Posts Tagged ‘Office of the High Commissioner of Human Rights’

UN questions ‘statelessness and disenfranchisement’ of ‘minority groups’ in Assam

September 26, 2018

Special Rapporteur’s report to UNGA highlights plight of Bengali Muslims

UN-Human-Rights-Feature-Image

The UN Special Rapporteur has once again raised the issue of possible statelessness of millions of people in Assam in wake of the exclusion of their names from the National Register of Citizens (NRC). This is part of a report titled Contemporary forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance that was presented before the UN General Assembly.

The 22 page report condemns “nationalist populism that advances exclusionary or repressive practices” and addresses “ascendant nationalist populist ideologies and strategies that pose a sobering threat to racial equality by fueling discrimination.”

Over 4 million people have been left out of the NRC final draft! Most of them belong to socio-economically backward communities and live in rural areas. Many of them are women and children!

On the subject of the exclusion of minorities from the NRC in Assam, the report says,

Nationalist populist parties in other places have implemented administrative and other rules leading to the exclusion of minority groups from official citizen registries on the basis of claims that they are irregular migrants, notwithstanding evidence showing that they are entitled to citizenship. This in turn has led to statelessness, disenfranchisement and increased vulnerability to discrimination, including the denial of basic rights and access to public services such as health and education.

In May 2018, the Special Rapporteur addressed a letter to the Government of India concerning the updating of the National Register of Citizens, a process governed by local authorities in the state of Assam. The letter drew attention to the heightened concerns of the Bengali Muslim minority, who have historically been portrayed as foreigners despite having lived in India for generations, even preceding the colonial era. Since 1997, the Election Commission of India has arbitrarily identified a large number of Bengali people as so – called “doubtful or disputed voters”, resulting in their further disenfranchisement and the loss of entitlements to social protection as Indian citizens.

While many have affirmed that the updating process is generally committed to retaining Indian citizens on the National Register of Citizens, concerned parties fear that local authorities in Assam, who are deemed to be particularly hostile towards Muslims and people of Bengali descent, may manipulate the verification system in an attempt to exclude many genuine Indian citizens from the updated Register.”

The entire report may be read here.

This is the second time the UN has taken cognizance of the humanitarian crisis in Assam. In May 2018, in a letter to External Affairs Minister Sushma Swaraj, four UN Special Rapporteurs had said,

It is alleged that the Tribunals have been declaring large numbers of Bengali Muslims in Assam as foreigners, resulting in statelessness and risk of detention. Finally, it is alleged that the potential discriminatory effects of the updated NRC should be seen in light of the history of discrimination and violence faced by Muslims of Bengali origin due to their status as ethnic, religious and linguistic minority and their perceived foreignness. Although the Bengali origin Muslims in Assam descend from peasant workers brought from the former Bengal and East Bengal starting in the 19th century under colonial rule, they have long been portrayed as irregular migrants. As a result of this rhetoric, Bengali Muslims have historically been the target of various human rights violations, including forced displacement, arbitrary expulsions and killings.”

In light of this, it is clear that the NRC issue is under the UN scanner and that given the international scrutiny it will not be easy for divisive forces to function with impunity much longer.

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(The story was first published in CJP and is available at https://cjp.org.in/un-questions-statelessness-and-disenfranchisement-of-minority-groups-in-assam/, this is only a reproduction.)

DIGEST OF INTERNATIONAL JURISPRUDENCE ON THE PROTECTION OF HUMAN RIGHTS WHILE COUNTERING TERRORISM

June 16, 2012

The non-state armed groups (insurgents, extremists or terrorists, whatever you may call them) need to be dealt with and contained because they violate rights of the people to live peacefully, they try to impose their will on the people and the state unlawfully and violently trampling the constitutionalism and the rule of law that are sine qua non for civilised human existence. It is the mandate of the state to maintain the reign of law and constitution and the writ of the government established by law along with ensuring security and safety of the person and property of the citizens. But when the state through its security forces and law enforcement agencies commits more atrocious acts than the acts which it professes it is fighting the difference between the non-state terrorists and the state gets blurred.

Since independence in 1947 as in colonial times India has a number of laws containing provisions that are termed by the liberal jurists and human rights defenders as draconian and repressive unparalleled in the democratic world. Such laws are held responsible for regular violations of human rights with impunity resulting in defeat of the rule of law and continuity of lawlessness breeding more terrorism and violence. Despite this reality there is also a shrill voice for more stringent laws in the country.

