The Indian Government has been unlawfully targeting human rights defenders (HRDs) through the use of overbroad national security laws and criminal laws, the International Commission of Jurists (ICJ) said in a new report released today.
The 53-page report, “Punished for Protest,” documents the misuse of national security laws, particularly the Unlawful Activities Prevention Act (UAPA), in violation of HRDs’ rights to freedom of expression, association, fair trial and freedom from arbitrary detention, and calls on the Indian authorities to amend or suspend these laws immediately.
“National security laws have been made progressively vaguer to give excessive powers to the Indian Government who uses them against voices of dissent, in violation of their international legal and constitutional obligations”, said Sam Zarifi, ICJ’s Secretary General.
More than 30 HRDs have been unlawfully charged, including on allegations of being members of ‘terrorist organizations’, in connection with two well-publicized events that gave rise to public violence: the Bhima Koregaon case and the Delhi Riots case.
The Bhima Koregaon incident occurred in January 2018 when Hindu nationalists violently intruded on a planned celebration by Dalits (marginalized as lowest caste group in India) in Bhima Koregaon, Maharashtra, resulting in charges against organizers who were accused of provoking violence. The ‘Delhi Riots’ occurred in February 2020, when violence broke out between Hindu nationalists and Muslims protesting against the discriminatory Citizenship Amendment Act, leading to the death of over 53 people, the majority of whom are Muslims.
Independent human rights experts from the United Nations have noted that HRDs appear to have been targeted simply for their legitimate human rights work, leading to a chilling effect on such work.
Repression of HRDs increased during the COVID-19 pandemic, as HRDs could not be released on bail due to delayed court hearings, and were detained in already overcrowded and unsanitary prisons. At least eight among them contracted COVID-19 in custody, and one defender, Father Stan Swamy, an 84-year-old Jesuit priest, suffering from Parkinsons, contracted COVID-19, and died in custody shortly thereafter, while awaiting bail.
“Father Stan Swamy’s death is the starkest example of the human rights predicaments arising from the misuse of the UAPA and other national security laws, as HRDs face arrest and detention on vague and unsubstantiated charges, are held for prolonged periods in overcrowded and unsanitary conditions. The process has become the punishment,” said Zarifi.
Among the others who are in jail are Surendra Gadling, a 50-year-old human rights lawyer and General Secretary of the Indian Association of Peoples’ Lawyers, which takes up cases on behalf of poor young Dalits. Khalid Saifi, leader of a civil society group, United Against Hate, was arrested in connection with ‘Delhi Riots’ cases, charged with criminal conspiracy, and under the UAPA. While he was granted bail because there was no evidence, “to establish the criminal conspiracy..,” he remains in custody due to charges under the UAPA.
In its report, the ICJ highlights human rights violations in 15 cases: Sudha Bhardwaj, Surendra Gadling, Stan Swamy, Varavara Rao, Gautam Navlakha, Rona Wilson, Hany Babu, Natasha Narwal, Devangana Kalita, Asif Iqbal, Sharjeel Imam, Khalid Saifi, Umar Khalid, Ishrat Jahan and Safoora Zargar.
The human rights violations analyzed include: a) violation of right to be informed about the charges against oneself, and to be produced in a timely manner before a court; b) denial of the right to access to a lawyer and family members immediately upon detention and in custody; c) arbitrary denial of bail leading to prolonged pre-trial detention, d) ill-treatment in prison, e) denial of the right to access adequate medical facilities and inadequate health protection amid COVID-19 outbreaks in prison.
The ICJ’s report makes the following recommendations:
To the Parliament:
- Repeal or amend the UAPA to meet fundamental guarantees under the Constitution of India and India’s international legal obligations. In particular, repeal or amend provisions on anticipatory bail and default.
- Amend or repeal the law on sedition.
- Ratify the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) in line with the recommendations of the Law Commission of India.
- Adopt anti-torture legislation incorporating CAT provisions — even while CAT ratification is pending — and India’s existing obligations in respect of torture and ill-treatment, particularly under article 7 of the International Covenant on Civil and Political Rights.
To the Prison administration:
- Adopt major upgrades to the provision of healthcare in all places of detention, in line with obligations under international human rights law.
- In particular, ensure adequate prison hygiene in line with international law and standards and recommendations by the Ministry of Home Affairs, including regular sanitization, cleaning and disinfection of wards and communal spaces.
- Ensure that all people deprived of their liberty be granted continuous and confidential access to their lawyers, in line with ICCPR articles 9 and 14, the Mandela Rules and the prescriptions of the Supreme Court in Francis Coralie Mullin v. Administrator, Union Territory of Delhi and Ors.
- Refer complaints of torture or other ill-treatment by police to the prosecutorial authorities for a proper, thorough, impartial and independent investigation of any police officials accused of ill-treatment, either on complaint or even suo motu in line with international and domestic standards.
- Address complaints of harassment by prisoners and jail officials promptly.
- End prison overcrowding and ensure social distancing at places of gatherings in prison complex.
- Construct new facilities where necessary to meet standards of adequate housing as required under international human rights law.
To Prosecutors:
- Provide for early release of low-risk category of detainees in order to reduce overcrowding in jails. Low-risk category of detainees include unfit detainees, aged persons with underlying health conditions, and those who are in pre-trial detention for non-violent offences.
- Conduct a general review of all cases to determine if the original basis for charges was legitimate, and move to withdraw charges that were without a legitimate legal or factual foundation or were otherwise inappropriately brought.
The full report can be downloaded here
Also See
1. Joint Open Letter to the Indian Government calling for the release Of human rights defenders at risk, dated 27th May, 2020.
2. Joint Statement on the death of human rights defender Father Stan Swamy, dated 6th July, 2021.
For more information, please contact: Devendra Dhungana, ICJ Communications Officer; e: [email protected]