1. The Committee considered the third periodic report of India (CCPR/C/76/Add.6)
at its 1603rd to 1606th meetings on 24 and 25 July 1997 and subsequently
adopted, at its 1612th meeting (sixtieth session), held on 30 July 1997,
the following observations.
A. Introduction
2. The Committee welcomes
the third periodic report of India, although it regrets the delay in submitting
it to the Committee. While noting that the report provides comprehensive
information on the constitutional and legislative norms applicable in
India in the field of human rights, and makes reference to the Committee's
previous comments during consideration of the State party's second periodic
report, as well as to a number of court decisions, the Committee regrets
the lack of information therein on difficulties encountered in implementing
the provisions of the Covenant in practice. The delegation acknowledged
in some measure these difficulties and it provided the Committee with
detailed and comprehensive written and oral information in the course
of the consideration of the report. In this regard, the Committee appreciates
the cooperation which India has thus extended to the Committee in the
discharge of its mandate.
3. The information submitted
by a wide range of non-governmental organizations also assisted the Committee
in its understanding of the human rights situation in the State party.
B. Factors and difficulties affecting the implementation of the Covenant
4. The Committee recognizes
that terrorist activities in the border states, which have caused the
death and injury of thousands of innocent people, force the State party
to take measures to protect its population. It stresses, however, that
all measures adopted must be in conformity with the State party's obligations
under the Covenant.
5. It notes, moreover, that
the size of the country, its huge population, the massive poverty and
the great disparities in the distribution of wealth among various social
groups affect the advancement of rights. The persistence of traditional
practices and customs, leading to women and girls being deprived of their
rights, their human dignity and their lives, and to discrimination against
members of the underprivileged classes and castes and other minorities,
and ethnic, cultural and religious tensions constitute impediments to
the implementation of the Covenant.
C. Positive aspects
6. The Committee notes with
satisfaction the existence of a broad range of democratic institutions
and a comprehensive constitutional and legal framework for the protection
of human rights. The Committee also welcomes frequent references to provisions
of international human rights instruments by the courts, in particular
the Supreme Court.
7. The Committee welcomes
the establishment of the National Human Rights Commission in 1993 and
the respect which the Government of India accords to its recommendations.
The Committee notes that the Commission has been given powers, limited
though these are, under the Protection of Human Rights Act, to inquire
into complaints of human rights violations, to intervene in court proceedings
involving allegations of human rights violations or otherwise dealing
with human rights issues, to review constitutional and legal norms and
the conformity of laws with international human rights instruments, to
make specific recommendations to the Parliament and other authorities
and to undertake activities in the field of human rights education. It
also welcomes the recent setting up of human rights commissions in six
states, including Punjab and Jammu and Kashmir, and of human rights courts
in several other states of the Union.
8. The Committee also welcomes
the establishment of the National Commission for Scheduled Castes and
Scheduled Tribes and the National Commission for Women in 1992, and the
National Commission for Minorities in 1993. These commissions have initiated
some improvements, in particular in the levels of education and in the
representation of the various groups concerned within elected bodies and
other authorities.
9. The Committee welcomes
the lapse, in 1995, of the Terrorist and Disruptive Activities Act (TADA),
under which members of the security and armed forces enjoyed special powers
in the use of force, arrest and detention. It also welcomes the related
review of cases under this Act, following which a number of cases were
dropped, and the directives given by the Supreme Court to deal with questions
of bail under the TADA, though a number of cases still require to be dealt
with.
10. The Committee has noted
that positions in elected bodies are reserved for members of scheduled
castes and tribes and that a constitutional amendment has reserved one
third of the seats in elected local bodies (Panchayati Raj) for women.
The Committee also notes the introduction of a bill to reserve one third
of the seats for women in the Federal Parliament and in state legislatures.
11. The Committee welcomes
the restoration of elected legislatures and governments in all states
within the Union, including Punjab and Jammu and Kashmir, as well as the
holding of federal parliamentary elections in April-May 1996. In addition,
the Committee welcomes the constitutional amendment giving a statutory
basis to Panchayati Raj - village self-rule institutions - and the enactment
of the Panchayati Raj (Extension to Scheduled Areas) Act of 24 December
1996, which are designed to increase participation in the conduct of public
affairs at the community level.
