Human Rights in India Status Report 2012 PREPARED FOR INDIA’S SECOND UNIVERSAL PERIODIC REVIEW AT THE UN Human Rights in India Status Report 2012 PREPARED FOR INDIA’S SECOND UNIVERSAL PERIODIC REVIEW AT THE UN SECRETARIAT, WORKING GROUP ON HUMAN RIGHTS IN INDIA AND THE UN A-1 Nizamuddin East, Lower Ground Floor, New Delhi 110 013, INDIA T +91.11.24358492 M +91.9899020452 W www.wghr.org i Published by SECRETARIAT, WORKING GROUP ON HUMAN RIGHTS IN INDIA AND THE UN WorkingA-1 Nizamuddin Group East, Lower on Ground Human Floor, New Rights Delhi 110 013, INDIA inT +91.11.24358492 India and the M +91. UN9899020452 W www.wghr.org G-18/1 Nizamuddin West, Lower Ground Floor, New Delhi - 110 013, INDIA T/ F: +91-11-2435-8492 E: [email protected] www.wghr.org Print: May 2012 Cover photo: Marco Pari / Flickr Design & Print: Aspire Design ii Foreword The present report gives a general overview of the most critical human rights issues in India today. It has been drafted as a background document to assist in the preparation of India’s second Universal Periodic Review (UPR) scheduled to take place in Geneva on 24 May, 2012. The UPR is a unique process conducted by the UN Human Rights Council (HRC), involving a review of the human rights record of all 192 UN Member States once every four and a half years.i The Working Group on Human Rights in India and the UN (WGHR) submitted a stakeholders’ report to OHCHR in November 2011.ii The present report is a more detailed and comprehensive version of WGHR’s stakeholders’ report that includes: n Information gathered from five regional and one national consultation held with civil society across India from August to October 2011;iii n Case studies that illustrate the text of the report; n WGHR’s initial response to the Government of India’s national report to the second UPR; n An up-to-date analysis of the status of implementation of the 18 recommendations made to India during the first UPR.iv As is amply evident from the report, much remains to be done to improve the human rights situation in India. The scope of the UPR is enormous as it covers all recognised international human rights. If we take almost any of these human rights, the situation in India remains challenging; yet the scope for improvement is immense. If the required positive changes are to take place, however, a radical change in national and regional actions by governments at all levels is necessary. The report highlights some of these required changes. i For a brief description of the importance of the UPR process, please see Annex B ii Working Group on Human Rights in India and the UN (WGHR), Human Rights in India – An Overview, November 2011, available at: www.wghr.org iii See: Annex D iv See: Annex C iii The opportunity offered by India’s second UPR at the HRC should not be underestimated. The clear direction that can emanate from the second UPR’s recommendations largely depend, however, on the approach adopted by the Indian delegation during the UPR in May 2012. We all look forward to a shift away from the defensive posture adopted by India in the first UPR to a constructive engagement with the HRC. Such an engagement can only prove fruitful if the deliberations during the UPR debate and the resulting recommendations are placed within the space of the recognition of human rights (through laws, policies, administrative actions and budgetary allocations) and their implementation. We hope this report will contribute to such a debate at the HRC. India must meet the human rights accountability challenge posed by the contents of its own Constitution and the international human rights instruments it had ratified. To meet this enormous challenge, nothing but a radical shift in economic, security and social policy is needed. It is hoped that India’s second UPR will provide solid recommendations to make such a radical change possible, which is urgently required to reverse the adverse human rights situation faced by a significant part of the people of India. Miloon Kothari Convenor, WGHR iv Acknowledgments This report is the fruit of thorough collective work. It was compiled and edited by the WGHR Secretariat with extensive input from all WGHR members: ActionAid India, Asian Centre for Human Rights, Citizens for Justice and Peace, Commonwealth Human Rights Initiative, FIAN India, HAQ: Centre for Child Rights, Housing and Land Rights Network, Human Rights Alert, India Alliance for Child Rights, Lawyers Collective, Multiple Action Research Group, National Campaign on Dalit Human Rights, Partners for Law in Development and People’s Watch as well as WGHR’s independent experts: Vrinda Grover, Prof. Babu Mathew and Dr. Rajkumar. In addition to WGHR members, we would like to thank warmly the following people and organisations who have made significant contributions to the report: Sudha Bharadwaj and Rajendra Sail (PUCL, Chhattisgarh); Roy Laifungbam (Centre for Organisation Research & Education); Satyajeet Mazumdar (Centre