Asia Society India Centre - Dissent, Democracy and Movements for Change, w/ Aruna Roy and Manu Joseph, January 13, 11:30 am, NEW DELHI

Asia Society India Centre - Dissent, Democracy and Movements for Change, w/ Aruna Roy and Manu Joseph, January 13, 11:30 am, NEW DELHI

Dissent, Democracy and Movements for Change with Aruna Roy, Political and Social Activist and Member, National Advisory Council in conversation with Manu Joseph, Editor, Open Magazine Friday, 13th January, 11:30am Jamia Millia Islamia University, Dayar-e-Mir Taqi Mir, Conference Block, New Delhi 110025 RSVP- asiasociety@asiasociety.org.in In Partnership with Open Logo1-f.jpg jamia.jpg India has been witnessing a series of movements for change- some have been ongoing, while others have recently gathered steam. Dissent has been expressed in myriad ways including armed rebellion in Maoist areas, peaceful mass mobilization and hunger strikes, and increased action in exposing and punishing corruption. As waves of these movements rise and ebb, how do they impact development? Do certain conditions give rise to certain forms of dissent? How can we encourage development and progress while allowing for peaceful and productive means to express grievances? Are there lessons we can learn from such movements in other countries, from the Arab Spring in the Middle East to the Wall Street Protests in the United States? Aruna Roy is one of the founders of the movement for Right to Information in India, which has been credited for getting Right to Information laws passed in several states. She is also a Founder Member of the National Campaign for People's Right to Information, which played a pivotal role in the passage of strong national legislation for the right to information in the year 2005. Aruna Roy is also the President of the National Federation of Indian Women (NFIW). In 2000, she was awarded the Ramon Magsaysay Award for Community Leadership. She has been a member of National Advisory Council 1 and 2, and played a key role in incorporating strong citizens entitlements in the RTI and NREGA. Along with Nikhil Dey and others, she set up the Mazdoor Kisan Shakti Sangathan (MKSS). In 2010, she received the Lal Bahadur Shastri National Award for Excellence in Public Administration, Academia and Management by the President of India. She and the MKSS Collective have also been awarded the Rule of Law Award in the World Justice Forum held in Barcelona, Spain in June 2011, and were listed as one of the 100 most influential people in the world by the TIME Magazine for 2011. Aruna Roy resign from Indian Administrative Service to devote her time to social work and social reform. Manu Joseph is the Editor of OPEN Magazine, and a columnist for the International Herald Tribune, the global edition of the New York Times. His first novel, Serious Men, is the winner of the Hindu Best Fiction Award and the PEN Book Award, and was shortlisted for the Man Asian Literary Prize among other prizes.

The Vishwa show,Pune-exhibition on Environment issues

World recommendations on good practice and strategies to eliminate caste-based discrimination

A Statement from the International Dalit Solidarity Network forwarded by the Asian Human Rights Commission WORLD: Recommendations on good practice and strategies to eliminate caste-based discrimination The foundation of all good practices is the adherence to democratic principles and human rights norms. The caste system is perpetuated by unequal access to power and structures of exclusion. The caste system and caste-based discrimination will not be fully eliminated until equal access to power is achieved. Fundamental to this is the full and effective participation of persons affected by caste-based discrimination in mechanisms of governance at all levels. There is, therefore, an urgent need to respond to the call by United Nations (UN) Member States, UN experts, and institutions to identify good practices for the elimination of caste-based discrimination (1) and to document and share experiences for the successful implementation of these good practices. (2) Governments should exercise leadership at the local, national and international level to eliminate caste and caste-based discrimination through the application and promotion of good practices. Their efforts should be encouraged and supported by other actors, including civil society organisations, multilateral and bilateral development agencies, international financial institutions, the private sector, UN, European Union (EU), South Asian Association for Regional Cooperation (SAARC), Organization of American States (OAS), Association of Southeast Asian Nations (ASEAN), African Union (AU), Arab League of Nations, and relevant international organisations. Overview of Progress Made: The attention of the international community has been brought to the existence and persistence of various forms of caste-based discrimination occurring around the world. This practice has been established firmly as a violation of international human rights law. The monitoring of existing mechanisms to prohibit caste-based discrimination has led states to adopt strengthened standards and to improve adherence to legislation. Important progress has been made in the adoption of progressive reforms to eliminate caste-based discrimination, such as that made by Nepal in the constitutional, legislative and institutional measures enacted to date for addressing caste- based discrimination. National movements, solidarity platforms, and an international network for combating caste-based discrimination have been established and transnational links between them have been forged. Alliances have been built with other groups who experience endemic forms of discrimination, including in the context of the 2001 UN World Conference against Racism, Racial Discrimination, Xenophobia and related forms of Intolerance. Innovative strategies for advocacy and capacity-building to combat caste-based discrimination have been developed, including mass mobilisation, political and institutional reform, budget monitoring, media links, and documentation of human rights issues. Important actions have been taken by the UN human rights mechanisms,(3) including the UN Treaty Bodies, the former UN Sub-Commission on the Promotion and Protection of Human Rights, and UN Special Rapporteurs, to bring attention to caste-based discrimination, to affirm its prohibition under international human rights law, and to advise governments on the implementation of existing law to prohibit caste-based discrimination and the adoption and implementation of new measures towards this end. The Universal Periodic Review of the Human Rights Council has also been used effectively to bring focus on caste-based discrimination in a wide range of states and has generated recommendations for states to combat this discrimination. The UN High Commissioner for Human Rights has recognised the persistence of caste-based discrimination and firmly stated that it constitutes the "very negation of the human rights principles of equality and non-discrimination". Constructive engagement with the Office of the High Commissioner for Human Rights has grown significantly and this partnership has helped to initiate vital cooperation with states and other UN agencies for the elimination of caste-based discrimination. Key principles: The following cross-cutting principles can be used as a framework for mainstreaming good practices and strategies to eliminate caste-based discrimination into legislative, policy and programme activities. Non-discrimination: Caste-based discrimination is prohibited by international human rights law. This form of discrimination should be recognised in all measures to address discrimination. Prohibition of discrimination on the basis of caste, descent and/or analogous systems should be included among grounds for non-discrimination in all legislative and policy provisions. Participation: All persons affected by caste-based