Human Rights Issues

Human Rights Issues

[pib] Sugamya Bharat App

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Sugamya Bharat Abhiyan

Mains level : Disable friendly infrastructure

Union Minister for Social justice and Empowerment has launched the “Sugamya Bharat App”.

Sugamya Bharat App

  • The Sugamya Bharat App is a simple to use Mobile App with an easy registration process, requiring only 3 mandatory fields, namely, Name, Mobile number and Email-id.
  • Registered users can raise issues related to accessibility being faced.
  • The App is made accessible for ease of use for persons with disabilities also with features such as font size adjustment, color contrasting option, text to speech, and having an integrated screen reader in Hindi and English.
  • It is available in 10 regional languages, namely, Hindi, English, Marathi, Tamil, Odiya, Kannada, Telugu, Gujarati, Punjabi, and Malayalam.
  • The App also has the provision of easy photo uploads with a geotagging option of the premise where accessibility intervention is required.

Its features

  • The app, a Crowdsourcing Mobile Application is a means for sensitizing and enhancing accessibility in the 3 pillars of the Accessible India Campaign i.e. built environment, transportation sector and ICT ecosystem in India.
  • The app provides for five main features, 4 of which are directly related to enhancing accessibility, while the fifth is a special feature meant only for Divyangjan for COVID related issues.

The accessibility-related features are:

  • Registration of complaints of inaccessibility across the 3 broad pillars of the Sugamya Bharat Abhiyaan;
  • Positive feedback of examples and best practices worth emulating being shared by people as jan-bhagidhari;
  • Departmental updates and guidelines and circulars related to accessibility.

Back2Basics: Sugamya Bharat Abhiyan

  • Accessible India Campaign or Sugamya Bharat Abhiyan is a program that is set to be launched to serve the differently-able community of the country.
  • The flagship program has been launched on 3 December 2015, the International Day of People with Disabilities.
  • The program comes with an index to measure the design of disabled-friendly buildings and human resource policies.
  • The initiative also in line with Article 9 of the (UN Convention on the Rights of Persons with Disabilities) which India is a signatory since 2007.
  • The scheme also comes under the Persons with Disabilities Act, 1995 for equal Opportunities and protection of rights which provides non-discrimination in Transport to Persons with Disabilities.

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Human Rights Issues

China’s treatment of Uighurs

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Uighurs

Mains level : Uighur's genocide

Canada’s House of Commons has voted to declare that China is committing genocide against more than 1 million Uighurs in the western Xinjiang region.

See the hypocrisy of so-called social activists who see farmers protest, anti-terror operations as a crackdown on human rights, while cases like that of Uighurs, Kurds go unnoticed in the global arena!

Who are the Uighurs?

  • There are about 12 million Uighurs, mostly Muslim, living in north-western China in the region of Xinjiang, officially known as the Xinjiang Uyghur Autonomous Region (XUAR).
  • The Uighurs speak their own language, similar to Turkish, and see themselves as culturally and ethnically close to Central Asian nations.
  • They make up less than half of the Xinjiang population.
  • In recent decades, there’s been a mass migration of Han Chinese (China’s ethnic majority) to Xinjiang, and the Uighurs feel their culture and livelihoods are under threat.
  • In the early 20th Century, the Uighurs briefly declared independence, but the region was brought under complete control of mainland China’s new Communist government in 1949.

Where is Xinjiang?

  • Xinjiang lies in the north-west of China and is the country’s biggest region.
  • Like Tibet, it is autonomous, meaning – in theory – it has some powers of self-governance. But in practice, both face major restrictions by the central government.
  • It is a mostly desert region, producing about a fifth of the world’s cotton.
  • It is also rich in oil and natural gas and because of its proximity to Central Asia and Europe is seen by Beijing as an important trade link.

Try this PYQ:

Q. Very recently, in which of the following countries have lakhs of people either suffered from severe famine/acute malnutrition or died due to starvation caused by war/ethnic conflicts?
(a) Angola and Zambia
(b) Morocco and Tunisia
(c) Venezuela and Colombia
(d) Yemen and South Sudan

What was the build-up to the crackdown?

  • Anti-Han and separatist sentiment rose in Xinjiang from the 1990s, flaring into violence on occasion.
  • In 2009 some 200 people died in clashes in Xinjiang, which the Chinese blamed on Uighurs who want their own state.
  • Xinjiang is now covered by a pervasive network of surveillance, including police, checkpoints, and cameras that scan everything from number plates to individual faces.
  • According to Human Rights Watch, police are also using a mobile app to monitor peoples’ behaviour, such as how much electricity they are using and how often they use their front door.
  • Since 2017 when President Xi Jinping issued an order saying all religions in China should be Chinese in orientation, there have been further crackdowns.

What does China say?

  • China says the crackdown is necessary to prevent terrorism and root out Islamist extremism and the camps are an effective tool for re-educating inmates in its fight against terrorism.
  • It insists that Uighur militants are waging a violent campaign for an independent state by plotting bombings, sabotage and civic unrest.
  • China has dismissed claims it is trying to reduce the Uighur population through mass sterilizations as “baseless”, and says allegations of forced labour are “completely fabricated”.

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US moves to rejoin UN Human Rights Council

Note4Students

From UPSC perspective, the following things are important :

Prelims level : UN HRC

Mains level : US policies revision after regime change

The Biden administration is set to reengage with the much-maligned UN Human Rights Council that former Donald Trump withdrew from almost three years ago.

Try this PYQ:

Q.Consider the following:

  1. Right to education.
  2. Right to equal access to public service.
  3. Right to food.

Which of the above is/are Human Right/Human Rights under “Universal Declaration of Human Rights”?

(a) 1 and 2 only

(b) Only 1

(c) 1, 2 and 3

(d) Only 3

Why did the US pulled-out earlier?

  • Trump pulled out of the world body’s main human rights agency in 2018 due to its disproportionate focus on Israel.
  • Israel had received by far the largest number of critical council resolutions against any country.
  • The Trump administration took issue with the body’s membership, which currently includes China, Cuba, Eritrea, Russia and Venezuela, all of which have been accused of human rights abuses.

About UN Human Rights Council

  • The UNHRC describes itself as “an inter-governmental body within the UN system responsible for strengthening the promotion and protection of human rights around the globe.
  • It addresses situations of human rights violations and make recommendations on them.
  • The first session took place from June 19-30, 2006, three months after the Council was created by UN General Assembly Resolution 60/251 on March 15 that year.
  • The UNHRC has the ability to discuss all thematic human rights issues and situations that require its attention throughout the year.
  • The HRC replaced the former United Nations Commission on Human Rights (UNCHR).

HRC Meetings

  • The Human Rights Council holds no fewer than three regular sessions a year, for a total of at least 10 weeks.
  • The meetings take place for four weeks in March, for three weeks in June, and for another three weeks in September.
  • The sessions are held at the UN Office in Geneva, Switzerland.
  • If one-third of the Member States so request, the HRC can decide at any time to hold a special session to address human rights violations and emergencies.

Membership

  • The Council is made up of 47 UN Member States, which are elected by the UNGA through a direct and secret ballot.
  • The General Assembly takes into account the contribution of the candidate states to the promotion and protection of human rights, as well as their voluntary pledges and commitments in this regard.
  • Members of the Council serve for a period of three years and are not eligible for immediate re-election after serving two consecutive terms.
  • As of January 1, 2019, 114 UN Member States have served on the HRC. Both India and Pakistan are on this list.
  • The HRC has a Bureau of one President and four Vice-Presidents, representing the five regional groups. They serve for a year, in accordance with the Council’s annual cycle.

Seat distribution

  • African States: 13 seats
  • Asia-Pacific States: 13 seats
  • Latin American and Caribbean States: 8 seats
  • Western European and other States: 7 seats
  • Eastern European States: 6 seats

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Custodial torture in India

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not much

Mains level : Paper 2- Custodial torture and challenges in dealing with it

Installation of cameras would help in curbing the custodial torture to some extent but ending the menace requires comprehensive reforms.

Installation of CCTV cameras to curb custodial torture

  • The Supreme Court recently mandated that CCTV cameras be installed in police stations and offices of other investigative agencies.
  • However, previous decisions with similar recommendations have been poorly implemented.
  • The present decision shows a marked difference from the earlier ones in its approach.
  • It shows more care by listing out areas of police stations where cameras must be installed to ensure that there are no blind spots.
  • It asks for oversight committees to be set up to monitor the functioning of the cameras.
  • It also specifies that the cameras must be equipped with night vision and be able to record audio and visual footage.
  • The recordings will have to be preserved for at least 12 months.

Issues with installing CCTV cameras

  • Alteration of a video to conceal an object, an event, or change the meaning conveyed by the video is a well-documented reality in the United States.
  • Indian courts have also expressed their apprehension of police tampering with CCTV footage.
  • The judgment does not assuage these concerns.
  •  Cameras in police stations will not foreclose the possibility of torture in other locations.
  • Multiple works on torture in India suggest that torture is often not inflicted in police stations, but in isolated areas or police vehicles.
  • Victims are illegally detained and tortured in undisclosed locations before officially arrested and brought to the police station.

Challenges in fixing criminal responsibility

  • Since torture is not recognized as an offense per se under Indian law, the judgment refers to the use of force resulting in “serious injuries and/or custodial deaths” unwittingly creates a high threshold for what amounts to torture.
  • It fails to acknowledge the existence of forms of physical and psychological torture that leave behind no marks on the body.
  • Requiring prior sanction from the government operates as the foremost hurdle in initiating criminal complaints.
  • The absence of statutory guidelines mandating independent investigation results in police officers from the same police station investigating the crime and suppressing evidence.
  • Between 2005-2018, with respect to 1,200 deaths in police custody, 593 cases were registered, 186 police personnel were charge-sheeted, and only seven were convicted (National Crime Records Bureau).
  •  Evidentiary concerns frequently arise since often the only witnesses are the victims themselves.
  • The Supreme Court (1995) has noted that police officials remain silent to protect their colleagues as they are “bound by brotherhood” and held that courts should not insist on direct or ocular evidence in these cases.
  • This position is rarely applied and many cases result in acquittal for want of evidence.

Conclusion

Monitoring the police through CCTVs is an important step towards combating torture but its effectiveness is contingent on broader reforms. The Supreme Court needs to ensure a robust implementation of its order and simultaneously plug the gaps so that incidents of torture are curtailed.

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India’s Population with Disabilities

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not Much

Mains level : Disability in India

December 3 is marked by the UN as International Day of Persons with Disabilities in a bid to promote a more inclusive and accessible world for the differently-abled and to raise awareness for their rights.

Try this question from our AWE initiative:

What are the legal provisions and policy initiatives in India for the welfare of persons with disabilities? What are the challenges faced by persons with disabilities in India? 10 marks

Disability in India

  • About 2.2% of India’s population lives with some kind of physical or mental disability, as per the National Statistics Office report on disability released last year.

How are the disabled identified?

  • Until the 2011 census, there were questions on seven kinds of disabilities in the questionnaire.
  • This list of disabilities was expanded to 21 when the Rights of People with Disabilities was introduced in 2016.
  • Accordingly, the 2019 report included questions to identify people with temporary loss of ability as well as neurological and blood disorders in addition.
  • The earlier definition included mental retardation and permanent inability to move, speak, hear and see.
  • Significantly, the revised definition recognizes deformities and injuries of acid attack victims as disabilities, entitling them to various relief measures.

Who are disabled and in what way?

  • Rural men had the highest prevalence of disability in India, according to the NSO report.
  • A higher proportion of men were disabled in India compared with women, and disability was more prevalent in rural areas than in urban areas.
  • Inability to move without assistance was the most common disability. More men experienced locomotor disability than women.
  • These numbers were self-reported. In other words, the respondents were asked if they experienced any difficulty in performing tasks like moving, talking, etc.

Are these measures in line with those from other surveys?

  • The 2011 census estimated that the number of people with disabilities in India is close to 2.68 crore (or 2.2% of the population) — that is more than the entire population of Australia.
  • This number was based on the older definition of disability, yet the proportion of disabled people in the population is not different from the 2019 NSO report, which used the expanded definition of disability.
  • Other metrics for evaluating disability have provided different estimates.
  • A group of doctors from AIIMS found that alternate questionnaires like the Rapid Assessment of Disability have resulted in a prevalence ranging from 1.6%-43.3%.

How can the range be so wide?

  • The proportion of population facing disability becomes bigger as one move from a narrow definition to a broader one.
  • For instance, if one defines disability as the difficulty in accessing public services for all kinds of reasons, even social or economic, then the proportion goes up.

Why is it important to map disabled people?

  • Like other disadvantaged groups, the disabled in India are entitled to some benefits, ranging from reservation in educational institutes to concessions on railway tickets.
  • To claim these benefits, they have to furnish certificates as proof of disability.
  • At the macro level, data on the prevalence and type of disability is useful while making allocations for welfare schemes.

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NHRC advisory on Sex Work

Note4Students

From UPSC perspective, the following things are important :

Prelims level : NHRC

Mains level : Sex workers

The National Human Rights Commission (NHRC) recognised sex workers as informal workers in their advisory on “Human Rights of Women in the context of COVID 19”.

Try this question for mains:

Q.Recognizing sex workers as informal workers is a myopic and moralistic objection of human rights activism. Discuss.

What is the NHRC advisory?

  • The NHRC in an effort to secure the rights of all excluded and marginalised women included sex workers as informal workers in their advisory on ‘Women at Work’.
  • The advisory asked officials to recognise sex workers as informal workers and register them so they are able to avail the benefits of a worker.
  • The Ministries have been asked to issue temporary documents so that the sex workers like all other informal workers, can access all welfare measures and health services.

Why is the advisory important?

  • The advisory included sex workers among groups that they were considered as part of vulnerable and marginal sections of society thereby consider them as citizens who are deserving of the protection of human rights.
  • To do this, NHRC had sought expert advice, and both the government and constitutional bodies had stood by the protection of the human rights and dignity of sex workers.
  • For many, it is a welcome move and an important milestone in achieving constitutional rights for sex workers.

Legality check of such work

  • The Immoral Traffic (Prevention) Act — lays down that the institution of prostitution is illegal.
  • Sex is either a consensual engagement between two adults or it is rape.
  • Commercial sex, if engaged through any institutional process is illegal and liable for prosecution. Hence the Government of India never recognised sex work.

Criticisms of this advisory

  • The feminists who wish to end sex slavery are critical of this NHRC’s move.
  • There has not been a single instance where a woman has voluntarily gone into prostitution.
  • Therefore they have regarded this as an absolute failure to not provide viable options to women to engage in productive work.

Back2Basics: National Human Rights Commission (NHRC)

  • The NHRC is a statutory public body constituted on 12 October 1993 under the Protection of Human Rights Ordinance of 28 September 1993.
  • It was given a statutory basis by the Protection of Human Rights Act, 1993 (PHRA).
  • This act defines Human Rights as “Rights Relating To Life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India.

