National Human Rights Commission, New Delhi, India
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National Human Rights Commission, New Delhi, India |
Opinion on
the Prevention of Terrorism Bill 2000 dated 14 July 2000
CORAM
Justice
Shri J.S. Verma Chairperson
Justice
Dr. K. Ramaswamy Member
Justice
Smt. Sujata V. Manohar Member
Shri
Sudarshan Agarwal Member
Shri
Virendra Dayal Member
INTRODUCTION
Media
reports indicate that the Law Commission of India has submitted the draft Bill together
with its 173rd Report to the Government of India and that the Bill is likely to
be moved in the next session of the Parliament for its enactment as a law to deal with
terrorism in the country. There has been a debate in the country for some time about the
need of enacting such a stringent law as well as its form in case of its enactment. The
debate has also focused on the experience of the working of the Terrorist and Disruptive
Activities (Prevention) Act, 1987 (TADA) and the fact of it being permitted to lapse.
Divergent views have emerged in the debate and the Law Commission of India has recommended
enactment of the law in terms of the proposed Bill.
Functions
of the Commission specified in Section 12 of the Protection of Human Rights Act, 1993,
particularly those in clauses (d), (f) and (j) are relevant in this context. These
functions include: to review the safeguards provided by or under the Constitution or any
law for the time being in force for the protection of human rights and recommend measures
for their effective implementation; study treaties and other international instruments on
human rights and make recommendations for their effective implementation; and such other
functions as it may consider necessary for the promotion of human rights. It is,
therefore, an essential function of the Commission to formulate its opinion on the
desirability and need of enacting such a stringent law and to give public expression to it
for consideration by the Parliament and all those involved in the making of the laws so
that due weight is given to the Commission’s opinion in the performance of this
exercise.
It may
be recalled that in discharge of this statutory obligation, the Commission had earlier
opposed the continuance of the TADA Act and a letter dated 20 February, 1995 to this
effect was sent by the then Chairperson to all Members of Parliament and it is also
included in the Annual Report of the Commission for the Year 1994-1995 as Annexure-I. The
earlier opinion of the Commission is relevant at this juncture not merely as the
historical background but also because of its relevance in the formation of the opinion of
the Commission in the present context.
It is
in the performance of this statutory responsibility that the Commission has examined the
need for enactment of such a law in its meeting held on 11 July, 2000. The matter has been
considered not strictly from the point of view of the constitutional validity of the
proposed new law and its provisions which, if necessary, would be a matter for the courts
to decide, but on the need and wisdom of enacting such a law particularly in the light of
the earlier experience with the TADA, the adequacies of the existing laws and the
provisions of international covenants to which India is a party. Even though absence of
need to enact the law and its un-wisdom are not grounds of constitutional invalidity, yet
they are relevant for the performance of the functions of the Commission and of the
Parliament. This is the occasion for examination of this question.
Issues
In the
above background, the issues, which arise for consideration in this context, are the
following, namely:
It may
here be mentioned that the Chairperson of this Commission was invited by the Law
Commission to inaugurate its seminar on 20 December 1999 to discuss the proposed Bill. In
his inaugural address, the Chairperson identified these two issues which arose for
discussion in the seminar and while refraining from expressing any opinion on the first
issue, he said that in the event of such a law being found necessary, it must have a human
face as indicated in decisions of the Supreme Court and also because of the past
experience.
Answer
The
considered unanimous opinion of this Commission is that there is no need to enact the
above new law (Prevention of Terrorism Bill, 2000) and, therefore, the need does not arise
to answer the other question.
Reasons
Brief
reasons for the Commission’s unanimous opinion are indicated here after:
Existing
Laws
The
Prevention of Terrorism Bill, 2000 under Section 3 sets out the kind of actions, which are
proposed to be dealt with under the Bill. These actions are substantially taken care of
under the existing laws. For example, any action, which threatens the unity, integrity,
security or sovereignty of India, is covered by Section 153-B of
the Indian Penal Code (I.P.C.). Chapter VI of the IPC deals with Offences against the
State. Section 121-A which
forms part of this Chapter deals with conspiracy to overawe by means of criminal force or
the show of criminal force, the Central or State Government and the offence is punishable
with imprisonment for life. Section 122 deals
with collecting arms and ammunition with the intention of waging war against the
Government of India. Section 124-A deals
with sedition. Under Chapter VIII dealing with Offences against Public Tranquility, Section 153-A deals
with promoting enmity between two groups on grounds of religion, race, place of birth,
residence, language, etc. and doing acts prejudicial to maintenance of harmony. Chapter
XVI deals with Offences affecting the Human Body. It includes causing hurt or grievous
hurt, wrongful confinement, kidnapping, abduction and so on. Apart from the Indian Penal
Code, there is the Arms Act, 1959, Explosives Act, Explosive Substances Act and the Armed
Forces (Special Powers) Act, 1958 the last of which gives powers to the armed forces in
disturbed areas to use force even leading to death against any person who is acting in
contravention of any law or order for the time being in force in the disturbed area
prohibiting assembly of five or more persons or carrying of weapons or things capable of
being used as weapons or fire-arms, ammunition or explosive substances. There is also the
power to arrest without warrant in the circumstances set out in the Act.
There
is also on the statute book Unlawful Activities (Prevention) Act, 1967, which can be
suitably modified if required. We have also enacted the Suppression of Unlawful Activities
against the Safety of Civil Aviation Act, 1982 to deal effectively with offences against
the safety of civil aviation. This was pursuant to India ratifying the Hague Convention of
1970 for dealing with hijacking and Montreal Convention of 1971 for the suppression of
unlawful acts against civil aviation. This Act provides the necessary legal provisions for
giving effect to these Conventions.
In
addition, there are at present in force at least four Central Preventive Detention Acts
and a number of Preventive Detention Acts enacted by various States. The Preventive
Detention Acts enacted by the Union of India include the National Security Act, 1980, the
Prevention of Black Marketeering and Maintenance of Supplies Act, 1980, the Prevention of
Narcotic Drugs and Psychotropic Substances Act, 1988 and the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974. Between these legal measures,
all the "terrorist acts" contemplated under the new Bill appear to be covered.
If necessary, the Indian Penal Code or any provisions of any other Act can be amended to
cover any specific action, which at present may not be covered, though, it does not appear
to be so. The punishments provided under these Acts can be increased where necessary. But
there does not appear to be any need to have a separate new bill for the purpose of
creating new offences.
Avowed
justification for the new law
The
avowed justification for these provisions appears to be (i) it is difficult to secure
convictions under the criminal justice system; and (ii) trials are delayed. Hence special
courts will speed up trial. Undoubtedly, the main problem, which the country is facing
today, relates to proper investigation of crimes and efficient prosecution of criminal
trials. Adjudication and punishment of crimes also take a long time before the Courts. The
problem, however, cannot be solved by enacting laws that do away with the legal safeguards
that are designed to prevent innocent persons from being prosecuted and punished.
