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Critical assessment of the functioning of UPR with

special reference to India.

The Universal Periodic Review (UPR), established by General Assembly resolution 60/251

of 15 March 2006, is a new mechanism with the Human Rights Council (HRC). The UPR

shall assess the human rights situation in each country being member of the United Nations

on a periodic basis of 4 years. Within the UN system, such an approach is unique: to

systematically and periodically scrutinize a state member on the fulfilment of its obligations

and even voluntary commitments.

By nature and by its structure, the UPR is state driven. All governmental stakeholders

repeatedly underlined openness, tolerance, cooperation and a consensual approach among the

state actors as dominant factors in order to conduct UPR.

Frequently, it was also expressed by governments that UPR in its best sense means sharing

best practices. Therefore, the scope of and the expectations towards such an instrument have

to necessarily consider this understanding. Nevertheless, the following expectations should

not be minimised: that UPR will substantially contribute to

revealing the truth on human rights violations;

doing justice to victims of human rights violations by addressing the violations;

indicating ways of rehabilitation for such victims by strengthening the national law and

justice system via recommendations;

preventing and acting at least on gross human rights violations;

improving generally the situation on the ground by drawing and focussing the international

attention on human rights.

The UPR was created to engage the members of the international community with one

another in a mutual pursuit of improving human rights. The UPR seeks to facilitate this by

naming and shaming countries with poor human rights records. However, no consequences

beyond embarrassment have been developed to enforce the implementation of

recommendations. While the initial results are encouraging, if avoiding embarrassment isdiscovered in the long-run to not be a powerful enough incentive for states with deficient

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human rights records to change their ways, then the UPR will have failed in its current

format.

Since its inception, the UPR has been subjected to a substantial amount of disparagement. A

Curates Egg by the Quaker United Nations Office observes that Some of the

recommendations that are regularly made concern what might be termed institutional

issuesAt Indias first UPR in 2008, the government received 18 recommendations for the

improvement of human rights in the country, including the ratification of the UN Convention

against Torture and the Convention on Enforced Disappearances. An updated chart assessing

Indias compliance with the 18 recommendations was released by WGHR at the event

(annexed to this press release). In the second cycle of Indias UPR, the HRC will assess the

status of implementation of those recommendations as well as other developments in the

situation of human rights in India over the last four years..

Indias human rights record will be reviewed on May 24, 2012 in Geneva by the inter-

governmental Human Rights Council (HRC) of the United Nations (UN). The appraisal of

Indias human rights situation will take place under a peer review process known as the

Universal Periodic Review (UPR), whereby the human rights record of all UN member statesis reviewed every four and a half years on a rotational basis.

On the occasion of Indias second UPR, the Working Group on Human Rights in India and

the UN (WGHR) organised a side-event today in Geneva, where a panel of human rights

experts and activists from India highlighted the major human rights challenges confronting

India. A new report on the status of human rights in India was also launched at the event

The ratification of treaties, withdrawal of reservations, submission of overdue reports,

issuing of standing invitations to Special Procedures are all examples of such

recommendations. A Curates Egg notes the political nature of the

UPRs recommendation process as a potential problem that is already starting to emerge.

The frequently ignored recommendations made by UN treaty body organizations are

evidence that current full participation of UN member states in the UPR will not necessarilycorrelate to results. Instead member states may feel compelled to engage with the UPR for

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now as it is a new and highly visible mechanism. In addition, full participation does not offer

any insurance against the UPRs vulnerability to the politics of regional interplay .

A Mutual Praise Society by the organization UN Watch legitimizes

fears that the effectiveness of the UPR has already been undermined by the politics of the

HRC.

A third article, Universal Periodic Review: An Ambivalent Exercise published by

FIACAT, addresses similar issues by observing that the review process is institutionally

weak.

The article notes that the reviews of some countries presented a singular problem: a lack of

objectivity. Indeed, on several occasions there was a clear contradiction between the image

portrayed of a country at the conclusion of its review and the issues raised by special

procedures, treaty bodies and NGOs. (15) By actively denying human rights abuses

countries can categorically reject relevant, important recommendations. An even worse

outcome resulting from a lack of objectivity is the acknowledgement of abuses by a SuR,

coupled with intentionally enigmatic implementation efforts. By taking a minimal amount of

action, or by deferring action until further discussion, countries can claim implementation is

underway, and deter further criticism.

UPR process is unique within the UN system, while by its nature and structure it is state

driven. The scope of and the expectations towards UPR have to consider these circumstances.

