Putting rights issues through the looking glass. Not seeking answers, just some food for thought to see whether things could be any different!

Friday, May 18, 2007

India’s “questionable” credentials for UN Human Rights Council membership

India, along with 13 other countries was recently elected to the UN Human Rights Council. In a joint evaluation of the election candidates up for membership to the UN Human Rights Council in 2007 by human rights monitors, UN Watch and Freedom House, India’s qualifications were considered as “questionable”, along with countries like Bolivia, Indonesia, Nicaragua, Philippines, Madagascar and South Africa. The well-qualified states, according to the study were Denmark, Italy, Netherlands and Slovenia and those that were rated as completely unqualified, include Angola, Belarus, Egypt and Qatar. The UN General Assembly elected 14 members from the African group (4), Asian Group (4), Eastern European Group (2), Group of Latin America and Caribbean Countries-GRULAC (2) and Western European and Others Group –WEOG (2). Bosnia-Herzegovina entered the race, a week before the elections following strong resistance to Belarus’ candidature by human rights groups. Belarus lost the elections to Slovenia and Bosnia-Herzegovina. Although Belarus’ failure at the Council elections upholds the fact that human rights records of states matter, there was no competition in the other regional groups as there were as many candidates as there were available seats. (Election Marred by Closed Slates in Three Regions, Human Rights Watch, 17 May 2007)

The pre-election study rated states on the basis of their domestic human rights record and commitment towards promotion of international human rights standards. The states rated as unqualified are authoritarian regimes with negative UN voting records and therefore, do not qualify for membership. The ones with “questionable” human rights credentials, including India, have either negative UN voting records or have a poor domestic human rights record and/or lack of commitment to international human rights. The study based its evaluation on Freedom House’s Freedom in the World 2007 survey, a study analysing the status of civil and political rights in countries, Reporter Sans Frontiers’ World Press Freedom Index 2007 and the Economist’s Index of Democracy 2007.

Although, India was rated as ‘free’ in the area of civil and political rights, it was ranked poorly with regard to freedom of expression and as a ‘flawed democracy’. India is currently a member of the UN Human Rights Council and is seeking re-election for a three-year term. Some of the current members of the Council like China, Russia and Saudi Arabia can be tagged as persistent human rights violators and attributed with “questionable” human rights records.

India substantiated its candidature for election by reaffirming its earlier voluntary pledge on its strong commitment and leadership in the field of human rights. It would be interesting to evaluate India’s human rights record with respect to the developments in the past year. India’s Permanent Mission to the United Nations has referred to India’s achievements at addressing domestic violence through the enactment of The Protection of Women from Domestic Violence Act 2005 and elimination of child labour through a ban on employment of children under the age of 14 years as domestic helps or at small restaurants/eateries etc. Unfortunately, the ban on child labour is far from effective as children continue to be employed in small businesses and as domestic helps across India and as far as the domestic violence legislation is concerned, it requires the state to set up certain institutional implementation mechanisms and unless that is done, endorsing it as a success story at international circles might prove injudicious on India’s part.

India has pledged to maintain the independence, autonomy and genuine powers of investigation of the National Human Rights Commission (NHRC) and other human rights bodies. However, in reality, the independence of the NHRC and all other human rights bodies is stymied by political interference at all levels, right from appointment to day-to-day functioning. The NHRC is not allowed to independently investigate cases of human rights abuse by the Indian armed forces, even when the fact of human rights violations by the armed forces is well established (SAHRDC, HRF/141/06). A promise to foster governmental transparency and accountability through the Right to Information Act have been broken by proposing a retrograde amendment by way of excluding all official ‘file notings’ from access to citizens, except in case of social development projects. But the public outcry over the proposed amendments, forced the government to withdraw them. The civil society in India is not as free as the pledge seems to indicate. The Foreign Contribution (Management and Control) Bill (FCMC) 2006 seeks to replace The Foreign Contribution (Regulation) Act (FCRA) 1976. The NGO sector in India has been actively protesting against the passing of this Bill as it proposes a blanket ban on receipt of foreign contributions by ‘organisations of political nature, not being political parties’ and leaves it to the subjective discretion of the government to decide which NGOs fall under the broad sweep of this law. With regard to advancement of women’s rights and gender equality in India, the CEDAW Committee’s harsh critique of India’s half-baked efforts at promoting the same, echoes serious concerns about the status of women in Indian society.

