|Universal Periodic Review (UPR) of India: More focus on social realities needed, despite commitment to a 'rights based approach'|
United Nations General Assembly Human Rights Council
On 24 May 2012, the UPR working group examined the human rights situation in India. The Indian delegation frequently referred to the enormous size and diversity of India’s population, highlighting the difficult task facing the Indian government in adequately protecting the human rights of all citizens. Although India’s successes in maintaining a tolerant, democratic order were recognised, various instances of institutionalised discrimination were raised in the course of the review.
The delegation was led by India’s Attorney-General, Mr Goolam Vahanvati, who spoke with rhetorical flourish and declared that India’s human rights record in relation to tolerance is ‘better than any other nation in the developing world’. He described India’s individualised ‘rights-based approach’ to human rights, highlighting advancements in social and economic rights such as the reduction of poverty, infant mortality, and LGBT rights. He pointed to legislative actions taken by the Government to protect these rights, some of which developed from recommendations made during the last review.
80 States participated in the discussion, leaving each speaker with a 1 minute 30 second time slot. Generally, States affirmed the achievements highlighted by Mr Vahanvati, and focused praise on action taken in decriminalising homosexuality, extending a standing invitation to Special Procedures, and taking measures to reduce HIV rates. Concern was raised about a variety of subjects, focusing on the need to:
• Ratify the Convention Against Torture (CAT) and its Optional Protocol, the Convention on Enforced Disappearances, the Optional Protocol to the Convention on the Elimination of Discrimination Against Women (CEDAW) and the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR).
Most of these recommendations were raised during India’s last review, and the delegation’s responses often remained perfunctory. In particular, questions posed by States about discrimination-against women, children and scheduled castes- were met with defensiveness and a tendency to appeal to legislation that has been passed or is being discussed. The Indian delegates failed to recognise that most States drawing attention to these issues were questioning the division between the official legislative stance of the Government and social reality. For example, questions about employment in rural communities were met with descriptions of the fact that the Mahatma Gandhi National Rural Employment Act imposed a 'rights-based approach on an unprecedented scale', to the benefit of 54 million families. This is certainly a positive claim, but the response fails to adequately assess the overall rural employment situation by excluding consideration of those still in need of assistance.
The delegation also drew attention to national legislation protecting certain rights to justify India's failure to ratify various international conventions. It was not clear whether these failures are the result of procedural delays, political difficulty, or general reluctance. For example, Finland and the Czech Republic called for India to consider ratifying the Optional Protocol to CEDAW. The delegation answered that a legal and constitutional framework exists, granting women subjected to discrimination direct access to the Supreme and High Courts in cases where rights are infringed. Even more worryingly, various States noted that there are significant and substantial differences between the protection against torture afforded by domestic legislation and the international CAT framework.
Despite progress made on recommendations from the last review, on caste-based discrimination, employment levels, and children's rights, the delegation fell short of their stated intention to 'acknowledge problems and face them squarely'. There was a significant division between the delegates' ideological appeals, often to the democratic values of Gandhi, and their failure to really engage with the States' criticism. A question posed about the transparency of judicial proceedings led Mr Vahanvati to embark on a lengthy and unequivocal denial of any problems with the Indian court system, a continuation of the tendency to celebrate successes without adequately addressing shortcomings. This frustrated the dialogue at times, and the degree to which the recommendations will be genuinely considered remains uncertain.