The
problem cannot also be solved by providing for a different and more drastic procedure for
prosecution of certain crimes, for making confessions before the police admissible in
evidence, contrary to the provisions of the Evidence Act, and for raising presumption of
guilt as set out in the Bill, and creating special courts. These provisions seriously
affect human rights guaranteed under the Constitution and violate basic principles of
criminal jurisprudence as internationally understood.
Remedy
There
are three stages at which remedial measures need to be taken on an urgent basis by the
Government to strengthen the criminal justice system:
· The
stage of investigation : Unless investigation is carried out speedily and efficiently, it
is not possible to have a speedy and effective trial leading to conviction. The
investigation machinery must be independent and free from political or any other kind of
interference, an imperative to which NHRC has drawn attention in successive Annual Reports
to the Parliament. Unfortunately, as various Police Commission Reports and the experience
of the NHRC have shown, constant political interference with the police force has
seriously impaired the ability of the police to investigate crimes freely and efficiently.
There is also a need for giving proper training for efficient and effective investigation,
including improvement of forensic skills and laboratories, another matter to which the
National Human Rights Commission has repeatedly drawn attention. Such training and
facilities are at present sadly lacking. In the case of Vineet Narain & Ors. Vs. Union
of India & Ors., (1998) 1 SCC 226, the Supreme Court has observed:
· "There
is another aspect of rule of law which is of equal significance. Unless a proper
investigation is made and it is followed by an equally proper prosecution, the effort made
would not bear fruition."
The
Supreme Court in that case, has also observed:
· "……there
is urgent need for the State Governments also to set up credible mechanism for selection
of the Police Chief in the States. The Central Government must pursue the matter with the
State Governments and ensure that a similar mechanism, as indicated above, is set up in
each State for the selection/appointment, tenure, transfer and posting of not merely the
Chief of the State Police but also of all police officers of the rank of Superintendent of
Police and above. It is shocking to hear, a matter of common knowledge, that in some
States the tenure of a Superintendent of Police is on an average only a few months and
transfers are made for whimsical reasons. Apart from demoralizing the police force, it has
also the adverse effect of politicizing the personnel. ……….."
· There
is, therefore, an urgent need to have independent and well-trained investigation machinery
to investigate crimes, particularly, crimes related to terrorism.
There
must also be efficient prosecution on behalf of the State, of all such crimes. Once again
in the above case, the Supreme Court has observed:
· "The
recent experience in the field of prosecution is also discouraging.
……..…discharge of the accused on filing of the charge-sheet indicates,
irrespective of the ultimate outcome of the matters pending in the higher courts, that the
trial court at least was not satisfied that a prima facie case was made out by the
investigation. These facts are sufficient to indicate that either the investigation or the
prosecution or both were lacking……………..Investigation and
prosecution are interrelated and improvement of investigation without improving the
prosecution machinery is of no practical significance."
· It is,
therefore, essential that experienced Public Prosecutors are appointed to prosecute crimes
involving terrorism and that they are appointed in sufficient numbers.
· The
delays in criminal courts are also undermining the criminal justice system. One of the
main causes of delay is shortage of courts. It is necessary to create many more Sessions
Courts, provide the necessary infrastructure to these Courts and to appoint many more
Sessions Judges who are competent and possess integrity. The judiciary can be requested to
give training or refresher courses to these Sessions Judges at the various Judicial
Academies of the various States for speedy disposal of cases before them without
undermining judicial adjudication. Criminal trials especially those dealing with serious
offences, which are tried by the Court of Sessions, need to be speedily conducted and
disposed of. There can be no doubt that amongst these cases, those dealing with acts of
terrorism must be given preference for early disposal (preferably within six months). But,
for this purpose, it is essential that depending upon the number of such crimes in each
State, and bearing in mind the average disposal per Judge, adequate numbers of additional
Sessions Judges are appointed in each State, along with adequate numbers of Public
Prosecutors who will prosecute the cases before them and additional courts are accordingly
set up with the necessary infrastructure. This has to be done on an urgent footing. When
this is done, crimes connected with terrorist activities should be given priority before
the Sessions Courts in those States where such additional Sessions Courts are set up along
with all the above concomitants. Obviously in those States where terrorism is rampant,
additional courts will have to be set up as early as possible and the Union Government
should, wherever necessary, assist the State Government in financing such additional
courts.
The
correct remedy for speedy trial and punishment of crimes connected with terrorism in India
is proper strengthening of the crime investigation and prosecution machinery and criminal
justice system. If there are a large number of acquittals today, it is not for lack of any
laws but for lack of proper utilization of these laws, lack of proper investigation and
prosecution, and lack of adequate number of courts to try the offences. Unless this root
problem is redressed, adopting draconian laws will only lead to their grave misuse as has
been the case with the previous TADA law.
Obligations
of the State under International Covenants etc.
In
pursuance of its statutory responsibility the Commission has examined the Prevention of
Terrorism Bill 2000 and, in particular, sought to form an opinion as to whether the Bill
will increase, or decrease, the effective implementation of treaties and other
international instruments on human rights. In pursuing this responsibility, the Commission
has also had in mind the opinions of the Supreme Court, notably in Vishaka & Others
vs. State of Rajasthan & Others (1997(6)SCC 241 and Apparel Export Promotion vs. A.K.
Chopra (1999(1)SCC 759) in respect to this matter. In the former case, the Court took the
view that it was
· "…..
now an accepted rule of judicial construction that regard must be had to international
conventions and norms for construing domestic law when there is no inconsistency between
them and there is a void in the domestic law."
In the
latter, the Court held
"In
cases involving violation of human rights, the courts must ever remain alive to the
international instruments and conventions and apply the same to a given case where there
is no inconsistency between the international norms and the domestic law occupying the
field."
The
Commission has concluded that, set against these observations, the Prevention of Terrorism
Bill, 2000 would hinder, rather than
enhance, the effective implementation of treaties and other international instruments
on human rights and that, in particular, the provisions of the Bill would not be
in consonance with many provisions of the International Covenant on Civil and
Political Rights (ICCPR) to which India is a State Party. Moreover, the meaning
of the ‘right to life with dignity’ in Article 21 of the Constitution of
India must include the provisions of the international instruments on the subject
because there is no inconsistency between them and the domestic law.
As in
the case of the Terrorist and Disruptive Activities (Prevention) Act, 1987, this is
especially so in respect of the following:
· Raising
of the presumption of guilt, and shifting the burden to the accused, to establish his
innocence.
· "Everyone
charged with a criminal offence shall have the right to be presumed innocent until proven
guilty."
· Making
confessions before a police officer admissible in evidence.
· Modifying
the provisions of the Code of Criminal Procedure, particularly in regard to the time set
for investigation and grant of bail.
· "….
be informed promptly and in detail ….. of the nature and cause of the charge brought
against him," while
· "to
be tried without undue delay."
· Further,
Article 9(2) of the ICCPR states
· "Anyone
who is arrested shall be informed, at the time of his arrest, of the reasons for his
arrest and shall be promptly informed of any charges against him;" while
· "Anyone
arrested or detained on a criminal charge shall be promptly brought before a judge or
other officer authorised by law to exercise judicial power and shall be entitled to trial
within a reasonable time or to release. It shall not be the general rule that persons
awaiting trial shall be detained in custody…."
