India’s Human Rights Records Will Be Scrutinised at UN. What Does It Mean?

The Universal Periodic Review (UPR) Working Group is expected to ask questions ranging from the treatment of women and minorities to deaths in police custody. 

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New Delhi: India’s record in protecting the civil, political and economic rights of its citizens will be scrutinised at the United Nations Human Rights Council on Thursday, when it will have to answer a barrage of questions ranging from treatment of women and minorities and deaths in police custody.

Here is a quick primer on what this process – which last took place five years ago – entails.

Why is India’s human rights record under the microscope?

On November 10, India will take its turn to be in the spotlight as its human rights record is examined at the 41st session of the Universal Periodic Review (UPR) Working Group, comprising 47 members of the UNHRC. This will be the fourth time India will be evaluated under the UPR process. The earlier reviews took place in 2008, 2012 and 2017. It is a process that all 193 member states of the United Nations undergo every four and half years. India also takes part in the scrutiny of other countries.

What is the UPR process?

The UN General Assembly established the peer-review mechanism of the UPR in 2006, which was described as one of the most innovative components for the accountability of the newly-established (and wholly elected) Human Rights Council.

Ahead of the review meeting, the Indian foreign ministry on Wednesday commended the UPR process as a “successful human rights mechanism” due to the “importance it places on dialogue and cooperation amongst member states”.

A UPR working group consisting of 47 members of the Council conducts the reviews. Each review is coordinated by a group of three countries known as the Troika. For India, the Troika is Nepal, Sudan and the Netherlands. In 2017, India’s Troika – selected by a drawing of lots – was Latvia, South Africa and the Philippines.

Every session, around 14 countries are put under the scanner.

The UPR working group will be holding an interactive meeting on India on November 10, where the Indian delegation can answer questions posed by any member state.

The review is based on three types of documentation submitted ahead of the meeting of the UPR working group. The first is the National Report, a compilation of the country under review’s assessment of its human rights record. India submitted its National Report on August 17. 

The second report is based on information provided by specialised UN bodies, human rights treaty entities and the UN – and compiled by the Office of the UN Human Rights Commissioner.

Civil society groups, national human rights institutions and regional organisations are also allowed to submit their separate reports, summarised in a Stakeholders’ report.

What will happen at the review meeting on November 10?

The head of the Indian delegation, solicitor general Tushar Mehta, will make an opening statement, followed by a question and answer session. As per the Ministry of External Affairs (MEA), the other members of the delegations are MEA secretary (west) Sanjay Verma, Permanent Representative of India Indra Mani Pandey, additional solicitor general of India K.M. Nataraj and senior officials from the MEA and other ministries like home, women and child development, social justice and empowerment, minority affairs, rural development and NITI Aayog. The vice chancellor of the National Law University, Delhi, who heads the institution that collaborated in drawing up the National Report, will also be part of the team.

Solicitor General Tushar Mehta.

Last time, the Indian delegation was led by the then attorney general Mukul Rohtagi. 

During the interactive discussion of the UPR working group, UN member states can ask questions and make recommendations to India. The ‘Troika’, acting as moderators, can direct the questions to the country under review. Several countries have already submitted written questions earlier. The duration of the meeting is around three hours and 30 minutes. 

The MEA noted that 131 countries have registered to participate in the meeting on Thursday. In 2017, 103 countries gave their views on India’s human rights record.

Also Read: India Performed Worse Than Average in Upholding 13 Basic Human Rights, Report Says

What kind of questions could be asked by countries?

The questions have traditionally ranged from restrictions on civil society, especially on foreign funding, to the perceived impunity for excessive force by security personnel. Several western countries have recommended the repeal or review of the Armed Forces (Special Powers) Act (AFSPA).

In the last review in 2017, a question was raised about African nationals’ treatment after attacks on African students in Greater Noida in February of that year.

Nearly every state speaking at the review meeting raised women’s rights five years ago, with many countries calling for the criminalisation of marital rape. This is likely to feature prominently again during Thursday’s interactive discussion, along with other topics like freedom of media, child rights and treatment of minorities.

What happens after the meeting?

After the review meeting, the Troika prepares an ‘outcome report’ presented at the next plenary session of the UN Human Rights Council. This report will summarise the discussion, including the comments, questions and recommendations made by member states. It will also include the responses of the country under review, i.e. India, to the recommendations.

There are only two choices of response for any country under review – “accepted” and “noted”. Since there is no explicit concept of rejection in this mechanism, the ‘noted’ response is taken in its stead since the country does not agree with the recommendation.

During the third cycle, India received 250 recommendations, out of which 152 were accepted, while the rest, 98, were “noted”. In the first UPR cycle in 2008, India received just 18 recommendations, of which only five were supported. Five years later, 169 recommendations were received – 102 were noted, while 67 were accepted.

Is there any monitoring mechanism for the recommendations?

Since a member state is primarily responsible for implementing the recommendations, India has to give information on the steps taken to implement the accepted suggestions in previous cycles in its latest National Report.

There is also a provision for voluntary submission of a mid-term report by a country. 

As per the latest UN data, while 85 countries have submitted mid-term reports during various cycles, India is not among them.

Does UPR scrutiny improve human rights domestically? What has its impact been in India?

The main concern about the UPR process revolves around the centrality of states. For critics, states have too much leeway in assuming and fulfilling their human rights obligations. 

According to the 2014 note of the International Council of Jurists (ICJ), these recommendations are not legally binding and depend on states to accept them. “Recommendations that are accepted by the SUR (State under Review) are ‘easy’ recommendations, while more ‘tough’ recommendations are rejected,” said the ICJ, listing out the concerns made by critics. States do not have to give any justification for not accepting a recommendation.

Further, many recommendations are vaguely worded, which often helps the states under review.

Since the National Report only calls for states to give information about implementing their accepted recommendation in previous cycles, it allows them to escape any answerability on more severe charges of human rights violations.

Representative image. The UN Human Rights Council. Photo: United Nations Photo/Flickr CC BY NC ND 2.0

A 2018 publication of the National Law University, Delhi, noted that “many of the limitations of the UPR process are visible in India’s engagement with the mechanism”. 

“The Indian government routinely ignores recommendations that do not align with state ideology. It accepts very few recommendations relating to civil and political rights, or on any sensitive or controversial issue,” said the report “India’s Third Universal Periodic Review 2017”.

It noted that even when recommendations are accepted in Geneva, they are not translated into policy goals domestically.

“The disconnect between recommendations accepted in Geneva and domestic policy and legislative priorities is most starkly evident with respect to torture. India agreed, both in 2008 and in 2012, to ratify the Convention Against Torture. However, despite repeated assurances, India has yet to implement this recommendation,” the report said.

India’s lack of ratification of the Convention also figured in the 2017 review process. 

Even in the latest National Report submitted in August, India reiterated its commitment to ratify the Convention but repeated that the delay is due to the process of taking the opinion of all state governments as the matter falls under the concurrent list.