Analysing the Effect of UPR Report Recommendation in Context of India
What were the steps taken by the Union Government regarding the accepted recommendations at the third cycle of the universal periodic review of India’s human rights record by the United Nations, when it came to legislation and steps taken to prevent torture, honour killings, crimes against women and freedom of religion? There are large gaps between the recommendations accepted by India after its third review and the fourth review report.
India is a democratic and secular nation with a ‘liberal Constitution’ and guaranteed fundamental rights. Apart from the international obligations, the Constitution of India mandates the government (executive, judiciary and legislature) to not violate fundamental rights of the citizens, which include non-discrimination, freedom of speech, life and personal liberty, forced labour, freedom of religion, and culture. Being a diverse country with a heterogenous population with different religions, cultures and languages, there exists a problem of majoritarianism in India, especially after the coming of the Hindu majority party – the Bhartiya Janta Party (‘BJP’) – led by Prime Minister Narendra Modi.
The third cycle of Universal Periodic Review (‘UPR’) for India happened in 2016 in which the country delegation was headed by the then Attorney General for India, Mukul Rohatgi. Following the third cycle of UPR, recently, India went through the fourth cycle of UPR, which was headed by Solicitor General of India, Tushar Mehta. This article will critically analyse the steps taken by the Union Government regarding the accepted recommendations at the third cycle of UPR, focussing on legislations and steps taken to prevent torture, honour killings, crimes against women and freedom of religion. The article will also highlight the missing links between the recommendations accepted by India after its third UPR and the fourth UPR report.
Despite these constitutional obligations, the Indian state has not framed any specific law addressing the issue of torture, which is institutionalised in the Indian socio-political environment and leads to numerous ‘state-sponsored murders’ in the garb of collecting information, especially with the prevalence of methods like third degree questioning by the police.
India submitted its National Report highlighting various issues and steps taken by the government in resolving the issues. Various stakeholders, including non-government organisations, national law schools and civil society organisations, submitted their respective inputs, and a compilation of the same has also been published on the United Nations Human Rights Council website. The third Report was considered on May 4, 2017 and various questions were submitted in advance. After the session, the report of the Working Group of UPR and the recommendations were adopted by the Human Rights Council on September 21, 2017. India had accepted 152 recommendations provided by different countries.
Torture, honour killings and crimes against women
Deliberate delays in ratifying convention against torture
India had accepted the recommendations of 14 countries to ratify the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. India signed the treaty in 1997 but has failed to ratify the same. The country has ratified Universal Declaration of Human Rights (‘UDHR’) and the International Covenant of Civil and Political Rights (‘ICCPR’); Articles 5 and 7 respectively of the UDHR and the ICCPR provide for the right against torture and cruelty.
Even after accepting several recommendations, the Indian State continues to discriminate between married women and not-married women in cases of marital rape, despite accepting the recommendations for building a better and safer society for women.
India also does not have any specific law which addresses the concerns of torture and other forms of cruelty. Article 20 of the Indian Constitution provides for the right against self-incrimination. Article 21 states that “no one shall be deprived of life or personal liberty except procedure established by law”. Despite these constitutional obligations, the Indian state has not framed any specific law addressing the issue of torture, which is institutionalised in the Indian socio-political environment and leads to numerous ‘state-sponsored murders’ in the garb of collecting information, especially with the prevalence of methods like third degree questioning by the police. The police officers have de facto immunity in cases of custodial torture as Sections 340 and 341 of the Indian Penal Code don’t address institutional torture. Therefore, there needs to be a formal and informal pressure from the Human Rights Council and the international community against India for ratifying the Convention on Torture.
The issue of honour killings is also quite prevalent in India. The roots of the same are based in the intersection of patriarchy, caste, religion and gender. As per the Union Government, there were at least 145 reported cases of honour killings between 2017 and 2019 and yet, there is no law in place for the same.
The provisions of murder and abatement to murder cannot address such deep structural societal issues. The special law for the protection of Scheduled Castes and Schedules Tribes is most certainly used by the prosecution to address the issue of honour killing related to caste, but it fails to consider other aspects of religion, gender and inequality.
