By Komal Khan
The forty-first session of the Human Rights Council’s Universal Periodic Review (UPR) Working Group is being held in Geneva starting from 7th November to 18 November. During this review, 14 State under Review (SuR) are having examined their human rights records and India is one of them. India is expected to present its human rights obligations and commitments to the working group which would assess the positive developments and identify challenges that India has to meet in its compliance with human rights standards.
The report providing an overview of the submissions of the various Stakeholders that include prominent international human rights agencies underscores the increased rate of violations of human rights by in India. An account of sensitive issues discussed in the report that require constitutional and legislative framework include national anti-torture law as recommended by the National Campaign against Torture (NCAT), criminalization of hate speech and prevention of communal violence, anti-discrimination law and, in consideration of that, recognition and protection of human rights defenders and agencies in compliance with international standards. A special focus was made on law enforcement agencies to criminalize torture and inhuman treatment. National Human Rights Commission forwarded concerns regarding sexual harassment, crimes and discrimination against women, children, transgender community, scheduled casts and minority communities.
India’s Human Rights Record: An Assessment
The comparative analysis of human rights violations in contemporary India and India’s legal framework case poses question over supremacy of the articles 14, 19, 20, 21, 44, and 51A-(e) of the Indian constitution that protect the all Indian citizens’ equality before law, their freedom of expression, in respect of conviction for offences, protection for personal liberty, uniform Civil code for all, and their fundamental duties including the duty to promote inclusivity irrespective of religious, linguistic, gender, regional and sectional differences.
The ethnic and communal pluralism compels Indian constitutional framework to vividly uphold the formal equality and secularism; and theoretically, it did. However, this religious freedom has also been conditioned to a vague constitutional phrase that states “subject to public order”. It permits suspension of minority rights for domestic security and peace, thus legalizing political encroachment of democratic principles and human rights principles.
Prime Minister Modi’s government, affiliated with Hindu extremist groups, has not only publicly used venomous language but also encouraged illegal detentions and mob violence against the religious minorities and human rights activists. A teenager activist, Amulya Leona who utilized social media platform to speak against the BJP draconian laws of CAA, NPR and the NRC had been arrested for sedition charges in February 2020 by registering a suo- moto case under Section 124A. Her speech in Delhi that victimized her was based on the public narrative of security of fundamental rights of all Indians irrespective of their territorial affinities, ethnicities, caste and religion.
This being in practice and contrary to Indian legitimate secular architecture, the metamorphing Hindu political engineering has been a cause of conflict between Indian nationalism and the human security of not only its minorities, but also of intra-Hindu sub-sections. In the review summary, the European Centre for Law and Justice (ECLJ) stated that despite its abolishment, the caste system was in practice still very much prevalent, especially in rural areas and states that had anti-conversion laws. It states that the scheduled Castes and scheduled tribes were economically deprived and socially marginalized, and lacked resources, access to education, employment and other income-generating opportunities. It recommends that the government remove all religious references to the application of the Presidential Constitution regarding (Scheduled Castes) Order 1950 to allow all Dalits, irrespective of religion, to benefit from affirmative action. Right to life, liberty and security of person, and freedom from torture are inalienable and non-compromising rights every human have as per international standards.
Edwards Newman rightly portrays the political patterns of India under conservative populism. Human security in Modi’s India does reflect the cultural and geostrategic orientation religio-communal conservatism. In cultural perspectives, the Indian minorities have been structured in a fluid hierarchical pattern, though this is not a recent stratification. BJP administration has complicated this relationship not only by demanding acculturation of minority communities, but has also intensified conservatism to the level of extremist policies of declaring the minorities stateless. This has been done by implementation of measures such as the Citizen Amendment Act (CAA), and National Population Register (NPR) 2019-2020; under the Pan Indian National Registration of Citizen law (NRC). These rulings by the BJP are actually an outcome of the BJP’s innovated ethnocentric politics of Hindutva constitutionalism.
Violence, Discrimination, abuse, and intolerance have seen a spike in Modi’s terms. The United States Commission on International Religious Freedom Report 2020 keeps India under close watch over its engagement and tolerance of religious freedom abuses by granting her a Tier 2 status. According to the commission’s report, the long held constitutional rights guaranteed to the communal and religious minorities of India, are witnessing a continued erosion. It highlights ban on interfaith marriages based on the false narrative of forced conversions. The review report denies existence of anti-conversion laws implemented by the India government; however, the reality is that anti-conversion laws have been framed and an example of that is the anti-conversion ordinance passed in 2020 by the Uttar Pradesh government that voids any marriage that serves the “sole purpose of unlawful conversion or vice-versa”.
The United States Commission on International Religious Freedom Report 2021 also identified India’s increasing restrictions on international human rights agencies. In September 2021, the amendment made into the Foreign Contribution Regulation Act (FCRA) imposed increased restrictions on the free functioning of nongovernmental organizations (NGOs), including religious organisations and human rights agencies; thereby, also forcing many to shut down including the Amnesty International India in October 2021 after its bank account was frozen by the Indian government.
India’s score in the democracy index shows a dramatic fall in the present administration due to the democratic regression caused by violation of public liberties and freedoms. At the end of Modi’s first term, the report given by the Democracy Index 2021 by the Economist Intelligence Unit (EIU) assigned India the status of ‘flawed democracy’ with a rank of 46/167 and a score of 6.91. However, self-correction in democracy is conditioned to security of parliamentary opposition.
However, this is not the case in India. In the rising Hindutva theocratic regime under the BJP, the opposition is subjected to the ‘policy of preventive arrests as a part of political activity’; as stated by the national general secretary of BJP Ram Madhav; in order to ensure resistance-free passage of anti-democratic legislations like Citizen Amendment Act, and revoking the special status of Kashmir under Article 370. The August 5, 2019 (Jammu and Kashmir annexation Day) was slammed by Opposition as “the day of shame”. Following the event, several leaders of the Kashmir assembly including Mehbooba Mufti from the People’s Democratic Party (PDP), Omar Abdullah from the National Conference, Sajjad Lone and Imran Ansari from People’s Conference, the separatist leader Yasin Malik and others were arrested for challenging the constitutionality of the unilateral legislation made by the Indian union parliament. Another major event of political detention characterized the arrests of many Congress leaders; most prominently the Anil Kumar, head of the Delhi Unit; during the pro-democracy and constitutionalism protests against the BJP’s political coup to overthrow the Rajasthan government. The Indian National Congress member of Lok Sabha and prominent writer in South Asian affairs, Dr. Shashi Tharoor criticizes the brand new episode of the BJP’s political drama in terms of gross violations of constitutional parliamentary procedures.
Democracy, supremacy of parliamentary process, and the human security form an inseparably inter-linked phenomenon. Para 3 of the Universal Declaration on Democracy 1997 notes that the aim of democracy as an ideal is the preservation and promotion of fundamental rights of the individuals including social justice and economic development.
*The author is working as a Research Officer at the Strategic Vision Institute (SVI), a non-partisan think-tank based out of Islamabad, Pakistan.*