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UN Special Rapporteur on the
Situation of Human Rights Defenders
___________________________________________________________________
"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."
Statement of the Special Rapporteur on the Situation of Human
Rights Defenders, Margaret Sekaggya, as She Concludes Her Visit to India
NEW DELHI, 21 January 2011
– From 10 to 21 January 2011, I carried out a fact-finding mission to assess
the situation of human rights defenders in India, and traveled to New Delhi,
Bhubaneshwar (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 for 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, nor 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 the
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
marginalized people, i.e. Dalits, Adavasis (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
victimized.
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 stigmatization of human rights defenders, who are labeled 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 of passport 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 Regulations 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 is 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, which 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:
- 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 and
[…] strive for the protection and realization 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).
- 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).
- Sensitization
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 organizations and other partners.
- Prompt and
impartial investigations on violations committed against human rights
defenders should be conducted, and perpetrators should be prosecuted.
- The
Supreme Court judgment on police reform should be fully implemented in
line with international standards, in particular at the State level.
- Full
implementation of laws and policies which guarantee human rights and
fundamental freedoms of human rights defenders should be ensured.
- 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.
- The
Foreign Contribution Regulation Act should be critically reviewed.
- The Draft
Bill on Prevention Against Torture should be adopted without further
delay.
- 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.
- 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.
- 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.
- State Human
Rights Commissions should be established in States where such commissions
are not yet in existence without further delay.
- 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 Commission:
- 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.
- The
visibility of the commissions should be ensured through regular and
proactive engagement with civil society and the media.
- A
toll-free 24-hour emergency hotline for human rights defenders should be
established.
- 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:
- 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.
- The
judiciary should ensure better utilization of suo motu whenever
cases of violation against human rights defenders arise.
- 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
- Platforms
or networks aimed at protecting defenders and facilitating dialogue should
be devised or strengthened.
- Defenders
should better acquaint themselves with the Declaration on Human Rights
Defenders.
- 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
- The
European Union Guidelines on Human Rights Defenders and local strategies
on India should be implemented on a systematic basis.
- 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.
- Efforts
should be intensified in empowering civil society.
To all stakeholders:
- The
Declaration on Human Rights Defenders should be translated in main local
languages, and disseminated widely.
- Efforts should
be continued to raise civic awareness among the general public, and the
spirit of dialogue and cooperation in society fostered.
I will present my full
report with final conclusions and recommendations to the UN Human Rights
Council in March 2012.