Functions

  • Proactively or reactively inquire into violations of human rights by the government of India or negligence of such violation by a public servant
  • Protection of human rights and recommend measures for their effective implementation

Composition

The NHRC consists of The Chairman and Four members (excluding the ex-officio members)

  • A Chairperson, who has been a Chief Justice of India or a Judge of the Supreme Court
  • One member who is, or has been, a Judge of the Supreme Court of India, or, One member who is, or has been, the Chief Justice of a High Court
  • Three Members, out of which at least one shall be a woman to be appointed from amongst persons having knowledge of, or practical experience in, matters relating to human rights
  • In addition, the Chairpersons of National Commissions serve as ex officio members.

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UN’s guidelines on Access to Social Justice for People with Disabilities

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not Much

Mains level : Rights of PWDs

The United Nations has released it’s first-ever guidelines on access to social justice for people with disabilities to make it easier for them to access justice systems around the world.

Note: These guidelines can be used in mains answer while substantiating their rights.

Defining a person with a disability

  • The UN Convention on the Rights of Persons with Disabilities was adopted in 2007 as the first major instrument of human rights in the 21st century.
  • It defines persons with disabilities as those “who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others”.

Highlights of the Guidelines

The guidelines outline a set of 10 principles and detail the steps for implementation. The 10 principles are:

  • Principle 1: All persons with disabilities have the legal capacity and, therefore, no one shall be denied access to justice on the basis of disability.
  • Principle 2: Facilities and services must be universally accessible to ensure equal access to justice without discrimination of persons with disabilities.
  • Principle 3: PWDS including children with disabilities, have the right to appropriate procedural accommodations.
  • Principle 4: PWDS have the right to access legal notices and information in a timely and accessible manner on an equal basis with others.
  • Principle 5: PWDS are entitled to all substantive and procedural safeguards recognized in international law on an equal basis with others, and States must provide the necessary accommodations to guarantee due process.
  • Principle 6: PWDS have the right to free or affordable legal assistance.
  • Principle 7: PWDS have the right to participate in the administration of justice on an equal basis with others.
  • Principle 8: PWDS have the rights to report complaints and initiate legal proceedings concerning human rights violations and crimes, have their complaints investigated and be afforded effective remedies.
  • Principle 9: Effective and robust monitoring mechanisms play a critical role in supporting access to justice for persons with disabilities.
  • Principle 10: All those working in the justice system must be provided with awareness-raising and training programmes addressing the rights of persons with disabilities, in particular in the context of access to justice.

Significance for India

  • As per statistics maintained by the UN, in India 2.4 per cent of males are disabled and two per cent of females from all age groups are disabled.
  • Disabilities include psychological impairment, intellectual impairment, speaking, multiple impairments, hearing, seeing among others.
  • In comparison, the disability prevalence in the US is 12.9 per cent among females and 12.7 per cent among males.
  • Disability prevalence in the UK is at 22.7 per cent among females and 18.7 per cent among males.

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Commonwealth Human Rights Initiative (CHRI)

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Commonwealth of Nations

Mains level : Abolition of modern slavery

The CHRI has released a report on “Eradicating Modern Slavery: An assessment of Commonwealth government progress”.

Try this PYQ from CSP 2012:

Q.Consider the following statements:

  1. The Commonwealth has no charter, treaty or constitution
  2. All the territories/countries once under the British Empire (jurisdiction/rule/mandate) automatically joined the Commonwealth as its members

Which of the statements given above is/are correct?

(a) 1 only

(b) 2 only

(c) Both 1 and 2

(d) Neither 1 nor 2

About the report

The report was released on the occasion of World Day Against Trafficking in Persons by the Commonwealth Human Rights Initiative (CHRI) and an international anti-slavery organisation Walk Free.

Highlights of the report

  • The report assessed the progress made by Commonwealth countries on the promises made in 2018 to end modern slavery by 2030 and achieve the SDGs of ending forced labour, human trafficking and child labour.
  • The report found that one-third of the Commonwealth countries had criminalised forced marriage, while 23 had not criminalised commercial sexual exploitation of children.
  • Commonwealth countries have made little progress towards their commitment to eradicate modern slavery by 2030.
  • One in every 150 people in the Commonwealth is living in conditions of modern slavery.
  • Out of 54 countries, only four engage with business to investigate supply chains, and all countries report gaps in victim assistance programs
  • None of the Asian countries in the group had implemented laws against forced labour in supply chains.

India is the worst performer

  • India had fared the worst in terms of coordination with no national coordinating body or National Action Plan in place.
  • India, like all other Commonwealth countries in Asia, had not ratified the International Labour Organization’s 2011 Domestic Workers Convention or the 2014 Forced Labour Protocol.
  • The report said India accounted for one-third of all child brides in the world.
  • Despite being the largest country in the region, India has the weakest response on national coordination, with no national coordinating body or National Action Plan in place.

Back2Basics: Commonwealth of Nations

  • The Commonwealth of Nations is an intergovernmental organisation of 53 member states that are mostly former territories of the British Empire.
  • It dates back to the first half of the 20th century with the decolonization of the British Empire through increased self-governance of its territories.
  • It was originally created as the British Commonwealth of Nation through the Balfour Declaration at the 1926 Imperial Conference, and formalized by the UK through the Statute of Westminster in 1931.
  • The current body was formally constituted by the London Declaration in 1949, which modernized the community, and established the member states as “free and equal”.
  • The symbol of this free association is Queen Elizabeth II, who is the Head of the Commonwealth.
  • The Queen is head of state of 16 member states, known as the Commonwealth realms, while 32 other members are republics and five others have different monarchs.
  • Member has no legal obligations to one another. Instead, they are united by language, history, culture and their shared values of democracy, human rights and the rule of law.

Commonwealth Human Rights Initiative (CHRI)

  • It is an independent, non-partisan & nonprofit international NGO which works towards the practical realization of human rights in the countries of the Commonwealth.
  • It was founded in 1987 and is headquartered at New Delhi.
  • CHRI’s objectives are to promote awareness and adherence to the Commonwealth’s Harare Declaration, to the Universal Declaration of Human Rights, to other internationally recognised human rights instruments.
  • The organisation specializes in transparency and accountability issues, with a focus on access to justice and access to information.
  • The organisation mainly works in South Asia, East Africa, and Ghana region.

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Protesting is a fundamental right: UN

Note4Students

From UPSC perspective, the following things are important :

Prelims level : UNCAT, ICCPR, Art. 21

Mains level : Right to peaceful assembly

As authorities worldwide grapple with demonstrations over issues like political rights and racial justice, a UN committee has reaffirmed that protesting peacefully, online or in person, is a fundamental human right.

Practice question for mains:

Q.There is an urgent need for reforming the criminal justice system in India in light of rising cases of custodial torture and killings. Comment.

What is the news?

  • The independent experts on the Human Rights Committee published a fresh interpretation of the right of peaceful assembly.
  • It offered comprehensive legal guidance about where and how it applies and also outlining governments’ obligations.
  • The committee is tasked with monitoring how countries implement the International Covenant on Civil and Political Rights (ICCPR), which under Article 21 guarantees the right to peaceful assembly.

About ICCPR

  • The ICCPR is a multilateral treaty adopted by UN General Assembly Resolution on 16 December 1966, and in force from 23 March 1976.
  • The covenant commits its parties to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedom of assembly, electoral rights and rights to due process and a fair trial.
  • As of September 2019, the Covenant has 173 parties and six more signatories without ratification.
  • It is part of the International Bill of Human Rights, along with the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Universal Declaration of Human Rights (UDHR).
  • It is monitored by the UN Human Rights Committee (a separate body to the UN Human Rights Council).

Back2Basics: Article 21

  • Article 21 is the protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to the procedure established by law.
  • The Article prohibits the deprivation of the above rights except according to a procedure established by law.
  • Article 21 applies to natural persons. The right is available to every person, citizen or alien. Thus, even a foreigner can claim this right.
  • It, however, does not entitle a foreigner the right to reside and settle in India, as mentioned in Article 19 (1) (e).

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OPCW blames Syria for chemical attacks

Note4Students

From UPSC perspective, the following things are important :

Prelims level : OPCW

Mains level : Usual turmoil in Syria

The global chemical weapons watchdog, the Organisation for the Prohibition of Chemical Weapons (OPCW) has for the first time explicitly blamed Syria for chemical attacks.

What did the report say?

  • President Bashar al-Assad’s air force used the nerve gas sarin and chlorine three times in 2017.
  • The findings came in the first report from a new investigative team set up by the OPCW to identify the perpetrators of attacks in Syria’s ongoing nine-year-long civil war.

About OPCW

  • The OPCW is an intergovernmental organisation and the implementing body for the Chemical Weapons Convention, which entered into force on 29 April 1997.
  • The organisation is not an agency of the United Nations but cooperates both on policy and practical issues.
  • The OPCW, with its 193 member states, has its seat in The Hague, Netherlands, and oversees the global endeavour for the permanent and verifiable elimination of chemical weapons.
  • It promotes and verifies the adherence to the Chemical Weapons Convention, which prohibits the use of chemical weapons and requires their destruction.
  • It won the Nobel Peace Prize in 2013 for its work in Syria and says it has eliminated 97 per cent of the world’s chemical weapons.
  • The OPCW has the power to say whether chemical weapons were used in an attack it has investigated. In June 2018, it granted itself new powers to assign blame for attacks.

Back2Basics: Syrian Crisis

  • The Syrian civil war is an ongoing multi-sided civil war in Syria fought between the Ba’athist Syrian Arab Republic led by Bashar al-Assad and various domestic and foreign forces opposing both the Syrian government.
  • Even before the conflict began, many Syrians were complaining about high unemployment, corruption and a lack of political freedom under Assad.
  • In March 2011, pro-democracy demonstrations erupted in the southern city of Deraa, inspired by the “Arab Spring” in neighbouring countries.
  • When the government used deadly force to crush the dissent, protests demanding the president’s resignation erupted nationwide. The unrest spread and the crackdown intensified.
  • Opposition supporters took up arms, first to defend themselves and later to rid their areas of security forces. Assad vowed to crush what he called “foreign-backed terrorism”.
  • The violence rapidly escalated and the country descended into civil war.

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Not an unfettered right

Context

The UN High Commissioner for Human Rights filed an application seeking to intervene as amicus curiae in the pending litigation in the Supreme Court against the Citizenship (Amendment) Act, 2019.

What are the implications of intervention?

  • Concern over international attention: That the case has attracted the attention of the international human rights agency is a matter of concern for the Indian government.
  • International law principles: The intervention may enable the Supreme Court to read in public international law principles in determining the constitutionality of CAA.
  • Law on concepts of sovereignty: Ultimately, this would assist in laying down the law on concepts of sovereignty in addition to determining the obligations of a nation-state to the international community at large.

Why the intervention matters?

  • Basis of the application: The application is based on the belief that the High Commissioner’s intervention will provide the Court “with an overview of the international human rights norms and standards with respect to the state’s obligations to provide international protection to persons at risk of persecution in their countries of origin”.
  • This application stands out for a number of reasons.
  • First, this is a voluntary application rather than at the invitation of the Supreme Court.
  • Second, she accepts that India is a state party and signatory to various international conventions including the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Culture Rights which contain important non-discrimination clauses, including on the ground of religion.
  • India’s obligations towards migrants: India is obliged, under international law, to ensure that migrants in its territory or under its jurisdiction receive equal and non-discriminatory treatment regardless of their legal status or the documentations they possess.
  • Locus standi issue raised by India: In response, the External Affairs Ministry argued that “no foreign party has any locus standi on issues pertaining to India’s sovereignty”.
  • The High Commissioner has filed similar amicus curiae briefs on issues of pubic importance before a range of international and national judicial fora.
  • A precedent for future: This intervention, if permitted, would serve as a precedent for a number of future applications. It would also provide an opportunity for the Supreme Court to lay down the law on whether such applications interfere with national sovereignty.

Sovereignty as responsibility

  • Defining sovereignty: International Court of Justice judge James Crawford defines sovereignty as, among other things, the “capacity to exercise, to the exclusion of other states, state functions on or related to that territory, and includes the capacity to make binding commitments under international law” and states that “such sovereignty is exercisable by the governmental institutions established within the state”.
  • Sovereignty in Indian Constitution: The Preamble to the Constitution lays out the position, wherein the people of India have resolved to constitute the Indian Republic into a sovereign and not just any one authority.
  • As such, the courts (judiciary), the government (executive) and elected legislatures (legislature) are equally sovereign authorities.
  • No one can claim exclusivity over sovereignty. Furthermore, Article 51 (c) of the Constitution directs the state to “foster respect for international law”.

Responsibility to citizens and the international community

  • Responsibility of political authority: According to the International Commission on Intervention and State Sovereignty, “national political authorities are responsible to the citizens internally and to the international community through the UN”.
  • Constraints on sovereignty: Therefore, it is trite to say that an authority’s right to sovereignty is not unfettered. It is subject to constraints including the responsibility to protect its citizenry and the larger international community.
  • Extending Article 14: Furthermore, Article 14 extends the right to equality to all persons, which is wider than the definition of citizens. Even illegal immigrants shall, consequently, be treated by the government in a manner that ensures equal protection of Indian laws.

Conclusion

It is hoped that the Supreme Court will conclude that the intervention is necessary as the Court would benefit from the High Commissioner’s expertise in public international law principles.

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Giving Human Rights Commissions more teeth

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not much.

Mains level : Paper 2- Need to entrust the Human Right Commissions with more powers.

Context

The Madras High Court is to decide on whether the recommendations made by such panels are binding upon the state.

A fourth branch institution

  • Enactment of the Act and its purpose: In 1993, the Indian Parliament enacted the Protection of Human Rights Act.
    • Purpose: The purpose of the Act was to establish an institutional framework that could effectively protect, promote and fulfil the fundamental rights guaranteed by the Indian Constitution.
    • To this end, the Act created a National Human Rights Commission, and also, Human Rights Commissions at the levels of the various States.
  • What is fourth branch institution: The National and State Human Rights Commissions are examples of what we now call “fourth branch institutions.”
    • According to the classical account, democracy is sustained through a distribution of power between three “branches” — the legislature, the executive, and the judiciary, with each branch acting as a check and a balance upon the others.
    • The necessity of independent bodies: The complexity of governance and administration in the modern world has necessitated the existence of a set of independent bodies, which are charged with performing vital functions of oversight.
    • Some of these bodies are constitutional bodies — established by the Constitution itself. These include, for instance, the Election Commission and the Office of the Comptroller and Auditor General.
    • Others have been established under law: for example, the Information Commission under the Right to Information Act, and Human Rights Commissions under the Protection of Human Rights Act.
  • HRC under scrutiny and criticism: In the two-and-a-half decades of their existence, however, the functioning of the Human Rights Commissions have come under scrutiny and criticism.
    • There have been the usual critiques of the politicization of autonomous bodies, and selectiveness.
    • Toothless: Even more than that, however, it has been alleged that for all intents and purposes, the Human Rights Commissions are toothless: at the highest, they play an advisory role, with the government left free to disobey or even disregard their findings.

Limitations of NHRC

  • NHRC’s recommendations are not binding
  • NHRC cannot penalize authorities who do not implement its orders
  • JK is out of its jurisdiction
  • NHRC jurisdiction does not cover human right violations by private parties
  • 3/5 are judges, leading to more judicial touch to its functioning
  • 2/5 are also not Human rights experts. Political appointments.
  • Time limit is set to 1 year i.e. NHRC cannot entertain ca case older than 1 year
  • Limited jurisdiction over violation by armed forces
  • The act does not extend to J&K
  • Vacancies are not filled on time. Most human rights commissions are functioning with less than the prescribed Members
  • Fund crunch
  • Overload and backlog. Too many complaints. Hence, in recent days, NHRC is finding it difficult to address the increasing number of complaints
  • Bureaucratic style of functioning
 

What the case before Madras High Court will decide?