discrimination have a right to participate in decision-making that will affect them or the regions where they live. This participation should be effective participation, comprising, inter cilia, information sharing, dialogue, consultation, joint decision-making and cooperation in the implementation of decisions made. This participation should occur at all stages of the programme management cycle, from design of policies and programmes to the implementation, monitoring and evaluation stages. The equal participation of women should be ensured. Accountability and access to remedies: States are accountable for the elimination of caste-based discrimination. Persons affected by caste-based discrimination should have equal access to remedies for violations of their human rights. Substantive equality and special measures: In order to achieve substantive equality and to overcome caste-based discrimination, states and other actors can adopt special measures in the social, economic, cultural and other fields, with the aim of ensuring full and equal enjoyment of human rights and fundamental freedoms. Intersectionality: Intersecting forms of discrimination of the basis of gender, age, disability, sexual orientation, religion and ethnicity should be taken into consideration when addressing caste-based discrimination. Non-retrogression: Measures must be taken to ensure that persons affected by caste-based discrimination do not experience retrogression in access to or enjoyment of their human rights. The progressive realisation of human rights must not discriminate against anyone on the basis of caste. Data and monitoring: Data to monitor the effects of caste-based discrimination should be collected systematically and transparently. Such data should be disaggregated to analyse intersecting forms of discrimination. Data should be collected in a manner that is consistent with international standards on privacy protection including, inter cilia, informed consent and adherence to ethical standards. Data collected should be accessible to persons affected by caste-based discrimination and such persons should participate in all aspects of the design of methodology and collection of data. Good Practices: 1. Effective frameworks, policies, and institutions a. Constitutional and legislative provisions should prohibit discrimination, including on the basis of caste, descent and/or analogous systems of inherited status. Governments should review and enact or amend legislation to this end, including prohibiting the practices of ‘untouchability' in both the public and private spheres. Governments should ensure that responsible institutions are capable of implementing these legislative provisions. New legislation, budgets, multi-year plans, policies, programmes and schemes should be subjected to mandatory equality impact assessments prior to adoption in order to prevent harmful impacts and to ensure positive benefits for disadvantaged groups. Such equality impact assessments should be public and should include the full and effective participation of disadvantaged groups. b. Governments must create functional institutions of justice Access to justice should be ensured following violations of the right to non-discrimination and other crimes committed against caste-affected communities, including through measures to combat impunity, support to legal aid, adequate compensation for victims, training for justice sector employees, like the police and judiciary, and monitoring of access to justice for caste-affected groups. Delays to the adjudication process must be eradicated in order to make justice possible. Governments must undertake fundamental reforms of the policing system in order to ensure access to justice for all. An independent legal aid system should be introduced, including with a mandate to intervene of behalf of victims and communities. A system for the protection of victims and witnesses should be adopted. c. Human Rights Defenders should be safeguarded and their right to freedom of association respected. Governments must undertake prompt and impartial investigations of crimes committed against Human Rights Defenders. d. States and international organisations should endorse and adopt the draft UN Principles and Guidelines for the Effective Elimination of Discrimination Based on Work and Descent in the UN Human Rights Council to serve as a framework for developing further policies and institutions. States should establish a follow-up monitoring mechanism, such as a UN Special Rapporteur on Discrimination Based on Work and Descent, to promote and oversee compliance with the UN Principles and Guidelines. e. National Action Plans on human rights should be adopted and implemented fully and should include targeted intervention to eliminate caste-based discrimination. Such plans can include legislative review and reform; targeted budgetary allocations; private sector guidelines; collection of data on caste-based discrimination (including disaggregation by gender and age); and the adoption of special measures. National Action Plans should be time-bound, adequately resourced and routinely monitored for impact Civil society organisations should be enabled to participate in the design and monitoring of National Action Plans. f. Statutory bodies to address caste-based discrimination and ‘untouchability' practices, such as National Dalit Commissions, should be created or strengthened. Such bodies should have adequate resources and personnel, independence, and institutional authority to fulfil their mandate. Processes of appointment to such statutory bodies and other state human rights and justice institutions, should be transparent and accountable to parliaments and should include fair and proportional representation of Dalits or other caste-affected groups, including women from these groups. g. UN Country Teams should integrate into the Common Country Assessment and UN Development Assistance Framework strategies for eliminating caste-based discrimination. Persons affected by caste-based discrimination should participate in this strategy development implementation, monitoring and evaluation. All UN agencies should implement affirmative action policies and measures in order to proportionately employ persons affected by caste-based discrimination, including women, in all development activities. UN Country Teams should assist with the implementation of recommendations made on caste-based discrimination by UN Treaty Bodies, the Universal Periodic Review, Special Rapporteurs, and other UN human rights mechanisms. h. The European Union and the South Asian Association for Regional Cooperation should adopt strategies for political dialogue and policy reform to address caste-based discrimination(4) . This strategy should be applied in measures for EU and SAARC Member States, bilateral dialogues with caste-affected states and in supporting the emergence of international mechanisms to combat caste-based discrimination in the UN and other fora. Attention should be given to addressing caste-based discrimination in country strategy papers, human rights dialogues and trade agreements. i. Governments should follow the Guiding Principles for the Implementation of the UN Protect, Respect and Remedy" Framework and should work with the private sector to ensure businesses comply with human rights standards, including the prohibition of caste-based discrimination. The private sector should abide by these Guiding Principles, along with the Ambedkar Principles. Multinational corporations based in home states should be held accountable to legal standards on non-discrimination in their operations in host states, including the Ambedkar Principles. j. Governments should introduce mandatory human rights education, including education on non-discrimination and equality, into primary schools. Human rights education, including on issues of caste-based discrimination, should be introduced also at the secondary and tertiary levels, including in legal education. 