HUMAN RIGHTS
Concluding Observations of the Human Rights Committee on India's Third Report 16th Session, Geneva, 14 July - 1 August, 1997
The Committee welcomes the lapse, in 1995, of the Terrorist and Disruptive Activities Act (TADA), under which members of the security and armed forces enjoyed special powers in the use of force, arrest and detention. It also welcomes the related review of cases under this Act, following which a number of cases were dropped, and the directives given by the Supreme Court to deal with questions of bail under the TADA, though a number of cases still require to be dealt with.
The Committee, noting that, international treaties are not self-executing in India, recommends that steps be taken to incorporate fully the provisions of the Covenant into domestic law, so individuals may invoke them directly before the Courts. The Committee also recommends that consideration be given by the authorities to ratifying the Optional Protocol to the Covenant, enabling the Committee to receive individual communications relating to India.
The Committee notes with concern that, despite measures taken by the Government, members of SCs and STs, as well as the so-called backward classes and ethnic and national minorities continue to endure severe social discrimination and to suffer disproportionately form many violations of their rights under the Covenant, including, inter alia, inter-caste violence, bonded labour and discrimination of all kinds.
It recommends that further measures be adopted, including education programmes at national and state levels to combat all forms of discrimination against these vulnerable groups, in accordance.
4. The Committee remains concerned at the continuing reliance on special powers under legislation such as the Armed Forces (Special Powers) Act, the Public Safety Act and the National Security Act in areas declared to be disturbed and at serious human right violations. committed by security and armed forces acting under these laws as well as by paramilitary and insurgent groups. The Committee, noting that the examination of the constitutionality of the Armed Forces (Special Powers) Act, long pending before the Supreme Court is due to be heard hopes that its provisions will also be examined for their compatibility with the Covenant.
The Committee endorses the views of the National Rights Commission to the affected by terrorism and armed insurgency are essentially political in character and that the approach to resolving such problems must also, essentially, be political, and emphasizes that terrorism should be fought with means that are compatible with the Covenant.
The Committee notes with concern that criminal prosecutions or civil proceedings against members of the security and armed forces, acting under special powers, may not be commenced without the sanction of the Central Government. This contributes to a climate of impunity and deprives people of remedies.
The Committee recommends that the requirement of governmental sanction for civil proceedings be abolished and that it be left to the courts to decide whether proceedings are vexations or abusive. It urges that judicial inquiries be mandatory in all cases of death at the hands of the security and armed forces and that the judges in such inquiries including those under the Commission on Enquiry Act of 1952, be empowered to direct prosecution of security and armed forces personnel.
The Committee regrets that the National Human Rights Commission is prevented by Clause 19 of the Protection of Human Rights Act from investigating directly complaints of human rights violations against the armed forces, but must request a report from the Central Government. The Committee further regrets that complaints to the Commission are subject to a one-year time-limit, thus preventing the investigation of many alleged past human rights violations.
The Committee recommends that these restrictions be removed. It further recommends that all states within the Union be encouraged to establish Human rights Commissions.
The Committee expresses concern at allegations that police and other security forces do not always respect the rule of law and that, in particular court orders for habeas corpus are not always complied with, particularly in disturbed areas. It also expresses concern about the incidence of custodial deaths, rape and torture. It recommends:
The Committee regrets that the use of special powers of detention remains widespread. The Committee recommends that the requirements of article 9, paragraph 2, of the Covenant be complied with in respect of all detainees. The question of continued detention should be determined by an independent and impartial tribunal constituted and operating in accordance with article 14, paragraph 1, of the Covenant. It further recommends, at the very least, that central register of detainees under preventive detention laws be maintained and that the State party accept the admission of the International Committee of the Red Cross and Red Crescent to all types of detention facilities, particularly in areas of conflict.
The Committee notes with concern that although the TADA (Prevention) Act has lapsed, 1,600 people remain in detention under its provision.
The Committee recommends that measures be taken to ensure either the early trial of these people or their release. ft is also concerned that there are legislative proposals to reintroduce parts of the Act and that this could lead to further violations of the Covenant.
The Committee urges the institution of reforms to the procedure of the courts to ensure a speedy trial of those charged with offences prompt hearing in civil cases and similar urgency in appeals.
The Committee expresses its concern at reports that fines have been imposed on communities in areas declared as disturbed, without hearing.
The Committee thus recommends that the relevant penal provisions be closely monitored and
effectively implemented, so that the imposition of such fines be prohibited.
The Committee welcomes the third periodic report of India, although it regrets the delay in submitting it. The Committee regrets the lack of information therein on difficulties encountered in implementing the provisions of the Covenant in practice.
The Committee recognizes that terrorist activities in the border states, that have caused the death and injury of thousands of innocent people, force the State Party to take measured to protect its population. It stresses, however that all matures adopted must be in conformity with the State party's obligations under the Covenant.