  • Whether recommendations are mandatory or not: A Full Bench of the High Court will be deciding upon whether “recommendations” made by the Human Rights Commissions are binding upon their respective State (or Central) governments, or whether the government is entitled to reject or take no action upon them.
  • What are the power of HRC under the act? Under the Protection of Human Rights Act, the Human Rights Commissions are empowered to inquire into the violations of human rights committed by state authorities, either upon petitions presented to them, or upon their own initiative.
    • Powers of civil courts: While conducting these inquiries, the Commissions are granted identical powers to that of civil courts, such as the examining witnesses, ordering for documents, receiving evidence, and so on.
    • These proceedings are deemed to be judicial proceedings, and they require that any person, who may be prejudicially affected by their outcome, has a right to be heard.
  • Issue over the meaning of recommend: The controversy before the Madras High Court stems from the issue of what is to be done after the Human Rights Commission completes its enquiry, and reaches a conclusion that human rights have been violated.
    • Section 18 of the Protection of Human Rights Act empowers the Human Rights Commission to “recommend” to the concerned government to grant compensation to the victim, to initiate prosecution against the erring state authorities, to grant interim relief, and to take various other steps.
    • The key question revolves around the meaning of the word “recommend.”
  • Opposite conclusion by different benches: The Full Bench of the Madras High Court is hearing the case because different, smaller benches, have come to opposite conclusions about how to understand the word “recommend” in the context of the Protection of Human Rights Act.
    • According to one set of judgments, this word needs to be taken in its ordinary sense. To “recommend” means to “put forward” or to “suggest” something or someone as being suitable for some purpose.
    • Ordinarily, a mere “suggestion” is not binding. Furthermore, Section 18 of the Human Rights Act also obligates the concerned government to “forward its comments on the report, including the action taken or proposed to be taken thereon, to the Commission”, within a period of one month.
    • The argument, therefore, is that this is the only obligation upon the government.
    • If indeed the Act intended to make the recommendations of the Commission binding upon the government, it would have said so: it would not simply have required the government to communicate what action it intended to take to the Commission (presumably, a category that includes “no action” as well).

Why ordinary meaning of recommend needs to be rejected?

  • Argument against the ordinary meaning of “recommend”
    • Ordinary meaning and meaning within the legal framework: The first is that there is often a gap between the ordinary meanings of words and the meanings that they have within legal frameworks.
    • Legal meaning: Legal meaning is a function of context, and often, the purpose of the statute within which a word occurs has a strong influence on how it is to be understood.
    • For example, the Supreme Court has held, in the past, that the overriding imperative of maintaining judicial independence mandates that “consultation” with the Chief Justice for judicial appointments (as set out under the Constitution) be read as “concurrence” of the Chief Justice (this is the basis for the collegium system).
    • Recently, while interpreting the Land Acquisition Act, the apex court held that the word “and” in a provision had to be construed as “or”.
    • Of course, there needs to be a good reason for interpretations of this kind.
  • Constitutional commitment: This brings us to the purpose of the Human Rights Act, and the importance of fourth branch institutions.
  • Ensure adequate realisation of constitutional commitment: As indicated above, the Human Rights Act exists to ensure the protection and promotion of human rights.
    • To fulfil this purpose, the Act creates an institutional infrastructure, via the Human Rights Commissions.
    • The Human Rights Commissions, thus, are bodies that stand between the individual and the state, and whose task is to ensure the adequate realisation of constitutional commitment to protecting human rights.
  • Leaving decision with the state would defeat the purpose of the act: It stands to reason that if the state was left free to obey or disobey the findings of the Commission, this constitutional role would be effectively pointless, as whatever the Human Rights Commission did, the final judgment call on whether or not to comply with its commitments under the Constitution would be left to the state authorities.
    • This, it is clear, would defeat the entire purpose of the Act.
  • Past precedents: Indeed, in the past, courts have invoked constitutional purpose to determine the powers of various fourth branch institutions in cases of ambiguity.
    • For example, the Supreme Court laid down detailed guidelines to ensure the independence of the Central Bureau of Investigation; various judgments have endorsed and strengthened the powers of the Election Commission to compulsorily obtain relevant details of candidates, despite having no express power to do so.
    • It is therefore clear that in determining the powers of autonomous bodies such as the Human Rights Commission, the role those fourth branch institutions are expected to play in the constitutional scheme is significant.
  • Powers of civil courts: And lastly, as pointed out above, the Human Rights Commission has the powers of a civil court, and proceedings before it are deemed to be judicial proceedings. This provides strong reasons for its findings to be treated — at the very least — as quasi-judicial, and binding upon the state (unless challenged).
    • Indeed, very recently, the Supreme Court held as much in the context of “opinions” rendered by the Foreigners Tribunals, using very similar logic to say that these “opinions” were binding.

Conclusion

The crucial role played by a Human Rights Commission — and the requirement of state accountability in a democracy committed to a ‘culture of justification’ — strongly indicates that the Commission’s recommendations should be binding upon the state. Which way the Madras High Court holds will have a crucial impact upon the future of human rights protection in India.

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Explained: Why UN Human Rights Commission intends to intervene in a SC case against CAA?

Note4Students

From UPSC perspective, the following things are important :

Prelims level : UNHRC

Mains level : Global intervention over CAA

The UN High Commissioner for Human Rights “intends to file” an Intervention Application in the Supreme Court of India seeking to intervene in Writ Petition (Civil) No. 1474 of 2019 and praying that it be allowed to make submissions.

On what grounds is a UN body seeking to intervene in a case regarding a domestic Indian law?

  • The Office of the High Commissioner for Human Rights (UN Human Rights) is the leading UN entity on human rights.
  • The UN General Assembly entrusted both the High Commissioner and her Office with a unique mandate to promote and protect all human rights for all people.
  • As the principal United Nations office mandated to promote and protect human rights for all, OHCHR leads global human rights efforts speaks out objectively in the face of human rights violations worldwide.
  • This resolution, adopted by the UNGA in 1994, created the post of the UN High Commissioner for Human Rights.

Its jurisdiction

  • The application says that successive High Commissioners have filed amicus curiae briefs on issues of particular public importance within proceedings before a diverse range of international and national jurisdictions.
  • It includes the European Court of Human Rights, the Inter-American Court of Human Rights, the International Criminal Court, and at the national level, the United States Supreme Court and final appeal courts of States in Asia and Latin America.

What exactly does the intervention application say?

  • The OHCHR has welcomed as “commendable” the CAA’s stated purpose, “namely the protection of some persons from persecution on religious grounds.
  • It also “acknowledges the history of openness and welcome that India has exhibited to persons seeking to find a safer, more dignified life within its borders”.
  • However the examination of the CAA raises important issues with respect to international human rights law and its application to migrants, including refugees, says the OHCHR.
  • The CAA, it says, raises “important human rights issues, including its compatibility in relation to the right to equality before the law and nondiscrimination on nationality grounds under India’s human rights obligations”.
  • The application acknowledges that “the issue of nondiscrimination on nationality grounds falls outside the scope of this intervention”, but insists that “this in no way implies that there are not human rights concerns in this respect”.

Why intervene?

  • The application questions the reasonableness and objectivity of the criterion of extending the benefits of the CAA to Buddhists, Sikhs, Hindus, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan alone.
  • It points out that while the Indian government has suggested that persons of Muslim faith, regardless of denomination or ethnicity, are protected there.
  • However recent reports by UN human rights show that Ahmadi, Hazara and Shia Muslims in these countries warrant protection on the same basis as that provided in the preferential treatment proposed by the CAA.

Is there a specific basis on which the OHCHR has faulted the CAA?

The application flags some central principles of international human rights law:

  1. the impact of the CAA on some migrants
  2. the enjoyment of human rights by all migrants and the rights of all migrants (non-citizens) to equality before the law and
  3. the principle of non-refoulment, which prohibits the forcible return of refugees and asylum seekers to a country where they are likely to be persecuted
  • The application mentions that all migrants “regardless of their race, ethnicity, religion, nationality and/or immigration status enjoy human rights and are entitled to protection”.
  • It cites international human rights instruments to urge the inclusion of non-discrimination, equality before the law, and equal protection before the law into the foundation of a rule of law.
  • International human rights law, the application says, does not distinguish between citizens and non-citizens or different groups of non-citizens for the purposes of providing them protection from discrimination, “including in respect of their migration status”.

India’s stance

  • The Citizenship Amendment Act is an internal matter of India and concerns the sovereign right of the Indian Parliament to make laws.
  • MEA spokesperson insisted that no foreign party has any locus standi on issues pertaining to India’s sovereignty.
  • The CAA was “constitutionally valid and complies with all requirements of (India’s) constitutional values”, and “is reflective of our long-standing national commitment in respect of human rights issues arising from the tragedy of the Partition of India”.

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Private: Preventive Detention

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not much.

Mains level : Paper 2- Misuse and excessive use of preventive detention in India, issues arising out of it.

Context

The frequent use of preventive detention laws brings into focus excessive and disproportionate use of it to prevent the crime in India.

Preventive detention in India

  • What is preventive detention in Indian law? The arrest and detention of persons without requiring them to face a public trial, which is driven towards proving innocence or guilt of an accused person alleged to have committed an offence, is referred to as ‘preventive detention’ in Indian law.
    • Laws at the national level and state level: Preventive detention statutes exist at both the national and state levels and are intended to serve as effective measures to prevent the occurrence of crime.
  • Who is empowered to pass order? Under these laws, executive officers such as District Magistrates and Commissioners of Police are empowered to pass orders for arrest and to take persons into custody.
  • What are the conditions to exercise power? These powers can be exercised if the officers are “satisfied” that the person’s conduct is posing a risk to certain kinds of interests that the law deems important.
    • For instance, the National Security Act of 1980 permits arrest and detention of persons when it is in the interest of maintaining “public order”, which can occur even without any allegations of the person breaking any existing laws.

Why procedural fairness is absent?

  • Strict compliance could defeat the purpose of the law: Since the purpose of preventive detention is to prevent crime, it is argued that compliance with painstaking procedures such as those of a criminal trial would defeat the law’s purpose.
    • Therefore, we find that preventive detention processes come without many of the hallmarks of procedural fairness that we take for granted in regular criminal law.
  • How preventive detention differs from regular criminal laws
    • No need to disclose the grounds for arrest: Unlike regular law, there is no need for a person arrested under the exceptional preventive detention process to be informed of the grounds immediately.
    • No need to produce the person in court: There a no requirement to produce the arrested person before a court.
    • Scrutiny is done by the executive only: While all arrests and detentions under preventive detention laws do undergo some subsequent checks, this scrutiny remains almost exclusively executive-based.
    • No judicial oversight for the detention of fewer than three months: There is no judicial oversight where detention beyond three months is not sought.
    • No public hearing even after 3 months: And even in those cases which go to a Tribunal comprising judges, there is no public hearing involved and no guaranteed oral hearing for the detenu.
    • No publicly available orders or judgments are published about the ultimate decision.
    • Finally, throughout this process, there is no right to legal assistance for detenues.
    • Resorting to Habeas corpus: The only opportunity for many lies in pursuing a writ of habeas corpus before the High Court.
    • High Courts can only test preventive detention orders on limited grounds. It is barred from undertaking a full-scale review of this executive process.

Excessive use of the exceptional statute

  • The appealing idea of preventive detention: The idea that laws should permit pre-emptive intervention to prevent the commission of crimes is an appealing one.
  • Unnecessary use in normal law and order situation: That the legal framework governing this preventive project comes along with reduced procedural compliances and quick outcomes only makes preventive detention laws more tantalising for security-minded officers.
    • Normalising the preventive detention: Those security-minded officers are thus incentivised to use these exceptional statutes to deal with even ordinary law and order situations, ultimately normalising preventive detention and bringing them down from their exceptional status.
  • NCRB data on preventive detention: The above claim is supported by the Crime in India Report for 2018 released by the NCRB which disclosed that close to one lakh people were arrested and detained in custody under preventive detention laws, as per government estimates.

Conclusion

Exceptional situations certainly justify exceptional measures. But there is a fair case to argue that even under this logic, the procedures of preventive detention laws in India practically sacrifice due process interests at the altar of crime control, and this bargain is ill-suited to justice, no matter how grave the risks.

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‘2 Billion Kilometers to Safety’ campaign

Note4Students

From UPSC perspective, the following things are important :

Prelims level : '2 Billion Kilometers to Safety' campaign

Mains level : Refugees issue across the world

 

The UN Refugee Agency UNHCR has announced a new global campaign urging people worldwide to cover the total distance travelled by refugees each year – 2 billion kilometers – by running, jogging or walking.

About the campaign

  • The “2 Billion Kilometers to Safety” campaign vies to encourage people to support refugees by championing individual acts of solidarity.
  • The goal is to acknowledge the resilience and strength of refugees.
  • It calls on the public to show their solidarity with refugees by running, walking or cycling to collectively cover two billion kilometers.
  • Participants can use their fitness apps or the campaign website to log the kilometers and contribute to the global total.

Distance covered by refugees 

  • UNHCR traced the journeys of refugees around the world and calculated that, collectively, people forced to flee travel approximately two billion kilometers every year to reach the first point of safety.
  • This is roughly the distance that separates Earth from somewhere between the planets Saturn and Uranus.
  • According to UNHCR estimates, Syrian refugees travelled over 240 kilometers each to reach Turkey.
  • South Sudanese refugees travelled more than 640 kilometers to reach Kenya. Rohingya refugees from Myanmar travelled approximately 80 kilometers to reach Bangladesh.

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Explained: Practice of Female Genital Mutilation (FGM)

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not Much

Mains level : FGM

 

Every year, February 6 is observed as the International Day of Zero Tolerance for Female Genital Mutilation (FGM).  As per the WHO, globally, over 200 million girls alive today have suffered FGM in over 30 countries.

Female Genital Mutilation

  • FGM is the name given to procedures that involve altering or injuring the female genitalia for non-medical or cultural reasons.
  • It is recognised internationally as a violation of human rights and the health and integrity of girls and women.
  • Most girls and women who have undergone FGM live in sub-Saharan Africa and the Arab States, but it is also practiced in some countries in Asia, Eastern Europe and Latin America.
  • According to the United Nations Population Fund (UNFPA), while the exact origins of the practice remain unclear, it seems to have predated Christianity and Islam.
  • It says that some Egyptian mummies display characteristics of FGM.
  • Significantly, the ancient Greek historian Herodotus has claimed that in the fifth century BC, the Phoenicians, the Hittites and the Ethiopians practised circumcision.

Why is Female Genital Mutilation practiced?