2. Addressing multiple discrimination against Dalit women a. Governments should take into account the situation of women and girls in all measures taken to address caste-based discrimination and should adopt specific provisions to ensure the human rights of women and girls affected by caste-based discrimination. Particular attention should be paid to combating intersecting forms of discrimination in the sectors of education, employment, health care, access to land and personal security. b. Women from caste-affected communities should be supported to increase participation at all levels of political governance as well as in other decision-making structures. The formation of high-level skills in capacity building training for Dalit women should be prioritised, in order to provide them with opportunities for employment in donor and other international organizations at the regional and global level, which will lead to increased development and financial support to eliminate caste-based discrimination. Proportional representation of caste-affected women elected into parliaments, legislatures and local governance systems should be mandated. Gender discrimination within caste-affected communities should be challenged through programmes of dialogue and sensitisation of men. c. National Human Rights Institutions in every caste-based country are encouraged to bring out an annual White Paper to appraise their performance in relation to caste and gender-based human rights violations. d. Gender-disaggregated data on caste-based discrimination should be collected. This data should be collected in consultation with affected women and should aim for the participation of affected women in the design, collection and evaluation of data. e. Women and girls affected by caste-based discrimination are particularly vulnerable to various forms of sexual violence, forced and ritual prostitution, trafficking, domestic violence and punitive violence when they seek justice for crimes committed. Measures should be taken to increase protection from these crimes and to tackle impunity and discrimination in access to justice. Such measures can include police and judicial training and monitoring, legal assistance for prosecution of crimes, strengthening laws against domestic violence and other forms of violence against women, awareness campaigns to help prevent exploitation, and investing resources into education for women and girls affected by caste-based discrimination. 3. Humanitarian standards and a framework to eliminate caste-based discrimination in humanitarian response a. All governments and non-state actors involved in humanitarian response should take measures to tackle exclusion and discrimination in all humanitarian programmes, including disaster response and disaster risk reduction efforts. b. Strategies and tools should be developed in the planning, implementation and monitoring of programmes, including participatory capacity assessment and vulnerability mapping, inclusion monitoring and social equity auditing. All actors should be trained in tackling caste-based discrimination and measures should be adopted to address and challenge ‘untouchability' practices in disaster response. c. The agency of affected communities should be strengthened to ensure their effective participation in all levels of decision-making and in humanitarian operations. d. These measures must be adopted and sufficiently funded by all governments and non-state actors. 4. Forced and bonded labour and discrimination issues in employment a. Forced and bonded-labour impacts disproportionately on caste-effected groups, including children. Governments, in cooperation with the International Labour Organization, development agencies, the private sector and trade unions, should implement enact and fully enforce legislation and action plans prohibiting forced and bonded-labour: This should include the use of rigorous monitoring mechanisms, prosecution of those violating the laws and rehabilitation support for those affected by forced and bonded-labour. The right to freedom of assembly and association should be respected. Donors should differentiate the level of assistance to governments depending on the progress made towards the abolishment of bonded-labour. b. Governments should enforce measures for the immediate ending of manual scavenging. Women disproportionately are relegated to manual scavenging and long term sustainable measures should be taken to increase their capacity to pursue proper employment opportunities, including improving literacy, job skills training and entrepreneurial skills. c. Governments should adopt legislation to prohibit discrimination on the basis of caste or analogous systems in any public and private sector employment. The introduction or extension of reservation policies in the public and private sector should be considered. Governments should take necessary steps to remove the customary constraints on leaving traditional caste-based occupations and enable individuals to access alternative employment Policies to this end could include increasing access to finance and markets for small businesses, improving functional literacy and offering targeted job-skills training. d. Private companies should work to eliminate caste-based discrimination within their own organizations as well as within the operations of their subsidiaries and throughout their supply chain. Businesses and other private sector actors should apply the Ambedkar Principles in all of their operations. Corporate Social Responsibility (CSR) Funds should be used to achieve and implement these goals. e. The Dalit Discrimination Check is an essential tool to enable businesses to identify caste-based discrimination and to take steps to eliminate it in their operations. Private companies should adhere to the UN Global Compact principles on, inter cilia, discrimination in respect of employment and occupation and should work with governments to ensure that all of their operations comply with human rights standards, using the Guiding Principles for the Implementation of the UN "Protect, Respect and Remedy" Framework. f. Civil society organisations should work in broad coalitions to address the issue of bonded- labour more effectively and special attention should be given to the role the media can play in achieving positive change. 5. Access to services, resources and development a. Caste-based discrimination prevents equal access to public services (e.g. housing, water and sanitation, health care, education). Governments should ensure equal access to quality public services for all, allocating appropriate budgets to do so, whilst monitoring access and delivery of services. All actors responsible for delivery of public services should be trained in how to identify, monitor and eliminate caste-based discrimination. b. Governments must protect and promote the poorest and most excluded, ensuring that economic growth is equitable and sustainable. Priority should be given to providing access to financial services and credit for both formal and informal workers. Resources should be allocated to providing technical and higher education and promoting entrepreneurship for caste-affected communities. c. Governments should take immediate measures to redistribute land to the landless, to adequately meet their agriculture and housing needs. Land titles should be provided to both women and men (preferably to women or jointly where appropriate). Governments need to prevent the encroachment of land owned by persons affected by caste-based discrimination and eviction of these communities. Extractive industries which continue to cause displacement, environmental devastation and conflict need to be properly regulated and compensation provided. CSR funds should be spent in a transparent and accountable way, promoting affirmative action and allocated to promoting the rights of caste-affected communities. d. Governments should