Space for civil society is being
contracted
A statement by the UN special rapporteur on
the situation of human rights defenders as she concluded a recent
visit to India
From January 10 to 21, 2011, I carried out a fact-finding mission to
assess the situation of human rights defenders in In- dia and
travelled to New Delhi, Bhubaneswar (Orissa), Kolkata (West Bengal),
Guwahati (Assam), Ahmedabad (Gujarat), Jammu and Srinagar (Jammu and
Kashmir).
I met with the foreign secretary; the union home
secretary; the additional secretary (international organisations and
environment diplomacy); the joint secretary (human rights), ministry
of home affairs; the state chief secretary, state home secretary and
director general of police in states visited; the chairperson of the
National Human Rights Commission; members of the statutory full
commission; chairpersons and members of State Human Rights
Commissions; and judges from the high court in Delhi. However, I
regret I was unable to meet the prime minister or with members of the
Parliament. I met as well with members of the diplomatic community
and United Nations agencies in the capital. Finally, throughout my
mission I met a very wide and diverse segment of civil society through
national and regional consultations.
I thank very much the
government of India for extending an invitation to me and for its
exemplary cooperation throughout the mission. I further want to thank
all human rights defenders with whom I had meetings, some of whom had
to travel long distances to meet me. Finally, I want to express my
appreciation to the office of the United Nations resident coordinator
in India for its invaluable support in preparation of and during the
mission.
While I must now take some time to review and analyse
the considerable amount of information I have received, and to follow
up on further exchanges of information with the government, human
rights defenders and other stakeholders, I would like to provide a few
preliminary observations and recommendations.
I first want to
commend the government for opening its doors to my mandate. Previous
requests to visit India were made by my predecessor in 2002, 2003 and
2004. This is an important development and I hope that the invitations
of other Special Procedures mandate holders will be similarly honoured
in the near future.
I further commend the government for
enabling me to visit five states, which assisted me in gaining a clear
understanding of the local specificities in which human rights
defenders work. Given the duration of the mission and the size of the
country, I regret I could not access all parts of the country but I
invite those who wish to do so to provide me with information now or
in the near future.
I note with satisfaction that India has a
comprehensive and progressive legal framework which guarantees human
rights and fundamental freedoms as enshrined inter alia in the
Constitution, the Protection of Human Rights Act, the Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act and the Right to
Information Act. I welcome the commitment expressed by Indian
authorities to uphold human rights.
I further welcome the draft
Bill on the Prevention of Torture with a view to ratifying the
Convention Against Torture in the near future.
Besides the
National Human Rights Commission and existing State-level Human Rights
Commissions, I note the existence of a wide range of statutory
commissions mandated to promote and protect the rights of inter alia
women, children, scheduled castes and scheduled tribes.
However, despite the aforementioned laws aimed at promoting and
protecting human rights, I note widespread deficiencies in their full
implementation at both central and state levels, adversely affecting
the work and safety of human rights defenders. Similarly, I have
observed the need for the National and existing State Human Rights
Commissions to do much more to ensure a safe and conducive environment
for human rights defenders throughout the country.
Throughout
my mission I heard numerous testimonies about male and female human
rights defenders, and their families, who have been killed, tortured,
ill-treated, disappeared, threatened, arbitrarily arrested and
detained, falsely charged, under surveillance, forcibly displaced, or
their offices raided and files stolen, because of their legitimate
work in upholding human rights and fundamental freedoms.
These
violations are commonly attributed to law enforcement authorities;
however, they have reportedly also shown collusion and/ or
complaisance with abuses committed by private actors against
defenders. Armed groups have also harassed human rights defenders in
some instances.
In the context of India’s economic policies,
defenders engaged in denouncing development projects that threaten or
destroy the land, natural resources and livelihood of their community
or of other communities have been targeted by state agents and private
actors and are particularly vulnerable.
I am particularly
concerned at the plight of human rights defenders working for the
rights of marginalised people i.e. Dalits, Adivasis (tribals),
religious minorities and sexual minorities who face particular risks
and ostracism because of their activities. Collectivities striving for
their rights have in fact been victimised.
Women human rights
defenders, who are often at the forefront of the promotion and
protection of human rights, are also at particular risk of
persecution.
Right to Information (RTI) activists, who may be
ordinary citizens, have increasingly been targeted for, among others,
exposing human rights violations and poor governance, including
corruption of officials.
Other defenders targeted include
those defending women’s and child rights, fighting impunity for past
human rights violations, seeking accountability for communal pogroms,
upholding the rights of political prisoners, journalists, lawyers,
labour activists, humanitarian workers and church workers. Defenders
operating in rural areas are often more vulnerable.
While I
acknowledge the security challenges faced by the country, I am deeply
concerned about the arbitrary application of security laws at the
national and state levels (in Jammu and Kashmir and in the north-east
of India), most notably the Public Security Act and the Armed Forces
(Special Powers) Act, the Jammu and Kashmir Public Safety Act and the
Unlawful Activities (Prevention) Act, which direly affects the work of
human rights defenders.
I am troubled by the branding and
stigmatisation of human rights defenders, who are labelled as
“Naxalites (Maoists)”, “terrorists”, “militants”, “insurgents”,
“anti-nationalists”, “members of underground”. Defenders on the
ground, including journalists who report on violations by state and
non-state actors in areas affected by insurgency, are targeted by both
sides. Freedom of movement of defenders has also been restricted
under these security laws; for instance, applications for passports or
renewal have been denied, as well as access for defenders to victims
in some areas.
Illegitimate restrictions to freedom of peaceful
assembly were also brought to my attention: for example, I was
informed of instances of protests in support of a human rights
defender in detention which were not allowed to take place.