The dynamic, rhythm and language used during the first two rounds of UPR indicate a mode

of acting which is rather known from standard setting and institution building (consensual

approach) then from former country evaluation and resolutions.

In the most critical assessment, UPR would be identified as an additional exercise of self and

mutual exoneration, highlighting constitutional provisions and progressive legislative

measures as a screen to hide serious gaps in implementation and systemic failures to tackle

human rights violations. In a less critical but more inclusive approach, UPR is one more

avenue to an universal scrutiny and to address human rights violations as well as good

practices in fulfilling the governments obligations. Independent from the chosen approach,

within its

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own logic, the outcome of UPR will show impacts rather in a mid- or long term perspective.

There is a highly valuable documentation available in all official languages.

UPR has been a catalyst for the national performance particularly of civil society

stakeholders, both NHRIs and NGOs, but as well as for several governments changing their

general approach to policy making on human rights. The true test remains with the follow-up

and implementation on the ground, i.e. to bring human rights to each home. The attention of

the media will also play an important role on this task.

The shortcomings of UPR reveal that, by its substance, this procedure is not able to substitute

other mechanisms on the evaluation of country situations. As a kind of side effect it became

obvious, that the need for country resolutions on

gross and systematic human rights violations is not obsolete and would be rather a must (via

Item 4 of the HRC agenda). Nevertheless, the current mode of the HRC tends to the opposite.

There is the risk that the state-driven and i.e. consensual approach will become a template for

all other assessments, including even Special Procedures and the High Commissioners

reports.

Many of the positive aspects on UPR relate to the willingness of a government to simply

acknowledge its reality at home. There is no secret that only a minority among the member

states of United Nations is currently prepared to do so.

This means, to make UPR a working instrument for the people on the groundand in this

sense generating a success storyit depends also of the contributions by other relevant

stakeholders within all steps of the procedure as well as in the follow-up to UPR; though

there is currently no possibility to modify the formal modality of NGO participation.

Beyond the demands towards the governments performance, UPR is a big challenge for civil

society stakeholders in discussing, how to make it more useful. This requires at least a certain

coordination on national as well as on international level in order to attempt setting common

priorities. As explained before, there is a need to systematically address (mainstream) the

situation of human rights defenders, indigenous peoples, minorities, peoples with disabilities

- beyond the already existing mainstreaming on Gender and children.

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India and UPR

India was re-elected at the Human Rights Council in 2007. India was part of the first series of

States whose UPR was conducted by the Human Rights Council in April 2008. FollowingIndia's first UPR, the Government of India had accepted 18 recommendations made by

governments at the UN Human Rights Council.

The council in the first review made the following recommendations:

a. Expedite ratification of the Convention against Torture and its Optional Protocol. Thematter is under consideration.

b. Ghana made the recommendation to continue energizing existing mechanisms toenhance the addressing of human rights challenges, which was accepted

c. Maintain disaggregated data on caste and related discrimination. The position is notclear in the matter.

d. Brazil recommended considering signature and ratification of the Optional Protocol tothe Convention on the Elimination of All Forms of Discrimination against Women

which was refused by India.

e. Mauritius asked India to share best practices in the promotion and protection ofhuman rights taking into account the multi-religious, multi-cultural and multi-ethnic

nature of Indian society which was duly accepted.

f. Algeria advised to consider new ways of addressing growing economic and socialinequities arising out of rapid economic growth and share experiences/results of best

practices in addressing poverty. The position regarding this is not clear.

g. Mexicos recommendation was to take into account recommendations made by treatybodies and special procedures, especially those relating to women and children, in

developing a national action plan for human rights which is under preparation. This

was duly accepted.

h. Nigeria requested India to ratify the Convention on Enforced Disappearances whichwas accepted but not done.

i. Slovenia asked India to fully integrate a gender perspective in the follow-up processto the UPR. Accepted by India.

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On 24th May 2012, the UnitedNations Human Right Council reviewed Indias Human rights

record during the 13th session of the Universal Periodic Review (UPR) in Geneva,

Switzerland. This was Indias second review under the UPR. During the UPR examination on

24th May 2012, over 80 recommendations were made. As India failed to commit even to

enhance the legal framework for protection of human rights in its Concluding Remarks, the

UPR process faced increasing questions about its effectiveness despite positive

recommendations from all the member States irrespective of the regional grouping.