There
are a number of other provisions of the Bill that would have a chilling effect on human
rights, notable among them being Section 3(8) which provides for punishment for those in
possession of information of material assistance in preventing the commission of a
terrorist act. Read with Section 14, which gives powers to investigating officers to
require individuals to furnish information in their possession, the Bill could gravely
jeopardize the work of professionals such as journalists. The provision would also run
counter to Article 19 of the ICCPR dealing with the right to the freedom of expression,
which includes the right "to seek, receive and impart information and ideas of all
kinds….." subject to certain restrictions, "but these, shall only be such
as are provided by law and are necessary," inter alia, "for the protection of
national security or of public order (order public), or of public health or morals".
Furthermore,
the provisions of Section 37(1) of the Bill, which provide for immunity from legal
proceedings and prosecutions against the Central and State Governments and officials
acting "in good faith," are inconsistent with the provisions of Article 2(3) of
the ICCPR, under which
· "Each
State Party to the present Covenant undertakes
a. To
ensure that any person whose rights or freedoms are herein recognized as violated shall
have an effective remedy, notwithstanding that the violation has been committed by persons
acting in an official capacity."
The
proviso to Section 37(1) of the Bill carries this inconsistency yet further, in that it
provides a blanket immunity for
· "any
serving member or retired member of the Armed Forces or other para-military forces in
respect of any action taken or purported to be taken by him in good faith, in the course
of any operation directed towards combating terrorism."
· Clearly,
too, such a provision would adversely affect the already limited jurisdiction of the
National Human Rights Commission under Section 19 of the Protection of Human Rights, 1993
to deal with complaints alleging the violation of human rights by members of the Armed
Forces and, in consequence, further militate against the express purpose of that Act that
the Commission should ensure the "better protection" of human rights in the
country.
It is
worthwhile to recall in this overall connection that, since the World Conference on Human
Rights, held in Vienna in June 1993, the international community has been categorical in
its assertion that
· "The
acts, methods and practices of terrorism in all its forms and manifestations ….. are
activities aimed at the destruction of human rights" (Paragraph 17 of the Declaration
and Programme of Action).
· Further,
in a series of resolutions in recent years on "Human Rights and Terrorism", and
in its 1994 Declaration on "Measures to Eliminate International Terrorism," the
General Assembly of the United Nations has consistently taken the view "that
terrorism, in all its forms and manifestations, wherever and by whomever committed, can
never be justified in any instance, including as a means to promote and protect human
rights." The General Assembly has also observed that "Criminal acts intended or
calculated to provoke a state of terror in the general public, a group of persons or
particular persons for political purposes are in any circumstances unjustifiable, whatever
the considerations of a political, philosophical, ideological, racial, ethnic, religious
or any other nature that may be invoked to justify them." The General Assembly has
therefore urged States to "enhance international cooperation at regional and
international levels in the fight against terrorism in accordance with relevant
international instruments, including those relating to human rights, with the aim of its
eradication." Of these instruments, the International Covenant on Civil and Political
Rights and the Convention against Torture, referred to above, are surely among the most
important.
At a
time when India is itself urging support for the adoption of a comprehensive International
Convention on Terrorism, it is essential to recall these developments, and the stated need
to abide by the international instruments on human rights, even while combating terrorism
with view to eradicating this menace. It is also essential to recall that while an overall
Convention on this subject is yet to be adopted, ten multilateral conventions have already
been adopted on various aspects of terrorism, and that India is a State Party to each of
these Conventions. These are the:
It is
important, both to the cause of human rights and to the fight against terrorism, that the
measures required to be taken by the Government of India under each of these Conventions
are fully and meticulously undertaken, both in terms of appropriate legislation, where
this may still be needed, and in terms of other practical arrangements essential to the
effective implementation of these Conventions.
CHECK
ON FINANCING OF TERRORISM
One
area where suitable law needs to be enacted is the area of financing of terrorism. The
U.N. General Assembly in its resolution of 17 December, 1996 called upon States to take
steps to prevent and counteract through proper domestic laws, the financing of terrorists
and terrorist organisations whether such financing is direct or indirect through
organisations which may be camouflaged as charities or which are engaged in unlawful
activities such as illicit arms trafficking, drug-dealing and racketeering including the
exploitation of persons for purposes of funding terrorist activities. Article 4 of the
International Convention on the Suppression of Financing of Terrorism enjoins each State
Party to adopt such measures as may be necessary to establish as criminal offence under
its domestic law, the offence relating to financing of terrorism as set out in Article 2
and to make these offences punishable by appropriate penalties which take into account the
grave nature of the offences. It is in this area that there appears to be a lack of
appropriate legislation. Unfortunately, the present Bill is silent on this aspect. The
Government needs to frame appropriate legislation in the light of this international
convention.
Conclusion
For
the above reasons, and consistent with the view that it took in respect of TADA, the
Commission is now unanimously of the considered view that there is no need to enact a law
based on the Draft Prevention of Terrorism Bill, 2000 and the needed solution can be found
under the existing laws, if properly enforced and implemented, and amended, if necessary.
The proposed Bill, if enacted, would have the ill-effect of providing unintentionally a
strong weapon capable of gross misuse and violation of human rights which must be avoided
particularly in view of the experience of the misuse in the recent past of TADA and
earlier of MISA of the emergency days.
This
Commission regrets its inability to agree with the opinion of the Law Commission in its
173rd Report and recommends that a new law based on the Draft Prevention of
Terrorism Bill, 2000 be not enacted. Such a course is consistent with our country’s
determination to combat and triumph over terrorism in a manner also consistent with the
promotion and protection of human rights.
New
Delhi
14
July, 2000
End
Notes
References
on Sections of the Indian Penal Code, 1860:
Chapter
VI of IPC section 121 A: Conspiracy to commit offences punishable by section 121 - Whoever
within or without India conspires to commit any of the offences punishable by section 121,
or conspires to overawe, by means of criminal force or the show of criminal force the
Central Government or any State Government, shall be punished with imprisonment for life,
or with imprisonment of either description which may extend to ten years, and shall also
be liable to fine.
Explanation
- To constitute a conspiracy under this section, it is not necessary that any act or
illegal omission shall take place in pursuance thereof.
Chapter
VI of IPC Section 122: Collecting arms, etc., with intention of waging war against the
Government of India - whoever collects men, arms or ammunition or otherwise prepares to
wage war with the intention of either waging or being prepared to wage war against the
Government of India, shall be punished with imprisonment for life or imprisonment of
either description for a term not exceeding ten years, and shall also be liable to fine.
Chapter
VI of IPC Section 124 A: Sedition - Whoever by words, either spoken or written, or by
signs, or by visible representation, or otherwise, brings or attempts to bring into hatred
or contempt, or excites or attempts to excite disaffection towards, the Government
established by law in India, shall be punished with imprisonment for life, to which fine
may be added, or with imprisonment which may extend to three years, to which fine may be
added, or with fine.