Even before the terrorist attack in Mumbai on 26 November, 2008 the demand for “stronger and tougher anti-terror laws” kept getting shriller and hasher and was being projected as panacea. It started after the present parliament repealed the Prevention of Terrorism Act, 2002 (POTA), although some provisions of POTA incompatible with human rights laws were incorporated into the Unlawful Activities (Prevention) Act, 1967 (UAPA) by way of amendment. The discourse of ‘tough’ laws is premised entirely on the misrepresentation of facts. It seems that the advocates of ‘tough’ laws want us to believe that there were no terrorist attacks in India when some of the “toughest” (read most draconian) laws in the civilised world were in force such as the Armed Forces (Special Power) Act, 1958 (AFSPA) and its other local variants; the National Security Act, 1980 (NSA); the Terrorist and Disruptive Activities Act, 1987 (TADA); POTA; UAPA and other state enactments. But the reality is that some of the worst terror offences were perpetrated when these “stronger and tougher anti-terror laws” were in force such as hijack of an airIndia flight from Kathmandu to Kandhahar, Red Fort attack, parliament attack etc.

New law becomes necessary when existing provisions are proved ineffective or counter effective. There are still many draconian and colonial provisions in our general criminal law composed of the Indian Penal Code, 1860 (IPC), the Criminal Procedure Code, 1973 (CrPC) the Evidence Act, 1972 and others. Records of implementation and effective implementation of laws in India is very dismal due to many factors including corruption and inadequacy in both quantity and quality of man-power in the Criminal Justice Administration System and the inefficacy of some of the provisions of law themselves. With registration of First Information Report the justice administration machinery gets into motion. There are hundreds of thousands of cases where police does not register FIR without being greased. It has become the rule in some part of the country. There are also numerous cases of custodial torture and death for not paying gratification by the detainee/arrestee or their relatives to the police. When the state of the things is this it is ridiculous to think that “stronger and tougher anti-terror laws” will free us from crimes and criminals, let alone the question of terrorism.

Terrorism is the worst form of crime. It is just a matter of common sense that the people who love to kill and get killed would not have any fear of law howsoever “tough” and “strong” that law may be. Soon after the terrorist attack in Mumbai, Barak Human Rights Protection Committee (BHRPC) reminded that “it has been seen that in countering terrorism the state often succumbs to the design of the terrorists by failing to respect the human rights of the people. When this happens the terrorism triumphs because the state itself does the act of terror. More over, failure to respect human rights creates breeding ground of terrorism” in a statement issued to condemn the attack. Counter terror laws and practice violating human rights are used by the terrorists to justify their heinous acts and the state cites these terrorist acts to justify its acts of violations of human rights. In the process the ordinary human beings are just sandwiched between state and non state terror. These two forms of terrorism feed on each other and are same for general population.

Unfortunately the Indian State has succumbed to the terror design and gave them the triumph after the Mumbai attack. A bill has been passed amending the UAPA after the November attacks in Mumbai which violates international human rights treaties.

New amendments to anti-terror laws include: 1. Sweeping and overbroad definitions of “acts of terrorism” in violation of the principle of legality, 2. No clear and strict definition of what constitutes “membership” of a “terrorist gang or organization” also violate the principle, 3. Minimum period of detention of persons suspected to be involved in acts of terrorism extended to 30 days from 15 days and the maximum period of detention of such persons to 180 days from 90 days – already far beyond international standards, 4. Denial of bail to foreign nationals who may have entered the country in an unauthorised or illegal manner, except in very exceptional circumstances, also violates international human rights standard, 5. The requirement, in certain circumstances, of accused people to prove their innocence, is in violation of basic principle of universal criminal jurisprudence and natural justice.

Another new legislation has been passed constituting the National Investigating Agency which, inter alia, authorises special courts to close hearings to public without defining or limiting the grounds under which they may do so. This is also in violation of the due process principle.

While introducing the bill for amendment of the UAPA, the government took plea in the preamble of the bill that it is bound under several international instruments to combat terrorism specifically citing some select United Nations Security Council Resolutions such as1267 (1999), 1333 (2000), 1363 (2001), 1373 (2001), 1390 (2002), 1455 (2003), 1526 (2004), 1566 (2004), 1617 (2005), 1735 (2006) and 1822 (2008). But ignored the dictum of the resolution 1535 (2004) adopted by the Security Council at its 4936th meeting, on 26 March 2004 which reminded the “States that they must ensure that any measures taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights, refugee, and humanitarian law”. More over, there are many international instruments acceded or ratified by India which put the state under obligation to adhere to the human rights norms in all its activities including counter terrorism.

When POTA was repealed by the government most of the resolutions cited were in existence. Citation of these resolution and invoking international obligations are nothing but taking recourse to false plea. A look into the jurisprudence of the united nations and regional organizations on the protection of human rights while countering terrorism would show the hypocrisy of the Indian State so far its invocation of the international obligations is concerned.

In this background the digest on terror jurisprudence complied by the Office of the High Commissioner of Human Rights of the United Nations is a necessary tool for the human rights defenders, lawyers, academics, law-enforcement officials. law-makers, policy makers etc. The digest can be downloaded from here.