INDIA’S RELIGIOUS MINORITIES AND THE UNIVERSAL PERIODIC REVIEW OF INDIA’S HUMAN RIGHTS RECORD BY THE UNITED NATIONS HUMAN RIGHTS SYSTEM

INDIA’S RELIGIOUS MINORITIES AND THE UNIVERSAL PERIODIC REVIEW OF INDIA’S HUMAN RIGHTS RECORD BY THE UNITED NATIONS HUMAN RIGHTS SYSTEM

Urgent communiqué from Dr John Dayal, All India Catholic Union, All India Christian Council and the United Christian Forum, New Delhi

January 28, 2008-01-29
Dear Friends

I am sending you a crucial segment of the note that the Indian National Human Rights Commission is reportedly preparing for the Universal Periodic Review of India – and some other countries -- by the United Nations Human Rights Council in April this year.

As far as religious minorities and Dalits go, the record of the NHRC is arguably at par with that of the various National Commissions for Minorities, Scheduled castes and Tribes [the last two were once a single entity and are now split into two]. These organisations have seldom been able to function other than as loyal entities of the Government of the day and its political agenda when it comes to Muslims and Christians, though their record on more general – and larger -- issues such as Police reforms, Torture, Hunger and Poverty is better. This was seen at its most raw when the Bharatiya Janata Party was ruling in the garb of the National Democratic Alliance, and which is still so very visible in State governments ruled by the BJP or its allies, and occasionally even by those where the Congress and others are in power. Without disparaging Indian civilisation traditions, the same passiveness or comparative unconcern, of course, could also be said of the justice delivery system, the criminal investigation system and of police and civil governance in general.

I am sending this material, which I understand is still in a draft form, so that concerned activists, who would otherwise not have access to the NHRC position, can mobilise themselves to persuade the Commission to take stock of issues of religious persecution, official and political bigotry and connivance, government harassment in cases of visas, FCRA, Hindutva violence and probity of the bureaucracy and political administration, as well as matters of impunity. Our experience in Orissa in December 2007-January 2008, and in other states earlier, shows us just how wide the gap is between ground reality and public positioning.

I hope you will be able to express your views on the actual grass roots non-implementation of enacted legislation and rules, as well as the perversion of other official regulations, to the NHRC as well as to the National Commissions for Minorities, Tribals and Scheduled Castes.. I need hardly point out that the Government and the Commissions have sent Muslim and Christian Dalits first into a merry go round of hope and then into a blind alley sealed by a Supreme Court ceiling of 50 per cent on all reservations in government employment and education systems. Most of us cannot fathom just why everyone believes this arbitrary ceiling is sacrosanct, and the deprivation of minority groups is not. Even between minorities, issues of the Christian community, including economic and political disempowerment, find little or no space.

I also understand that the voices of organisations on Freedom of faith and of those challenging persecution do not really find a commensurate place in this discourse towards the Universal Public Review of India’s record.

God bless

John Dayal

Quotation from the NHRC paper for UPR

“Persons belonging to Scheduled Castes and Tribals:

Persons belonging to the Scheduled Castes and Scheduled Tribes have suffered historical injustices, and are hurting because of discrimination and inequality. They continue to face alleged acts of discrimination, untouchability, violence against the human person, atrocities of various kinds, and high-handedness by public servants and others. Caste-based discrimination constitutes an unacceptable assault on the dignity and worth of the human person and an egregious violation of human rights.

It was in recognition of this - and to end such injustice - that Part III of the Constitution of our Republic dealing with Fundamental Rights, contained powerful provisions to combat all forms of discrimination, notably those forms which were based on caste. These provisions of the Constitution, which are justiciable, include inter alia, equality before the law or the equal protection of laws, non discrimination against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them, special provision for the advancement of any socially and educationally backward class of citizens as well as Scheduled Castes and Scheduled Tribes, affirmative action through the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services of the State and abolition of “Untouchability”.