12. The Committee further
welcomes the declared intention of the Government to introduce legislative
measures to further freedom of information.
D. Subjects of concern and the Committee's recommendations
13. The Committee, noting
that international treaties are not self-executing in India:
recommends that steps be
taken to incorporate fully the provisions of the Covenant in domestic
law, so that individuals may invoke them directly before the courts.
The Committee also recommends that consideration be given by the authorities
to ratifying the Optional Protocol to the Covenant, enabling the Committee
to receive individual communications relating to India.
14. The Committee, noting
the reservations and declarations made by the Government of India to articles
1, 9, 13, 12, 19, paragraph 3, 21 and 22 of the Covenant:
invites the State party
to review these reservations and declarations with a view to withdrawing
them, so as to ensure progress in the implementation of the rights contained
in those articles, within the context of article 40 of the Covenant.
15. The Committee notes with
concern that, despite measures taken by the Government, members of scheduled
castes and scheduled tribes, as well as the so-called backward classes
and ethnic and national minorities continue to endure severe social discrimination
and to suffer disproportionately from many violations of their rights
under the Covenant, inter alia inter-caste violence, bonded labour
and discrimination of all kinds. It regrets that the de facto perpetuation
of the caste system entrenches social differences and contributes to these
violations. While the Committee notes the efforts made by the State party
to eradicate discrimination:
it recommends that further
measures be adopted, including education programmes at national and
state levels, to combat all forms of discrimination against these vulnerable
groups, in accordance with articles 2, paragraph 1, and 26 of the Covenant.
16. While acknowledging measures
taken to outlaw child marriages (Child Marriages Restraint Act), the practice
of dowry and dowry related violence (Dowry Prohibition Act and the Penal
Code) and sati - self-immolation of widows - (Commission of Sati (Prevention)
Act), the Committee remains gravely concerned that legislative measures
are not sufficient and that measures designed to change the attitudes
which allow such practices should be taken. The Committee is also concerned
that giving male children preferred treatment persists, and deplores that
practices such as foeticide and infanticide of females continue. The Committee
further notes that rape in marriage is not an offence and that rape committed
by a husband separated from his wife incurs a lesser penalty than for
other rapists. The Committee therefore recommends:
that the Government take
further measures to overcome these problems and to protect women from
all discriminatory practices, including violence. Additional information
should be provided in the State party's next periodic report on the
functions, powers and activities of the National Commission for Women.
17. The Committee is concerned
that women in India have not been accorded equality in the enjoyment of
their rights and freedoms in accordance with articles 2, paragraph 1,
3 and 26 of the Covenant. Nor have they been freed from discrimination.
Women remain underrepresented in public life and at the higher levels
of the public service, and are subjected to personal laws which are based
on religious norms and which do not accord equality in respect of marriage,
divorce and inheritance rights. The Committee points out that the enforcement
of personal laws based on religion violates the right of women to equality
before the law and non-discrimination. Therefore:
it recommends that efforts
be strengthened towards the enjoyment of their rights by women without
discrimination and that personal laws be enacted which are fully compatible
with the Covenant.
18. The Committee remains
concerned at the continuing reliance on special powers under legislation
such as the Armed Forces (Special Powers) Act, the Public Safety Act and
the National Security Act in areas declared to be disturbed and at serious
human rights violations, in particular with respect to articles 6, 7,
9 and 14 of the Covenant, committed by security and armed forces acting
under these laws as well as by paramilitary and insurgent groups. The
Committee, noting that the examination of the constitutionality of the
Armed Forces (Special Powers) Act, long pending before the Supreme Court
is due to be heard in August 1997, hopes that its provisions will also
be examined for their compatibility with the Covenant. In this respect,
bearing in mind the provisions of articles 1, 19 and 25 of the Covenant:
the Committee endorses the
views of the National Human Rights Commission that the problems in areas
affected by terrorism and armed insurgency are essentially political
in character and that the approach to resolving such problems must also,
essentially, be political, and emphasizes that terrorism should be fought
with means that are compatible with the Covenant.
19. The Committee regrets
that some parts of India have remained subject to declaration as disturbed
areas over many years - for example the Armed Forces (Special Powers)
Act has been applied throughout Manipur since 1980 and in some areas of
that state for much longer - and that, in these areas, the State party
is in effect using emergency powers without resorting to article 4, paragraph
3, of the Covenant. Therefore:
the Committee recommends
that the application of these emergency powers be closely monitored
so as to ensure its strict compliance with the provisions of the Covenant.
