The topic of human rights often invokes sharp debates. In political circles, these debates often result in whataboutery. Put terrorism into the picture and you will lose any scope of an academic discussion.
A similar scene played out recently during the 28th Foundation Day of the National Human Rights Commission (NHRC). Headlines read ‘New norm to accuse India of human rights violations at behest of international forces’, ‘PM Modi warns against ‘selective interpretation’ of human rights’, etc. While such statements make for good TRPs and social media clicks, it merits consideration as to how strong India’s human rights record is.
The task, as such, is humongous and one blog post can’t do justice to it. Therefore, I will be selective in limiting the time frame and will discuss specific human rights. I will assess India’s statements made at international forums like the United Nations. These statements are made by officials appointed by the government, and hence there is no scope of collusion with ‘international forces’ to tarnish India’s image.
Coincidentally, as the NHRC celebrated its foundation day, India was participating at the 48th Regular Session of the Human Rights Council. A few days later, on October 13, it participated in the deliberation of the Sixth Committee of the United Nations General Assembly.
48th Regular Session of the Human Rights Council
India is a currently a member of the HRC. Its current term will expire on December 31, 2021 but its membership will continue courtesy its re-election on October 14, 2021. It participated in the 48th session as a member, where the HRC adopted 25 Resolutions. 10 of these Resolutions were adopted without a vote and the remaining 15 after voting. I will assess some of these 15 Resolutions, which were adopted with voting, to draw a clearer picture of India’s stand on human rights.
India voted in favour of a Resolution on Negative impact of the legacies of colonialism on the enjoyment of human rights. This resolution, which was adopted 27 to 0, with 20 abstentions, stressed on the utmost importance of eradicating colonialism and addressing the negative impact of the legacies of colonialism on the enjoyment of human rights. India also voted in favour of a Resolution on Promotion of a democratic and equitable international order. This resolution, which was adopted 30 to 14, with 3 abstentions, reaffirmed that everyone is entitled to a democratic and equitable international order that fosters the full realization of all human rights for all. India also voted in favour of a Resolution on The use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination. This resolution, which was adopted 29 to 14, with 4 abstentions, recognized that armed conflicts, terrorism, arms trafficking and covert operations by third powers encourage the demand for mercenaries and for private military and security companies on the global market.
India also voted in favour of a Resolution on From rhetoric to reality: a global call for concrete action against racism, racial discrimination, xenophobia and related intolerance. This resolution, which was adopted 32 to 10, with 5 abstentions, underscored the importance of political will and commitment to eliminate all forms of racism, racial discrimination, xenophobia and related intolerance. It also underlined the imperative need for the full and effective implementation of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). India signed the ICERD in 1967, but has not enacted any legislation in this regard thus far.
On March 2, 2016, then Member of Parliament Avinash Pande asked in the Rajya Sabha whether the government was planning to enact any law in conformity with India’s obligations under ICERD. Kiren Rijiju, the then Minister of State for Home Affairs answered:
“…adequate safeguards exist in the Constitution of India and other legislations expressly prohibiting racial discrimination in all forms. The Constitution of India is widely recognized as a progressive document that provides a comprehensive legal framework for guarantee of human rights. The principles enshrined in the Part-III of the Constitution of India provide legal framework to combat all forms of discrimination including those forms that are based on race, religion, caste, colour and creed. These are further strengthened by comprehensive legal framework with independent and impartial judiciary, a secular and pluralistic polity, a vibrant civil society.”
Readers must notice how a question about international law was answered via constitutional law. One wonders why India signed the convention in the first place. Racism, as it is understood under international law, is very different from what it means under the Indian Constitution. In fact, ICERD did not even exist when the Indian Constitution was drafted. Moreover, the answer doesn’t actually answer the question. Whether India’s vote on the Resolution - which asks for full and effective implementation of ICERD - will change anything, remains to be seen.
India also voted against a Resolution on Question of Death Penalty. This resolution, which was adopted 29 to 12, with 5 abstentions, urged all States to protect the rights of persons facing the death penalty and other affected persons by complying with their international obligations. This Resolution also called upon States that have not yet acceded to or ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming to abolish the death penalty, to consider doing so. India is one such country which has not signed the Second Optional Protocol to ICCPR. Death Penalty is still a valid form of punishment in India.