  • Depending on the region, there can be various reasons why FGM is performed. The UNFPA has categorised the reasons into five categories —
  1. psycho-sexual reasons (when FGM is carried out as a way to control women’s sexuality, “which is sometimes said to be insatiable if parts of the genitalia, especially the clitoris, are not removed);
  2. sociological or cultural reasons (when FGM is seen as part of a girl’s initiation into womanhood and an intrinsic part of a community’s cultural heritage);
  3. hygiene and aesthetic reasons (this may be the reason for those communities that consider the external female genitalia as ugly and dirty);
  4. religious reasons (the UNFPA maintains that while FGM is not endorsed by Christianity or Islam, “supposed” religious doctrines may be used to justify the practice);
  5. socio-economic factors (in some communities FGM is a pre-requisite for marriage, especially in those communities where women are dependent on men economically).
  • Other reasons cited by the WHO include- an attempt to ensure women’s premarital virginity since FGM is believed to reduce libido,  and therefore believed to help her resist extramarital sexual acts.
  • FGM may also be associated with cultural ideals of feminity and modesty.

Economic cost of FGM

  • Beyond the immense psychological trauma it entails, FGM imposes large financial costs and loss of life.
  • In 2018, a study on FGM in India said that the practice was up to 75 per cent across the Bohra Muslim community.
  • The economic costs of treating health complications arising out of FGM amount to roughly $1.4 billion for 2018 for 27 countries where FGM is performed.
  • If the prevalence remains the same, the amount is expected to rise up to $2.3 billion by 2047.

FGM in India

  • According to the aforementioned study, the reasons for FGM referred to as “Khafd” in India include continuing an old traditional practice, adhering to religious edicts, controlling women’s sexuality and abiding by the rules stated by the religious clergy.
  • It also states that the issue first rose to prominence in India because of two international legal cases on FGM against practising Bohras in Australia and the US.
  • In 2018, a bench of then CJI Dipak Misra referred a petition seeking a ban on FGM among Dawoodi Bohra girls to a five-judge Constitution Bench.
  • The Dawoodi Bohra community, on the other hand, maintained that the practice should be allowed since the Constitution grants religious freedom under Article 25.

For detailed health risks associated with FGM, navigate to the page:

Health hazards of FGM

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Karnataka Anti-superstition Law

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not Much

Mains level : Superstitions and associated socail injustice

A controversial anti-superstition law in Karnataka was formally notified by the current government.

Provisions of the earlier drafts

  • The law, which was initially drafted as the Karnataka Anti Superstition Bill, 2013, was a pet project of former CM Siddaramaiah.
  • The model Bill held human dignity as its central tenet and sought eradication of irrational practices found in different communities.
  • The first draft made practices like inflicting self-wounds and conversion through bribery illegal.
  • Some of the proposals opposed by religious leaders and political parties in the early draft were the ban on practices such as the carrying of priests in palanquins, worshipping the feet of religious leaders.
  • It sought to ban Made Snana practised in the Dakshina Kannada region where Dalits roll over the remains of food consumed by upper castes.

The current version

  • A Bill with sizable consensus across the political spectrum finally evolved in 2017. A total of 16 practices have been banned under the law.
  • The practice of Vaastu, astrology, pradakshina or circumabulation of holy places, yatras, parikramas performed at religious places were kept out of the purview of the law.
  • Made Snana was banned under the law with respect to having Dalits roll over leftover food.
  • The practice has now been modified to be voluntary and not involving leftover food.
  • Practices such as barring menstruating women from entering houses of worship and their homes, coercing people to take part in fire-walks, and beating up people by declaring them evil, are among the irrational practices that have been banned under the 2017 law.

Penalties

  • The law stipulates “imprisonment for a term which shall not be less than one year but which may extend to seven years and with fine which shall not be less than five thousand rupees but which may extend to fifty thousand rupees”, as punishment for violations.
  • The law is to implemented by the state police with the appointment of vigilance officers under the law at police stations.

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[op-ed of the day] Preventing mob lynching

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not much.

Mains level : Paper 2-Protection of vulnerable section and mob lynching.

Context

The spate of incidents of lynching over the past few years has led to a heightened sense of insecurity among the marginalised communities. The Centre should specify penal action against officials and doctors accused of dereliction of duty.

2018 Supreme Court Judgement

  • In 2018, the Supreme Court described lynching as a “horrendous act of mobocracy”.
  • The Court exhorted the Centre and State governments to frame laws specifically to deal with the crime of lynching.
  • The SC laid down certain guidelines to be incorporated in these laws including
    • Fast-track trials.
    • Compensation to victims, and
    • Disciplinary action against lax law-enforcers.

The State laws

  • Manipur bill for the law against lynching:  The Manipur government came up first with its Bill against lynching in 2018, incorporating some logical and relevant clauses.
    • Provision of nodal officer: The Bill specified that there would be nodal officers in each district to control such crimes.
    • Compensation to the victim: The law provides for adequate monetary compensation to the victims or their immediate kin.
    • Punishment for failure to enforce the law: Police officers who fail to prevent the crime of lynching in their jurisdiction are liable to be imprisoned for a term that may extend from one to three years with a fine limit of ₹50,000.
    • No concurrence of state for the prosecution of the police: No concurrence of the State government is required to prosecute them for dereliction of duty.
  • Rajasthan bill: The government has accepted only a few guidelines issued by the apex court.
    • No action against police officers: The bill is also silent on any action to be initiated against police officers who may be accused of dereliction of duty.
  • West Bengal bill: Most other guidelines of the Supreme Court have been adopted by the State.
    • Stringent punishment: Punishment for lynching to death is punishable with the death penalty or life imprisonment and a fine of up to ₹5 lakh.

What the Centre can do

  • Adoption of the SC guidelines: The Centre should adopt the guidelines provided by the SC to deal with the crime.
  • Action against doctors: Centre would do well to incorporate sections in the law for penal action against doctors who stand accused of-
    • Dereliction of duty.
    • For delay in attending to victims of lynching.
    • For submitting false reports without carrying out a proper and thorough medical examination of the victims.
  • The compensation scheme for victims: Under the compensation scheme for the victims, the amount to be paid to the victims should be recovered from the perpetrators of the crime.
    • Collective fines: Collective fines should be imposed on the villagers where the lynching takes place.
  • Punishment for a political leader for inciting the mob: Centre could even provide for punitive action against political leaders found guilty of inciting mobs.
  • Punitive action against police: Punitive action to be taken against police officers accused of dereliction of duty, as incorporated in the law enacted by Manipur government, could be replicated in the Central law too.
    • Punitive action as a deterrent: It would deter police officials acting in a partisan manner in favour of the lynch mob.

Conclusion

Until a zero-tolerance attitude is adopted in dealing with mob lynching, this crime will continue to show a rising trend.

 

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[op-ed of the day] Human rights are not solely an ‘internal matter’

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not much

Mains level : Paper 2- Violations of human rights.

Context

The human rights situation in Jammu and Kashmir following the dilution of Article 370 and the passage of the Citizenship (Amendment) Act (CAA) have brought renewed international focus on India’s human rights practice.

Evolution of the modern Human Rights

  • Classical approach: Countries made agreements on the premise that a sovereign state had the exclusive right to take any action it thought fit to deal with its nationals.
    • No recognition of individuals’ rights:  Classic international law governed the conduct between states and did not recognise the rights of individuals.
  • The classical notion was challenged in the 19th century.
  • Modern Human Rights:  Slavery Convention adopted by the League of Nations prohibiting the slave trade heralded the first human rights treaty.
    • It was based on the principle of dignity of a human being.
  • The Universal Declaration of Human Rights: Adopted in 1948 by the United Nations, was the first comprehensive international human rights document.
  • The weakening of Unrestricted sovereignty: The evolution of international human rights law is also about the gradual weakening of the concept of unrestricted sovereignty.

India and Human Rights

  • Unwarranted international scrutiny: The Indian government’s response to its human rights practice has always been that international scrutiny is unwarranted.
    • Why India claims so?: Since the country is the largest democracy in the world with an independent judiciary, free media, and an active civil society no international scrutiny is required.
    • Indian has always assured the international community that the judiciary (the SC) would provide adequate remedies to victims of human rights violations.
    • These claims sound less credible after the recent developments in J&K and the passage of the CAA.
  • Human rights and Discriminatory nature of CAA: Non–discrimination is a fundamental principle of human rights.
    • The Office of the High Commissioner for Human Rights (OHCHR) said that CAA is fundamentally discriminatory in nature”.

Role of Civil Society and Media

  • Media’s questionable role: Responding to international concerns the Indian government also refers to the role of free media and civil society in protecting human rights.
    • However, the media’s role in J and K and after CAA is questionable.
  • Weakened Civil Society: The government has imposed various curbs on it since 2014.
    • It has become difficult for it to receive foreign contribution.
    • Use of FRCA: Since 2014, the government has canceled the registration of about 14,000 NGOs under the Foreign Contribution Regulation Act (FCRA).

Conclusion

  • It is possible for the Indian government, due to its diplomatic clout, to avoid robust intervention by the UN Human Rights Council and other UN human rights mechanisms.
  • But it would be difficult to avoid scrutiny by the international community. So, the government must take steps to allay international concerns and avoid situations where it is seen as a violator of human rights.

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UN Convention against Torture

Note4Students

From UPSC perspective, the following things are important :

Prelims level : UNCAT

Mains level : Repercussions of the implementation of CAA

In Parliament, the opposition group has claimed that the Citizenship (Amendment) Act falls afoul of an international convention on torture.

UN Convention against Torture

  • The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is commonly known as the UN Convention against Torture (UNCAT).
  • It came into force in June 1987.
  • It is an international human rights treaty, under the review of the UN that aims to prevent torture and other acts of cruel, inhuman, or degrading treatment or punishment around the world.
  • It requires states to take effective measures to prevent torture in any territory under their jurisdiction, and forbids states to transport people to any country where there is reason to believe they will be tortured.
  • India is a signatory to the convention (since 1997) and is bound by the principle of jus cogens that ensures human rights to those who are tortured and persecuted.

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Global Refugee Forum (GRF)

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Global Refugee Forum (GRF)

Mains level : Refugees issue across the world

The first Global Refugee Forum (GRF), a two-day gathering of United Nations member states, began in Geneva, Switzerland.

Global Refugee Forum (GRF)

  • The Forum is jointly hosted by the United Nations High Commissioner for Refugees (UNHCR), the UN Refugee Agency, and the government of Switzerland.
  • It aims to debate and discuss the response of the world’s countries to the global refugee situation.
  • The first GRF has been organised around six areas of focus: burden- and responsibility-sharing, education, jobs and livelihoods, energy and infrastructure, solutions, and protection capacity.

Terms of reference   

  • The GRF will be held every four years at the Ministerial level.
  • It is intended to present an opportunity for UN member states and other stakeholders to announce action plans and pledges towards meeting objectives such as easing the burden on the host country.
  • It aims at enhancing refugee self-reliance, expanding access to third-country solutions, and supporting conditions in countries of origin for return in safety and dignity.

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[oped of the day] Constitutional justice is non-negotiable

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing much

Mains level : Justice and the process of Law

Context

The four accused in the rape and murder of the young veterinarian in Hyderabad were encountered.  

A long list of cases

  • Including Nirbhaya and many such attacks on women, the list where women across India have been killed and maimed in the most brutal fashion is very long.
  • All this, while we have had a stringent, amended rape law in place and also fast track judicial processes.

What does this show

  • Sexual assault is pervasive. The response must be systemic, not episodic.
  • In such moments, families react with deep anger and grief. This is exhibited through a demand for instantaneous retribution. 

Quick justice

  • Public responses that equate judicial outcomes and “justice” to immediate and quick retribution are not just.
  • It is extremely important for us to rise above the heat of the moment and provide moral reassurance and comfort to families, while keeping sight of the rule of law and constitutional tenets. 
  • The ends of justice are not served by wanton killing and retributive blood lust. 
  • The course of justice cannot be determined by the grief and grieving of victims’ families. 
  • Justice lies in supporting them in their moment of grief and pain and insisting on due process that brings suspects and accused to trial through a robust, stringent and competent criminal investigation.

Justice system

  • After the December 2012 incident, the law on rape was amended substantially based on the recommendations and deliberations of the Justice J.S. Verma Committee. 
  • The Criminal Law (Amendment) Act, 2013, or Nirbhaya Act, 2013 is a testimony to the possibility of translating public angst into just law.
  • There is a procedure prescribed by the law for criminal investigation. This is a procedure embedded in constitutional principles. It evolved over decades of thinking on keeping constitutionalism alive.
  • Article 21 of the Constitution of India — “No person shall be deprived of his life or personal liberty except according to the procedure established by law” — is fundamental and non-derogable. 
  • The police are bound by the Constitution — there are no exceptions.
  • In this case, the four suspects are apprehended and shot in custody without the criminal investigation had commenced in any substantive way.

Supreme Court

  • A core constitutional precept was as set out in the Salwa Judum case in 2011: “Modern constitutionalism posits that no wielder of power should be allowed to claim the right to perpetuate state’s violence against anyone, much less its own citizens, unchecked by law, and notions of innate human dignity of every individual.” 
  • This is the touchstone of the constitutionally prescribed rule of law.
  • The Supreme Court of India, in Puttaswamy in 2017, has prescribed the interpretation of Article 21: It is non-negotiable, non-derogable, and is not suspended even during conditions of Emergency. Any argument on the actions being carried out in ‘purported discharge of official duties’ especially involving the death of unarmed persons in custody cannot stand the narrowest test of Article 21.
  • There is no law in force in India that authorises the police to kill. The plea of self-defence cannot be used to rationalise a targeted, premeditated killing of suspects in custody. 
  • The police have confessions of the suspects while in custody and the evidentiary value of that must be evaluated by the court. But we have an open declaration by the police of shooting and causing death. 
  • As was argued in the Encounters case before the Andhra Pradesh High Court, the discussion on the law ‘was never whether there should be indictment and trial when homicide is committed in self-defense’. The debate was on ‘whether a plea of self-defense where excessive force is used, should be tried for manslaughter or murder’. 

A part of democracy

  • The case of the rape and murder of the veterinarian abates with the killing of all four suspects. Without giving a chance for the law to operate.
  • The pathways of justice are not linear nor without obstacles. 
  • We have chosen the route of democracy and the Constitution. We really have no option but to school ourselves in constitutional morality. 
  • Dr. B.R. Ambedkar cautioned in anticipation, constitutional morality must replace public morality. It is not easy, because it is not a natural sentiment. But it is non-negotiable.

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National Human Rights Commission (NHRC)

Note4Students

From UPSC perspective, the following things are important :

Prelims level : NHRC: Power and Functions

Mains level : Extra-judicial modes of delivering justice and Rule of Law

  • The killing by police of all four accused in the Hyderabad rape-murder case have been questioned over the legality and propriety of the action.
  • Extra-judicial or “encounter” killings have been a contested and divisive police procedure for decades.
  • This is what the National Human Rights Commission (NHRC) and the Supreme Court have said on the proper procedures to be followed during such action by police.

About NHRC

  • The NHRC is a Statutory public body constituted on 12 October 1993 under the Protection of Human Rights Ordinance of 28 September 1993.
  • It was given a statutory basis by the Protection of Human Rights Act, 1993 (TPHRA).
  • It is responsible for the protection and promotion of human rights, defined by the Act as “Rights Relating To Life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants”.