India has also pledged to make the Council an effective body and actively participate in the development of modalities for universal periodic review and strengthening the special procedures system. It would be important to mention that India is yet to ratify some of the core international human rights instruments such as the Convention Against Torture and its Optional Protocol, Migrant Worker’s Convention and both the Optional Protocols to the ICCPR. India has not extended a standing invitation to any of the UN special procedures and as far as periodic reporting to treaty based bodies are concerned, there has always been a considerable delay in its submission of reports. For example, India is yet to submit its fourth report to the Human Rights Committee that was due in 2001 and it finally submitted its joint second and third report to the CEDAW Committee in 2005, when the second report was due way back in 1998. Given its weak record with respect to periodic reporting and compliance with special procedure mechanisms, India’s claim to strengthen the Council mechanisms seems unconvincing.

The Council’s membership raises grave questions about the election process itself. Candidates are in competition with their regional counterparts and not with those outside their respective groups. The Council was meant to remedy the flaws of its highly discredited predecessor, the UN Commission on Human Rights (UNCHR) but by allowing the election of member states with deplorable human rights conditions and least respect for international human rights norms, the Council is “moving in the direction of eroding, rather than strengthening, the UN's existing independent human rights mechanisms”. (UN Watch, NGOs alarmed at some UN Human Rights Council Candidates, 7 May 2007)

Rights and Development Bulletin, Volume 1, Issue 3, at http://www.cdhr.org.in

The price of being poor: Urbanisation, Poverty and Destitution in India

Karl Polanyi’s reference to the ‘fatal irreversibility of urbanisation’ in the 1940s rings true in the Indian context. With the economic boom in India, its cities are growing faster than the smaller towns and villages. Urban populations are growing at a higher rate than the rural populations. Figures of the Planning Commission of India for 2004-05 indicate that more than half of India’s poor live in five states and that the urban poor constitutes nearly 28 per cent of the total poor population.

Slum dwellers and Housing Rights

The rich, big cities of India have the highest proportion of slum dwellers, living in abject poverty and inhuman conditions. According to official figures, in 2002, there were a total of 51, 668 slums and 42.6 million people constituting 8.2 million households were living in these slums in 640 towns across India (Census 2001 and NSSO 2002). Every seventh person in India is a slum dweller. Mr. Miloon Kothari, UN Special Rapporteur on adequate housing, has opined that persons living in urban slums are faced with “urban apartheid”, are segregated and ghettoised, which further deepens the physical divides between the rich and poor in urban areas.

The human right to adequate housing is clearly mandated in international human rights law and the Indian Constitution also covers the right to adequate housing under the ambit of the right to life guaranteed by Article 21. The denial of adequate housing also leads to the violation of other basic rights such as clean drinking water, sanitation, livelihood and access to education and health care, as they are pushed outside the policy spectrum.

Governments and local authorities demolish slums or forcefully evict slum dwellers on the pretext of urban planning, beautification of city neighbourhoods and prevention of encroachment, without any care and consideration for their rehabilitation. Strict slum clearance laws exist in many states across India, which legitimise forced evictions and demolition drives. Slum improvement/upgradation is an option only when the land owners/government authorities do not need to reclaim the land in the long term. The Supreme Court’s ruling in the landmark Olga Tellis case (AIR 1986 SC) that pavement and slum dwellers cannot be evicted without adequate notice and rehabilitation and the State would violate their right to livelihood, if they do, has not been followed in practice. In the Almitra H. Patel judgment (AIR 2000 SC), the Supreme Court opined, “Rewarding an encroacher on public land with free alternate site is like giving a reward to a pickpocket.” Judicial opinion on the status of slum dwellers has seen a sea change since Olga Tellis; they are viewed as land grabbers and criminals rather than victims of poverty and marginalisation, in the eyes of the law. The housing policies of the government have also failed to take care of the housing needs of the slum dwellers and the draft National Slum Policy of 2001 was never implemented.

Beggary, Vagrancy and Criminalisation of Poverty

The urban poor population is not comprised of only slum dwellers but also of beggars and vagrants; who constitute the poorest of the poor in India’s richest cities. The total destitute population in urban India, as of 2001, is 2,14,655; with 56.03 per cent males and 43.97 per cent females. Destitution involves income poverty on one hand and social deprivation/expulsion, like loss of social protection, access to common property and public good and services, political identity and citizenship, on the other. (Harriss-White: 2003)