ensure that national and sub-national budgets are transparent accessible and participatory, at all levels of planning, implementation, review and audit especially for those affected by caste-based discrimination. All expenditure in relation to caste-affected communities should be subject to a social audit Specific budget allocations should be made for women from caste-affected groups and the expenditures monitored (see also section 2). e. Any diversion of funds, misallocation or under spend should be a criminal offence. f. The state should allocate adequate budget spending to ensure that there is no development and welfare deficit. Such measures need to be time bound and measurable. Targeted schemes, provisions and benefits, including social protection, are needed to reduce inequality. g. Governments must take urgent measures to ensure appropriate legal and institutional measures to address corruption, within the framework of international norms and conventions. Measures to promote public accountability of these institutions, including proactive disclosure of budgets, should be adopted. h. All multilateral and bilateral agencies must uphold the Paris Declaration and uphold the Millennium Development Goals (MDG5) (2015+) commitments. 6. Public awareness and campaigns against the caste system or caste-based discrimination a. Governments, civil society organisations and the corporate sector should undertake nationwide public awareness campaigns to help eliminate the caste system. These campaigns should ensure that everyone in society is aware that the caste system is a violation of human rights and as such should be on the national agenda. b. Governments, civil society organisations and the corporate sector should recognise, promote and encourage the communities affected by caste-based discrimination to increase their own capacity to use media strategically and to produce their own media resources. c. Governments, civil society organisations and the corporate sector should sensitise and mobilise mainstream media to ensure their participation in public awareness campaigns to eliminate the caste system. 7. 'Untouchability' practices and inter-community experiences a. Governments should outlaw the caste system and prevent, prohibit and eliminate practices of 'untouchability' directed against persons affected by caste-based discrimination, in the public and private spheres, including in the areas of housing, education, employment, water resources, personal relations (such as marriage) and the use of public spaces. Inter-communal relations at the local level should be monitored to document changes in ‘untouchability', exclusion and social interaction and to help prevent violence. b. 'Untouchability' practices and gender discrimination in educational institutions should be eliminated through curriculum reform to remove prejudicial content from textbooks and other educational resources, training and monitoring of teachers, and sensitisation programmes for students. c. Governments should take steps to secure rights of marriage for persons affected by caste- based discrimination who wish to marry freely. This should include prevention and punishment of crimes committed against inter-communal marriages. 8. Civil society strategies — linking local, national, and international a. Civil society organisations should promote parallel action strategies at the local, national and international level. They should research, document and share information on good practices to eliminate caste-based discrimination and caste-based violations of human rights. Attention to caste-based discrimination should be mainstreamed into civil society work on affected countries or relevant themes. Information sharing and meaningful involvement should be a two-way process to ensure that actors at local, national and international levels are equally aware of and able to influence issues and developments in their respective spheres of activity. b. National platforms on the elimination of caste and caste-based discrimination should be created. These platforms should focus on asserting political pressure for accountable governance and should systematically monitor public institutions, including especially those on justice, to achieve reforms. (See also section 1) c. Civil society organisations should build alliances with civil society organisations focused on caste-based discrimination, and vice versa, in order to mainstream attention to caste-based discrimination across relevant sectors of advocacy and service-delivery. Hiring practices in civil society organisations should eliminate caste-based discrimination and should adopt special measures to recruit staff from affected groups. d. Donors should provide funding and technical support aimed at strengthening civil society organizations, including provision for social movements. Funding structures should be multi- year to enable more effective project implementation. Targeted resources should be allocated to civil society organisations focused on caste-based discrimination that are managed by Dalits or other caste-affected groups. - e. Recommendations made on caste-based discrimination at the UN, ILO or other international or regional bodies should be linked to national and local level follow-ups and monitoring of compliance with recommendations. Actions can include translation, making outputs relevant to local contexts and enabling local-level inputs to tools like shadow reports or country visits of UN Special Rapporteurs. Civil society organisations should liaise systematically with parliamentarians on the follow-up to such recommendations. f. Civil society organisations focused on caste-based discrimination should build the leadership and empowerment of women and young people. Capacity-building can include language training or providing translation, management skills and opportunities to enhance leadership skills. Women and youth should participate equally in all aspects of organisational activity. Civil society organisations focused on caste-based discrimination should have at least 50 percent female staff and should include women in leadership positions. (See also section 2) g. Civil society organisations should build alliances with media and build media strategies, including by sharing information across countries. (See also section 6 (b)) h. Religious communities and organisations should be encouraged to initiate and participate in• inter-faith dialogue, with a possibility to work together to overcome social exclusion, to affirm and safeguard human dignity and to transform cultures of domination and discrimination. ---------- Footnotes: 1 When caste-based discrimination is noted this is meant to include also 'untouchability'. 2 For a list of political statements on the need for sharing good practices to eliminate caste discrimination, please see: http://idsn.org/-consultajonbest-practice-statements/ 3 Please see the UN Compilation of References to Caste-based Discrimination by UN Treaty Bodies, Universal Periodic Review, and UN Special Procedures, IDSN (November 2011) available at: www.idsn.org/UNcompilation 4 Further recommendations for an EU Policy Framework can be found at http://idsn.org/international-advocacy/eu/idsn-recommendations/. # # # About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation that monitors human rights in Asia, documents violations and advocates for justice and institutional reform to ensure the protection and promotion of these rights. The Hong Kong-based group was founded in 1984. Visit our new website with more features at www.humanrights.asia. You can make a difference. Please support our work and make a donation here. ----------------------------- Asian Human Rights Commission #701A Westley Square, 48 Hoi Yuen Road, Kwun Tong, Kowloon, Hongkong S.A.R. Tel: +(852) 2698-6339 Fax: +(852) 2698-6367 Web: humanrights.asia twitter/youtube/facebook: humanrightsasia Please consider the environment before printing this email.