Powers of NHRC

  • NHRC investigates grievances regarding the violation of human rights either suo moto or after receiving a petition.
  • It has the power to interfere in any judicial proceedings involving any allegation of violation of human rights.
  • It can visit any jail or any other institution under the control of the State Government to see the living conditions of the inmates and to make recommendations thereon.
  • It can review the safeguards provided under the constitution or any law for the protection of human rights and can recommend appropriate remedial measures.

Limitations

  • NHRC does not have any independent mechanism of investigation. In majority cases, it asks the concerned Central and State Governments to investigate the cases of the violation of Human Rights
  • NHRC can only make recommendations, without the power to enforce decisions.
  • Its powers related to violations of human rights by the armed forces have been largely restricted.

NHRC’s guidelines on fake encounters

  • Justice Venkatachaliah, who was Chief Justice of India in 1993-94, underlined that “under our laws the police have not been conferred any right to take away the life of another person”.
  • And “if, by his act, the policeman kills a person, he commits the offence of culpable homicide whether amounting to the offence of murder or not unless it is proved that such killing was not an offence under the law”.
  • The only two circumstances in which such killing would not constitute an offence were-
  1. if death is caused in the exercise of the right of private defence, and
  2. under Section 46 of the CrPC, which “authorises the police to use force, extending upto the causing of death, as may be necessary to arrest the person accused of an offence punishable with death or imprisonment for life”.

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[op-ed snap] Close encounters: On faking anti-Naxal fight

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing much

Mains level : Human Rights violations by security forces

Context

The Justice V.K. Agarwal judicial inquiry commission said that no evidence existed to support the claim that 17 people who died in the “encounter” in 2012, in three villages in Bijapur and Sukma districts were “Naxalites”. The security forces in Chhattisgarh have to live down this assertion.

Story

    • In the official narration, two teams led by a DIG marched into the forests to outflank subversives in a meeting. It was met by gunfire. 
    • 17 Naxalites lay dead, and six uniformed personnel hurt. 
    • The commission found no evidence of a gunfight.
    • It held that firing had been one-sided beginning to end.

What it means

    • The findings catalog that truth can be subverted and buried by the very officers who are supposed to enforce the law. 
    • The commission puts it down to a disproportionate reaction from the anti-Naxal formation.

Botched up story

    • The findings make it clear that the entire operation was botched from the start by poor intelligence, inadequate training, lack of communication, and hasty reaction.
    • Postmortem reports showed injuries on 10 of those killed were on their backs.
    • This is not consistent with claims that firing had been in self-defense.
    • The nature and location of the injuries suggest that they were fired upon while fleeing. 
    • There were bullet shots on some of the heads from close quarters. 
    • There were injuries on the upper torsos caused by the butt of guns or rifles which show signs of physical assault. 
    • The cataloging and managing of the evidence of armaments such as guns and detonators suffered from imprecise documentation. 
    • There are signs of manipulation in the timing of injury and post-mortem reports in at least one case. 
    • The commission concluded that injuries sustained by the uniformed personnel were more likely caused through friendly fire. 

Recommendations

    • Training is to be imparted “to improve the mental fabric of security forces”.
    • It aims “to make them more balanced so that they act with equanimity and do not succumb to panic reaction even in a critical situation”. 
    • Ways must be found to initiate action against the officers involved in this unfortunate operation.

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[op-ed snap] Setting the clock back on intersex human rights

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing much

Mains level : Transgender Bill

Context

The Transgender Persons (Protection of Rights) Bill, 2019, continues to trigger protests across the country. Still, Rajya Sabha has passed the same version of the draft law that was passed by the Lok Sabha.

The journey of intersex human rights

    • Arunkumar v. The Inspector-General of Registration – Given by the Madurai Bench of the Madras High Court, it judgment marks the beginning of a journey of intersex human rights in India. 
    • It took up the issue of the validity of consent given on behalf of intersex infants for undergoing sex-selective surgeries. 
    • It held that the consent of the parent cannot be considered as the consent of the child. Hence, such surgeries should be prohibited. 
    • It recognizes the consent rights of intersex children and the right to bodily integrity. 
    • The judgment declared a prohibition on sex-selective surgeries on intersex children in Tamil Nadu. 
    • Tamil Nadu banned sex reassignment surgeries on intersex infants and children.

Transgender Bill

    • It also deals with issues related to human rights protection of intersex persons.
    • The title of the Bill itself is exclusionary. It does not accommodate all persons whose legal protection it seeks to recognize. 
    • Transgenders have a different gender identity than what was assigned to them at birth. Intersex indicates the diversity of gender-based on biological characteristics at birth. 
    • There are also multiple variations in intersex itself. The Bill is not in alignment with the evolving international human rights framework. 
    • Parliament has to change the title of the Bill to Gender Identity, Gender Expression and Sex Characteristics (Protection of Rights) Bill, 2019. It conflates the condition of intersex persons with transgender persons. 
    • Mostly. the legal and welfare needs of intersex persons are different from those of transgender persons.
    • Some persons born or living with intersex traits can live with a non-binary identity or may choose to live as gender-fluid persons. The Bill fails to account for these possibilities. 
    • It does not provide for the definition of terms such as gender identity, gender expression, and sex characteristics.
    • The Bill doesn’t say much about discrimination against intersex persons. Intersex conditions are termed in derogatory terms even by medical professionals. 
    • It should have included a provision directing medical professionals to ensure that intersex traits are not characterized as “disorders of sex development”
    • Intersex traits should not be considered as genetic defects/ disorders, and terms like ‘gender dysphoria’ should be used to characterize them.

Unnecessary medical procedures

    • As per the court’s jurisprudence, medical procedures are not a necessity for self-identification. 
    • The Union Health Ministry has still admitted that medical procedure including sex reassignment surgeries are being performed on intersex children. 
    • Court slammed the Ministry for its poor understanding of consent rights and imposed a ban on the practice of sex reassignment surgeries on intersex infants/children. The Bill fails to protect intersex persons from unnecessary medical intervention.

Conclusion

    • The discourse around gender and sexuality has evolved a great deal in the last decade. 
    • The current legislative discourse on this issue suffers from a lack of foundational understanding. 
    • Intersex persons are particularly vulnerable and experience barriers in access to education, employment, marriage, etc. 
    • The Bill turns back the clock on decades of positive change brought about by intersex activists.

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[op-ed snap] Terror in London: on London Bridge knife attack

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing much

Mains level : Tackling terrorism comprehensively

Context

The knife attack near London Bridge that killed two and injured three others is another reminder of the threat lone-wolf assaults pose to public security. 

Attack

    • The attacker was born in the U.K. to immigrants from Pakistan-held Kashmir. He was a convicted terrorist. 
    • He was released in December 2018 with conditions after serving half his jail term. 
    • He was attending a prisoner rehabilitation program. Wearing a fake explosive vest, he first threatened to blow up the building and then went on a killing spree. 
    • This is the latest in a series of terror attacks the U.K has seen in recent years. 
    • In 2017, terrorists had rammed a van into pedestrians on the Bridge and stabbed people in nearby bars and restaurants. 
    • In the same year, a van ran into pedestrians outside a London mosque and a suicide bomber killed 22 concert-goers in Manchester. 
    • Islamic State has claimed responsibility for this attack.

Issues underlying the attack

    • Radicalization is the primary problem.
    • It also points to security, intelligence, and systemic failures. 
    • The British intelligence is often credited for foiling dozens of terrorist attacks since the 2005 London train bombings that killed 56.
    • But less sophisticated, less coordinated, often lone-wolf attacks are on the rise. 
    • The attacker who was convicted in 2012 for being part of an al-Qaeda-linked plot to bomb the London Stock Exchange was sentenced under the imprisonment for public protection (IPP) program. It allowed the authorities to keep him, or convicts considered a threat to the public, in prison indefinitely. 
    • Under the automatic early release scheme, he was freed in 2018 with an electronic tag and supposed to be monitored. But the police still could not prevent the knife attack.

Way ahead

    • This demands to make policing more efficient and reviewing the early release scheme. 
    • What is needed is a good counter-terror plan to tackle both extremisms among youth and prevent lone-wolf attacks that often go undetected. 
    • State agencies need to work with civil society groups as well as community leaders and have deradicalization programs.

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[op-ed snap] The dubious legal case for an NRIC

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing much

Mains level : NRC for the country

Context

The government is proposing an NRC for the country. The Union Home Minister said that the Preparation of National Register of Indian Citizens (NRIC) is governed under several laws.

Legal provisions

    • Citizenship Act – It is said to be governed by the provisions of Section 14A of The Citizenship Act, 1955 and The Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules 2003.
    • Section 14A of the Citizenship Act, 1955 provides for compulsory registration of every citizen of India and the maintenance of NRIC. 
    • Citizenship Rules – The procedure to prepare and maintain NRIC is specified in The Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003.

Problems with the argument

    • It suggests that a nationwide NRIC is mandated by law. 
    • “May” – Section 14A in the Citizenship Act of 1955 provides in sub-section (1) that “The Central Government may compulsorily register every citizen of India and issue a national identity card to him”. 
    • Discretion vs mandate – The word “may” implies a discretion contingent on other factors. It is at odds with the “compulsory” nature envisaged.
    • From the past – this section was introduced in 2004 in the last days of the National Democratic Alliance (NDA) government.

Rules that authorize an NRIC

    • The 2003 Rules are cited by the Home Minister. Three Rules are of particular interest, Rules 11, 6 and 4 seem to grant some sort of authority for a nationwide NRIC.
    • Rule 11 – “Registrar General of Citizen Registration shall cause to maintain the National Register of Indian Citizen in electronic or some other form .. continuous updating .. from various registers under Registration of Births and Deaths Act, 1969 and the Citizenship Act 1955.” 
    • Registrar General’s responsibility is only to do a periodic revision of the National Register. There is no duty upon the citizens to apply for their citizenship afresh.
    • Rule 4 – it places the responsibility to carry out a census-like exercise on the Central government and not on citizens. It deals with “Preparation of the National Register of Indian Citizens”. 
    • It says that the Central Government shall carry out a “house-to-house enumeration for collection for particulars related to each family and Individual including the citizenship status”. 
    • This is a passive process compared to the grueling exercise that was forced upon citizens in Assam. 
    • Assam exercise of making “residents” register vis-à-vis a specific cut-off date was an explicit exception, inserted by amendment through Rule 4A in 2009.
    • Rule 6 – every individual must get himself/herself registered with the Local Registrar of Citizen Registrations during the period of initialization. This rule is circumscribed by the other clauses in the Act.
    • Contradiction in rules:
      • Rule 11 says that updating the NRIC entails updating the information available with ‘Registrar of Births and Deaths’. 
      • Rule 4 says that a census-like exercise shall be carried out and, if the Central government wants to exclude a citizen, it will give him/her a hearing. 
      • Rule 6 says that a citizen shall have to get himself/herself registered once a start period is specified. 
      • These Rules are in direct contradiction with one another, and smack of non-application of mind and arbitrariness.

Not mandatory

    • The rules, as currently drafted, do envisage other less destructive scenarios to register “citizens” which are redundant in the wake of the Aadhaar Act and not mandatory. 
    • Under the Act, the Centre continues to enjoy rule-making powers and could issue rules which could make it mandatory in the Assam format.
    • Under the Foreigners Act of 1946, the burden of proving whether an individual is a citizen or not lies upon the individual applicant and not on the state (Section 9). 

Projects & constitutionality

    • Identity enrolment was made mandatory under the Aadhaar project and this was struck down as excessive. 
    • The NRIC scheme would be directly in violation of the K.S. Puttaswamy judgment. 
    • Not acquiring an Aadhaar number does not subject a citizen to the serious penal consequences envisaged in the case of an NRIC.
    • The NRIC exercise promises to inflict a long period of insecurity on over a billion people. 
    • The individuals most likely to suffer are those at the very margins of poverty, who risk being rendered stateless and being incarcerated in detention camps which are truly a blot on our democracy. 
    • Such a register (NRC) has existed since 1951 only in Assam, as a special case.

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[op-ed snap] Glimmer of hope: On fresh SIT report on 1984 riots

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing much

Mains level : Communal riots in India

Context

A report by a court-appointed Special Investigation Team (SIT) will tell if there is any improvement in bringing justice for the victims of the 1984 anti-Sikh pogrom. As many as 3,325 people from the Sikh community, including 2,733 in Delhi alone, were killed in the pogrom.

Progress on the issue

  • Successful prosecutions have been few and far between.
  • Each time a new probe is ordered or a fresh report submitted, it is seen as major progress. 
  • The SIT was formed by the Supreme Court a year ago to examine the record in 186 cases.
  • Another SIT had scrutinised 293 cases and closed 199 of them. A two-member team of retired apex court judges scrutinised these 199 cases, along with 42 other matters that had been closed earlier. 
  • The supervisory committee was informed that 186 cases merited further investigation.
  • A fresh three-member team was asked to examine these 186 cases. Last week, the team submitted its report.
  • The development offers a glimmer of hope to the victims of 1984.

Challenges

  • It is not easy to secure convictions in instances of communal riots and sectarian violence.
  • This is difficult for those that involve thousands of offenders gripped by mob frenzy.
  • There was little effort in the early days to bring to book the high political functionaries of the Congress who were suspected to have instigated the riots. 
  • The country has seen other large-scale riots and pogroms after 1984 but has not been able to ensure substantive justice.
  • Delhi High Court’s suggestion in Sajjan Kumar case, to have separate legislation to deal with mass murders that amount to genocide or crimes against humanity should be considered.

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Communalism

Communalism

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[op-ed snap] A blow against punitive constitutionalism

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing much

Mains level : Beggary act

Context

Two centuries of colonial rule imposed many cruelties upon Indians. There was criminalisation and stigmatisation of entire populations that did not “fit in” to a certain, narrow way of life.

Examples of such laws

    • Criminal Tribes Act –  indigenous peoples were deemed criminals by birth and herded into concentration camps, where families were separated and forced labor was the norm.
    • Post Independence – despite Independence and adoption of Constitution, post-colonial Indian state replicated many of the worst excesses of the British regime.
    • “Beggary law” – it was enacted in Bombay in 1958, and later extended to many States and Union Territories. 
    • These laws criminalise itinerant and nomadic communities, anyone who does not fit the state’s definition of a “normal” citizen.
    • They establish a system of “certified institutions” that are little better than detention centres.
    • They facilitate the continued stigmatisation and incarceration of some of the most vulnerable and marginalised segments of society.

Recent judgment

    • Jammu and Kashmir High Court struck down that state’s iteration of the Beggary Act. 
    • It identified the colonial origins of the law and found it to be a gross violation of human dignity, equality, and freedom.

The Beggary laws

    • Broad definition of “begging” – “begging” is defined as “having no visible means of subsistence and wandering about or remaining in any public place… in such condition or manner, as makes it likely that the person doing so exists by soliciting or receiving alms”.
    • Beyond begging – beggary laws go substantially beyond criminalising the act of begging. They criminalise people who are “wandering about” and who look like they might need to beg at some point.
    • Purpose – the purpose of such provisions is not to protect public peace or prevent crimes, but to effectively “cleanse” these spaces of individuals who appear poor or destitute.
    • Process – People found “begging” can be arrested without a warrant and thrown into “Beggars’ Homes” for a year to three years. The Jammu and Kashmir Prevention of Beggary Rules authorised forced medical examinations of “beggars” taken in police custody, “shaving” of hair and “removal of clothing” in order to undertake the euphemistically-phrased “cleansing” of the body.
    • Government defense – The government defended the law on the ground that it was necessary to make “good citizens” out of “beggars”, and that it was necessary to maintain public order.