To give clear expression to Constitutional provisions, an impressive range of legislative measures have been enacted to end discrimination against Scheduled Castes and Scheduled Tribes. These inter alia include the Protection of Civil Rights (Anti-Untouchability) Act, 1955, the Bonded Labour (Abolition) Act, 1976, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and various land reform acts. In accordance with Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995, the Nodal Officers and Special Cells for Protection of Civil Rights have been appointed in many States/Union Territories. Political representation was guaranteed for Scheduled Castes and Tribes through the proportionate reservation of seats in elected legislative bodies, from Parliament to village councils. To overcome the cumulative results of past discrimination, the government instituted a program of “compensatory discrimination” that reserved 22.5 percent of all central government jobs for members of Scheduled Castes and Tribes. Comparable reservations were provided for state-level employment, and reservations were extended to college and university admissions.

Besides establishing a Focal Point on Scheduled Castes, the National Human Rights Commission made specific recommendations to address atrocities against Scheduled Castes and been has monitoring their implementation at field level.

India has embarked on a programme of affirmative action which is, perhaps, without parallel in scale and dimension in human history. However, it is recognised that much remains to be done to bring to an end the discrimination and inequality that have been practiced for centuries and that this requires both sustained effort and time. It requires change of mindsets. There are inadequacies in implementation which need to be addressed. Legislative and affirmative action programmes are firmly in place, but need to be far better implemented.

The provisions in the Constitution make it incumbent on the State to “take care” of Scheduled Tribes [STs]. In articles 15 and 16 (which refer to fundamental rights of citizens) exceptions are made to ensure that what is needed to be done for STs is done. For example, though equality of opportunity is the policy of the State, an exception is made for reservations. Article 244 enables the State to make special arrangements for development of STs. Article 275-1 enables the State (the central government particularly) to set aside financial provisions to be used for tribal development. If there are any schemes from the state government and the central government approves it then the central government is bound to finance the scheme. So we get all ingredients for the State in terms of the legality and financial arrangements. The State cannot have any excuse that they are not empowered enough. The V schedule is a unique aspect of the Constitution - it empowers the governor of a state to suspend any act of parliament or state legislature if he thinks it is not in the interest of the STs. This he can do even with retrospective effect. A similar aspect is not found anywhere else in the constitution. The VI schedule enables an autonomous district level body to be formed where there is a large percentage of tribal groups. This has been formulated especially for north-eastern region which is unique in many respects. Districts in the northeast can be mini-states - they have a lot of financial, legislative, executive, and judicial power. Education, health care, rural development, social security are all subjects under the State List of Schedule VII to the Constitution, the maturing of our federal systems has prompted the Centre to play an increasing role in these areas
When tribals are displaced by dams and other mega projects, as has happened in some States of the country, they raise important human rights issues. It is necessary to pay heed to the fate of those who pay the price for "development", whether through the undertaking of mega projects or as a result of economic policies that, advertently or otherwise, have the effect of marginalizing the most vulnerable sections of society.
The recognized rights of the forest dwelling Scheduled Tribes and other traditional forest dwellers include the responsibilities and authority for sustainable use, conservation of biodiversity and maintenance of ecological balance and thereby strengthening the conservation regime of the forests while ensuring livelihood and food security of the forest dwelling Scheduled Tribes and other traditional forest dwellers.

The forest rights on ancestral lands and their habitat were not adequately recognized in the consolidation of State forests during the colonial period as well as in independent India resulting in historical injustice to the forest dwelling Scheduled Tribes and other traditional forest dwellers who are integral to the very survival and sustainability of the forest ecosystem.

To address the long standing insecurity of tenurial and access rights of forest dwelling Scheduled Tribes and other traditional forest dwellers including those who were forced to relocate their dwelling due to State development interventions, the Parliament enacted the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. It recognizes and vests the forest rights and occupation in forest land in forest dwelling Scheduled Tribes and other traditional forest dwellers who have been residing in such forests for generations but whose rights could not be recorded; it also seeks to provide for a framework for recording the forest rights so vested and the nature of evidence required for such recognition and vesting in respect of forest land. This Act received assent of the President on 29th December, 2006. On 1st January 2008, rules were notified for the implementation of the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006.