Human rights without justice means zilch

ALRC-UPR-13-003-2011 December 05, 2011 A Submission by the Asian Legal Resource Centre on the Universal Periodic Review (Second Cycle) of India INDIA: Human rights without justice a utopia 1. Background: 1.1 The first Universal Periodic Review (UPR) of India was on 10 April 2008. The Working Group of the Human Rights Council on the UPR has prepared the conclusions and recommendations made by the delegations that participated in the interactive dialogue on the UPR of India.i The Government of India after examining the recommendations responded to the recommendations on 25 August 2008.ii 1.2 Protection, promotion and fulfilment or human rights requires an effective architecture of justice delivery. The interactive dialogue in 2008 demonstrated the lack of understanding and focus of this fundamental, thereby missing out vital issues in India like (i) decades long court delays in adjudication; (ii) lack of competence and independence of the country's prosecution and law-enforcement agencies; and (iii) widespread and omnipresent corruption that prevents the reach of government welfare programs to the poor. 1.3 Though some of the stakeholders' reports, including the one submitted by the ALRC highlighted these aspects; it was not a point of discussion during the interactive dialogue. This lack of focused engagement on some of the vital issues that adversely affects human rights in India is reflected in the concluding recommendations, thereby rendering nine out of 18 recommendations, broad and general, which even if complied would not have a direct, immediate and positive impact upon the lives of the people in the country. 1.4 The concluding recommendationsiii on India could be summarised into four main limbs: i. Curb entrenched practice of torture by an effective domestic mechanism; ii. Take effective actions to prevent all forms of discrimination, including those based on caste, gender or against the minorities; iii. Ensure that development priorities respect the needs of the extremely poor and marginalised, in particular children and take affirmative actions to prevent distress migration of the rural poor; iv. An overall improvement in the architecture of justice delivery. 1.5 The government's response to the Council to the recommendations was mixed as expected of concurrence and denial. The domestic implementation of the recommendations has been almost absent, or at the most, half-hearted. This submission attempts to assess the compliance of India of the four main limbs of the recommendations from the first review and to once again suggest issues that should be seriously considered during the second cycle of the UPR of India. 2. On torture: 2.1 India has not ratified CAT. There has been no serious debate within the Indian parliament concerning ratification, an essential requirement in a dualist system that practices parliamentary democracy. This is despite promises, by none other than the Prime Minister, that the country would ratify the convention, as early as 2009.iv 2.2 India has not moved forward since then on the issue other than the introduction of a Bill in the parliament, the Prevention of Torture Bill 2010.v The Lok Sabha passed the Bill on 6 May 2010. The Rajya Sabha, constituted a Parliamentary Select Committee to review the Bill. The Committee suggested wide-ranging changes to the Bill.vi The Bill is now with the government and nothing is heard about it since then. 2.3 It is expected that the government would highlight the Bill as an important and vital step forward towards the ratification of CAT and the criminalisation of torture in India. However, the ALRC, like the Parliamentary Select Committee, is of the opinion that the proposed law is eyewash. The law requires substantial revision, including its definition of 'torture', which currently fails to meet the definitional standard prescribed in the CAT. The proposed law limits the operation of the definition to "causing grievous hurt" or "danger to life, limb or health (mental or physical)". 2.4 An action against torture will require prior sanction from the government as per Section 6 of the Bill. The rider in Section 6 is a limiting clause that could delay or even deny prosecutions. The bill also enforces a period of limitation of six months for filing a complaint vide Section 5.vii 2.5 In the meanwhile the practice of torture continues unabated, and is widespread in India. The ALRC has documented more than three hundred cases of torture from India during the period 2008-11. Torture happens in all forms of custody - judicial, police, military and inside prisons. The number of successful prosecution is extremely low, estimated to be one case for every 125 cases. 2.6 Rampant use of torture and the lack of prosecution demoralises the law enforcement officers. It creates a culture of fear and discourages victims from filing complaints. There is no government agency in India that specialises in providing psychological assistance to victims of torture. There is no independent agency to investigate complaints of torture either. 2.7 The use of torture as a common tool for criminal investigation has a direct bearing upon maintaining law and order and upon criminal trials. The use of enforced confessions as the primary tool for criminal investigation is one of the reasons for the mere 4% rate of conviction since the past two decades. 2.8 Law-enforcement agencies are neither capable nor equipped to deal with the increasing and diverse security threats the country face. This is reflected in their operative legal framework. The Indian Police Act, 1861 is the product of the colonial rule that fits the requirements of a police force essential to run a colony. 2.9 India's police today is unfit to serve a democracy. The police are under resourced; lacks training and is unfit to operate in a democratic state. The government conceive the law enforcement agencies as rule enforcers and not as a public service. In international fora the government maintains the position that since the country's judiciary is largely independent, corrective measures could be taken through the courts to address the problems in policing and that it serves as a strong deterrent against torture. 2.10 The D.K. Basu judgment quoted by the government during the first session is an example.viii But the ALRC wishes to reiterate that all the cases documented by the ALRC since the D.K. Basu judgment, some 790 cases of torture, violates the dictum in the case. Yet, NOT a single police officer or a state government has been held on contempt by the court. On a similar vein, the Police Complaints Authority to be constituted by virtue of yet another judgment, the Prakash Singh case, is not constituted in most states so far.ix 2.11 It is therefore expected that during the UPR, the interactive dialogue would focus among other issues, requesting the government of India to reform the operative framework of its law enforcement agencies. Towards this end, it is not enough that the agencies provided with adequate physical and financial operative resources, but further, torture has to be criminalised and an independent agency that is not associated with the police, should be constituted in every state of India to accept and investigate complaints of torture. 3. On caste-based discrimination 3.1 Caste-based discrimination is the Indian variant of apartheid and continues unabated in India.x The stoning to death of 22-year-old Swapna, and her husband, 28-year-old Sunkari Sriniwas on 23 May 2010 by Swapna's family near Krishnajiwadi village, Nizamabad, Andhra Pradesh state is one more proof to the stark reality of the continuing practice of caste-based discrimination and caste prejudices in India. Swapna belongs to a Hindu dominant caste family. Her parents and relatives were opposed to Swapna's marriage with Sriniwas, a Dalit. 