Analysis in the judgment

    • Origins of such statutes – Under the belief that people without settled means of sustenance were a threat to society, a number of “vagrancy statutes” were enacted and served as precursors to the beggary laws. 
    • In India – begging was first criminalised in the 1920s to “subjugate certain communities by imputing criminality to them.”
    • What begging indicates – begging and homelessness is indicators of abject, chronic poverty. Poverty had social causes. Beggary is a manifestation of the fact that the person has fallen through the socially created net.
    • Poverty not individual created the court rejected the view according to which poverty is a consequence of individual failings.
    • Fundamental rights – “begging” was a peaceful method by which a person sought to communicate their situation to another, and solicit their assistance. It was protected under Article 19(1)(a)’s freedom of speech guarantee.
    • No proof – the government failed to demonstrate how incarcerating “beggars” into homes would transform them into “good citizens”. 
    • Public spaces access – by criminalising “wandering about” in public spaces, the law attempted to exclude the poor and marginalised from places that were meant “for the enjoyment of every member of the public without exception.” It also violated the constitutional guarantee of freedom of movement.
    • Nature of existence – a large number of itinerant communities such as the Gujjars and the Bakarwals, whose very nature of existence is moving from place to place. This would bring them within the ambit of the beggary law. 
    • Dignity – by effectively criminalising poverty, the beggary law violated basic human dignity.
    • Prejudiced view – The legislation was steeped in prejudice against poverty and premised on an absolute presumption of potential criminality of those faced with choicelessness.
    • Right to life – coupled with the draconian processes under the Act, it violated the right to life and personal liberty under Article 21 of the Constitution.

Submerging individual rights

    • Recent years have seen the rise of a phenomenon known as “punitive constitutionalism”. 
    • It seeks to submerge individual rights to a grand and undefined national project. It says that an individual may be stripped of their rights if they do not do their bit to contribute to this project. 
    • Laws barring political participation to those who have more than two children, or who lack formal education, effectively make freedom and equality conditional upon the state’s vision of what a “good citizen” should be like. 
    • Rights are no longer about being human, but about earning the right to be treated as a human.
    • The beggary laws belong within this same family of punitive constitutionalism.

Conclusion

The Jammu and Kashmir High Court’s judgment is explicitly premised upon the unconstitutionality of “invisiblising” a social problem by criminalising it. Thus, it shows us the exact way in which our Constitution rejects this harsh world view.

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Annual Crime in India Report 2017

Note4Students

From UPSC perspective, the following things are important :

Prelims level : NCRB

Mains level : Key highlights of the report


  • After a delay of two years the annual Crime in India Report 2017 was published by the National Crime Records Bureau (NCRB).

Highlights of the report

Crime against women

  • As per the report, 359849 cases of crime against women were reported in the country.
  • Uttar Pradesh topped the list with 56,011 cases followed by Maharashtra with 31,979 cases and West Bengal 30,002.
  • Majority of cases under crimes against women were registered under ‘Cruelty by Husband or his Relatives’ (27.9%) followed by ‘Assault on Women with Intent to Outrage her Modesty’ (21.7%), ‘Kidnapping & Abduction of Women’ (20.5%) and ‘Rape’ (7.0%),” the report said.

Riots

  • As per the report, 58,880 incidents of rioting were reported, of which the maximum incidents were reported from Bihar – 11,698, followed by Uttar Pradesh – 8,990 and Maharashtra – 7,743.
  • Of the total riots reported, communal and sectarian riots accounted for 723 and 183 incidents respectively.
  • There were 805 riots due to caste conflict and 1909 riots occurred due to political reasons, the report said.

Hate Crimes

  • The incidents registered under the Scheduled Caste Prevention of Atrocities Act saw an increase from 5,082 incidents reported in 2016 to 5,775 in 2017.
  • Incidents of crime related to Scheduled Tribes dipped from 844 in 2016 to 720 in 2017.

Crime against Children

  • A total of 95,893 cases of kidnapping and abduction were registered during 2017, showing an increase of 9.0% over 2016 (88,008 cases).
  • A total of 63,349 children (20,555 male, 42,691 female and 103 transgender) were reported missing in 2017.
  • During the year 2017, a total of 70,440 children were recovered/traced,” the report said.

New Categories

Fake news

  • The NCRB for the first time collected data on circulation of “false/fake news and rumours.”
  • Under the category, maximum incidents were reported from Madhya Pradesh (138), Uttar Pradesh (32) and Kerala (18).

Anti-National activities

  • A new category of offences committed by various categories of “Anti-National Elements” was included.
  • It showed that the maximum offences were committed by Left Wing Extremist (LWE) operatives (652), followed by North East insurgents (421) and Terrorists (Jihadi and other elements) (371).
  • The maximum number of killings was carried out by LWE insurgents (82).
  • As many as 72 of these killings took place in Chhattisgarh. This was followed by killings by terrorists (36) — 34 in J&K alone. North East insurgents killed 10 people.

No data on lynching

  • The data collected under the new sub-heads of death due to mob lynching, murder by influential people, killing ordered by khap panchayat and murder committed for religious reason have not been published.
  • This data was ready and fully compiled and analysed.
  • The decision to collect data on lynchings had been taken in the wake of a spate of lynching incidents across the country through 2015-16.
  • The idea was that such data collection would help the government formulate its policies better in tackling these crimes.
  • Lynchings happen for a variety of reasons which include suspicion of theft, child lifting, cattle smuggling or communal reasons.

Back2Basics

National Crime Records Bureau

  • The NCRB is an Indian government agency responsible for collecting and analysing crime data as defined by the Indian Penal Code (IPC) and Special and Local Laws (SLL).
  • NCRB is headquartered in New Delhi and is part of the Ministry of Home Affairs (MHA).
  • NCRB was set-up in 1986 to function as a repository of information on crime and criminals so as to assist the investigators in linking crime to the perpetrators.
  • It was set up based on the recommendation of the Task force,1985 and National Police Commission,1977.

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[oped of the day] A specific anti-torture law needs to be detailed, comprehensive and conform to international standards

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Convention on Torture

Mains level : Anti Torture legislation

Op-ed of the day is the most important editorial of the day. This will cover a key issue that came in the news and for which students must pay attention. This will also take care of certain key issues students have to cover in respective GS papers.

CONTEXT

Recently the home minister pronounced that the days of third-degree torture are gone. It is an acknowledgment about something that everyone knows — that torture is an endemic characteristic of Indian policing.

State of torture in India

    • Common cause survey – Common Cause’s recent large national-level survey on the Status of Policing in India affirms violent means
      • 3 out of 5 personnel believe there is nothing wrong with beating up criminals.
      • 4 out of 5 think it’s okay to bash them up to extract a confession. 
      • 1 in 5 even believes that killing dangerous criminals is better than a legal trial. 
    • These show the poor orientation towards working within the law; the deep sub-culture of ferocious machismo; and the tolerance for illegality within the supervisory cadre.
    • These results show the confidence of torturers that no consequences will flow from even extreme acts of cruelty. 
    • When instances of torture become known, a pocketful of ready excuses are used to defend the – necessity, poor working conditions, no other means, mental tension, and pressure from within and without.
    • Poor capacity – generations of active policemen don’t know that any assault and victimisation of anyone that is not entirely in self-defense is prohibited by law.

What should be done – police

    • Not for the police to decide – though the people who come into the police net are cruel, vicious and cunning, their criminality is not for the police to punish. 
    • Role of police – it is to bring alleged criminals before the courts.

Issues persist

    • No detailed provisions – At present, only a few sections of the Code of Criminal Procedure and the Indian Penal Code criminalise torture and custodial deaths. 
    • Small changes not useful – A few amendments tucked away in a large code are unlikely to have the visibility or effect that a comprehensive standalone law would. 
    • Convention – India signed the UN Convention Against Torture in 1997. But ratification needs us to pass laws at home that reflect the articles in the UN law.
    • In 2017, under the Universal Periodic Review process 29 countries made 37 recommendations that India take urgent steps to stop the torture.
    • 2010 law – the Prevention of Torture Bill lapsed.
    • 2016 – Law Commission drafted a more diluted version. 
    • 2019 – NHRC has registered over 400 cases of alleged deaths in police custody and over 5,000 cases pertaining to deaths in judicial custody. For the past three years alone, these have regularly clocked in at over a thousand a year.
    • At present, the national infrastructure is sorely wanting.

Way ahead

  • A specific anti-torture law needs to be detailed, comprehensive and conform to international standards. 
  • It will need to have a broad descriptive definition of torture that includes mental torture.
  • It should make it easier to prove as has been done in the case of custodial rape.
  • Fix responsibility not only on the perpetrator but on those who allow it to happen under their watch.
  • Make punishment more stringent especially where there has been sexual violence and ensure the state compensates and cares for its victims. 
  • Bypass the hurdles of Section 197 of the Criminal Procedure Code which requires permission before public servants can be prosecuted for actions done in the course of his duty. 
  • The new legislation is only a beginning. Actualisation will take much more. 
  • Exhortations will not stop the torture. Having policies, practices and performance in place to demonstrate implementation, will. 
  • The police force has to be reoriented, investigators have to be skilled up with modern techniques of detection and forensic capacities across the country to be ramped up. 
  • It needs long-delayed human rights courts to be set up with specially trained judges in place. 
  • It needs agencies like local legal aid authorities to have clear guidelines to assist where there are allegations of torture. 
  • It requires overseeing bodies like the many human rights commissions and police complaints authorities to do the same. 
  • The police force should have zero-tolerance. It should reinvent its purpose — not as an oppressive force, but as a service whose main work is the protection of the lives and liberties of each of us.
  • The Common Cause survey of 12,000 personnel at police stations uncovers the truth we all know — that political interference in the investigation is near omnipresent. 

Conclusion

Supreme Court has made it clear that torture is not part of anyone’s duty. Still, prosecution and convictions continue to be difficult.

 


Back2Basics

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (commonly known as the United Nations Convention against Torture (UNCAT)) is an international human rights treaty, under the review of the United Nations, that aims to prevent torture and other acts of cruel, inhuman, or degrading treatment or punishment around the world.

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[op-ed snap] One year after ‘Navtej Johar’, imagining an equality law

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing much

Mains level : Equality law and the need for it

CONTEXT

One year since the SC judgment in Navtej Johar v. Union of India on Sec 377. We have moved from a society where transgender, intersex, lesbian, gay, bisexual and gender non-conforming persons were treated as criminals to constitutional recognition of rights to sexual orientation, gender identity, and gender expression.

Impact of the judgment

  • The recognition of these rights impacts not only LGBTI persons, but everyone as it protects out rights of self-expression, equality, and autonomy.
  • It laid the ground for stronger equality recognition : Judgment in the Joseph Shine case decriminalising adultery (2018) and the judgment in the Sabarimala case recognising the rights of women to enter religious shrines (2018).
  • It also led to the decriminalising of same-sex intercourse in other jurisdictions such as the High Court of Botswana and inspired a constitutional challenge to Section 377A in Singapore.

Challenges remain

  • Decriminalization is the first step towards the recognition of equal rights. Navtej decision has to be followed by positive steps for equality. 
  • Transgender persons still face a number of legal barriers and LGBTI people continue to face discrimination, exclusion, abuse, and harassment at work, school, health care settings and in public places. 
  • We still do not have equality and anti-discrimination law to protect persons from discrimination on different protected grounds.
  • Even the only close statute, Rights of Persons with Disabilities Act, 2016. only addresses discrimination against persons with disabilities in the public sector and does not address the private sector. 
  • Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and the Protection of Civil Rights Act, 1955 make some discriminatory acts criminal offenses but do not provide civil remedies such as damages for acts of discrimination. 
  • The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is limited to sexual harassment at work.
  • The Transgender Persons (Protection of Rights) Bill, 2019 addresses only transgender and intersex persons’ rights. The rights of equality and non-discrimination on the ground of sexual orientation are not covered.

What’s next

  • Overarching legislation is needed to guarantee equality to all persons on the basis of sexual orientation, gender identity and expression, sex, caste, religion, age, disability, marital status, pregnancy, nationality, and other grounds. 
  • The law should impose obligations of equality and non-discrimination on all persons, public and private, and in the areas of education, employment, healthcare, land and housing and access to public places. 
  • It should provide for civil remedies to stop discriminatory behaviour, costs and damages, and positive action to make reparations.
  • We need an equality law to define what equality would encompass. 
  • Supreme Court comes held in its privacy judgment in K.S. Puttuswamy v. Union of India (2017) that equality and liberty cannot be separated, and equality encompasses the inclusion of dignity and basic freedoms. 

CONCLUSION

Situations like what we see in J&K show us that we need an equality law that not only addresses discrimination against individuals but also addresses structural forms of discrimination and exclusion.

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United Nations Human Rights Council (UNHRC)

Note4Students

From UPSC perspective, the following things are important :

Prelims level : UNHRC

Mains level : Mandate of the UNHRC

  • The UN High Commissioner for Human Rights has expressed concern over the National Register of Citizens (NRC) in Assam, and the communications blackout and detention of political leaders in Jammu and Kashmir.

The UNHRC

  • The UNHRC describes itself as “an inter-governmental body within the UN system responsible for strengthening the promotion and protection of human rights around the globe.
  • It addresses situations of human rights violations and make recommendations on them.
  • The first session took place from June 19-30, 2006, three months after the Council was created by UN General Assembly Resolution 60/251 on March 15 that year.
  • The UNHRC has the ability to discuss all thematic human rights issues and situations that require its attention throughout the year.
  • The HRC replaced the former United Nations Commission on Human Rights (UNCHR).

HRC Meetings

  • The Human Rights Council holds no fewer than three regular sessions a year, for a total of at least 10 weeks.
  • The meetings take place for four weeks in March, for three weeks in June, and for another three weeks in September.
  • The sessions are held at the UN Office in Geneva, Switzerland.
  • If one-third of the Member States so request, the HRC can decide at any time to hold a special session to address human rights violations and emergencies.

Membership

  • The Council is made up of 47 UN Member States, which are elected by the UNGA through a direct and secret ballot.
  • The General Assembly takes into account the contribution of the candidate states to the promotion and protection of human rights, as well as their voluntary pledges and commitments in this regard.
  • Members of the Council serve for a period of three years, and are not eligible for immediate re-election after serving two consecutive terms.
  • As of January 1, 2019, 114 UN Member States have served on the HRC. Both India and Pakistan are on this list.
  • The HRC has a Bureau of one President and four Vice-Presidents, representing the five regional groups. They serve for a year, in accordance with the Council’s annual cycle.

Seats distribution

  • African States: 13 seats
  • Asia-Pacific States: 13 seats
  • Latin American and Caribbean States: 8 seats
  • Western European and other States: 7 seats
  • Eastern European States: 6 seats

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[op-ed snap] The terrorist tag: on the latest Amendments to the NIA Act

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing Much

Mains level : Giving tremendous power to NIA will harm human rights situation

CONTEXT

The idea of designating an individual as a terrorist, as the latest amendments to the Unlawful Activities (Prevention) Act propose to do, may appear innocuous.