The summary of the key recommendations made are given below:

1. Domestic anti-Torture Law/ ratification of CAT

- Ratify the CAT (Sweden, UK, Spain USA, Austria, Czech Republic, Botswana, Portugal,

Italy, Iraq, Indonesia, TimorLester, Australia, France, Costa Rica, Maldives, South Korea,

Switzerland, Canada)

- Ratify the optional protocol to CAT (UK)

- Receive the SR on Torture (Switzerland, Canada)

- Inform about the current status of ratification of CAT (Turkey)

- Bring a new Prevention of Torture Bill taking into full consideration the recommendations/

suggestions made by the select committee and adopt robust domestic legislation (Timor

Leste, UK)

- Accelerate its domestic procedures for ratification of the CAT including passing of the

Prevention of Torture Bill in its parliament (South Korea)

- provide additional information on measures taken by the Supreme Court to toughen up

standards in the fight against torture (Kyrgyzstan)

2. Ratify Convention on Enforced Disappearances and its Optional protocol (Spain, Uruguay,

Argentina, Austria, France, Portugal and Iraq)

3. Ratify Rome Statute of International Criminal Court (Spain, Uruguay, Austria and

Slovakia)

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4. Invite UN Special Rapporteur on Torture (Switzerland and Hungary) and accept requests

from SRs to visit the country (Belgium and Iraq) Indias 2012 UPR examination:

5. Abolition or a moratorium on death penalty (Switzerland, Spain, United Kingdom, Turkey,

Argentina, Belgium, France, Chile, Slovakia, Norway; Italy and Ireland)

6. Ratify the ILO Conventions:

- ILO Convention No. 138 and 182 concerning child labour (Sweden and Uruguay)

- ILO Conventions 138,182,169,155 & 173 Hungary, Ghana, Portugal; Norway; Ireland,

Iraq)

7. Rights of children

- Ratify Optional Protocols to the CRC, improving mechanisms and resources for

implementation of the existing national legislations and by demonstrating higher conviction

rates for crimes against children such as child sexual exploitation, child labour, child forced

labour and child trafficking (Canada)

- Take measures to eliminate child marriage (Switzerland, Bahrain)

- Protect children from exploitation (South Africa)

- Combat sexual offences involving minors (Algeria)

- Eliminate child labour (Angola, Ireland, Germany and Norway)

- prioritize efforts to ensure children with disabilities afford the same level of education as

other children under RTE (Australia)

- Ensure timely registration of all births (Holy See)

- Ensure right to education for all (Greece, Senegal, Qatar, Iran, Indonesia and Mexico), right

of both boys and girls to quality education (Ecuador)

- Ensure free and compulsory primary education and ratification of the Third Optional

Protocol to the CRC (Slovakia)

- Improve the enjoyment of the basic human rights of its people especially children

(Singapore)

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8. Women rights

- Withdraw reservation to Article 16 India CEDAW (Sweden, Finland,

Republic of Korea)

- Ratify the Optional Protocol to the CEDAW Convention (Costa Rica,

South Korea and TimorLeste)

- Amend the Special Marriage Act to give equal rights to property (Slovenia)

- Inform about status of the Bill for prevention of women against sexual harassment at

workplace (Venezuela and Ukraine)

- End all forms of discrimination against women (Trinidad and Tobago and Egypt)

- Ratify Optional Protocol to CEDAW and pass 108th Constitutional Amendment bill which

seeks to reserve seats for women in the Lower House and the state legislative assemblies

(Netherlands and TimorLeste)

- Eliminate traditional practices which discriminate against women particularly child

marriages (Holy See and Chile)

- Enact comprehensive reforms to address sexual violence and all forms of violence against

women including honour crimes, child marriage, female feticide and female infanticide

(Canada)

- Improve the enjoyment of the basic human rights of its people especially women

(Singapore)

- Re-examine the budget and social laws taking into account gender issues (Morocco)

- Adopt comprehensive legislation to combat all forms of gender based violence against

women and children (Luxemburg, Liechtenstein, Kyrgyzstan, Kuwait and Iran)

- Remedy the limitations in the definition of rape and medical forensic procedures adopted

for rape cases (Canada)

- Take necessary legislative civilian and criminal measures to provide appropriate protection

to women and girls and children who are affected with sexual disease (Mexico)

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- Ensure gender equality and prevent any discrimination (Slovenia, Turkey, Bahrain, Chad

and Ireland)

- Enact comprehensive anti-discriminatory legislation and to ensure that there are adequate

means of redress (Ireland)

- Allow women to participate with equal footing with men (Qatar).

