of 10 cases of deaths in police custody, investigations in only two cases were completed, leaving a backlog of 285 cases.

Similarly, 12 deaths in police encounters were reported, out of which one was investigated, leaving a pendency of 252 cases. One doesn’t often hear about some pro-active action by NHRC, a glaring example is its complete silence in the ethnic strife in Manipur.

The principal violator of human rights is the police, since the only method of crime detection known to inadequately trained policemen is to beat suspects, or related persons, to extract a ‘confession.’

Generally, such ‘confessions’ fall apart in court due to paucity of corroboratory evidence leading to allegations of soft-pedalling against the judiciary. One can only draw consolation that police forces of most countries have a similar, blemished track record; police in the US is notorious for gunning down/ beating to death innocent blacks who fall in their clutches.

The US State Department, Amnesty International, Human Rights Watch, European Union and Freedom House have all castigated India’s human rights performance, pointing to the existence and mindless implementation of draconian legislation like the Unlawful Activities Prevention Act and the Armed Forces (Special Powers) Act.

The US Commission on International Freedom has alleged that the Indian Government had “promoted Hindu nationalist policies resulting in systematic, ongoing, and egregious violations of religious freedom” asking the US State Department to name India as a “country of particular concern.” However, the Government of India has denied all such allegations. India has a liberal constitution, a free press and also, anomalously, a bureaucracy and police that enforce the law with a colonial mindset.

Add to it, a thin-skinned ruling class which believes in the medieval principle of lèse-majesté, equating opposing political views and political satire to treason, and you have a situation where dissent is criminalised. This provides sufficient ammunition to international human right activists to show India in a poor light. This is not to whitewash the dismal record of our enforcement agencies who believe that killing or maiming criminals will eliminate crime.

Replying to a question in Parliament, the Minister of State for Home Affairs stated that there had been 655 encounter killings, between 1 January 2017, and 31 January 2022. The states with the worst records were Chhattisgarh with 191 killings, Uttar Pradesh with 117, Assam with 50, Jharkhand with 49, Odisha with 36, Jammu and Kashmir with 35, and Maharashtra with 26. The most notorious cases included the death of gangster Vikas Dubey and five of his accomplices in separate encounters in 2020.

Controversy also surrounds the shooting of Atiq Ahmed and his brother Ashraf, in the presence of a large posse of policemen. Atiq’s son, Asad, had been killed in an encounter a few days earlier. After the killing of Atiq and Ashraf, the UP Chief Minister declared that “no mafia will spread terror in UP today” and “those who were a threat are now under threat themselves.”

Very recently, after an ambush in J&K, in which four jawans were killed, fifteen villagers were rounded up; three were tortured to death, and the rest had to be hospitalised with grievous injuries. Acknowledging State culpability, the J&K Government ordered monetary compensation and promised a job to a relative, but said no word about action against the perpetrators. Such impunity is fatal for our claim of being a country observing the rule of law.

There are many reasons for the poor human rights record of our enforcement agencies; the first being the politician-criminal nexus brought out in the NN Vohra Committee Report (1993), the second being endlessly prolonged trials that have eroded public trust in the criminal justice system, which makes instant retributive justice acceptable to the public, and the third being lack of the knowledge of modern investigative methods that makes the police commit human rights violations.

Obviously, systemic reforms are needed to better our human rights record which may not be possible in the short run. The bottom line is that we can ignore human rights violations at our own risk. As Bertolt Brecht, the theatre practitioner, playwright, and poet had said: First of all, they came to take the gypsies
and I was happy because they pilfered.
Then they came to take the Jews and I said nothing,
because they were unpleasant to me.
Then they came to take homosexuals,
and I was relieved, because they were annoying me.
Then they came to take the Communists,
and I said nothing because I was not a Communist.
One day they came to take me, and there was nobody left to protest.

(It was first published in the Statesman. The writer is a former Principal Chief Commissioner of Income-Tax).

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I write because there is some lie that I want to expose, some fact to which I want to draw attention, said George Orwell. As a writer, I never kowtow to the whims and dictates of the sacred godmen or godwomen, the political bigots and hypocrites, dealers of laymen, the dishonest and self-serving intellectuals, traders of religions, the betrayers of ‘other’ Indians who eke out a living by their sweat, who are living in fear for being lynched for this and that.

Articles: 117