How The Universal Periodic Review (UPR) Works
The ritual in question is called a Universal Periodic Review, and this is the 27th time there’s been anything like it.
A UPR is sort of like a human rights PTA meeting. All 192 United Nations Member states- developing and developed, war torn or drone-sponsoring have to report to the UN to show what they’ve been up to since the last time everybody sat around in Switzerland and called each other out on their rights violations.
Each country’s report must fill the rest of the world in on which human rights treaties have been ratified and which were still being contemplated, what is the human rights situation in the country and what progress has been made since the last UPR.
India’s submission to the UPR process was uncharacteristically sparse: top-heavy on schemes and its commitments to Paris and the SDGs, but toned down on actual ratifications and violations. The submission has no disaggregated data or mentions of specific attacks against human rights defenders or civil society institutions.
Hailing the report as the result of long-winded, transparent and “consultative” process, the report fails to mention who it had actually consulted with. India’s National Human Rights Commission’s progress report to the UN at the UPR, on the other hand, has only two solitary conclusions. One, that the use of “plastic pellets”- (we’re not sure what those are) in law enforcement in Kashmir were “disturbing” but that India withholds its comments “as human rights of both sides are involved”. Two, “that the rise of cow vigilanteism is “disquieting” but that it was “too early to assess as to be a threat to secular and pluralistic structure of Indian society”, an opinion it might want to urgently revisit.
One thing that the NHRC did admit to is that the Indian legal system is more broke than woke.
Thankfully, it’s not just states who get to ‘fess up. Civil society stakeholders submit their own reports to give other countries something to chew on. The country team of the UN also compiles its own observations and findings, including those of Special Rapporteurs on various issues.
The representatives of each nation, seated under the psychedelic ceiling of Human Rights Council in the Palace of Nations, get make observations about each others’ human rights record. A total of 112 nations signed up to make recommendations to India. Unlike popular Indian far-right news anchor Arnab Goswami’s brand of rapid-fire journalism, each representative gets only a minute and a half to speak their mind.
If they’ve waited a long time to say these things to each other or are currently engaged in conflict, then this can get quite heated, as things did with Pakistan. At breakneck speed, Saima Saleem, Pakistan’s first visually-impaired diplomat, argued for India to stop using pellet guns against the Kashmiri people. Pakistan also urged India to allow Kashmiris their right to free assembly, to allow the UN to conduct a fact-finding on the human rights situation on its side of the LoC. As her time ran out, Saima asked India to confront racism, xenophobia and attacks by extremists against religious minorities.
The Indian government hit back against allegations, choosing to focus on the most important human rights issue in the region- semantics.
“Violence in the region is due to neighbour’s actions,” said Mukul Rohatgi, Attorney General in India’s corner. Rohatgi recently defended the army using 24-year old Kashmiri shawl weaver Farooq Ahmed Dar as a human shield in Kashmir, classified a war crime under international law. Just a day prior to the UPR, he argued that Indian citizens’ rights to their body ‘was not absolute’ in the context of India’s biometrics-based Aadhar card system.
An overwhelming number of states- 30 at last count- asked India to ratify the UN Convention Against Torture, and Other, Cruel, Degrading and Inhuman Treatment, something that’s been on the cards since 1997.
To the shock of probably everyone who’s ever watched a cop scene in a Bollywood movie, Rohatgi stated that torture doesn’t exist in India. One could forgive the Attorney General for going purely by the data (or the lack of it) in its UPR submission, given that National Crime Records Bureau maintains that there were (only) 5 instances of torture in 2015. “I have witnessed 14 and 16-year-old tribal girls being stripped naked in police stations and tortured,” wrote Varsha Dongre in a Facebook post that got her suspended from her job as a deputy jailer in the Raipur central jail this week. “They were given electric shocks on their wrists and breasts. It horrified me to the core. Why did they use third degree torture on minors?”