9. Protection/rehabilitation to victims of trafficking (USA, UAE, Ukraine, Belarus) and invite

the UN Special Rapporteur on Trafficking in persons (Holy See, Paraguay and Iran)

10. Security forces and human rights violations

- Examine the Armed Forces Special Powers Act (Switzerland, France and

Slovakia)

- Annual review of AFSPA (France)

- Adopt the negotiated amendments to it that it would address accountability of the security

personnel, the regulation concerning detention as well as victims right to appeal in

accordance with international standards

(Slovakia)

- End impunity to security forces (USA)

- Reform the law enforcement bodies (Russia)

- Strengthen control over the police forces (Iraq)

- Guarantee effective access to justice where human rights have been violated by security

forces with regard to the use of torture and impartial, effective investigation (Thailand, Spain)

- Improve the judicial system (Russia)

- Sensitize the armed forces towards human rights (Thailand, Malaysia)

12. Prevention of racial violence against caste, dalits and minorities: Holy See

13. Protection of SC/STs:

- Ensure effective implementation of Prevention of Atrocities Act (USA, Germany)

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- Monitor and verify the effectiveness of and speedy implementation in quota programme in

the area of education and employment, special police and special court for effective

implementation of protection of Civil Rights Act and Scheduled Caste and Scheduled Tribes

(Prevention of Atrocities) Act and work of the National Commission for Scheduled Castes

(Japan)

14. Human rights in school curriculum:

- Introduce human rights in school curriculum (Sri Lanka, Japan)

15. Adopt the National Human Rights Action Plan (Spain)

16. Remove the restrictions on Internet Freedom (Sweden)

17. Take measures for poverty alleviation (South Africa, Venezuela, Bhutan,

Singapore, Saudi Arabia, Myanmar, Mexico, Kuwait and Iran)

- Ensure food security (Saudi Arabia and Iran)

18. Minorities

- Ensure freedom of religion and protection of religious minorities including repeal of the

anti-conversion laws (USA, Austria, Holy See, Germany,

Netherlands; Italy, Iran)

- Adopt Communal and Targeted Violence Bill (Germany)

19. Address corruption: USA and Russia

20. Human Rights Defenders

- Safeguard the rights of NGOs: UK, Czech Republic, Canada, Norway and USA)

- Enact law on the protection HRDs with particular focus on those working on minority

rights, SCs and STs (Czech Republic)

- Ensuring greater civil society participation from all regions and all sections as has been

done for drafting Indias 2012 National Report for UPR (Canada)

21. Strengthen and ensure independence of NHRIs (UK and Turkey)

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- Put in place appropriate monitoring mechanisms of HR implementation to ensure that

intended objectives are well achieved (Ghana)

- Consider adhering to the second optional protocol to the International Covenant on Civil

and Political Rights (Portugal)

22. Health, sanitation, nutrition and drinking water:

- Ensure health services to all in the line of production of medicine in India (Uruguay)

- Provide every possible support to assist national project for rural health to increase nutrition

and improve public health and strengthen the relationship between health and the indicators

of rural health such as sanitation, personal hygiene and provisions of clean drinking water

(UAE)

- Enhance access to basic social services such as health and education especially to the

marginalized sections of the society (Bhutan)

- Redouble efforts in the fields of education and health (Senegal)

- Improve the level of public health (Saudi Arabia)

- Accelerate the sanitation coverage and access to safe and sustainable drinking water in rural

areas (Myanmar)

- Allocate more resources in sectors that provide basic services such as health

(Luxemburg, Malaysia)

- Carry out its efforts in environmental and health policies (Iran)

- Ensure implementation of NRHM (Honduras)

- Take measures to reduce maternal and child mortality (Austria, Belgium,

Honduras, Finland, Egypt, Norway)

- Take measures to address endemic malnutrition (Luxemburg )

23. Address the special needs of the persons with disability/special needs

(Ukraine, Ghana and Senegal)

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24. Protect the journalists (Austria)

25. Refugee rights: Ratify UN Convention relating to refugees (Ghana)

26. Right to work:

- Ensure proper implementation of the NREGA (Greece)

- Allocate more resources in employment opportunities (Malaysia)

27. Allocation of resources for vulnerable groups

- Provide more resources for enjoyment of economic and social rights especially in favour of

vulnerable groups like women, children, poor people and minorities (Vietnam)

28. Sexual orientation

- Take measures to address violence directed towards persons based on their sexual

orientation especially relating to employment (Canada)

29. Rural and Urban Divide

- Address the inequities based on rural-urban divide and gender imbalance

(Botswana)

- Continues its efforts and action in promoting social security and labour policies (Iran)

In its reply at the first session and the second session, Indian delegation replied only to those

relating to the status of the Communal Violence Bill, prosecution of the security forces,

refugees, human rights education, the Right to Information Act, torture, restrictions oninternet, NREGA, children with disabilities, HIV, human rights defenders and the Foreign

Contribution Regulation Act, the Armed Forces Special Powers Act, National Action Plan on

Human Rights, child labour, domestic violence, marriage and womens equal right to

property, socio economic caste census, sanitation and safe drinking water and Indias

reservation on the Optional Protocol to the CEDAW.