Explanation
1. - The expression "disaffection" includes disloyalty and all feelings of
enmity.
Explanation
2. - Comments expressing disapprobation of the measures of the Government with a view to
obtain their alteration by lawful means, without exciting or attempting to excite hatred,
contempt or disaffection, do not constitute an offence under this section.
Explanation
3 -- Comments expressing disapprobation of the administrative or other action of the
Government without exciting or attempting to excite hatred, contempt or disaffection, do
not constitute an offence under this section.
Chapter
VIII of IPC Section 153A: Promoting enmity between different groups on grounds of
religion, race, place of birth, residence, language, etc., and doing acts prejudicial to
maintenance of harmony - (1) Whoever -
Offence
committed in place of worship, etc.-(2) Whoever commits an offence specified in
sub-section(1) in any place of worship or any assembly engaged in the performance of
religious worship or religious ceremonies, shall be punished with imprisonment which may
extend to five years and shall also be liable to fine.
Chapter
VIII of IPC Section 153B: Imputations, assertions prejudicial to national integration-(1)
`Whoever, by words either spoken or written or by sings or by visible representations or
otherwise,---
(2)
Whoever commits an offence specified in sub-section(1) in any place of worship or in any
assembly engaged in the performance of religious worship or religious ceremonies, shall be
punished with imprisonment which may extend to five years and shall also be liable to
fine.
OPINION REGARDING PREVENTION OF TERRORISM ORDINANCE, 2001 DATED 19 NOVEMBER 2001
CORAM:
Justice
J.S.Verma, Chairperson
Dr.
Justice K.Ramaswamy, Member
Justice
Mrs. Sujata V. Manohar, Member
Shri
Virendra Dayal, Member
The
National Human Rights Commission in its opinion dated 14 July, 2000 dwelt at length on the
various provisions of the Prevention of Terrorism Bill, 2000 as proposed by the Law
Commission of India in its 173rd Report. This opinion is on the web site
of NHRC (nhrc.nic.in) and was also forwarded to the Government of India, Ministry of Home
Affairs. The Commission had also earlier opposed the continuance of TADA. A
letter dated 20 February 1995 to this effect was sent by the then Chairperson to all
Members of Parliament. This letter is also included in the Annual Report of the
Commission for the year 1994-95 in Annexure I. The present opinion in respect of the
Prevention of Terrorism Ordinance, 2001 is in continuation of the Commission’s
earlier opinions, and the Commission’s views on such a measure remain unchanged.
Undoubtedly,
national security is of paramount importance. Without protecting the safety and
security of the nation, individual rights cannot be protected. However, the worth of
a nation is the worth of the individuals constituting it. Article 21, which
guarantees a life with dignity, is non-derogable. Both national integrity as well as
individual dignity are core values in the Constitution, the relevant international
instruments and treaties, and respect the principles of necessity and proportionality.
The
National Human Rights Commission, therefore, reiterates its earlier view in respect of the
Ordinance also.
Dated:
19 November 2001
(Justice
Shri J.S.Verma)
Chairperson
(Dr.
Justice K.Ramaswamy)
Member
(Justice
Mrs. Sujata V. Manohar)
Member
(Shri
Virednra Dayal)
Member
STATEMENT
OF THE NATIONAL HUMAN RIGHTS COMMISSION, INDIA TO THE WORLD CONFERENCE AGAINST RACISM, RACIAL
DISCRIMINATION, XENOPHOBIA AND RELATED INTOLERANCE (31 AUGUST – 7 SEPTEMBER, 2001)
This
World Conference Against Racism, Racial Discrimination, Xenophobia & Related
Intolerance holds, in reality, a mirror to the soul of each of us.
Our
comments therefore require a degree of introspection and honesty not always associated
with the expression of views in such gatherings.
Mrs.
Robinson has been right in observing:
“There
has never been a UN Conference where there has been such a strong quest for the
recognition of historical injustices”;
and
in asserting:
“In
different parts of the world, people are hurting because of problems of inequality or
injustice and are pressing their case at this Conference.”
Indeed,
no part of the world is exempt from such pain. India is no exception.
The
National Human Rights Commission of India, for which I have the honour of speaking at this
Conference, has therefore considered it its duty to listen attentively to those in our
country who have been the victims of historical injustices, and who are hurting because of
discrimination and inequality.I refer in particular to those who, under our Constitution,
comprise the Scheduled Castes and Scheduled Tribes – the Dalits and Adivasis of India
– with the protection of whose human rights our Commission is itself deeply
involved.It was to hear their voices, and to benefit from an exchange of views with them,
and with eminent jurists, academics and human rights activists, that our Commission
organized two major consultations in August 2001, in Bangalore and Delhi respectively, as
steps preparatory to the formulation of the views of our Commission for this
Conference.The Commission has naturally also taken note of the discussions leading to the
drafting of the document that has been submitted by the Preparatory Committee to this
Conference, and in particular of the contents of the proposed paragraph on discrimination
based on race and descent which had yet to be discussed by Member States prior to this
Conference, and on which decisions will need to be taken by them.It has also carefully
considered the Working Paper prepared in June 2001 by Mr. Rajendra Goonesekere for the
Sub-Commission on the Promotion and Protection of Human Rights on the topic of
discrimination based on work and descent.
With
these introductory words, may I now outline the views of my Commission, as succinctly as
possible, on certain of the issues before the Conference that are particularly germane to
my country.
1.
There can be no doubt that in India – as everywhere else in the world - history and
society have been scarred by discrimination and inequality.
2.
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, including notably those forms which were
based on race, caste or descent. These provisions of the Constitution, which are
justiciable, include inter-alia
3.
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:
4.
In pursuance of the Constitutional provisions and legislative measures just enumerated, it
can with good reason be said that India has embarked on a programme of affirmative
action which is, perhaps, without parallel in scale and dimension in human history. It
is all the more remarkable for being undertaken in a country that has demonstrated, in the
54 years since its Independence, an unshakeable faith in the capacity of its people to
effect fundamental social, economic and political change through the processes of
democracy.
5.
Despite this, however, and the powerful role of the judiciary in ensuring respect for the
Constitution, the laws and affirmative action programmes of the country, it is widely
recognized 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. There are manifest inadequacies in implementation which are deeply
frustrating and painful to the Scheduled Castes and Scheduled Tribes and, indeed, to all
Indians who strive to end the injustice that persists in several forms and the atrocities
that occur.
6.
Because of its history and convictions, it was India that proposed that the word
“descent” be introduced in Article 1(1) of the Convention on the Elimination of
All Forms of Racial Discrimination (CERD) when it was being drafted and adopted in 1965.
And it was also India that proposed that the concept of affirmative action be included in
Article 1(4) of that Convention so as to make the latter consistent with the Constitution
of India and the aspirations of its people.
7.