The Committee welcomes the establishment of the National Human Rights Commission in 1993 and the respect which the Government of India accords to its recommendations. The Committee notes that the Commission has been given powers, limited though these are, under the Protection of Human Rights Act, to inquire into complaints of human rights violations, to intervene in court proceedings involving allegations of human rights violations or otherwise dealing with human rights issues, to review constitutional and legal norms and the conformity of laws with international human rights instruments, to make specific recommendations to the Parliament and other authorities and to undertake activities in the field of human rights education. It also welcomes the recent setting up of Human Rights Commissions in six states, including Punjab and Jammu and Kashmir, and of Human Rights Courts in several other states of the Union ... The Committee notes the introduction of a Bill to reserve one third of the seats for women in the Federal Parliament and in state legislatures.
The Committee welcomes the restoration of elected legislatures and governments in all states within the Union, including Punjab and J&K, as well as the holding of federal parliamentary elections in April-May 1996. In addition, the Committee welcomes the constitutional amendment giving statutory basis to Panchayati Raj -village self-rule institutions and the enactment of the Panchayati Raj (Extension to Scheduled Areas) Act of 24 December 1996. The Committee further welcomes the intention declared by the Government to introduce legislative measures to further freedom of information.
The Committee, noting the reservations and declarations made by the Government of India to articles 1,9,13,12,19, paragraph 3,21 and 22 of the Covenant, invites the State party to review these reservations and declarations with a view to withdrawing them.
While acknowledging measures taken to outlaw child marriage (Child Marriage Restraint Act), the practice of dowry and dowry related violence (Dowry Prohibition Act and the Penal Code) and sati - self-immolation of widows - (Commission of Sati (Prevention) Act), the Committee remains gravely concerned that legislative measures are not sufficient and that measured designed to change the attitude which allow such practices should be taken. The Committee is also concerned that giving male children preferred treatment persists, and deplores that practices such as foeticide and infanticide of females continue. The Committee further notes that rape in marriage is not an offence and that rape committed by a husband separated from his wife incurs a lesser penalty than for other rapists.
The Government must take further measures to overcome these problems and to protect women form all discriminatory practices, including violence.
The Committee is concerned that women remain underrepresented in public life and in the higher levels of the public service, and are subjected to personal laws which are based on religious norms and which do not accord equality in respect of marriage, divorce and inheritance rights. The Committee points out that the enforcement of personal laws based on religion violates the right of women to equality before the law and non-discrimination.
It therefore recommends that efforts be strengthened towards the enjoyment of their rights by women without discrimination and that personal laws be enacted which are fully compatible with the Covenant.
The Committee recommends that the application of these emergency powers be closely monitored so as to ensure its strict compliance with the provisions of the Covenant. The Committee recommends that the State party abolish by law the imposition of the death penalty on minors and reduce the number of offences carrying the death penalty to the most serious crimes, with a view to its ultimate abolition.
The Committee recommends that measures be taken to reduce overcrowding, to release those who cannot be given speedy trial, and to upgrade prison facilities. The Committee recommends that attention be given to the UN Standard Minimum Rules for the Treatment of Prisoners. The Committee recommends that a thorough study be urgently undertaken to identify the extent of bonded labour and that more effective measures be taken to eradicate this practice, in accordance with the Bonded Labour System (Abolition) Act of 1976 and article 8 of the Covenant. The Committee expresses concern at reports of forcible repatriation of asylum seekers, including those from Myanmar (Chins), the Chittagong Hills and the Chakmas.
It recommends that, in the process of repatriation of asyten seekers or refugees, due attention be paid to the provisions of the Covenant and other applicable international norms.
The Committee deplores the high incidence of child prostitution and trafficking of women and girls into forced prostitution, and it regrets the lack of effective measured to prevent such practices and to protect and rehabilitate the victims. The Committee also regrets that women who have been forced into prostitution are criminalized by the Immoral Trafficking Prevention Act, and further that article 20 of the Act puts the burden of proof on a woman to prove them she is not a prostitute which is incompatible with the presumption of innocence.
The Committee recommends that the application of this law to women in the situation described be repealed and that measures be taken to protect and rehabilitate women and children whose rights have been violated in this way.
The Committee further regrets the lack of national legislation to outlaw the practice of Devadasi, and that it is left to the states. It appears that the practice continues and that not all states have effective legislation against it.
The Committee emphasizes that this practice is incompatible with the Covenant.
It therefore recommends that all necessary measures be taken urgently to indicate it.
The Committee expresses its concern at the plight of street children and at the reported high level of violence against children within society. It is particularly concerned at reports of child mutilation,
The Committee recommends that urgent measures be taken to address this problem and that specific mechanisms be set up for the protection of children.
The Committee expresses concern that, despite the actions taken by the State party, there has been little progress in implementing the Child Labour (Prohibition and pronation) Aet of 1986 in this respect, the Committee recommends that urgent steps be taken to remove all children from hazardous occupations, that immediate steps be to implement the recommendation of the National Human Rights Commission to respect the constitutional requirement to make it a fundamental right for all children under 14 to have free and compulsory education, and that efforts be strengthened to eliminate child labour in both the industrial and rural sectors. The Committee also recommends that consideration be given to establishing an independent mechanism with effective national powers to monitor and enforce the implementation of laws for the eradication of child labour and bonded labour.