Human Rights relating to Environment
Under International Environmental Law, there has always been a divide between the developed countries (Global North) and the developing and under-developed ones (Global South). While the Global North has always emphasized on stringent environment protection norms, the Global South has balanced environment protection with development. Countries like India and China have been a vocal presence from Global South. At its recent session, HRC voted on three resolutions relating to the environment. It must be noted here that India didn’t give any official statement for its voting on any of these resolutions.
India voted in favour of a Resolution on Right to Development. This resolution, which was adopted 29 to 13, with 5 abstentions, urged all Member States to undertake at the national level the necessary policy formulation and to institute the measures required for the implementation of the right to development as an integral part of all human rights and fundamental freedoms. Surprisingly, India abstained from voting on a Resolution on Human right to a safe, clean, healthy and sustainable environment. This resolution, which was adopted 43 to 0, with 4 abstentions, recognized the right to a safe, clean, healthy and sustainable environment as a human right that is important for the enjoyment of human rights.’ Why would a country, which has Swachh Bharat (Clean India) as a national mission and which had collected substantial amount of money from its taxpayers in form of Swachh Bharat Cess, abstain from voting on a resolution which says that clean environment is a human right?
India also abstained from voting on a Resolution on Mandate of the Special Rapporteur on the promotion and protection of human rights in the context of climate change. This resolution, which was adopted 42 to 1, with 4 abstentions, decide ‘to appoint, for a period of three years, a special rapporteur on the promotion and protection of human rights in the context of climate change.
India, like most of the world, has been on the receiving end of climate change. The latest IPCC report had envisioned drastic changes in India’s climate in the near future. India itself has been conscious of pollution it causes to the environment (it is the third largest emitter), but so far, its efforts have been less than adequate. India is also spearheading, with France, an International Solar Alliance (ISA). On October 15, 2021, India introduced a Draft Resolution in the United Nations General Assembly for granting Observer Status to the ISA. In this backdrop, one fails to understand why India would not vote in favour of the above-mentioned resolution.
Sixth Committee of the United Nations General Assembly
At the Sixth Committee, countries debated on whether to codify the Draft Articles on Crimes against Humanity. India said that existing international instruments already contemplate crimes against humanity as punishable offences. The Draft Articles are based on the Rome Statute, and for those Member States who have not yet subscribed to that Statute, national legislation already captures these offenses. This was the same statement which was made by India at an earlier meeting of the Sixth Committee on October 14, 2020.
India has not signed the Rome Statue and claims that its national legislation already covers these offences. But I have failed to find any national legislation in India which even mentions the term crimes against humanity. In fact, a 2018 judgment of the Delhi High Court had lamented this lacuna. In its judgment in State through CBI v. Sajjan Kumar and Ors, while categorising the mass murder of Sikhs in 1984 as a crime against humanity, the Court noted that neither “crimes against humanity” nor “genocide” are part of our domestic law of crime, and that this loophole needed to be addressed urgently.
When the judgment was delivered, work was still ongoing on the Draft Article. On this, the Court said that,
"India, in view of her experience with the issue, should be able to contribute usefully to the process."
In conclusion, the Court observed the problems of dealing with issues of mass crimes under the limited scope of India’s domestic criminal legislation. It noted that "cases like the present are to be viewed in the larger context of mass crimes that require a different approach." This different approach is still far-fetched considering India’s continuous opposition to the Draft Articles.
The above assessment gives a mixed picture of India’s performance at international forums in the field of human rights. Its positive voting on issues of general character like colonialism, democracy, use of mercenaries and right to development are self-fulfilling and have limited practical significance on the ground level. On the other hand, the issues on which India either abstained or voted against have large ramifications. These include right to clean environment, death penalty, and climate change. While one can understand India’s position on the death penalty, its voting on other issues is worrying. Its voting on ICERD and the Draft Articles on Crimes against Humanity and the way these crimes have been dealt with by successive governments are even more troubling. One hopes that this situation will be rectified soon.
Aman Kumar is an Assistant Professor of Law at IFIM Law School, Bengaluru.