The National Human Rights Commission of India believes it is essential that all Member
States, including India, respect the international human rights regime established under
the auspices of the United Nations and observe the discipline of the treaties to which
they are States Party. It therefore attaches the highest importance to the views of the
Treaty Bodies established, inter alia, under the Covenants on Civil and Political Rights,
and on Economic, Social and Cultural Rights, as also under the Conventions dealing with
the Elimination of All Forms of Racial Discrimination (CERD), the Elimination of All Forms
of Discrimination against Women (CEDAW) and the Rights of the Child (ROC), all of which
have commented on the country reports of India and on the efforts being made, and the
difficulties being faced, in promoting and protecting the human rights of Scheduled Castes
and Scheduled Tribes. It is worth mentioning, in this connection, that Section 2(d) of the
Protection of Human Rights Act 1993, which establishes the National Human Rights
Commission, defines “human rights” to mean the rights relating to life, liberty,
equality and dignity of the individual guaranteed by the Constitution or embodied in the
International Covenants.
8.
Respect for the UN Treaty system, the Commission believes, is also consistent with the
landmark judgement of the Supreme Court of India, which has dealt with the applicability
of international conventions to the country; the Apex Court held:
“…..
Any international convention not inconsistent with the fundamental rights and in harmony
with their spirit must be read into these provisions to enlarge the meaning and content
thereof, to promote the object of the constitutional guarantee….. regard must be had
to international conventions and norms for construing domestic law when there is no
inconsistency between them and there is a void in the domestic laws” (Visakha vs
State of Rajasthan (1997(6) SSC241).
9.
In the light of this, the Commission is of the opinion that the exchange of views on human
rights matters, whether at the national, regional or international level, can all
contribute constructively to the promotion and protection of such rights and that this
Conference provides a singular opportunity to the international community to deal openly
and courageously with the vexed issues of discrimination and inequality as they exist all
over the world, in all of their variety, including the forms of discrimination that
persist in India and all other countries. In such a context, it is not so much the
nomenclature of the form of discrimination that must engage our attention, but the fact of
its persistence that must cause concern. Given this perception, the Commission is of the
view that the debate on whether race and caste are co-terminus, or similar forms of
discrimination, is not the essence of the matter. The Constitution of India in Article 15
expressly prohibits discrimination on either ground, and that Constitutional guarantee
must be rigorously implemented. In this connection, the Commission believes deeply in the
value of engaging Governments, non-governmental organizations, national institutions, and
all concerned elements of civil society in the process of fighting discrimination, and
urges that this process be conducted at all levels in a spirit that is genuinely
interested in the furtherance of human rights, and not vitiated by self-righteousness or
by political and other extraneous considerations.
10.
As far as its own role is concerned, the Commission has been deeply engaged, ever since
its establishment in October 1993, in the promotion and protection of the human rights of
all of the people of India, acting in a manner that is complementary to that of the higher
Courts of the country. The Commission has been especially concerned with the rights of the
weakest sections of society, notably the Scheduled Castes and Scheduled Tribes. Under the
provisions of its Statute, contained in the Protection of Human Rights Act 1993, the
Commission is expressly required to review the safeguards provided by or under the
Constitution or any law in force for the protection of human rights and recommend measures
for their effective implementation; it is expected to review the factors including acts of
terrorism that inhibit the enjoyment of human rights; and to study treaties and
international instruments and make recommendations for their effective implementation. In
the light of its Statute, therefore, the Commission has a clear responsibility to ensure
the proper observance of international conventions, including CERD.
11.
In furtherance of its statutory responsibilities, the Commission has thus accorded the
highest priority to ending discrimination against Scheduled Castes and Scheduled Tribes
and in seeking to eradicate, in particular, two pernicious practices which largely affect
members of these communities: these relate to manual scavenging and bonded labour. In
respect of both of these matters, the Commission is coordinating its activities closely
with all concerned Governmental and Non-Governmental Organizations in an effort to end
these practices and to rehabilitate those who have been affected by them. In both cases,
too, the Commission has sought to involve the political leadership of the country, at the
highest level, in the tasks that remain to be accomplished. Thus, as recently as 14 August
2001, on the eve of the 55th anniversary of India’s Independence, the Chairperson of
the Commission wrote to the Prime Minister of India and the Chief Ministers of all States,
urging measures that should be taken to end the scourge of manual scavenging by 2 October
2002, the birth anniversary of Mahatma Gandhi. He
described this practice as a “national shame.”
12.
The Commission has also taken up the issue of the rights of persons displaced by mega
projects, specifically those affected by the construction of large dams, many of whom are
tribals. The efforts of the Commission in this respect are greatly facilitated by the
presence of the Chairperson of the National Commission for Scheduled Castes and Scheduled
Tribes, who is also an ex-officio Member of the National Human Rights Commission.
13.
In the final analysis, the Commission believes that the promotion and protection of the
human rights of the weakest sections of society are clearly related to their full and
proper empowerment. That is why the Commission has urged the adoption and implementation
of policies at the Central and State levels that will open the doors of opportunity to
them: free and compulsory primary education upto the age of 14 years, as the Constitution
requires; access to proper primary health care; freedom from malnutrition and maternal
anaemia, and the re-allocation of resources to back such programmes in a manner that has
true meaning. In addition, the Commission has continued to receive and redress numerous
individual complaints that it has received daily from persons who are included among the
Scheduled Castes and Scheduled Tribes; these have alleged acts of discrimination,
“untouchability”, violence against the human person, atrocities of various
kinds, and high-handedness by public servants and others.
14.
Economic upliftment and empowerment of Dalits is the most effective tool to combat
casteism. More avenues must be opened for the economic betterment of the disadvantaged.
Experience shows that economic upliftment and improvement in the status of Dalits
eliminates inequalities. It is the poor who remain vulnerable. The fight to eradicate
poverty must be intensified. National policies must be so formulated, and that is the
mandate in the Directive Principles in Part IV of the Constitution of India. The National
Human Rights Commission takes these factors into account in the discharge of its functions
and in making recommendations to Government for improving the quality of governance. The
Commission’s involvement in the areas of illiteracy, malnutrition and lack of
adequate health care, which afflicts the majority of Dalits, is to achieve this end.
15.
To conclude: The Commission is acutely aware that the journey to end
discrimination, injustice and inequality will be long and often frustrating. But it is
convinced that, in this mission, the Constitution of the Republic has shown the way.
Legislative and affirmative action programmes are firmly in place, but unquestionably need
to be far better implemented. The Commission is convinced that discrimination on any of
the grounds contained in the Constitution of India, and these include race, caste and
descent, constitute an unacceptable assault on the dignity and worth of the human person
and an egregious violation of human rights. Such discrimination must therefore be
eradicated, as must other forms of discrimination covered by United Nations treaties. The
Commission holds the view that the instruments of governance in our country, and the
energetic and committed non-governmental sector that exists, can unitedly triumph over the
historical injustices that have hurt the weakest sections of our country, particularly
Dalits and Scheduled Tribes. This is above
all a national responsibility and a moral imperative that can and must be honoured.