for Social Justice); Jayshree Satpute; Anisa Rehman, Smriti Minocha and Kerry Mcbroom (Human Rights Law Network); Yug Mohit Chaudhry; Annie Namala (Centre for Social Equity); Waliullah Ahmed Laskar and Dr. Prasenjit Biswas (Barak Human Rights Protection Committee); Reetika Khera; Javed Abidi, Dr. Shanti Auluck, Dr. Bhargavi Davar, Arun Rao, Radhika Alkazi, Rama Chari, Meenakshi Balasubramaniam, Shivani Gupta and Dorodi Sharma (National Disability Network). v vi Table of Contents List of Abbreviations x I. Economic, Social and Cultural Rights and Right to Development 1 Right to Adequate Housing and Land 4 Right to Food 11 Right to Health 22 Right to Water and Sanitation 30 Impact of Trade and Investment Agreements 31 Right to Work and Labour Rights 34 Right to Education 40 Right to Information Act and Corruption 46 II. Militarisation and Security – Laws and Apparatus 49 Special Security Laws 53 Custodial Torture 55 Enforced Disappearances 57 Extrajudicial Killings 59 Conflict Widows 61 Arbitrary Arrest and Detention 62 Excessive Powers of the Armed Forces and the Police 68 vii Disproportionate Use of Force 68 Sexual Violence 69 Legal Immunity 72 Militarism and Denial of Economic, Social and Economic Rights 72 Occupation of Public Infrastructure and Private Land 74 Conflict Induced Internal Displacement 76 III. Access to Justice 79 Barriers to Access to Justice 81 Regressive Laws 81 Violations by the Police and Resistance to Reform 82 Judiciary: Vacancies and Judicial Delay 84 Excessive Pre-Trial Detention 85 Prisons 86 Custodial Torture 88 Immunity and Lack of Accountability 90 Inadequate Legal Aid and Assistance 91 Lack of Witness Protection Programme 94 Death Penalty 94 Discrimination in Access to Justice 96 Women 96 Lesbian, Gay, Bisexual, Transgender and Intersex 101 Children 103 Scheduled Castes and Scheduled Tribes 115 Persons with Disabilities 122 Religious Minorities 124 Refugees 131 Human Rights Defenders 132 viii IV. National and International Mechanisms for the Protection of Human Rights 137 National Human Rights Institutions 139 International Human Rights Mechanisms 141 Conclusion 143 Annexes 145 Annex A List of WGHR members 146 Annex B Overview of WGHR National and Regional Consultations on the UPR 147 Annex C WGHR Assessment of Implementation of UPR I Recommendations 149 Annex D The Universal Periodic Review (UPR) 153 Annex E NHRC Submission for India's UPR II 156 Annex F The Armed Forces (Special Powers) Act, 1954 162 Annex G Press Statement by Christof Heyns, UN Special Rapporteur on extrajudicial, summary and arbitrary executions 166 ix List of Abbreviations (In alphabetical order) AFSPA Armed Forces Special Powers Act BPL Below Poverty Line BSF Border Security Force CRPD Convention on the Rights of Persons with Disabilities CRZ Coastal Regulation Zone CSPSA Chhattisgarh Special Public Security Act CWC Child Welfare Committee DAA Disturbed Areas Act ESCR Economic, Social and Cultural Rights FCI Food Corporation of India FPS Fair Price Shop FRA Forest Rights Act FTA Free Trade Agreement GMO Genetically Modified Organism GoI Government of India ICCR International Covenant on Civil and Political Rights ICDS Integrated Child Development Services ICRC International Committee of the Red Cross IDP Internally Displaced Persons ILO International Labour Organisation INR Indian Rupee IPC Indian Penal Code IPTK International People’s Tribunal on Human Rights and Justice in Kashmir J&K Jammu and Kashmir JJB Juvenile Justice Board MDMS Mid-Day Meal Scheme MMR Maternal Mortality Rate MNC Multi National Corporation MNREGA Mahatma Gandhi National Rural Employment Guarantee Act x MoU Memorandum of Understanding NAP National Action Plan for Human Rights NAP-HRE National Action Plan for Human Rights Education NCPCR National Commission for the Protection of Child Rights NCRB National Crime Records Bureau NFHS National Family Health Survey NFSB National Food Security Bill NHRC National Human Rights Commission NRHM National Rural Health Mission PCA Police Complaints Authorities PDS Public Distribution System PSA Public Safety Act PTB Prevention of Torture Bill PUCL People’s Union for Civil Liberties RTE Right to Education RTI Right to Information SC Scheduled Caste SCPCR State Commission for the Protection of Child Rights SEZ Special Economic Zones SPO Special Police Officers SSA Sarva Shiksha Abhiyan SSB Sashastra Seema Bal ST Scheduled Tribe TRIPS Trade Related Intellectual Property Rights Agreement UN United Nations UPR Universal Periodic Review USD United States Dollars WTO World Trade Organisation xi xii xii ECONOMIC, SOCIAL AND CULTURAL RIGHTS AND RIGHT TO DEVELOPMENT Sandy Ford ECONOMIC, SOCIAL AND CULTURAL RIGHTS AND RIGHT TO DeVELOPMENT 1 77% of Indians live on a consumption expenditure of less than INR 20 (around USD 0.4) a day. 0.8% was the decline in poverty during 2007-11, whereas the average growth rate was 8.2%. 134 out of 187 countries is India’s rank on the UN human development index.