Questions regarding amendment

  • However, designating an individual as a terrorist raises serious constitutional questions and has the potential for misuse.
  • The practice of designating individuals under anti-terrorism laws, prevalent in several countries, is seen as being necessary because banned groups tend to change their names and continue to operate.
  • However, there is no set procedure for designating an individual a terrorist.

Need for precautions

  • Parliament must consider whether an individual can be called a ‘terrorist’ prior to conviction in a court of law.
  • The absence of a judicial determination may render the provision vulnerable to invalidation.
  • There ought to be a distinction between an individual and an organisation, as the former enjoys the right to life and liberty.

Consequences

  • The likely adverse consequences of a terrorist tag may be worse for individuals than for organisations.
  • Further, individuals may be subjected to arrest and detention; even after obtaining bail from the courts, they may have their travel and movements restricted, besides carrying the taint.
  • This makes it vital that individuals have a faster means of redress than groups.
  • Unfortunately, there is no change in the process of getting an entity removed from the list.
  • Just as any organisation getting the tag, individuals, too, will have to apply to the Centre to get their names removed.

Human rights’ violations

  • A wrongful designation will cause irreparable damage to a person’s reputation, career and livelihood.
  • Union Home Minister’s warning that his government would not spare terrorists or their sympathisers, and his reference to ‘urban Maoists’, are portentous about the possibility of misuse.
  • It has been argued by some members in Parliament that the Bill contains anti-federal features.

Against Federalism

  • The provision to empower the head of the National Investigation Agency to approve the forfeiture of property of those involved in terrorism cases obviously overrides a function of the State government.
  • At present, the approval has to be given by the State police head.
  • Also, there will be a section allowing NIA Inspectors to investigate terrorism cases, as against a Deputy Superintendent of Police or an Assistant Commissioner.
  • This significantly enhances the scope for misuse.

Conclusion

  • The 2004 amendments to the Unlawful Activities (Prevention) Act, 1967, made it a comprehensive anti-terror law that provided for punishing acts of terrorism, as well as for designating groups as ‘terrorist organisations’.
  • Parliament further amended it in 2008 and 2013 to strengthen the legal framework to combat terror.
  • While none will question the need for stringent laws that show ‘zero tolerance’ towards terrorism, the government should be mindful of its obligations to preserve fundamental rights while enacting legislation on the subject.

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[pib] Protection of Human Rights (Amendment) Bill, 2019

Note4Students

From UPSC perspective, the following things are important :

Prelims level : NHRC, SHRC and their compositions

Mains level : Particulars of the Bill

  • Lok Sabha has passed The Protection of Human Rights (Amendment) Bill, 2019.

Why such Amendment?

  • The Protection of Human Rights Act, 1993 was enacted to provide for the constitution of a National Human Rights Commission (NHRC), the State HRC and the Human Rights Courts for protection of human rights.
  • Certain State Governments have proposed for amendment as they have been facing difficulties in finding suitable candidates to the post of Chairperson of the respective SHRCs owing to the existing eligibility criteria.
  • The proposed amendments will enable both the NHRC and SHRCs to be more compliant with the Paris Principles.

Highlights of the Amendment

  • A person who has been a Judge of the Supreme Court is also made eligible to be appointed as Chairperson of the Commission in addition to the person who has been the CJI;
  • To increase the Members of the NHRC from two to three of which, one shall be a woman;
  • To include Chairperson of the National Commission for Backward Classes, Chairperson of the National Commission for Protection of Child Rights and the Chief Commissioner for Persons with Disabilities as deemed Members of the Commission;
  • To reduce the term of the Chairperson and Members of the NHRC and the SHRCs from five to three years and shall be eligible for re-appointment;
  • To provide that a person who has been a Judge of a High Court is also made eligible to be appointed as Chairperson of the SHRC in addition to the person who has been the Chief Justice of the High Court; and,
  • To confer upon State Commissions, the functions relating to human rights being discharged by the UTs, other than the UT of Delhi which will be dealt with by the Commission.

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[op-ed snap] Law and beyond

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing Much

Mains level : Draft law on lynching in UP

CONTEXT

In July 2018, a Chief Justice of India-led bench of the Supreme Court delivered a stinging indictment of what it called “horrendous acts of mobocracy”, and warned against violent vigilantism propelled by prejudice and hatred — “lynching” — becoming “the new normal”.

Directives

The Court directed the Centre to frame a law that dealt specifically with these crimes, and suggested the setting up of fast-track courts, lodging of FIRs without delay and framing of compensation schemes for victims and their families.

Draft Law

  • The draft law submitted to Uttar Pradesh Chief Minister by the UP State Law Commission would appear to take cognisance of the Court’s directive.
  • The Uttar Pradesh Combating of Mob Lynching Bill (2019) proposes imprisonment (upto 10 years for serious injuries and upto life imprisonment in case of death) and stringent fines for perpetrators, as well as those involved in planning and abetting lynchings.
  • Role of administration – Significantly, it also criminalises the “dereliction of duty” by police officers and the district administration.
  • Setting Accountability – The draft law is welcome for the much-needed signal it sends out — there must be accountability for hate crime.

Reports on lynching

  • Far too often, the mob lynching phenomenon, disturbingly ubiquitous since 2014, has been met by the ruling political formation by denial or, at times, with what could be described as tacit and symbolic support.
  • A report by IndiaSpend found that of all “bovine-related deaths” between 2011-2017, 97 per cent occurred after the BJP came to power in 2014.
  • Take the murder of Mohammad Akhlaq in UP in 2015.
  • The case, despite being before a fast-track court, has seen little progress.
  • As on date, the court is yet to take cognisance of the charges framed against the accused.

Way Forward

In this context, a state government-appointed commission in  UP does well to propose a law that recognises, first, that mob lynchings require urgent legislative and administrative intervention and, second, that police and administration must also share the blame for the climate that permits such violence.

Conclusion

  • But a new law can only be a first step.
  • The state must follow it through
  • . Then, in 2018, the apex court had also said “grandstanding of the incident by the perpetrators of the crimes including in the social media aggravates the entire problem”.
  • The political and social sanction for violence, in the name of the cow is integral to the sense of impunity that encourages the lynch mob.
  • These can only be addressed with the active support of the political class and civil society.

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Human Rights Courts in India

Note4Students

From UPSC perspective, the following things are important :

Prelims level : HR courts

Mains level : HR violations in India and measures to curb them

  • The Supreme Court has sought a response from the Central government, the States and the UTs on the prolonged delay for over a quarter of a century to establish exclusive human rights courts in each district and appointing special public prosecutors in them.

HR Courts

  • The Human Rights Act had called for the establishment of special courts in each district to conduct speedy trial of offences arising out of violation and abuse of human rights.
  • Section 30 of the Protection of Human Rights Act, 1993 envisages that a State government, with the concurrence of the CJ of High Court should specify for each district a court of session as a court of human rights for the speedy trial of violation of rights.
  • Section 31 of the Act provides the State government to specify and appoint a special public prosecutor in that court.
  • Sessions Court of the district concerned is considered as the Human Rights Court.
  • Under the Criminal Procedure Code, 1973 a Sessions Judge cannot take cognizance of the offence. He can only try the cases committed to him by the magistrate under Section 193 of the Cr.P.C.

Why need HR courts?

  • To uphold and protect the basic and fundamental rights of an individual it is an indispensable obligation upon the State to provide affordable, effective and speedy trial of offences related to violation of human rights which can only be achieved by setting up special courts in each district as provided under the Act.
  • The recent India Human Rights Report 2018, which was published by the Country Reports on Human Rights Practices for 2018 by US provide a deep reality into the sad state of affairs in India.
  • The report threw light on various rights violations such as police brutality, torture and excess custodial and encounters deaths, horrible conditions in prisons and detention centres, arbitrary arrests and unlawful detention, denial of fair public trial, the petition said.

HR Violations in India

  • From 2001 to 2010, the National Human Rights Commission (NHRC) recorded that 14,231 i.e. 4.33 persons died in police and judicial custody in the country.
  • This includes 1,504 deaths in police custody and 12,727 deaths in judicial custody from 2001-2002 to 2009-2010.
  • A large majority of these deaths being a direct consequence of torture in custody.

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India pledges to contribute $ 5 million to UN Palestine refugee agency

Note4Students

From UPSC perspective, the following things are important :

Prelims level : UNRWA

Mains level : Refugees issue across the world

India contributes for Palestine

  • India has pledged to contribute USD 5 million in 2019 to the UN Palestine refugee agency.
  • India voiced concern over the agency’s difficult financial situation due to voluntary contributions from a limited donor base and called for ensuring sustained fiscal support for its work.
  • This contribution is a mark of India’s solidarity with the Palestine refugees.

United Nations Relief and Works Agency for Palestine Refugees

  • Created in December 1949, the UNRWA for Palestine Refugees in the Near East (UNRWA) is a relief and human development agency which supports more than 5 million registered Palestinian refugees.
  • These along with their patrilineal descendants were fled or expelled from their homes during the 1948 Arab–Israeli War as well as those who fled or were expelled during and following the 1967 Six Day war.
  • Originally intended to provide jobs on public works projects and direct relief, today UNRWA provides education, health care, and social services to the population it supports.
  • Aid is provided in five areas of operation: Jordan, Lebanon, Syria, the Gaza Strip and the West Bank, including East Jerusalem; aid for Palestinian refugees outside these five areas is provided by UNHCR.
  • The Agency currently serves 5.4 million Palestinian refugees 20 per cent of the world’s refugees.

How is UNRWA different from UNHCR?

  • UNRWA is the only UN agency dedicated to helping refugees from a specific region or conflict and is separate from UNHCR.
  • Formed in 1950, UNHCR is the main UN refugee agency, which is responsible for aiding other refugees all over the world.
  • Unlike UNRWA, UNHCR has a specific mandate to aid its refugees to eliminate their refugee status by local integration in current country, resettlement in a third country or repatriation when possible.
  • UNRWA allows refugee status to be inherited by descendants of male refugee, including legally adopted children.

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[op-ed snap] Being responsive

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing Much

Mains level : India's rejection of human rights report on J&K requires an insight into Rights violation in valley.

CONTEXT

The government’s decision to shut down communication with UN Special Rapporteurs seeking to question India on alleged human rights violations in Jammu and Kashmir may appear extreme, but is in line with its reaction to such international reports over the last few years.

Background

  • In a letter dated April 23, India’s permanent mission to the UN in Geneva wrote to the Office of the High Commissioner for Human Rights rejecting any reference to the UN’s original June 2018 report on J&K as well as Pakistan-occupied Kashmir, and refused to respond to questions about deaths of 69 civilians between 2016 and 2018 in violence in the Valley.
  • In its objections, the government said the report was “false and motivated”, that its conclusions and recommendations were violative of India’s sovereignty and territorial integrity, and accused the Special Rapporteurs preparing the report of “individual prejudices” against India.
  • In addition, India drew notice to the Pulwama attack this year, calling terrorism the “grossest” violation of human rights, not the allegations against the security forces.
  • As a result, the government has decided to treat all allegations made by the UN Special Rapporteurs as a “closed chapter” and will not engage further on it.

Objection to OHCHR report

Justified Objections

  • India’s objections to the OHCHR report, the first of its kind when it was released in 2018, and the follow-up this year are understandable, given the often selective nature of allegations raised by the UN body.
  • It is also clear that demands for action against Indian officials and amendment of laws can cross the line on Indian sovereignty.
  • The call by the previous HCHR that the UN Human Rights Council set up an independent and international tribunal to investigate India’s record in Kashmir was seen to be invasive, and could be dismissed by New Delhi as well.

Question in need of answers

  • However, the government cannot quell the troubling questions that the UN report and the Special Rapporteurs’ submissions raise simply by rejecting them.
  • To begin with, most of the sources for the OHCHR report are official Indian authorities, State and national human rights commissions, international human rights agencies as well as reputed Indian NGOs.
  • This is therefore a view from within India, not some disengaged UN official, and must be taken very seriously.
  • Two Kashmiri NGOs also released a report on Monday documenting 432 specific cases of alleged brutality by security forces in Kashmir, including electrocution, ‘water-boarding’ and sexual torture of civilians, of which only about 27 were taken up by the State Human Rights Commission.

Way Forward

  • The government must press for due process and justice in each of these.
  • Eventually, India will be judged not only by how close it stands to the world’s most powerful countries, but how much the state extends itself to the most vulnerable within its own boundaries.

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[op-ed snap]Reality of impunity, rhetoric of human rights

Note4students

Mains Paper 2: Governance | Citizens charters, transparency & accountability and institutional and other measures

From UPSC perspective, the following things are important:

Prelims level: Not much

Mains level: The ratification of the anti-torture convention is related to Human Rights and India has not ratified it.


NEWS

CONTEXT

Last week in Sitamarhi district, Bihar, two families received the bodies of their two sons from the police.

India’s stand on custodial torture

  • In May 2017, addressing representatives from countries at the UN’s Human Rights Council, the then Attorney General of India said, “The concept of torture is completely alien to our culture and it has no place in the governance of the nation.

Handling of Bihar Incident

  • Between the rhetoric of Geneva and the reality at Dumra lies the all too frequent story, in India, of police torture.
  • The motions of taking action have begun but there are clear signs of routine impunity.
  • Top police officials in Bihar have recognised that the custodial deaths were “unacceptable”.
  • There were some transfers and the policemen who were implicated were suspended and had a criminal case filed against them.
  • A First Information Report has been registered.
  • But in the first instance, the policemen who were implicated were not named. They were arrested and taken into custody but escaped, allegedly with the help of local police. They remain untraceable.
  • The National Human Rights Commission (NHRC) is content giving the Bihar Police six weeks to explain its conduct.
  • A plea from several concerned civil society representatives urging the immediate despatch of an NHRC team to Sitamarhi has been turned down. For now, it’s wait and watch.

The situation regarding custodial torture in India

  • That torture is ‘endemic’ across police stations in India is well known.
  • Official statistics show that last year there were 144 deaths in police custody.
  • About 40% of complaints received every year by the NHRC are against the police — mainly for custodial violence.
  • Though forbidden by law, the system perpetuates and incentivises torture. Top police officials tolerate it, turn a blind eye to it, citing it as a ‘practical tool’, or go easy on the perpetrators; Bihar will be a space to watch.
  • Those in the lower judiciary, which is the first point of check against custodial violence, are frequently not vigilant in checking if arrested persons are secure in custody, have a lawyer assigned, or have the means to speak out.
  • Often, pliant doctors further weaken protections to those in custody by willingly minimising or not disclosing the nature of the harm or injuries they have sustained.
  • Oversight bodies like police complaints authorities and human rights commissions are comfortable with the slow pace of accountability from state actors and do no doggedly pursue outcomes.
  • South Asia is among the last regions where the political executive must grant permission before public servants can be prosecuted for acts done in the course of their work.
  • Courts have repeatedly said that torture is no part of policing and so there is no question of waiting for permission for prosecution. Yet, the executive is still asked, decisions are delayed, and trials cannot proceed.
  • According to judicial precedent, recovery of evidence made as a result of torture cannot be used in court, but without proactive lawyers and magistrates, these important details are overlooked in the early stages of the legal process.