Declaration and Recommendations
adopted at the Colloquium on Population Policy –
Development and Human Rights held in New Delhi on 9-10 January 2003
Declaration
adopted at the Colloquium on Population Policy – Development and Human Rights, 9-10
January 2003, New Delhi
The Department of Family Welfare, Ministry of Health and Family Welfare; the
National Human Rights Commission and the United Nations Population Fund (UNFPA) jointly
organized a two-day Colloquium on Population Policy – Development and Human Rights,
on 9th and 10th of January 2003 at the India Habitat Centre, New
Delhi. The participants of the Colloquium
appreciated the efforts made by the State Governments / Union Territories and the Union
Government to frame and implement population policies, and, after having deliberated on
these population policies and the related human rights issues, agreed to:
Recognize
the importance of having a population policy framed by the Central and State Governments
to achieve population stabilization goals of the country.
Further
recognize that the population policies ought to be a part of the overall sustainable
development goals, which promote an enabling environment for attainment of human rights of
all concerned. Therefore, a rights-based
approach is imperative in the framing of the population policies. Further, it is important
that framing of such a policy and its implementation require a constant and effective
dialogue among diverse stakeholders and forging of partnerships involving all levels of
Government and civil society.
Appreciate
the efforts of the Government of India in framing the National Population Policy, 2000 of
India which affirms the commitment of the Government to its overriding objective of
economic and social development, improving the quality of lives of people through
education and economic empowerment, particularly of women, providing quality health care
services, thus enhancing their well being, and providing them with opportunities and
choices to become productive assets in society, as a necessary concomitant to population
stabilization and reduction in fertility rates.
Note
with concern that population policies framed by some State Governments reflect in certain
respects a coercive approach through use of incentives and disincentives, which in some
cases are violative of human rights. This is
not consistent with the spirit of the National Population Policy. The violation of human
rights affects, in particular the marginalized and vulnerable sections of society,
including women.
Note
further that the propagation of a two-child norm and coercion or manipulation of
individual fertility decisions through the use of incentives and disincentives violate the
principle of voluntary informed choice and the human rights of the people, particularly
the rights of the child. Similarly, the use
of contraceptive targets results in undue pressure being put by service providers on
clients.
Call
upon the Governments of States / UTs to exclude discriminatory / coercive measures from
the population policies that have been framed, or are proposed. States in which such measures do not form part of
the policy, but are nonetheless implemented, also need to exclude these discriminatory
measures.
Emphasize
that in a situation where the status of women is low and son preference is prevalent,
coercive measures further undermine the status of women and result in harmful practices
such as female foeticide and infanticide.
Affirm
that reproductive rights cannot be seen in isolation, as they are intrinsic to
women’s empowerment and empowerment of marginalized sections of society. Therefore, giving priority to health, education
and livelihood of women is essential for exercising these rights, as also for reduction in
fertility rates and stabilization of population.
Acknowledge
that reproductive rights set on the foundation of dignity and integrity of an individual
encompass several aspects such as:
· The right to informed
decision-making, free from fear of discrimination;
· The right to regular accessible,
affordable, good quality and reliable health care;
· The right to medical assistance
and counselling for the choice of birth control methods appropriate for the individual
couple;
· The right to sexual and
reproductive security, free from gender-based violence.
Emphasize
that capacity-building initiatives at all levels should mainstream rights-based
perspective into various programmes.
Further
emphasize that for a successful implementation of any programme for population
stabilization, a rights-based approach is far more effective than a coercive approach
based on disincentives.
Recognize
that monitoring the human rights impact of policies and their implementation by
governments is critical for ensuring that the policy processes conform to the rights
framework as enshrined in the Constitution of India, national laws and in international
human rights instruments.
Call
upon the Central and State Governments to ensure that domestic laws on the subject promote
proper exercise of reproductive rights, prevent harmful practices that derogate from a
proper exercise of such rights, and protect every individual’s right to a life with
dignity while aiming at population stabilization and ensure allocation of adequate
financial resources for the implementation of a population policy founded in human rights
and development.
Recommendations
adopted at the Colloquium on Population Policy – Development and Human Rights, 9-10
January 2003, New Delhi
·
State
specific population policies to be formulated keeping in view the conceptual framework of
NPP.
·
In
the light of the constitutional mandate, a right-based dialogue needs to inform the
population policy processes.
·
Policy
should enable equal opportunity environment.
·
Revisioning
population policy with a fundamental shift in the approach where people in general and
women in particular are not viewed as mere resources but as human agents with freedom of
choice and capability.
·
The
means adopted for population stabilization should ensure equity implications are not
violated.
·
Demystifying
the understanding of reproductive rights at the level of community, policy makers and
programme managers.
·
All
the population policies should be examined for ensuring protection and promotion of human
rights.
·
There
should be clarity and consistency in the population policy and legislative framework. e.g.
legal age of marriage.
·
Making
registration of marriages and births compulsory.
·
Population
can be stabilized by creating an enabling environment, supportive development,
inter-sectoral coordination.
·
Behavioural
changes not only for the community but also for those responsible for policymaking,
implementation and enforcement.
·
Women’s
empowerment is not to be treated as a means to population stabilization but as an end in
itself.
·
Involvement
of civil society and social group in policy formulation within a rights perspective.
·
Translating
human rights in programme realities is critical, for eg. access to quality heath care,
improving access to service and availability for information, transparent legal framework
will help in this process. An international
e.g. in Iran investment in health service has helped in quantum leap in health services
and population stabilization.
·
Engage
in meaningful dialogue with the state governments in an objective assessment of
disincentives in a human rights framework. Initiate
correctional steps for those coercive policies that are already in place.
·
The
two-child norm, which dis-empowers women both directly and indirectly, must be examined
critically since it is a violation of human rights.
·
Radical
changes in resource allocation for ensuring the rights of the under-privileged and
marginalized for equity and equal opportunity.
·
Policies
need to recognize that young people are sexually active and have reproductive health needs
as well as rights.
Policies need to be guided by human rights perspective bringing accountability in mainstream decision making.
STATEMENT OF NATIONAL HUMAN RIGHTS COMMISSION OF INDIA AND THE ASIA PACIFIC FORUM OF
NATIONAL HUMAN RIGHTS INSTITUTIONS TO THE 2nd SESSION OF THE AD HOC COMMITTEE ON A COMPREHENSIVE AND INTEGRAL INTERNATIONAL
CONVENTION ON PROTECTION AND PROMOTION OF THE RIGHTS AND DIGNITY OF PERSONS WITH
DISABILITIES
(Read
out by Shri Virendra Dayal, Member, National Human Rights Commission, India)
Mr
Chairman
Thank
you for giving me the floor.
I
speak to you today on behalf of the National Human Rights Commission of India and the Asia
Pacific Forum of National Human Rights Institutions.
In
April 2002 the United Nations High Commissioner for Human Rights stated that “it will
be of utmost importance that not only States but also National Human Rights Institutions
… are able to contribute their experience to the elaboration of the new
Convention” on the rights of persons with disabilities.
Mr
Chairman, national human rights institutions were therefore very pleased that this Ad Hoc
Committee decided to specifically extend an invitation to us to participate in your work.