Finally, I am concerned about the amendment to the Foreign
Contribution Regulation Act which provides that non-governmental
organisations must reapply every five years for the review of their
status by the ministry of home affairs in order to receive foreign
funding. Such a provision may be used to censor non-governmental
organisations which are critical of government’s policies.
In
view of the above, the space for civil society is contracted.
Although the judiciary is the primary avenue for legal redress, I have
observed that its functioning is hampered by backlog and significant
delays in administrating cases of human rights violations.
The
National Human Rights Commission and the existing State Human Rights
Commissions are an important additional avenue where human rights
defenders can seek redress. However, all the defenders I met during
the mission voiced their disappointment and mistrust in the current
functioning of these institutions. They have submitted complaints
related to human rights violations to the commissions but reportedly
their cases were either hardly taken up or the investigation, often
after a significant period of delay, concluded that no violations
occurred. Their main concern lies in the fact that the investigations
into their cases are conducted by the police who in many cases are the
perpetrators of the alleged violations. While I welcome the
establishment of a human rights defenders focal point within the
National Human Rights Commission, I regret that it was not given
sufficient prominence within the commission.
Based on the
above, I wish to make the following preliminary recommendations: To
the central and state governments Ø
The prime minister and the chief secretaries should publicly
acknowledge the importance and legitimacy of the work of human rights
defenders i.e. anyone who “individually and in association with
others, […] promote[s] and […] strive[s] for the protection and
realisation of human rights and fundamental freedoms at the national
and international levels” (Article 1 of the Declaration on Human
Rights Defenders, A/RES/53/144). Specific attention must be given to
human rights defenders who face particular risks (as identified
above).
Ø
Security forces should be clearly instructed to respect the work and
the rights and fundamental freedoms of human rights defenders,
especially human rights defenders who face particular risks (as
identified above).
Ø
Sensitisation training to security forces on the role and activities
of human rights defenders should be delivered, with technical advice
and assistance from relevant UN entities, non-governmental
organisations and other partners.
Ø
Prompt and impartial investigations on violations committed against
human rights defenders should be conducted and perpetrators should be
prosecuted.
Ø
The Supreme Court judgement on police reform should be fully
implemented in line with international standards, in particular at the
state level.
Ø
Full implementation of laws and policies which guarantee human rights
and fundamental freedoms of human rights defenders should be ensured.
Ø
A law on the protection of human rights defenders developed in full
and meaningful consultation with civil society and on the basis of
technical advice from relevant UN entities should be enacted.
Ø
The Foreign Contribution Regulation Act should be critically reviewed.
Ø
The draft Bill on the Prevention of Torture should be adopted without
further delay.
Ø
The Optional Protocol to the Convention on the Elimination of All
Forms of Discrimination against Women should be ratified. The
ratification of the complaints procedure will provide women human
rights defenders an opportunity to access another procedure to address
any violations of rights under the convention.
Ø
The Armed Forces (Special Powers) Act and the Public Security Act
should be repealed and application of other security laws which
adversely affect the work and safety of human rights defenders should
be reviewed.
Ø
The functioning of the National Human Rights Commission should be
reviewed with a view to strengthening the commission by inter alia:
broadening the selection criteria for the appointment of the
chairperson; diversifying the composition of the commission; extending
the one-year limitation clause; establishing an independent committee
in charge of investigating complaints filed; elevating the status of
the human rights defenders focal point by appointing a commissioner.
The Protection of Human Rights Act should be amended as necessary in
full and meaningful consultation with civil society.
Ø
State Human Rights Commissions should be established in states where
such commissions are not yet in existence without further delay.
Ø
Central and state governments should continue collaborating with
Special Procedures of the Human Rights Council, including by extending
invitations for country visits.
To National and
existing State Human Rights Commissions
Ø
The supportive role of the commissions for human rights defenders
should be strengthened by inter alia conducting regular regional
visits; meeting human rights defenders in difficulty or at risk; and
undertaking trial observations of cases of human rights defenders
wherever appropriate.
Ø
The visibility of the commissions should be ensured through regular
and proactive engagement with civil society and the media.
Ø
A toll-free 24-hour emergency hotline for human rights defenders
should be established.
Ø
The commissions should monitor the full implementation of
recommendations made by UN human rights mechanisms, including Special
Procedures mandate holders, treaty bodies and the Universal Periodic
Review.
To the judiciary
Ø
In the absence of a witnesses and victims protection act, the
judiciary should take measures to ensure the protection of human
rights defenders at risk, witnesses and victims.
Ø
The judiciary should ensure better utilisation of suo motu whenever
cases of violation against human rights defenders arise.
Ø
The importance of the role of human rights defenders in the vibrant
and active functioning of the judiciary should be recognised.
To human rights defenders
Ø
Platforms or networks aimed at protecting defenders and facilitating
dialogue should be devised or strengthened.
Ø
Defenders should better acquaint themselves with the Declaration on
Human Rights Defenders.
Ø
Efforts should be made to continue making full use of United Nations
Special Procedures and other international human rights mechanisms
when reporting on human rights violations.
To the
international community and donors
Ø
The European Union Guidelines on Human Rights Defenders and local
strategies on India should be implemented on a systematic basis.
Ø
The situation of human rights defenders, in particular the most
targeted and vulnerable ones, should be continually monitored and
support for their work should be expressed through inter alia
interventions before central and state institutions.
Ø
Efforts should be intensified in empowering civil society.
To all stakeholders
Ø
The Declaration on Human Rights Defenders should be translated into
main local languages and disseminated widely.
Ø
Efforts should be continued to raise civic awareness among the general
public and the spirit of dialogue and cooperation in society
fostered.n
Margaret Sekaggya Special
Rapporteur on the situation of human rights defenders United
Nations Human Rights Council New Delhi, January 21, 2011
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