In a positive move, however, India’s Home Ministry representative at #UPR3India assured states that a bill against torture was going to be introduced in the Indian parliament soon. One can only hope that this is done before India’s next review begins.
A staggering list of countries asked India to impose a moratorium on the death penalty, with a view towards abolishment. India, in response, continued to defend its ‘rarest-of-rare’ rationale to hold on to a grisly practice abolished by 104 countries, even when evidence suggests otherwise.
Barely a day after its UPR, India’s Supreme Court invoked the ‘collective conscience’ and ‘rarest-of-rare’ to sentence four convicts charged with the gang-rape to death, in one of India’s most high-profile sexual violence cases to date.
AFSPA and Enforced Disappearances
On India’s Armed Forces Special Powers Act. USA, Pakistan and Switzerland were quick to point its misuse and called for it to be revised.
India maintained that AFSPA was only being used in “disturbed areas”, that violations were met with liabilities, and that there was a debate on whether it should be repealed. On May 3, India declared the state of Assam as a disturbed area under AFSPA for three more months, along with parts of Arunachal Pradesh and areas on the border of Meghalaya.
Civil society groups quickly to point out the Attorney General’s own plea to dilute a recent Supreme Court judgment that sought an end impunity.
Several states, including Germany, Japan, Burkina Faso, Senegal, Kazakhstan, Greece and Uzbekistan asked India to ratify the Convention for Protection of All Persons from Enforced Disappearances, which it promised to do in its UPR submission.
Same-Sex Relations, Violence Against Women and Rights of Persons With Disabilities
In recommendations that had LGBTQI activists cheering, many states- including Spain, Sweden, Norway, Israel, Canada and Iceland asked India to repeal section 377 that criminalises same-sex relations. India’s response, however, was vague and disappointing at best. The Additional Solicitor General, while referring and deferring to back-and-forth court rulings on 377, washed his hands off the steps the government could take to repeal it.
On a positive note, an overwhelming number of states noted India’s efforts to combat violence against women and girls and asked that these efforts be strengthened by training police, legal and medical institutions on how to deal with survivors sensitively.
An unprecedented number of states strongly recommended that India criminalises marital rape by amending the Indian Penal Code.
In a similarly baller move, states like Algeria, Netherlands, Portugal pushed for India to enhance the political participation of women and get around to passing the Women’s Reservation Bill, which has been kicked around for almost two decades.
Many states such as Japan, Ghana and Qatar appreciated the Rights of Persons With Disabilities Bill, and said that legislative means must be met with proper infrastructure, both in urban and rural areas.
States ranging from Korea to Kenya to the United States, Switzerland and Pakistan expressed serious concerns around religious freedoms, anti-conversion laws and attacks on minorities in the country. The United Kingdom commended India’s communal violence bill and hoped that it would be passed by Parliament soon.
Haiti was the only nation to condemn racist attacks against African nationals and call for a national action plan to counter hate crimes.
India’s response to allegations of rising religious, race and caste-based intolerance was severely wanting. Aside from pronouncing India a secular state and reading out Articles from the Constitution, Indian government representatives shielded themselves from questions by invoking Gandhi and Buddha and declaring that India couldn’t possibly have a “racist mindset.” “Not all attacks are racist attacks,” said the Indian delegation, in the vein of that exalted hashtag of exoneration: #NotAllMen.
Land Rights, Labour, Environment and Climate Change
Although many states spoke of discrimination against Scheduled Castes and Tribes, only Bolivia raised issues around land rights. India received several high-fives from developing nations and fellow-emitter China on its climate-change commitments and its commitment to “climate justice”. Surprisingly, not much was said about land acquisition or the displacement of Adivasi communities.
While India’s UPR submission was riddled with its grandiose climate goals and embrace of renewable energy, no mentions were made of its continued plans to double India’s coal production, in areas with vulnerable indigenous populations. That India “recognizing that implementation of environmental-related norms requires improvement” is cute, but flies in the face of rapid attempts to water down what few protections remain.