The issue of honour killings cannot be just addressed by the provisions of the Indian Penal Code. In India, the only Bill which specifically addresses the issue has been introduced by the opposition-ruled state of Rajasthan, which is still not passed. Even the Supreme Court appealed to the authorities to build up a framework against such killings and noted the following in strict words, “there is nothing honourable in such killings, and in fact they are nothing but barbaric and shameful acts of murder”.
Despite the constitutional provisions and strict ‘call for action’ from the Supreme Court, the Union Government has failed to take any action till date even after accepting the recommendation. The National Report submitted by India for its fourth UPR also fails to mention a proposal for a specialised legislation regarding honour killings.
Marital rape: Crime against women
The UPR Report for India recommended it to make stringent laws for the prevention and criminalisation of crimes against women. Even after accepting several recommendations, the Indian State continues to discriminate between married women and not-married women in cases of marital rape, despite accepting the recommendations for building a better and safer society for women. Exception 2 of Section 375 of the Indian Penal Code provides immunity to a husband who commits the offence of rape if the woman is his wife.
The Union Government failed to take a stance in favour of or against the exception when it was challenged before the Delhi High Court, which eventually passed a split judgment in the matter. The case is still pending before the Supreme Court, and has not been listed since September 16, 2022.
The Indian Government led by Prime Minister Modi still has the constitutional power to amend the penal code and address the concern of marital rape, yet the government is delaying its action, and there is no accountability despite accepting the recommendation at an international stage.
Freedom of religion in India: Essential religious practices and anti-conversion laws
Articles 18 of the UDHR and 18(2) of the ICCPR guarantee freedom of religion, belief, worship, and against coercion by anyone. Furthermore, the Human Rights Committee General Comment, page 22, paragraph 5 postulates that any government policies which use religious beliefs to restrict access to education is in violation of Article 18(2) of the ICCPR.
India has noted several recommendations which advises it to act against the prevalence of anti-conversion laws as it violates the freedom of conscience, but there has been no action on the national level for the same.
India, in its third UPR cycle, accepted numerous recommendations for promotion and respecting the freedom of religion, especially of minority communities. However, the BJP-ruled state of Karnataka has introduced an executive policy which consequentially bans the entry of female students in school premises who wear hijab, and it reasons that the policy is introduced for promoting uniform dress code and that hijab is not an essential religious practice. The policy was challenged before the Karnataka High Court, which ruled in favour of the policy and in appeal, the Supreme Court delivered a split decision, in which a final decision will be taken by the Chief Justice’s court (which is still pending). The continuous institutionalised attacks on the minority religions by the BJP-ruled states at provincial and national level are creating an environment of scepticism in the society.
Another matter of concern is the various anti-conversion laws being passed in the states ruled by the BJP, such as Uttar Pradesh (the most populated state in India), Karnataka (where the hijab row started) and Gujarat, among others. India has noted several recommendations which advises it to act against the prevalence of anti-conversion laws as it violates the freedom of conscience, but there has been no action on the national level for the same.
Whether it is the issue of honour killings or anti-conversion law or torture, India has been delaying the same since the beginning of the UPR cycle. The recommendations given in the UPR seem to be ‘useless’ and ‘non-effective’ as India fails to act upon them even after explicitly ‘accepting’ them in the addendum.
During the on-going fourth cycle of the UPR, the second-highest law officer of the country, Mehta, on the issue of anti-conversion law said, “[r]eferring to such legislation as anti-conversion law would be a misnomer” and retorted to the verbosity of India being a diverse country where heterogeneity is “celebrated”. The issue of torture was tackled by the law officer by stating that the country is committed to ratifying the convention, and a domestic law will be passed only after taking into account the opinions of the state governments as the matter of torture falls under the concurrent list of the Seventh Schedule of the Constitution.
If the issues are brushed off at the international level without any accountability from the nations under review, the purpose of a constructive dialogue to achieve a standard for human rights across the globe will fail. The UPR process is to have a constructive dialogue and improve the human rights situation in the country, and it will become repetitive and futile if the governments will accept the recommendations but fail to act upon them.
Chaitanya Singh is an advocate at the Delhi High Court, and is currently studying Masters of Law (LL.M.) at the University of Bristol, U.K.
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