The responses of the Indian delegation were evasive and misleading.

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On the question of impunity, India stuck to its National Report which stated that since

January, 1994 until December, 2011, out of 1,429 complaints of human rights excesses

received against the personnel of Army and Central Para Military Forces, 1,412 have been

investigated and 1,332 found false. In 80 cases, where the complaints were found genuine,

stringent punishment has been imposed. 17 cases are under investigation. This does not

reflect the intensity of human rights violations that saw the killing of North East India and

Jammu and Kashmir.

India was not only evasive on the question of prosecution of the security forces but also

combating caste violence. About 13 countries raised questions on caste discrimination

including the need for strengthening the Scheduled Castes and Scheduled Tribes (Prevention

of Atrocities) Act. Attorney General Vahanvati did not directly answer questions relating to

caste discrimination but in his final

remarks Vahanvati stated that India is an ancient country with strong social traditions. Some

of these traditions may now be out of tune with modern values. They have to change. But in a

democracy, these can only be done in an inclusive manner involving all through persuasion,

education, and development. We are conscious of the need for change and promoting it

through legislation and social awareness. The statement was disappointing as it did not

reflect the fact that the Central government had to convene the State Home Ministers

Conference on Effective Implementation of Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act held in New Delhi on April 17, 2012 on the non-

implementation of the POA reflected from high pendency and low conviction rate of the

cases.

Just the way coalition political compulsion has become the excuse of the Government at

national level, at the UN the Government of India sought to hide itself on its inability to

speculate on parliamentary process and federalism on enactment of pro human rights laws.

While that is true of the Womens Reservation Bill and Communal and Targeted Violence

Bill, with respect to the Prevention of Torture Bill, the Ministry of Home Affairs simply

failed to introduce the Bill despite an all party Parliamentary Select Committee submitting

the draft in December 2010.

Indian delegation also misled the UN on internet freedom. Indias delegation stated that that

the current restrictions imposed by the Information Technology Act deals with normallyaccepted restrictions on cyber security and removal of contents illegal like child

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pornography. While child pornography will put all into defensive position, the Information

Technology (Intermediaries Guidelines) Rules, 2011 notified on 11 April 2011 are not

exactly about imposing normally acceptable restrictions but private censorship through the

service providers. The Swedish delegation raised specific questions on the Information

Technology (Intermediaries Guidelines) Rules, 2011.

According to WGHR, the report submitted by the Government of India (GoI) for the UPR is

disappointing, as it lacks critical analysis of the actual realisation of rights and

implementation of laws and schemes in India. Background documents prepared for the UPR

by the UN and submissions by the National Human Rights Commission (NHRC) and civil

society point towards serious failures of the state in promoting and protecting human rights.

India is, therefore, expected to face some serious questioning by other UN member states

during the HRC session on May 24. Eighty-seven countries are scheduled to speak during

Indias UPR.

Commenting on the status of economic, social and cultural rights in India, Mr. Miloon

Kothari, WGHR Convenor and former UN Special Rapporteur, observed that, While the

average growth rate in India over 2007-2011 was 8.2%, poverty declined by only 0.8%,

which is extremely disturbing. India still ranks 134 out of 187 countries on the UN human

development index. What makes matters worse is that Indias standards for measuring

poverty are not consistent with global standards and do not follow a human rights approach.

As pointed out by numerous authoritative and independent sources, if global standards such

as those used by the Human Development Report 2011 were used, Indias poverty rate would

be close to 55% of the population.

The right to adequate housing is severely violated in India, as the country faces growing

homelessness and an acute housing shortage, especially for economically weaker sections.

During the side event, it was highlighted that despite the existence of food entitlement

programmes, India still has the worlds highest number of malnourished people; 21% of its

population is undernourished and 42% of children under the age of five are underweight. Mr.

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Kothari observed that, The refusal of GoI to universalise the public distribution of food

grains despite overflowing food stocks is unacceptable.