Irrationality of torture

  • Besides being illegal and immoral, torture is not even a useful tool to stop crime.
  • Eliciting unreliable confessions — the bedrock of the use of torture — destroys the process of deciding through evidence-based means whether the accused is the real perpetrator or not.
  • Moreover, whenever it goes unpunished, torture actually supports more crime by creating a class of criminals within law enforcement.

Past attempts to correct  Custodial torture

  • There have been attempts to restrain the use of torture.
  • The Kerala Police Act puts the onus on all police officers to report any physical torture they know of.
  • Prisons in Telangana refuse to admit people brought into judicial custody if they appear injured; such persons are sent back to hospitals, forcing their injuries to be properly recorded.

Way Forward

  • But isolated innovations are not enough to stop this horror that has embedded itself in the subculture of policing.
  • A comprehensive solution would be to ensure that disincentives are put in place and that there is proper accountability. But there is a lack of political will.
  • India signed the UN Convention against Torture in 1997, but despite repeated domestic and international recommendations to ratify it, there has been no attempt to create a specific and comprehensive torture prevention law. This is in sharp contrast with Bangladesh, which passed a strong law in 2013.
  • Until we have such a law, Indians must accept that the active tolerance of torture puts punishment before the crime and judgment in the hands of the wrong agency.
  • For those who now plead on behalf of the police personnel of Sitamahri and say “let the law take its course”, this is absolutely right.
  • Let the effort to establish guilt or innocence be thorough and speedy.

 

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[op-ed snap] Slipping state

Note4students

Mains Paper 2: Governance | Citizens charters, transparency & accountability and institutional and other measures

From UPSC perspective, the following things are important:

Prelims level: Not much

Mains level: Custodial deaths are still a reality in India and such instances erode Confidence in government and administration.


NEWS

CONTEXT

The deaths of two men, Taslim Ansari and Gufran Alam, accused of theft and murder, in police custody, in Sitamarhi on March 7 raise disturbing questions about the  government’s claims to sushasan (good governance).

Background

  • The men were held for stealing a motorcycle and allegedly tortured to death.
  •  Five policemen, including the officer-in-charge of the concerned police station, have been suspended since.
  • But the government must do more and ensure quick and exemplary punishment to the culprits. It needs to send out the message that it will not allow a culture of impunity to return and thrive in the state.

History of misuse of power

  • Beginning in the 1990s, the Bihar story has been about the oppressed and marginalised finding a voice.
  • This was not merely about a transfer of power at the top from the upper castes to hitherto unrepresented communities, but also about instruments of state power, including police, becoming less hostile to the poor, the lower castes and the minorities.
  •  A mandate promising to build a stable state and offer good governance without reversing the social advancement achieved in the ‘90s was given to state.
  • Yet, the Sitamarhi deaths are a throwback to a time in Bihar when the law and order machinery was seen as biased against certain groups — incidents such as the Bhagalpur blindings of 1980, wherein policemen blinded 31 undertrials by pouring acid in their eyes and numerous anti-Dalit atrocities across the state had created the perception of the state police as a force that served the interests of the dominant castes. 
  • The police thana continues to be a representative institution of state power in rural areas and mofussil towns and its conduct is a barometer of the justice and inclusiveness in state and society. 
  • Custodial deaths and torture are an indication of a slipping state.
  • They puncture the governments’s claim to have turned around Bihar’s law enforcement culture and machinery.

Way Forward

  • Present government in Bihar has been shrewd in building political alliances to consolidate his hold on office. However, rise in political stature has been on account of the  claim to be a fair and competent administrator, who refuses to be dictated to by sectarian interests and communal prejudice.
  • A fair and timely inquiry into the Sitamarhi incident and action against the perpetrators alone can help retrieve that reputation.

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[op-ed snap] The importance of being humane

Note4students

Mains Paper 2: Governance | Citizens charters, transparency & accountability and institutional and other measures

From UPSC perspective, the following things are important:

Prelims level: Not much

Mains level: The ratification of anti-torture convention is related to Human Rights and India has not ratified it.


NEWS

CONTEXT

Custodial torture is global, old and stubborn. Opposition parties must make a new anti-torture legislation part of their common programme.

History of torture by Power

  • The Arthashastra prescribes mental torture through swear-words with or without physical assaults.
  • Death by a thousand cuts was ancient China’s speciality.
  • Their modern avatar in Japan’s World War II of biological and chemical experimentation on humans — prisoners, mainly Chinese — in Unit 731 stop the blood-flow to one’s heart.

Worldwide convention against Torture

  • Meeting on December 10, 1984, the UN General Assembly stirred the world’s conscience. It adopted the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Better known as the UN Convention against Torture, it sought to prevent torture around the world.
  • It “required states to take effective measures to prevent torture and forbade them from transporting people to any country where there is a reason to believe they will be tortured (refoulement)”.
  • Most significantly, the Convention made state parties to undertake that “no exceptional circumstances whatsoever” will be “invoked to justify torture, including war, threat of war, internal political instability, public emergency, terrorist acts, violent crime, or any form of armed conflict”.

The Indian Case

  • India took 13 years to sign the Convention, but sign it did, on October 14, 1997,
  • Unless a convention is ratified and followed or preceded by domestic legislation that commits the ratifying party to compliance, the original signing carries no meaning. India has not ratified.
  • A state which signs the Convention has to have a domestic law on the subject to outlaw and prevent custodial torture. Without such a law, there is no meaning to signing the Convention.

History of Anti-torture legislation in India

  • UPA II government introduced a Prevention of Torture Bill in the Lok Sabha in 2010 and had it passed.
  • A select committee of the Rajya Sabha. The committee gave its report recommending the Bill’s adoption later the same year. Citing National Human Rights Commission figures of reported torture cases, the report said the figures showed custodial torture was rising.
  • It lapsed with the dissolution of the 15th Lok Sabha.
  • In reply to a question (May 11, 2016) whether the government was planning to ratify the Convention, the Minister of State for Home did not answer either in the positive or negative but spoke of amending Sections 330 (voluntarily causing hurt to extort confession) and 331 of the Indian Penal Code.
  •  A PIL was moved in the Supreme Court in 2016 asking it to get Parliament to move forward in the matter. After a full day’s exclusive hearing in the case, the court has reserved its orders.

Way Forward

  • In a matter that concerns ‘life and liberty’, the Supreme Court is the guardian of the Constitution’s guarantees.
  • It is imperative that the democratic opposition makes the ratification of the Convention and a new anti-torture legislation part of its common programme.
  • The 17th Lok Sabha must take a stand on this matter. It has a choice: to join the civilised world in moving away from ancient barbarism or stay in the dungeons of blinding, benumbing brutality.

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Explained: The lowdown on National Security Act

Note4students

Mains Paper 2: Polity | Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions and basic structure.

From UPSC perspectives, following things are important:

Prelims level: Provisions related to preventive detention

Mains Level: Art. 22 Vs. Preventive Detention


News

Background

  1. Recently a state govt. invoked the National Security Act (NSA) against three men accused of killing a cow.
  2. In December last year, a Manipur journalist, who had posted an alleged offensive Facebook post on the CM, was detained for 12 months under the NSA.
  3. This and a spate of recent cases have invoked the stringent provisions of the NSA to detain citizens for questionable offences.
  4. This brought the focus back on the potential abuse of the controversial law.

National Security Act

  1. The NSA empowers the Centre or a State government to detain a person to prevent him from acting in any manner prejudicial to national security.
  2. The government can also detain a person to prevent him from disrupting public order or for maintenance of supplies and services essential to the community. T
  3. The maximum period for which one may be detained is 12 months.
  4. But the term can be extended if the government finds fresh evidence.

History of Preventive Detention in India

  1. Preventive detention laws in India date back to early days of the colonial era when the Bengal Regulation III of 1818 was enacted.
  2. It aimed to empower the government to arrest anyone for defence or maintenance of public order without giving the person recourse to judicial proceedings.
  3. A century later, the British government enacted the Rowlatt Acts of 1919 that allowed confinement of a suspect without trial.
  4. Post-independence India got its first preventive detention rule when the government of PM Nehru enacted the Preventive Detention Act of 1950.

How did NSA come about?

  1. The NSA is a close iteration of the 1950 Act.
  2. After the Preventive Detention Act expired on December 31, 1969, the then PM, Indira Gandhi, brought in the controversial Maintenance of Internal Security Act (MISA) in 1971 giving similar powers to the government.
  3. Though the MISA was repealed in 1977 after the successive government, led by Mrs. Gandhi, brought in the NSA.

Legal Provisions for NSA

  1. In the normal course, if a person is arrested, he or she is guaranteed certain basic rights. These include the right to be informed of the reason for the arrest.
  2. Section 50 of the Criminal Procedure Code (Cr.PC) mandates that the person arrested has to be informed of the grounds of arrest, and the right to bail.
  3. Sections 56 and 76 of the Cr. PC also provides that a person has to be produced before a court within 24 hours of arrest.

Extra-Judicial nature of NSA

  1. Article 22(1) of the Constitution says an arrested person cannot be denied the right to consult, and to be defended by, a legal practitioner of his choice.
  2. But none of these rights are available to a person detained under the NSA.
  3. A person could be kept in the dark about the reasons for his arrest for up to five days, and in exceptional circumstances not later than 10 days.
  4. Even when providing the grounds for arrest, the government can withhold information which it considers to be against public interest to disclose.
  5. The arrested person is also not entitled to the aid of any legal practitioner in any matter connected with the proceedings before an advisory board, which is constituted by the government for dealing with NSA cases.

Why it matters?

  1. The National Crime Records Bureau (NCRB), which collects and analyses crime data in the country, does not include cases under the NSA in its data as no FIRs are registered.
  2. Hence, no figures are available for the exact number of detentions under the NSA.
  3. Experts say these cases point to the fact that governments sometimes use it as an extra-judicial power.

Way Forward

  1. The NSA has been in the news for all the wrong reasons.
  2. It is time to reconsider the law because in four decades of its existence.

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[pib] National Commission for Safai Karmacharis

Note4students

Mains Paper 2: Polity | Statutory, regulatory and various quasi-judicial bodies

From UPSC perspective, the following things are important:

Prelims level: NCSK

Mains level: Welfare of Safai Karmacharis


News

  • The Union Cabinet has approved the extension of tenure of the National Commission for Safai Karmacharis (NCSK) beyond 31.3.2019 for three years.

About NCSK

  1. The NCSK is a statutory body that looks into matters concerning the Safai Karamcharis’ welfare and makes recommendations to the government.
  2. For the first time, NCSK was constituted as a statutory body under the NCSK ACT, 1993.
  3. This commission continued till February 2004, when the relevant Act expired. Thereafter, the tenure of the commission has been extended from time to time, as a non-statutory body, the last such extension being up to 31 March 2016.
  4. It is working for the welfare of both Safai Karamcharis and Manual Scavengers.
  5. It is mandated to work towards the elimination of inequalities in status facilities and opportunities for Safai Karamcharis and has an important role to ensure rehabilitation of all the identified manual scavengers on a time-bound basis.
  6. Under Section 31 of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act 2013, the Commission is to perform functions namely:
  • To monitor the implementation of the Act;
  • To inquire into complaints regarding contravention of provisions of the Act; and
  • To advice Central and State Governments for effective implementation of the Act.

Why extend the tenure?

  1. NCSK works for the welfare and upliftment of the Safai Karmacharis and persons engaged in manual scavenging in the country.
  2. The number of Manual Scavengers identified under the MS Act Survey as on 31.01.2019 is 14226.
  3. Under the National Survey undertaken by Ministry of Social Justice & Empowerment at the behest of NITI Aayog is 31128.
  4. Though the Government has taken many steps for the upliftment of the Safai Karamcharis, the deprivation suffered by them in socio-economic and educational terms is still far from being eliminated.
  5. Further the practice of manual scavenging is still prevalent in the country and its eradication continues.

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[pib] National Policy for Domestic Workers (draft)

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Mains Paper 2: Governance | Government policies & interventions for development in various sectors & issues arising out of their design & implementation

From UPSC perspective, the following things are important:

Prelims level: National policy for domestic workers

Mains level: Welfare measures for domestic workers


News

Draft Policy for Domestic Workers

  • The Ministry of Labour & Employment is considering to formulate a National Policy on Domestic Workers which is in the draft stage.
  • The govt. has not enacted any separate law to protect the interest of domestic workers.

Salient features of the proposed draft National Policy on Domestic Workers

  • Inclusion of Domestic Workers in the existing legislations.
  • Domestic workers will have the right to register as unorganized   workers. Such registration will facilitate their access to rights & benefits.
  • Right to form their own associations/unions
  • Right to minimum wages, access to social security
  • Right to enhance their skills
  • Protection of Domestic Workers from abuse and exploitation
  • Domestic Workers to have access to courts, tribunals for grievance redressal
  • Establishment of a mechanism for regulation of private placement agencies.
  • Establishment of a grievance redressal system for domestic workers.

 Other Policy Measures

  1. The Unorganized Workers’ Social Security Act, 2008 has been enacted for providing social security to all unorganized workers including domestic workers.
  2. The Act provides formulation of social security schemes viz life and disability cover, health and maternity benefits & old age protection.
  3. The State Governments are mandated under the Unorganized Workers’ Social Security Act, 2008 to formulate suitable welfare schemes for the unorganized sector workers.

Initiatives by states

  • The State Governments of AP, Jharkhand, Karnataka, Kerela, Odisha, Rajasthan, Haryana,  Punjab, Tamil Nadu and Tripura have  included domestic workers in the schedule of Minimum Wages Act.
  • The matter of constitution of State Domestic Workers Board is under the jurisdiction of the State Governments.

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First human rights TV channel to ‘lend voice to the voiceless’

Note4students

Mains Paper 2: IR | Important International institutions, agencies & fora, their structure, mandate

From UPSC perspective, the following things are important:

Prelims level: IOHR

Mains level: Bringing unnoticed HR violation reports to light


News

  • The world’s first television channel dedicated to human rights was launched in London with a promise to deliver hidden stories ignored by mainstream media.

Human Rights Channel

  • The International Observatory of Human Rights (IOHR) said its web-based channel would bring human rights issues to audiences in over 20 countries across Europe, Latin America and the Middle East.
  • Topics will include refugees, press freedom and the incarceration of journalists, extremism, women’s rights, LGBT+ issues and the plight of the world’s stateless people.
  • Programmes in the pipeline will look at China 30 years after the crackdown on the Tiananmen Square pro-democracy protests, the positive and negative impacts of technology on women, and the human rights implications of Brexit, Britain’s departure from the EU in March.
  • Broadcasts can be viewed via the netgem.tv interactive platform and will shortly be available via a mobile app.
  • Programming is in English, but IOHR eventually hopes to broadcast in other languages including Farsi, Turkish, Arabic and Russian.

About IOHR

  • The International Observatory of Human Rights was established in 2017 in London as an independent non-profit and non-governmental organisation.
  • The team is made up of human rights professionals, lawyers, researchers, award-winning journalists and academics of diverse backgrounds and nationalities.
  • IOHR utilizes its unique access and the expertise of its multilingual and dedicated staff to advocate for human rights worldwide.
  • It has created partnerships with local and international human rights groups.

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