The Bombay Prevention of Begging Act 1959, made applicable across eighteen states criminalises beggary and vagrancy in India. The definition of begging includes, among others, the absence of “visible means of subsistence and wandering about or remaining in any public place in such conditions or manner”. Singing, dancing, fortune telling, performing or offering an article for sale also constitutes soliciting for alms as per the Act. In other words, all persons who are unable to secure an adequate means of livelihood for themselves or even traditional artists are deemed criminal. Many beggars who suffer from leprosy or other mental and physical illnesses are also criminalised in the process. The Act gives sweeping powers of arrest without warrant to the police, which they use regularly with devastating effect to terrorise homeless persons living on the streets. The penalty for begging for a first time offender is detention up to a period of three years in a certified institution or a beggar’s home under the Act and for a person convicted for begging on two or more occasions, the detention period is ten years or a prison term up to two years. Most of the cases under this Act are tried in a summary manner and a majority of the beggars are convicted, as they have no access to legal aid and even if they do, they are rarely heard.

Begging rackets or organised begging is becoming increasingly common across India but the Act does not adequately address this problem, penalising those who are the real victims, especially minors, in situations like these. A study by Peoples Union of Civil Liberties (PUCL) shows how the anti-begging law operates in Delhi; police constables raid crowded locations like railway stations, bus terminals, temples etc and target those persons who they think are beggars. Most of those picked up by the police are engaged in some kind of active work, whether it be manual labour or as rickshaw pullers or at roadside shops/stalls etc and only few among them beg for a living. The 8 government run beggar homes have a limited capacity of 1810, hardly adequate for the high number of beggars/vagrants in Delhi. These homes are intended to reform the beggars and vagrants by providing vocational training etc but most of the funds allocated to these homes are spent on maintenance and administration. The sub-human living conditions and gross mismanagement at these homes point to the total apathy of the State towards its poor.

India has a total homeless and destitute population of more than 78 million; most of who reside in big cities. A city like Delhi alone has more than 100,000 homeless persons on any given day and there are just 12 permanent night shelters in the city, with the maximum capacity of less than 3,000. The system is that of ‘pay and use’; where in return they are provided with a place to sleep, mats and during winters, warm woollens but these shelters have poor facilities with no toilets, unhygienic living conditions and complete lack of safety. There are only 3 shelters for homeless women in Delhi that can accommodate only one per cent of Delhi’s destitute women. The conditions are worse, especially for homeless women and children who are more vulnerable to illness, physical and sexual abuse and the sheer brutality of street life.

Notwithstanding these grim statistics reflecting total violation of human rights of the urban poor, the Delhi High Court recently directed the Delhi government to control begging in the city streets and ‘rehabilitate’ beggars in detention homes and provide vocational training to prevent them from begging. The Calcutta High Court also followed suit with a similar ruling banning begging and hawking inside trains and railway platforms, labeling them as a ‘nuisance’ that needs to be curbed. The Delhi government and civic authorities have launched a mission to clean the streets of Delhi and rid them of beggars and vagrants before the Commonwealth Games of 2010. We do not need studies to prove that neither beggary nor vagrancy is a matter of choice and stems from conditions of extreme poverty and complete social deprivation. The State’s complicity in the process of destitution is epitomised in its active role in the criminalisation of poverty and destitution and at making these populations invisible.
Rights and Development Bulletin, Vol.1, Issue. 3, at http://www.cdhr.org.in

Enabling Persons with Disabilities in India: A Long Road Ahead

India became a signatory to the United Nations Convention on the Rights of Persons with Disabilities on 30th March 2007. India signed the Convention along with 89 other countries. The Convention was adopted by the United Nations General Assembly on 13 December 2006. Nearly 650 million persons, constituting nearly 10 per cent of the world population, will benefit from this Convention. However, Jamaica was the only country to ratify the Convention. The Optional Protocol to the Convention, which recognises the competence of the Committee on the Rights of Persons with Disabilities to receive individual/ group complaints and communications relating to State parties, was also adopted, by 49 countries.

The main guiding principles of the Convention are respect for inherent dignity, independence and freedom of persons, non-discrimination, full and effective participation and inclusion in society, respect for difference and acceptance of persons with disabilities (PWDs), equality of opportunity, gender equality, accessibility and respect for the evolving capacities of children with disabilities and their right to preserve their identity. The Convention also establishes a monitoring mechanism for effective enforcement, both at the international and national level. (Art. 33) The Convention places a lot of emphasis on inclusive social development of PWDs and lays down specific measures to achieve the same. (Art. 32)

The latest Census (2001) reveals that India has 2.13 per cent PWDs, which is equivalent to a population of 21.9 million but the National Sample Survey (58th Round, 2002) puts the figure at 18.5 million. In the opinion of Dr. Anuradha Mohit, Special Rapporteur on Disability, NHRC, these figures are not very convincing as a lot is dependent on the definition of disability a particular country adopts, the nature of questions related to disability that are asked to respondents in surveys and the general cultural and traditional perception of disability. Disability rights activist, Javed Abidi estimates that approximately 6 per cent of India’s population is disabled and he submits that if a broader definition of disability is adopted in India, the figures could be much higher, as is the case in Australia, United Kingdom and United States.