3.2 While India has been defiant and opposed to national and international criticism on everything related to caste-based discrimination, it has refused to show similar sensitivity in dealing with the issue at the domestic level. Though the country had enacted laws to counter caste-based discrimination, of which some are currently under review, like the Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989; it is a reality, the implementation of these legislations are half hearted and often left at the mercy of caste-prejudiced law enforcement officers. 3.3 Though India boasts about some of its senior bureaucrats, a former President, Chief Ministers and judges, including the former Chief Justice, as members of the Dalit community, in reality, the effect has been only symbolic. The ordinary Dalit continues to face discrimination and social stigmatisation throughout the country. The fact that the parents of a woman went to the extent of stoning their own daughter to death for marrying an untouchable Dalit, underlines the fact that mere legislations will not end caste-based discrimination. The incident also is the grim reminder to the fact that caste prejudice is deep-rooted in India. To deal with such a deep-rooted violence mere law making is not enough. 3.4 A legal text is only the mere codification of certain principles, norms and rules. In punitive jurisprudence, a law could also be a deterrent against a crime. But the deterrence factor of the crime, in this case, caste-based discrimination as referred to in the Act, depends upon the effectiveness in the execution of the law. This is where India and its entire justice institutions and policies have failed. 3.5 The ALRC has documented cases over the past three years, where atrocities committed against the Dalits were refused to be registered as crimes at police stations. This is also reflected in the low number of cases registered across India for offenses punishable under the SC & ST Act.xi The general failure of the law-enforcement mechanism in the country coupled with the caste prejudice of the officer who runs the system poses a double walled challenge to a complainant who would want to register and investigate his complaint and prosecute a person who has committed a crime that is covered under the Act. 3.6 In addition to the lack of willingness of the government to root out caste prejudice is the omnipresence of the caste-prejudiced mind in government policies. One example is the continuing practice of manual scavenging. In spite of a dozen laws preventing manual scavenging the practice continues in India due to more than one reason, of which an important one is the lack of adequate sanitary facilities in most parts of the country. Investment in proper sanitation facilities is a factor overlooked even in the national capital, New Delhi. 3.7 The ALRC expects that the government of India will be encouraged in the UPR to take affirmative actions, beyond legislations, like implementing mandatory requirements of acceptance of complaints, prompt investigations and fast prosecutions of crimes committed against the oppressed castes (Dalits). 4. Need for an all-inclusive policy of development 4.1 The Republic of Korea engaged India during the 2008 UPR upon India's policies on development. Today unfortunately a South Korean registered entity, the POSCO (formerly Pohang Iron and Steel Company), accounts to the single largest destruction of natural environment and displacement by a foreign direct investment led industrial project in India. The project negates all premises of sustainable development, respect to the rights of indigenous communities and enforces distress migration and violates the guarantees of the acclaimed The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. 4.2 The ALRC has reported cases where the POSCO itself has been allegedly employing criminals to silence anti-POSCO movements. Human rights activists who oppose break-neck-speed development are accused by the state government as anti-state forces or Naxalites or Maoists and are arrested and detained indefinitely. This is a pattern observed throughout the country. 4.3 It is from states, like Orissa, Madhya Pradesh, Bihar, Uttar Pradesh and West Bengal that large numbers of people migrate to other parts of the country, in search for job and livelihood. A substantial number of them end up being exploited and work as bonded labourers. Of the worst affected are women and children. 4.4 When the representatives of the ALRC met Justice Ms. Sheela Khanna, the Chairperson of Madhya Pradesh State Commission for Protection of Child Rights to seek intervention on this scenario as well as to address child malnutrition that is rampant among the children of the tribal community in the state, the Chairperson opined that those children brought to the Nutrition Rehabilitation Centres should be asked to produce their horoscope and if they are found to become worthy citizens of the state by a Brahmin priest reading their horoscope, then only state resources should be spent to recover their life.xii 4.5 Development is essential for any country to progress. What is required however is to bring transparency, accountability and public audit into development schemes that the private and public sector are competing to implement in India. Even before conceiving a project, it must be mandatory to conduct a public audit of the project proposal. It is built into a reasonable extent in the local self-governance framework in India. However, corruption has so far prevented this proviso from being properly implemented. 4.6 The ALRC expects that the second cycle of the UPR would be an opportunity where India is urged to bring functioning, transparent mechanisms to prevent widespread corruption in India, which is the singular factor that denies benefits of development and government welfare schemes to the rural poor. Instead of stifling whistleblowers like those who use the Right to Information Act, 2005 - which is a widespread pattern in India - the country should provide a safety mechanism to protect them. 5. On justice architecture and draconian legislations like the Armed Forces (Special Powers) Act, 1958 5.1 The Prime Minister of India, addressing the sixth annual convention of Information Commissioners in New Delhi said that the government would be critically reviewing the Right to Information Act, 2005 (RTI) so that the legislation does not "affect the deliberative process in the government". In his speech delivered on 14 October 2011, addressing the conference the Prime Minister indicated some areas where the law should be recalibrated according to the government, so that genuine public interests could be upheld. The Prime Minister also emphasised the need to protect RTI activists as they are often subjected to extreme forms of threats.xiii The risk is higher in states where the AFSPA is enforced. 5.2 The AHRC congratulates the government for its openness to acknowledge that improvement in administration - translate into governance - and prevention of corruption can only be realised through legal and administrative reforms aided by technology. However, such reforms to materialise, drastic reforms of the justice-rendering framework is required. 5.3 The most important of all is the drastic change that need to be brought into the functioning of the courts. The country's judiciary will take at least 365 years to complete the present backlog of cases. The present Chief Justice of India, Justice Mr H S Kapadia has reaffirmed this, stated by twenty-two of his predecessors, in May 2010. Yet, neither the judiciary, nor the government has made it a realistic priority to address the backlog of cases. In essence, the judiciary is incapable of delivering justice. 5.4 When the investigative limb of the state suffers from low morale, inefficiency and the lack of public appreciation and the adjudicative limb suffers from enormous amounts of delay and incapacitated to deal with the sheer volume of work; chaos, confusion and inefficiency is a natural consequence. Translating this into the context of maintaining the rule of law implies that injustice is the norm and justice an exception in the society. Drastic measures are required to bring an end to this 'organised lawlessness'. The resultant environment is exploited not only by armed secessionist forces that operate in India, but also by the law-enforcement agencies that enjoy impunity. 