20. The Committee expresses
concern at the lack of compliance of the Penal Code with article 6, paragraphs
2 and 5, of the Covenant. Therefore:
the Committee recommends
that the State party abolish by law the imposition of the death penalty
on minors and limit the number of offences carrying the death penalty
to the most serious crimes, with a view to its ultimate abolition.
21. The Committee notes with
concern that criminal prosecutions or civil proceedings against members
of the security and armed forces, acting under special powers, may not
be commenced without the sanction of the central Government. This contributes
to a climate of impunity and deprives people of remedies to which they
may be entitled in accordance with article 2, paragraph 3, of the Covenant.
Therefore:
the Committee recommends
that the requirement of governmental sanction for civil proceedings
be abolished and that it be left to the courts to decide whether proceedings
are vexatious or abusive. It urges that judicial inquiries be mandatory
in all cases of death at the hands of the security and armed forces
and that the judges in such inquiries, including those under the Commission
of Enquiry Act of 1952, be empowered to direct the prosecution of security
and armed forces personnel.
22. The Committee regrets
that the National Human Rights Commission is prevented by clause 19 of
the Protection of Human Rights Act from investigating directly complaints
of human rights violations against the armed forces, but must request
a report from the central Government. The Committee further regrets that
complaints to the Commission are subject to a one-year time limit, thus
preventing the investigation of many alleged past human rights violations.
Therefore:
the Committee recommends
that these restrictions be removed and that the National Human Rights
Commission be authorized to investigate all allegations of violations
by agents of the State. It further recommends that all states within
the Union be encouraged to establish human rights commissions.
23. The Committee expresses
concern at allegations that police and other security forces do not always
respect the rule of law and that, in particular, court orders for habeas
corpus are not always complied with, particularly in disturbed areas.
It also expresses concern about the incidence of custodial deaths, rape
and torture, and at the failure of the Government of India to receive
the United Nations Special Rapporteur on the question of torture and other
cruel, inhuman or degrading treatment or punishment. Therefore:
while the Committee welcomes
the requirement by the National Human Rights Commission that all such
alleged incidents be reported and investigated, and that all post-mortem
examinations be taped, it recommends:
(a) The early enactment
of legislation for mandatory judicial inquiry into cases of disappearance
and death, ill-treatment or rape in police custody;
(b) The adoption of special
measures to prevent the occurrence of rape of women in custody;
(c) The mandatory notification
of relatives of detainees without delay;
(d) That the right of detainees
to legal advice and assistance and to have a medical examination be
guaranteed;
(e) That priority be given
to providing training and education in the field of human rights to
law enforcement officers, custodial officers, members of the security
and armed forces, and judges and lawyers, and that the United Nations
Code of Conduct for Law Enforcement Officials be taken into account
in this regard.
24. The Committee regrets
that the use of special powers of detention remains widespread. While
noting the State party's reservation to article 9 of the Covenant, the
Committee considers that this reservation does not exclude, inter alia,
the obligation to comply with the requirement to inform promptly the person
concerned of the reasons for his or her arrest. The Committee is also
of the view that preventive detention is a restriction of liberty imposed
as a response to the conduct of the individual concerned, that the decision
as to continued detention must be considered as a determination falling
within the meaning of article 14, paragraph 1, of the Covenant, and that
proceedings to decide the continuation of detention must, therefore, comply
with that provision. Therefore:
the Committee recommends
that the requirements of article 9, paragraph 2, of the Covenant be
complied with in respect of all detainees. The question of continued
detention should be determined by an independent and impartial tribunal
constituted and operating in accordance with article 14, paragraph 1,
of the Covenant. It further recommends, at the very least, that a central
register of detainees under preventive detention laws be maintained
and that the State party accept the admission of the International Committee
of the Red Cross to all types of detention facilities, particularly
in areas of conflict.
25. The Committee notes with
concern that, although the Terrorist and Disruptive Activities (Prevention)
Act has lapsed, 1,600 people remain in detention under its provisions.
Therefore:
the Committee recommends
that measures be taken to ensure either the early trial of these people
or their release. It is also concerned that there are legislative proposals
to reintroduce parts of the Act and that this could lead to further
violations of the Covenant.