Although India is a signatory to the UN Convention, it is yet to ratify it. India has a domestic legal regime governing PWDs primarily through The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act (PWD Act) and more specific laws like The Mental Health Act, The Rehabilitation Council of India (RCI) Act and The National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disability Act.

The PWD Act, passed in 1995, was the first comprehensive legislation of its kind in India. The Act provides for the promotion of integrated education, medical and social rehabilitation, three per cent reservation in education in government institutions and public sector jobs, non-discrimination in employment of PWDs and training, health and safety measures and creation of an enabling work environment, improve physical accessibility in transport etc.

Yet, the Act has failed to improve the quality of lives of PWDs, even ten years after its enactment. The reason for this failure is largely attributable to poor enforcement. The Act provides for integrated education of PWDs up to the age of 18 years, ‘in an appropriate environment’ with a reference to special schools, as opposed to inclusive education. However, the reality in India is that most of India’s PWDs live in rural areas with no access to special schools and they can attend regular schools only. PWDs face deep-rooted prejudice with respect to employment. Although the PWD Act provides incentives on paper for those employers (public and private sector) who ensure 5 per cent employment to PWDs, the situation is quite different, in practice. A survey conducted by the National Center for Promotion of Employment for Disabled People (NCPEDP) among the ‘Super 100’ companies, showed that the rate of employment of PWDs in the corporate sector was a meagre 0.4 per cent of the total workforce. With respect to improving accessibility of PWDs, the Act provides that the government shall operate “within the limits of its economic capacity and development”. Such provisos serve as hurdles to effective implementation of the law and provide the government with a legitimate excuse to absolve itself from liability and accountability.

The Chief Commissioner for Persons with Disabilities and the Commissioner for Persons with Disabilities operating at the central and state levels respectively serve as monitoring mechanisms under the Act but are far from effective. They have been given the powers of a civil court yet do not have access to the framework to exercise these powers. Although, the Act provides for a number of affirmative action measures for the welfare of PWDs, in the fields of education, employment etc but does not envisage any mechanisms to ensure compliance with these measures.
The Ministry of Social Justice and Empowerment released The National Policy for Persons with Disabilities in 2006, which was aimed at improving the quality of life of PWDs. The policy recognises that PWDs are a ‘valuable human resource’ and ‘seeks to create an environment that provides them equal opportunities, protection of their rights and full participation in society’. The focus areas of the policy are prevention of disabilities, rehabilitation of PWDs, through physical, medical and assistive methods and development of rehabilitation professionals, education of PWDs, economic rehabilitation, employment in government and private sector and self-employment, women and children with disabilities, creation of a barrier free environment, issue of disability certificates, social security, promotion of NGOs to provide services to complement government initiatives, collection of information on PWDs on a regular basis, research on PWDs, sports, recreation and cultural life, amending existing laws on PWDs etc.

However, the policy fails to establish a clear plan of action for the implementation of the policy within a specific time period. The government has stressed on the community’s responsibility for the implementation of the policy. The policy has recommended that the community play a vital role in the generation of resources to provide for the infrastructure costs related to implementation. This aspect of the policy has been criticised as a move by the State to absolve itself of its duty to create an inclusive environment for PWDs.

The existence of legal mechanisms promoting rights of PWDs has not significantly changed their plight for the better. While better implementation of these laws is necessary, what is even more important is a change in attitude towards disability and full participation of PWDs in the decision making process as to their well being. The sheer insensitivity and neglect shown towards PWDs is shocking and shameful and cannot be improved without spreading education and awareness about disability. A welcome beginning would be the immediate ratification of the UN Convention on Rights of PWDs and incorporation of its obligations in domestic law along with the formulation of strong and adequate measures to implement them. Unless these positive measures are undertaken, India’s strong commitment towards mainstreaming and inclusion of PWDs shall be nothing more than an empty promise.
Rights and Development Bulletin, Vol. 1 Issue.3 , at http://www.cdhr.org.in