5.5 Where the government feels that its writ is threatened and the integrity of the state challenged, a draconian legislation like the AFSPA is not an answer. The AFSPA is synonymous with injustice, discrimination and impunity. The law has attracted, repeatedly, wide-ranging criticisms from jurists, human rights activists, and even politicians within India and abroad.xiv 5.6 The ALRC has documented more than two hundred cases, over the past eight years, where the state agencies operating under the statutory impunity provided by the Act has committed serious human rights violations in states like Manipur.xv So far not a single military or police officer has been prosecuted for the human rights abuses they have committed under the cover of impunity provided by this law. 5.7 A discussion on the fundamental that for a country to protect the principles of the rule of law requires functioning justice institutions, that could accept and investigate complaints and deliver justice is absent in India. However, India today is at a crossroad. Should India fail in nurturing human rights and democratic values, it can adversely impact the region and can have global consequences. 5.8 The ALRC expects that the second UPR on India will be an opportunity to encourage the government to redefine its restructuring priorities so that reforming justice institutions would be the priority for the government, thereby doing justice to its voluntary pledge the country has made to its people and to the international community. 28 November 2011 ALRC Hong Kong ------- i Universal Periodic Review, Report of the Working Group on the Universal Periodic Review, India; A/HRC/8/26 dated 23 May 2008 ii Universal Periodic Review, Report of the Working Group on the Universal Periodic Review, India; Addendum, Response of the Government of India to the recommendations made by delegations during the Universal Periodic Review of India; A/HRC/8/26/Add.1 dated 25 August 2008 iii Id.1 iv INDIA: Act now, stop pretending!; AHRC-STM-084-2011, 24 June 2011 v http://notorture.ahrchk.net/profile/india/Prevention_of_Torture_Bill_India_2010.pdf vi Lok Sabha is the lower house of the Indian parliament and the Rajya Sabha is the upper house of the parliament. vii Kindly read Annexure 1 viii D. K. Basu Vs. State of West Bengal, Writ Petition (Civil) No. 539 of 1986 decided on 18-12-1996 ix Praksah Singh and others Vs. Union of India and others, Writ Petition (Civil) No. 310 of 1996 decided on 22-09-2006 x Tearing down the wall of caste, Ms. Navanethem Pillay, United Nations High Commissioner for Human Rights, 8 October 2009 xi For instance in the state of Tamil Nadu, a place where caste-based discrimination is rampant according to state government statistics, only 761 cases were registered under the SC/ST Act in 2010 out of which only 20% cases ended in a conviction. This is opposed to the high number of total cases registered, which stands at 185678 for the same year. Source: Home, Prohibition and Excise Department, Tamil Nadu Police, Policy Note on Demand No. 22 xii INDIA: Democratic Pretentions and Administrative Follies, AHRC Annual Report 2010, available at www.humanrights.asia/resources/hrreport/2010/4%20India_2010.pdf xiii Between January 2010 and November 2011, 15 RTI activists have been murdered in the state of Maharashtra alone. xiv A thorough review of the law entitled "The Armed Forces (Special Powers) Act, 1958 in Manipur and other States of the Northeast of India: Sanctioning repression in violation of India’s human rights obligations" is available at www.humanrights.asia/countries/india/reports/AFSPAReviewAugust2011.pdf xv Id. 13, see Annexure 2 # # # About the ALRC: The Asian Legal Resource Centre is an independent regional non-governmental organisation holding general consultative status with the Economic and Social Council of the United Nations. It is the sister organisation of the Asian Human Rights Commission. The Hong Kong-based group seeks to strengthen and encourage positive action on legal and human rights issues at the local and national levels throughout Asia. Visit our new website with more features at www.humanrights.asia. You can make a difference. Please support our work and make a donation here. ----------------------------- Asian Human Rights Commission #701A Westley Square, 48 Hoi Yuen Road, Kwun Tong, Kowloon, Hongkong S.A.R. Tel: +(852) 2698-6339 Fax: +(852) 2698-6367 Web: humanrights.asia twitter/youtube/facebook: humanrightsasia Please consider the environment before printing this email.

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AFSPA must be withdrawn from some areas, says Omar Abdullah

AFSPA must be withdrawn from some areas: Omar to Army November 10th, 2011 Print Print Email Email this Article JAMMU: J & K CM Omar Abdullah today did some tough talking with the Army at the Unified Headquarter meeting and said the Armed Forces Special Powers Act had to be partially withdrawn from the state. In the nearly three-hour long meeting, the Army gave a presentation highlighting the importance of AFSPA in fighting militancy in the state and also suggested that even a partial withdrawal will be detrimental to the security apparatus, sources privy to the meeting said. However, the Army did not find any taker of its view among the state and central security establishments who insisted that there was scope for its withdrawal from certain areas and the demand of the Army was more theoretical in nature than practical, the sources said. The CM remarked that non-withdrawal of the AFSPA from certain areas was not an option and the people of the state need to have some semblence of peace returning. The CM directed the Corps Comamnders of Jammu and Srinagar Corps as well as Director General of Police Kuldeep Khoda and Home Secretary B R Sharma to hold meetings on the issue of withdrawal of Disturbed Areas act at the earliest and hand over their report to the state government. (PTI)

Christian Council denounces Subramaniam Swamy’s effort to target minorities and to sabotage Communal Violence Prevention Bill

Christian Council denounces Subramaniam Swamy’s effort to target minorities and to sabotage Communal Violence Prevention Bill People will defeat Sangh Parivar hate campaign MYSORE, October 31, 2001 The All India Christian Council [aicc], an apex Human Rights and Freedom of Faith forum, has taken strong exception to Janata Party president Advocate Subramaniam Swamy’s slander campaign against the Christian and Muslim communities in general, and against the aicc in particular, in his so called complaint to the police against the Communal Violence Prevention Bill drafted by the National Advisory Council. All India Christian Council Secretary General Dr John Dayal and Karnataka unit leaders Rev Kumarswamy and Mr Anand Kumar released the Council’s reaction in a statement at a press conference in Mysore, Karnataka state today. Earlier, in a seminar in the city, the leaders cautioned the people of Karnataka against attempts by the Sangh Parivar and its political allies to communalise the environment in the state. They said the so called Rath Yatra by BJP leader and prime ministerial aspirant Mr Lal Krishan Advani through Karnataka may purportedly be against corruption, but its objective was to sow the seeds of communal hatred and aggravate tension for electoral gains. They recalled the massive violence that took place in the wake of the last rath yatra of Mr Advani in the 1990s. Dr John Dayal said the All India Christian Council’s general secretary for the state of Maharashtra, Dr Abraham Mathai, had filed a formal complaint demanding legal action against Dr Subramaniam Swamy for spreading hate and violating the Constitution when he wrote an article in a Mumbai newspaper advocating that Muslims should not be given voting rights. Dr Dayal said Swamy was now trying to wriggle out by launching a vicious attack on the National Advisory Council [NAC] headed by Mrs Sonia Gandhi which had drafted a Bill which could effectively prevent hate campaigns, the targetting of minorities and violence against the marginalised. Swamy had also attacked the Christian Council which is supporting