National
human rights institutions play a crucial role in translating international human rights
norms and standards into practical action at the ground level, where of course it matters
most. National human rights institutions
believe, therefore, that they have much to contribute to this process of developing a new
Convention.
For
example, the National Human Rights Commission of India has undertaken a number of
significant investigations into violations against the rights of people with disabilities
– particularly with regard to the treatment of people with intellectual and
psychiatric disabilities – in India. Ms
Anuradha Mohit, our Commission’s Special Rapporteur on the rights of people with
disabilities, will be able to provide you with much more detailed information on our
activities during the course of this session. But
the experience of the Indian Commission working in this field strongly demonstrates the
need for the development of a Comprehensive and Integral International Convention on the
Protection and Promotion of the Rights of Persons with Disabilities. While existing international human rights
standards require that persons with disabilities should enjoy the same basic human rights
as all other human beings, in many respects, this is not the case and they are subjected
to widespread violations of their human rights. It
is the view of National Human Rights Commission of India that the development of a
specific Convention on the rights of peoples with disabilities is, therefore, long
overdue.
Mr
Chairman
I
am pleased to state that this view of the Indian Commission is also strongly held by the
12 national human rights institutions from Australia, Fiji, Indonesia, Malaysia, Mongolia,
Nepal, New Zealand, Philippines, Republic of Korea, Sri Lanka and Thailand that make up
the Asia Pacific Forum of National Human Rights Institutions. At the Seventh Annual Meeting of the Forum, which
was held in New Delhi, India, in November 2002, Forum members stated that a comprehensive
and integral convention was necessary to give “status, authority and visibility”
to disability issues and that this could not be achieved through the process of reform of
existing international instruments and monitoring mechanisms. Moreover, Forum member institutions believed that
a single comprehensive treaty would better enable the State Parties to understand their
obligations in clear terms. The elaboration
of a new treaty would thus complement existing international standards for the rights of
people with disabilities. Finally Forum
member institutions “agreed to respond
positively to the invitation of the United Nations Ad Hoc Committee to participate
independently in the development of the possible new convention” [1][1]
and, following a process of consultation with people with disabilities themselves, to make
available to this Ad Hoc Committee suggestions about elements that should be included in
the new Convention. Forum members therefore
requested that the Forum secretariat, in cooperation
with its member institutions, develop and advocate proposals for a possible new convention
for the consideration of the Ad Hoc Committee.[2][2]
Mr
Chairman
In
following up the decisions of Forum’s seventh annual meeting, the National Human
Rights Commission of India agreed to host an International Workshop on the Development of
the Proposed New International Convention from the 26th to 29th May
2003 in New Delhi, India. This international
workshop was organized in cooperation with the Asia Pacific Forum of National Human Rights
Institutions, the British Council and the United Nations Office of the High Commissioner
for Human Rights. 21 national human rights
institutions from both the Commonwealth and the Asia Pacific region, consisting of the
institutions from Afghanistan, Australia, Fiji, Ghana, India, Iran, Republic of Korea,
Malawi, Malaysia, Mauritius, Mongolia, Nepal, New Zealand, Nigeria, Northern Ireland,
Philippines, South Africa, Sri Lanka, Thailand and Uganda attended along with
representatives from governments, non-governmental organisations, international agencies
and experts working in the field of human rights and disability.
The
workshop held nine working sessions on issues such as the impact of national legislation
and administrative practice; the role of national human rights institutions in promoting
the rights of persons with disabilities; mainstreaming disability – the experiences
of United Nations Conventions (hard instruments) and existing (soft) instruments;
international monitoring mechanisms and complaints procedures; the nature and key elements
of the proposed new Convention and perceptions of national human rights institutions and
non-governmental organizations; and partnership strategies for action for the development
of the new Convention. Following detailed
discussions on each of these matters, the workshop adopted a set of preliminary
conclusions and recommendations for consideration of this Ad Hoc Committee.
I
understand that a copy of a comprehensive background paper and the concluding statement of
the workshop have been submitted to the Ad Hoc Committee.
I will, therefore, simply highlight the key conclusions. The participants:
I
would draw the attention of members of the Ad Hoc Committee to the full concluding
statement and, in particular, the series of specific recommendations it makes relating to
elements that should be included in the provisions of the proposed Convention
Mr
Chairman
One
of the primary objectives of a disability convention should be to transact a shift from an
approach based on welfare to one firmly grounded on human rights. The development of a comprehensive and integral
international convention provides an opportunity to demonstrate the indivisibility and
interdependence of rights on one hand, and on the other, the symbiotic interplay between
development and human rights. The development
of such a Convention would be a signal achievement of the early years of the 21st
Century – and it is an objective that all national human rights institutions look
forward to realising.
Thank
you.
Important
International Human Rights Treaties to which India is a Party
India
is now a party to sixteen international treaties drawn-up under the auspices of the United
Nations. These are the:
q International
Covenant on Economic, Social and Cultural Rights,
q International
Covenant on Civil and Political Rights
q International
Convention on the Elimination of All Forms of Racial Discrimination,
q International
Convention on the Suppression and Punishment of the Crime of Apartheid,
q International
Convention against Apartheid in Sports,
q Convention
on the Prevention and Punishment of the Crime of Genocide.
q Convention
on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against
Humanity,
q Convention
on the Rights of the Child,
q Convention
on the Elimination of All Forms of Discrimination against Women,
q Convention
on the Political Rights of Women
q Convention
on the Nationality of Married Women.
q Slavery
Convention of 1926
q 1953
Protocol amending the 1926 Convention
q Slavery
Convention of 1926 as amended
q Supplementary
Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices
Similar to Slavery, and the Convention for the Suppression of the Traffic in Person and of
the Exploitation of the Prostitution of Others.
PROMOTING THE RIGHTS OF PEOPLE WITH
DISABILITIES: TOWARDS A NEW UN CONVENTION
An
International Workshop for National Human Rights Institutions from the Commonwealth and
Asia Pacific Region
New
Delhi, India, 26 to 29 May 2003
1. National
Human Rights Institutions (NHRIs) from the Commonwealth
and
Asia Pacific region, consisting of NHRIs from Afghanistan, Australia, Fiji, Ghana, India,
Iran, Republic of Korea, Malawi, Malaysia, Mauritius, Mongolia, Nepal, New Zealand,
Nigeria, Northern Ireland, Philippines, South Africa, Sri Lanka, Thailand and Uganda, met
in New Delhi, India from 26th to 29th May 2003 to discuss a proposal
to develop a comprehensive and integral United Nations Convention to promote and protect
the rights of persons with disabilities.
2. The
workshop participants expressed their gratitude to the National Human Rights Commission of
India for hosting and organising the workshop in partnership with the Asia Pacific Forum
of National Human Rights Institutions, the British Council and the United Nations Office
of the High Commissioner for Human Rights and to the United Kingdom Foreign and
Commonwealth Office and the United Nations Office of the High Commissioner for Human
Rights for their financial support.