Slovakia and Norway recommended the roll-back of labour law amendments that allow for children under 14 to be employed in “family-based enterprises.”
Civil-Society, Human Rights Defenders and the FCRA
A closely-watched keyword through the UPR was FCRA. Short for the Foreign Contribution Regulation Act, it allows for human rights defenders and civil society institutions to receive funding from abroad to carry out their work.
States that spoke out against the selective use of the FCRA included Germany, Australia, South Korea, Switzerland, Ireland, Norway. Even the United States, despite its current leadership’s recent actions on freezing NGO funding internationally, chimed in to push for its repeal
India’s response to the questions on the FCRA were minced. It once again blandly reiterated the provisions of the Act and that it expected CSOs and NGOs to operate within the laws of the land, even if it drafted its own exceptions.
“We take pride in our extremely vibrant civil society,” remarked Rohatgi. Pride may be very well, but India’s commitment to protecting defenders is more than suspect. “In the March session of the Human Rights Council, India voted for an amendment to remove the term ‘human rights defender’ altogether!” said Raghu Menon of Amnesty International, India.
The Indian government in its report did acknowledge that the safety of journalists, and particularly women journalists was an important issue- a view that India’s women journalists reporting on human rights violations under the present government would certainly agree with.
Internet Freedom and Surveillance
India’s Digital India program- best known for inspiring a rash of tricolour Facebook profile picture changes- found its way into India’s submission as a human rights protection. But it was India’s selective shutting down of access to the internet that countries like the Czech Republic wanted more deets on, as it raised concerns about the safety of human rights defenders. For context, in 2015-16, India tied with Iraq and marginally beat Syria to top the list of internet shutdowns.
The tiny alpine republic of Lichtenstein was the only country that raised concerns over mass surveillance and recommend that all national intelligence and investigative agencies be monitored by an independent oversight mechanism.
How did the India finally fare at its Third UPR? “Social media and the better quality of a webcast definitely made it much more accessible, even if the ‘consultations’ on India’s UPR report were not,” said Henri Tiphagne of the Working Group on Human Rights who helped organise live screenings of UPR proceedings in over 50 Indian cities. The NHRC, in contrast, had organised none.
WGHR’s Delhi webcast of India’s UPR at the Indian Social Institute was packed. Long after the samosas ran out, students, activists and journalists tweeted, cheering when yet another country recommended the ratification of the Convention Against Torture. “It was kind of like a T20 cricket match, except for human rights,” said Rajavel, a volunteer with People’s Watch, chuffed that his tweets helped #UPR3India out-trend the Delhi Daredevils match.
Paradoxically, Tiphagne’s own organisation People’s Watch is under fire for the advancement of human rights in the country. In November 2016, its access to foreign funding was cancelled, along with 24 other NGOs. Each of the 50 screenings were made possible with the support of local organisations and volunteers.
“Watching the session, it felt like India is no longer on the defensive but is in a state of denial,” said Shivani Chaudhry of the Housing and Land Rights Network at the end of the web-screening. “There was not even one acknowledgment that there is a human rights problem in the country, an attempt to say that ‘yes, we have a crises, and these are the measures we’re taking.”
As India receives its final review this week, it’s vital that we treat the process with the seriousness it deserves. While the government might smart from the remarks of the United States, or dismiss the egalitarian recommendations of the Scandinavians as #firstworldproblems, it should note that these were concerns raised also by fellow developing nations, from Kenya and Namibia to Bolivia and Uzbekistan, or tiny states like Lichtenstein. These were also alarm bells raised by activists, and if it only listened to, responded and made space for these voices, it would have a better showing at fora like these. The UPR process should not be viewed as a paper-pushing exercise culminating in international call-out culture. It must be seen as a marker for progress towards a more egalitarian world.
The UN’s UPR Working Group will present a complete set of recommendations from all member and observer states- or an outcome report- on 9 May. This will be formally adopted in September 2017. India is obligated to implement these before the next UPR.
The author can be contacted on Twitter @aruna_sekhar