legislation to prevent violence against minorities. “This is the result of a guilty conscious because Swamy knows the forces responsible for communalism in India. It may be recalled that the then Minister of State for Home affairs, Mr Ajay Maken, had stated in Parliament that there were over 6,000 incidents of communal violence, or riots, in India in the last decade. Holding that communalism is as evil as corruption, the All India Christian Council has repeatedly called for strong laws to curb hate campaigns and similar activity which leads to the targeting of minorities and marginalised communities, including Muslims, Christians, Dalits and Tribals. The Council has cited how the violence against Sikhs in 1984, against Muslims in Gujarat in 2002 and against Christians in Kandhamal in Orissa in 2007 and 2008 had led to untold misery. In all cases, the state authorities had been silent spectators or had deliberately allowed the violence to spread. Mangalore had also seen great havoc against the Christian community in 2008. In Orissa, the violence led to the displacement of more than 56,000 people, the burning down of almost 6,000 houses and 300 churches, rape of nuns and other women and the death of more than 90 persons even as the police watched the violence spread over 45 days. The victims are still awaiting real justice and rehabilitation. The Council has said the proposed Bill must check communalism at all stages, from the hate campaigns, conspiracies and actual killings, and identify the guilty elements, including political forces. The Bill must also ensure that officers guilty of inaction were punished for dereliction of duty. Those who connived in the violence would also be brought to book. The Christian Council mechanisms must be set in place which would ensure that the victims were given adequate reparations and relief and rehabilitation was of a nature that they could rebuild their lives. The All India Christian Council (www.christiancouncil.in), birthed in 1998, exists to protect and serve the Christian community, minorities, and the oppressed castes. The aicc is a coalition of thousands of Indian denominations, organizations, and lay leaders Released by Anand Kumar Jogul

AFSPA the draconian law

AFSPA Failed! Mizoram Way an Alternative? By Madhu Chandra www.madhuchandra.org The Arm Forces Special Power Act, 1958 (AFSPA) is termed as a draconian and xenophobia law. It is draconian law because section 4 (a) of the AFSPA gives power to armed forces personnel to shoot at anyone suspicious, section 4 (b) to destroy the shelter of the armed rebels and section 4 (c) to search and arrest without warrant. These mean that any army personnel can shoot at any one suspected that she/he would have a gun and fire at him. The section 6 of the AFSPA protects armed force personnel, who are operating under the act from prosecution, suit or legal proceeding except previous sanction by Central Government. To get permission from the Central Government of India to prosecute any armed forces personnel, who involved in blunder like Thangjam Manoram case in 2004. Over 100 Manipuri women protested naked in front of Kangla Fort Assam Rifle camp. Thereafter, the Central Government of India granted permission to prosecute the army personnel involved in raping her and killed brutally. There is not even a single case where prosecution granted against any armed forces personnel under AFSPA without public outcry. Secondly, AFSPA is xenophobia law because it is selectively imposed for first forty years upon seven North East India states - Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura and extended to Jammu and Kashmir, whose features, ethnicities and religious backgrounds are different from the rest of the country. Need not to repeat the debate that AFSPA has failed to solve insurgency challenges rather it has caused increasing. Not much debated ideologically on why the youngsters take up arms. How can solve the problem without using arm forces power? It will be worth to focus on other alternative to solve the five decades old socio-political crisis of North East India region. The nation observed the 27th death anniversary of India’s first lady Prime Minister - Indira Gandhi’s assassination on October 31. The Ministry of Development for North East Region (DoNER) had an advertisement on Times of India, conveyed a message of development initiated by Indira Gandhi in North East India! First woman Prime Minister Mrs. Indira Gandhi initiated the table negotiation between Government of India with Mizoram’s separatist insurgents in 1971. Indira Gandhi was assassinated in 1984 before she could bring the solution. Thereafter, Rajiv Gandhi, who became Prime Minister carried on the negotiation and achieved the solution in 1986. The chapter of insurgency in Mizoram finally came to an end with the signing of the Mizoram Peace Accord on June 30, 1986 between the underground government of the Mizo National Front and the Government of India. Under the terms of the peace accord, Mizoram was granted statehood in February 1987. The continuous negotiation and honest initiative from the Central Government of India brought solution to the insurgencies in Mizoram, which operated for 25 years from 1961 to 1986. Dealing the challenges of insurgency in North East India, perhaps, adopting the way Government of India initiated with the insurgents of Mizoram, could it be a means of solution to insurgency problems in North East India? Mizoram’s Problem Solved, AFSPA NOT Lifted The problem of insurgency in Mizoram came to the end after singing the Mizoram Peace Accord in 1986. Since then Mizoram is most peaceful state, not only in the region but also for whole of India. Mizoram has highest literacy rate in whole of India today and it would have never been possible without solving the insurgency problem. It was not by guns but by table negotiation that too was of honest initiative and intervention from the Central Government of India. Interesting or not sure, whether there was any attempt from Government of India to remove AFSPA from Mizoram after the state has become an insurgency-freed state! Then, why the Central Government has not removed the AFSPA from the state? Having removing the act from the state, it might have conveyed a message to whole region that AFSPA is not a permanent law and it will move away once the states become normal. Winning people confident is the need of hour. Perhaps, the best to begin could be by removing AFSPA from those states, which have returned to normal life. My Personal Observation What does it matter for the people of Mizoram, who live in peace and normal life, yet they still have this draconian law? I have recently travelled from Aizwal, the state capital, to Champhai a small town at Indo-Burma boarder. Truly and honestly, I did not see single armed force personnel except one or two police officers in their uniform at check gates. Peace and normal life has returned to Mizoram yet AFSPA still covers entire state. Why has not the AFSPA removed from Mizoram then? The Mizoram State Assembly must pass a resolution to recommend the Union Government of India to lift up the AFSPA from entire territory of Mizoram. Once, remove AFSPA from Mizoram, it will send out a message to whole region that table negotiation by following the footpath of Indira Gandhi and Rajiv Gandhi, could be a step to begin in bringing permanent and long lasting solution. Lastly, not the least, after the fake encounter killing at Imphal on July 23, 2009, Tehelka exposed the diktat nature of Manipur police commandos in the state of Manipur. The state kept burning for months and the Central Government got attention and gave strict order to law enforcing agencies to refrain from any forms of human rights violence. Since then, the killing has reduced in Manipur and removed AFSPA partially from Great Imphal areas. Union Home ministry must monitor the changes of the situation and consider listening to the aspiration of people. Madhu Chandra is research scholar and social activist base based at New Delhi. He works as Spokesperson of North East Support Centre & Helpline (www.nehelpline.net).