3. Participation
also included representatives from governments, non-governmental organisations,
international agencies and experts working in the field of human rights and disability.
4. Dr
Justice A.S. Anand, Chairperson of the National Human Rights Commission of India and the
Chairperson of the Asia Pacific Forum of National Human Rights Institutions, Dr Morna
Nance, Acting Director, British Council India and Mr Orest Nowosad, United Nations Office
of the High Commissioner for Human Rights, spoke at the inaugural session. In their statements the distinguished speakers
highlighted the important role of national human rights institutions in protecting and
promoting the human rights and dignity of persons with disabilities and in the possible
development of a proposed new United Nations Convention in this respect.
5. The
workshop held nine working sessions relating to various aspects of the rights of persons
with disabilities. It considered, inter alia,
country papers on the impact of national legislation and administrative practice; the role
of NHRIs in promoting the rights of persons with disabilities; “mainstreaming
disability” – experiences of UN Conventions (hard instruments); existing (soft)
UN instruments relevant to disability; international monitoring mechanisms and complaints
procedures; the nature and key elements of the proposed new Convention on disability
– perceptions of NHRIs and NGOs; and partnership strategies for action in the lead up
to the new UN Convention.
6. Following
detailed discussions on each of the above matters, the workshop adopts the following
preliminary conclusions and recommendations to the Ad Hoc Committee. These are without prejudice to the more detailed
positions that NHRIs may adopt, individually or jointly, as work on the new Convention
proceeds.
The
NHRIs present at the workshop from the Commonwealth and Asia Pacific region:
7. Welcome
the decision of the United Nations General Assembly to establish an Ad Hoc Committee to
consider proposals for a comprehensive and integral international convention to promote
and protect the rights and dignity of persons with disabilities (the Convention).
8. Welcome
the decision of the Ad Hoc Committee to specifically invite NHRIs to participate in their
work and agree to respond positively to the invitation and to make available suggestions
and proposals to be considered in the development of the proposed Convention.
9. Request
the United Nations and the Ad Hoc Committee to take the necessary measures to ensure the
participation of persons with disabilities in their activities and ensure the widest
possible participation of organisations of persons with disabilities.
10. Strongly affirm the
need for the development of a comprehensive and integral Convention.
11. Stress that the
Convention should be a ‘rights based’ instrument built on international human
rights norms and standards and social justice. It
should be informed by the overarching principle that all persons with disabilities,
without exception, are entitled to the full benefit and enjoyment of all fundamental human
rights and freedoms on the basis of equality, dignity and without discrimination.
12. Stress that the
situation of all disability groups and the diverse conditions related to gender, race,
colour, age, ethnicity and other considerations must be taken into account when
elaborating the Convention.
13. Propose that the
following elements should be included in the proposed Convention.
Preamble
14. The Preamble to the
Convention should:
Objectives
15. The objectives of the
Convention should:
Definitions
16. With regard to the
definition of ‘disability’ the Convention should:
17. With regard to the
definition of ‘discrimination’ the Convention should:
Scope
18. The Convention shall
apply both to public and private institutions and spheres.
State
Party Obligations
19. The Convention should
place a positive obligation on State Parties to take legislative, programmatic and policy
actions to achieve the Convention’s objectives.
20. The Convention should
recognise the responsibility of State Parties to ensure an enabling environment and a
barrier free society.
Specific
Articles
21. The full range of
civil, political, economic, social and cultural rights contained in existing international
human rights instruments should be incorporated in the Convention.
22. In addition to the
application of existing international human rights law, the Convention should contain
specific articles dealing with specialised areas and issues relating to civil, political,
economic, social and cultural rights that, by the very nature of the context of
disability, require codification, with due respect being paid to the principles of natural
justice.
Monitoring
23. The Convention should
have an effective monitoring mechanism, which includes the possibility of conducting
inquiries into systemic violations.
24. Any expert committee
established under the Convention should include persons with disabilities.
25. The Convention should
include national institutional frameworks to monitor and promote compliance with the
Convention, in which national human rights institutions can play a constructive role.
Appendix
– Additional Conclusions and Recommendations
The
workshop also made the following conclusions and recommendations to other bodies.
Recommendations
to National Human Rights Institutions
26. NHRIs should inform
their governments about the importance of developing a comprehensive and integral
Convention and recommend that they actively support its development.
27. NHRIs should raise
awareness within their respective societies about the importance of developing the
proposed Convention while, at the same time, ensuring the implementation of existing
international human rights standards relating to the rights of persons with disabilities.
28. NHRIs should consult
with persons with disabilities and relevant non-governmental organisations about the
development of the proposed Convention.
29. NHRIs should continue
to participate actively in the development of the proposed Convention.
30. NHRIs should establish
and strengthen a disability rights component in their work, including their complaint
handling procedures.
31. NHRIs should take the
necessary measures to ensure the participation of persons with disabilities in their
activities.
Recommendations
to the United Nations Office of the High Commissioner for Human Rights
32. The United Nations
Office of the High Commissioner for Human Rights is encouraged to continue to support to
the extent possible within available resources, including through technical cooperation
and advocacy, the effective participation of NHRIs and their regional associations in the
development of the proposed Convention.
33. The United Nations
Office of the High Commissioner for Human Rights is encouraged to support the work of
NHRIs in the protection and promotion of the rights of persons of disabilities at the
national level.
34. The United Nations
Office of the High Commissioner for Human Rights is encouraged to assist in the
establishment of a disability ‘focal points’ network amongst NHRIs and to
facilitate the establishment of a comprehensive and accessible website on issues relating
to disability.
35.
The
United Nations Office of the High Commissioner for Human Rights is encouraged to continue
to work with other partners, as exemplified by this workshop, in the promotion and
protection of the rights of persons with disabilities.
Recommendations
to the Asia Pacific Forum of National Human Rights Institutions
36. The Asia Pacific Forum
of National Human Rights Institutions should continue to provide support, as requested,
for the activities of its member institutions in the development of the proposed
Convention.
37. The Asia Pacific Forum
of National Human Rights Institutions should, on request, support the work of its member
institutions in the protection and promotion of the rights of persons of disabilities at
the national level.
38. The Asia Pacific Forum
of National Human Rights Institutions should continue to implement the decisions of its
members relating to the rights of persons with disabilities reached at its Seventh Annual
Meeting.
39. The Asia Pacific Forum
of National Human Rights Institutions should, in consultation with the United Nations
Office of the High Commissioner for Human Rights, seek to arrange for the circulation of
the paper prepared for the New Delhi workshop entitled “Promoting the Rights of
People with Disabilities: Towards a new UN Convention” as a conference paper of the
Ad Hoc Committee.
Recommendations
to the British Council
40. The British Council
should continue to support the effective participation of NHRIs in the development of the
proposed United Nations Convention.
41. The British Council is
encouraged to continue to work with other partners as exemplified by this workshop in the
promotion and protection of the rights of persons with disabilities.
Disclaimer: Neither NHRC nor NIC is responsible for any inadvertent error that may have crept in the Information being published on NET.