26. The Committee expresses
concern at the overcrowding and poor health conditions and sanitation
in many prisons, the inequality of treatment of prisoners and the lengthy
periods of pre-trial detention, all of which are incompatible with articles
9 and 10, paragraph 1, of the Covenant. Therefore:
the Committee, while welcoming
the initiative to give the central Government a greater role in the
administration and management of prisons, recommends that measures be
taken to reduce overcrowding, to release those who cannot be given a
speedy trial and to upgrade prison facilities as quickly as possible.
In this respect, the Committee recommends that attention be given to
the United Nations Standard Minimum Rules for the Treatment of Prisoners.
27. Concerning court procedure:
the Committee urges the
institution of reforms to the procedure of the courts to ensure a speedy
trial of those charged with offences, prompt hearing in civil cases
and similar urgency in hearing appeals.
28. The Committee expresses
its concern at reports that fines have been imposed, without a hearing,
on communities in areas declared disturbed. Therefore:
the Committee recommends
that the imposition of such fines be prohibited.
29. The Committee expresses
concern at the extent of bonded labour, as well as the fact that the incidence
of this practice reported to the Supreme Court is far higher than is mentioned
in the report. The Committee also notes with concern that eradication
measures which have been taken do not appear to be effective in achieving
real progress in the release and rehabilitation of bonded labourers. Therefore:
the Committee recommends
that a thorough study be urgently undertaken to identify the extent
of bonded labour and that more effective measures be taken to eradicate
this practice, in accordance with the Bonded Labour System (Abolition)
Act of 1976 and article 8 of the Covenant.
30. The Committee expresses
concern at reports of forcible repatriation of asylum seekers, including
those from Myanmar (Chins), the Chittagong Hills and the Chachmas. Therefore:
the Committee recommends
that, in the process of repatriation of asylum seekers or refugees,
due attention be paid to the provisions of the Covenant and other applicable
international norms.
31. The Committee deplores
the high incidence of child prostitution and trafficking of women and
girls into forced prostitution, and it regrets the lack of effective measures
to prevent such practices and to protect and rehabilitate the victims.
The Committee also regrets that women who have been forced into prostitution
are criminalized by the Immoral Trafficking Prevention Act and, further,
that article 20 of the Act puts the burden of proof on a woman to prove
that she is not a prostitute, which is incompatible with the presumption
of innocence. Therefore:
the Committee recommends
that the application of this law to women in the situation described
be repealed and that measures be taken to protect and rehabilitate women
and children whose rights have been violated in this way.
32. The Committee further
regrets the lack of national legislation to outlaw the practice of Devadasi,
the regulation of which is left to the states. However, it appears that
the practice continues and that not all states have effective legislation
against it. The Committee emphasizes that this practice is incompatible
with the Covenant. Therefore:
the Committee recommends
that all necessary measures be taken urgently to eradicate the practice
of Devadasi.
33. The Committee expresses
its concern at the plight of street children and at the reported high
level of violence against children within society. It is particularly
concerned at reports of child mutilation. Therefore:
the Committee recommends
that urgent measures be taken to address the problem of violence against
children and that specific mechanisms be set up for the protection of
children.
34. The Committee expresses
concern that, despite actions taken by the State party, there has been
little progress in implementing the Child Labour (Prohibition and Regulation)
Act of 1986. In this respect:
the Committee recommends
that urgent steps be taken to remove all children from hazardous occupations,
that immediate steps be taken to implement the recommendation of the
National Human Rights Commission that the constitutional requirement
that it should be a fundamental right for all children under 14 to have
free and compulsory education be respected, and that efforts be strengthened
to eliminate child labour in both the industrial and rural sectors.
The Committee also recommends that consideration be given to establishing
an independent mechanism with effective national powers to monitor and
enforce the implementation of laws for the eradication of child labour
and bonded labour.
35. Concerning the periodic
report:
the Committee draws to the
attention of the Government of India the provisions of paragraph 6 (a)
of the guidelines regarding the form and content of periodic reports
from States parties, and requests that, accordingly, its next period
report, due on 31 December 2001, should contain material which responds
to all these concluding observations. The Committee further requests
that these concluding observations be widely disseminated among the
public at large in all parts of India.