The National Human Rights Commission intervened in a number of cases involving displacement of tribals. At the policy level, the Commission recommended that the Central and State Governments re-examine and appropriately amend their laws, regulations and practices in order to ensure that, when it comes to acquisition of land for purposes related to national economic development, the provisions of the Constitution, as expounded by the Supreme Court and as contained in international instruments to which India is a party, notably ILO Convention 107, are fully respected. This is essential if the 'national interest' was to be reconciled, as it can and should be, with true respect for the rights of the weakest sections of society.


Minorities:

The first Statutory National Commission for Minorities was set up on 17th May 1993. On 23rd October 1993 five religious communities viz. the Muslims, Christians, Sikhs, Buddhists and Zoroastrians (Parsis) were notified as minority communities. As per the 2001 Census, these five religious minority communities constitute 18.42% of the country’s population. Despite the safeguards provided in the Constitution and the laws in force, there are concerns among members belonging to minorities about inequality and discrimination.

In order to address such concerns, the new Ministry of Minority Affairs was set up. The National Commission for Religious and Linguistic Minorities and the National Commission for Minority Educational Institutions have also been set up. The Government approved the proposal to grant Constitutional Status to the National Commission for Minorities to infuse greater confidence among the minorities about its working and the effectiveness. The Prime Minister’s New 15 Point Programme for welfare of minorities covers (1) Enhancing opportunities for Education (2) Equitable Share in Economic Activities and Employment, (3). Improving the conditions of living of minorities (4). Prevention & Control of Communal Riots. It was also decided that 15% of the funds may be earmarked wherever possible in relevant schemes / programmes, for the nationally declared minorities. The 15 Point Programme has been recast to focus action sharply on issues intimately linked with the social, educational and economic uplift of minorities and provide for earmarking of outlays in certain schemes so that the progress is monitorable.

The Government approved relief and rehabilitation of victims of communal riots in Gujarat of 2002, on par with the measures taken in respect of victims of anti-Sikh riots of 1984. The Union Cabinet gave its approval for the enactment of Legislation titled “The Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, 2005.” This Bill is aimed at i) Prevention of communal violence / offences; ii) Speedy investigation; and speedy dispensation of justice; iii) Imposition of enhanced punishment on the persons involved in communal violence / offences; iv) Providing relief and rehabilitation facilities to the victims; v) Creating institutional arrangement for speedy investigation, disposal of cases, providing relief and rehabilitation to the victims. vi) Empowering the States / Central authorities to discharge their duties in assisting victims in the matter.

As there was lack of authentic information about the social, economic, and educational status of the Muslim community of India, a High Level Committee was constituted on 9th March, 2005 under the Chairmanship of Justice Rajinder Sachar to prepare a comprehensive report on this subject. After extensive consultations, the High Level Committee submitted its report on 17th November, 2006. The report made recommendations with regard to education, skill development, employment and economic opportunities, poverty and development and social conditions of Muslims. The Sachar Report on Social, Economic and Educational Status of the Muslim Community of India has produced a compendium of authentic information required by the Government for planning, formulating and implementing specific interventions, policies and programmes to address issues relating to the backwardness of the community. As a follow up action to the Sachar Committee Report, the Government proposes, among others, to take the following actions:

It has been decided in principle to set up an Equal Opportunity Commission (EOC) to look into grievances regarding discrimination. An expert group will study and recommend its (EOC’s) structure and functions.

In order to promote diversity and social inclusion in educational institutions, work places and living spaces, an expert group has been constituted to propose an appropriate “diversity index”. Such an index can be the basis for providing incentives for better representation in all three areas mentioned above.

A National Data Bank (NDB) and an autonomous Assessment and Monitoring Authority (AMA) will be soon set up which will analyse the data so generated and suggest appropriate policies to Government on a continuous basis.
END OF QUOTATION