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Concluding Statement at the International Workshop on Promoting the Rights of People with Disabilities: Towards a New UN Convention held at New Delhi 26-30 May 2003

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Commission’s Proceedings on Right to Food and Proceedings on Orissa Starvation Deaths 

 


 

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:

  1. Is there any need for the enactment of the above new law?
  2. If yes, then the kind of new law which needs to be enacted.

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 -

    1. by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes, or communities, or
    2. commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquility, or
    3. organizes any exercise, movement, drill or other similar activity intending that the participants in such activity shall use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, or participates in such activity to use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, against any religious, racial, language or regional group or caste or community and such activity for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional group or caste or community, shall be punished with imprisonment which may extend to three years, or with fine, or with both.

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,---

    1. makes or publishes any imputation that any class of persons cannot, by reason of their being members of any religious, racial, language or regional group or caste or community, bear true faith and allegiance to the Constitution of India as by law established or uphold the sovereignty and integrity of India, or
    2. asserts, counsels, advises, propagates or publishes that any class of persons shall, by reason of their being members of any religious, racial, language or regional group or caste or community, be denied or deprived of their rights as citizens of India, or
    3. makes or publishes any assertion, counsel, plea or appeal concerning the obligation of any class of persons, by reason of their being members of any religious, racial, language or regional group or caste or community, and such assertion, counsel, plea or appeal causes or is likely to cause disharmony or feelings of enmity or hatred or ill-will between such members and other persons, shall be punished with imprisonment which may extend to three years, or with fine, or with both.

(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.

 

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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

 

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        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.

 

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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.

 

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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.

 

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            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)

 

NEW YORK, 18  JUNE 2003

 

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.

 

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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

 

 

Introduction

 

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.

 

Conclusions and Recommendations to the Ad Hoc Committee adopted by the New Delhi Workshop

 

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.

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