Srinagar: “It is hard to take someone seriously if they won’t even grace you with a response.”
That was United Nations (UN) Special Rapporteur on Human Rights Defenders, Mary Lawlor, to Article 14 during an interview, conducted over email, referring to the government of India’s lack of response to communications sent by Office of the United Nations High Commissioner for Human Rights (OHCHR).
Lawlor, 70, said India’s response rate to the OHCHR was only 37.5% since she took over as the Special Rapporteur in May 2020, with a response to 10 of 16 communications, seeking the government’s response on issues related to threats and police action against human-rights defenders.
The most recent OHCHR communication with the government of Prime Minister Narendra Modi was on 26 April 2021, about the threats against and attack on a Tamil Nadu human rights defender with disabilities, Ramachandran (who appears to use one name).
Lawlor also referred to the law used (here, here, here and here) against many human-rights defenders, the Unlawful Activities Prevention Act, 1967, and how its vague definitions of “unlawful activities” and “membership of terrorist organisations” gives discretionary powers to State agencies and allows “arbitrary enforcement with weak judicial oversight”.
“As a result,” said Lawlor, “those critical of Government policy, such as human-rights defenders, have been disproportionately targeted under its provisions”.
Lawlor, said though the conviction rate for those charged under the UAPA was “incredibly low” (3 %), it allows for human rights defenders to be held without bail for extended periods of time with little proof.
“Women human rights defenders Devangana Kalita and Natasha Narwal were arrested in May 2020 and placed in pre-trial detention under the UAPA,” said Lawlor. “They were held for a year before a judge ruled that the allegations against them did not meet an offence under the Act. Even still, when bail was eventually granted last June, police waited two days before releasing them.”
Lawlor, currently an adjunct professor of business and human rights at Ireland's Trinity College in Dublin, became a UN Special Rapporteur on 1 May 2020, following a United Nations Human Rights Council decision.
She had previously worked extensively with and on the situation of human-rights defenders. In 2001, Lawlor founded Front Line Defenders, an international foundation for the protection of human-rights defenders at risk. It operates on five continents and has won several global recognition (here and here) for its work. As executive director from 2001-2016, Lawlor represented Front Line Defenders and played a key role in its development. Edited excerpts from the interview:
A series of reports (here, here, here and here) from around the world have warned that Indian democracy has been eviscerated and that the country is sliding towards a totalitarian state. Do you share these concerns?
I have a specific mandate to promote and protect the work of human rights defenders [HRDs], so I can’t speak for the situation of democracy in India in general. Though I am very concerned that human rights defenders have been criminalised for statements that are critical of the Government in the field of human rights. Everyone knows that free speech is essential to democracy, and the full enjoyment of the rights of all.
In 2020, you spoke of the difference between a terrorist and a human rights defender and how peacefully defending the rights of others is not a crime. India, you said, “must stop criminalising the exercise and defence of human rights”. In 2021, you said India did not protect human rights defenders and said you were “appalled” by how those like Jesuit priest Stan Swamy had been treated. As we enter 2022, do you see any improvement or hope?
We must never give up hope. It is tempting to give up or to give in, but we must never despair, even when we are hit by great loss like the death of Father Stan Swamy.
This year I will continue to engage with the Indian authorities whenever I am made aware of HRDs at risk there.
My report to the UN Human rights Council this March  will be on human rights defenders working to stamp out corruption. But last October India didn’t reply when I expressed my concern to the government about police attacking journalists who had allegedly caught them eliciting bribes from truck drivers. I want to work with India. When anti-corruption Human Rights Defenders can do their work we all benefit.
In your communications to the government of India, you have often raised concerns not only about human-rights defenders but about the growing misuse of preventive detention and other laws, such as the Unlawful Activities Prevention Act (UAPA), 1967, against dissenters? How has the government of Prime Minister Narendra Modi responded to these concerns?
You can find all communications and responses at https://spcommreports.ohchr.org/.
You’ll notice that the government has only responded to 10 communications of the 16 I have written or joined since taking up this mandate in May 2020. That’s a response rate of only 37.5%. It is hard to take someone seriously if they won’t even grace you with a response.
As a special United Nations Rapporteur, you have frequently expressed your concern (here, here and here) on various issues related to human rights in India and elsewhere through statements and letters to the government. I have two related questions: how do other countries respond when you write about such concerns; and does the lack of response from India frustrate you?
Some countries respond all the time, some never respond, and others respond some of the time. Some countries reply but their letter gives no new information or accepts no responsibility for the alleged human rights violations.
Response rates can be an indicator of the state's commitment to openness and dialogue with my mandate. In this sense, India is not doing well, and I reiterate my willingness to work with them. But lack of response does not necessarily mean that States aren’t listening, and it is important to not let lack of responses discourage us from continuing to advocate for the rights of HRDs.
The police and the National Investigative Agency in November 2021 arrested prominent Kashmiri human rights defender Khurram Parvez, who has worked on human rights issues in Kashmir with the UN, whose independent human-rights experts, including yourself, called for his “immediate release”. Was there any response, and what is it that you or the UN do when the government does not respond, whether in the case of Parvez or anyone else?
In this case I have not sent an official letter to the government, so they are not obliged to respond directly, though I will continue to engage on Khurram Parvez’s case and publicly call for his release.
And when any government does not respond to a communication, I will publicly call them out for it. And at the beginning of every year, a report is produced that looks at government responses to communications in the previous year.
The OHCHR makes communications confidential for 60 days, to give the government time to respond to the allegations. They should respect this accommodation and engage in dialogue, so we can work together to prevent the erosion of human rights.
Can you comment on how India has historically responded to human rights concerns raised by UN Special Rapporteurs? What has been the trend under the current government and was it any different with the previous government?
I can only comment on what has happened since I took up the mandate in May 2020, and with a global mandate it is difficult to track trends over long periods of time in all countries. Luckily, all communications and replies are publicly available, and this would be an interesting study for someone to conduct, and which I would be very interested in reading.
A number of peace activists, students and other dissenters who took part in the protest against the controversial Citizenship Amendment Act, 2019, are in jail facing a variety of criminal charges, including terrorism. The Indian government says the protestors instigated riots in New Delhi in 2020. Have you taken up their case with the government, and, if yes, what has been the response?
Other UN experts and I have raised repeated concerns with the government of India about the Citizenship Amendment Act, and the retaliation against human rights defenders who rally peacefully against it. In June 2020, I wrote a communication to the Government about 11 HRDs who were facing judicial proceedings linked to their peaceful participation in anti-CAA protests, including pregnant woman human rights defender Safoora Zargar. Unfortunately, the Government’s response is brief and repeats the claim that the HRDs were engaged in incitement or execution of violent acts.
There has lately been a flood of hate speech by Hindu extremists against Muslims and Christians, including recent calls to arms against Muslims. Many have described such calls (here and here) as a precursor to genocide, citing the examples of the former Yugoslavia, Rwanda and Nazi Germany. Do you see any parallels?
This is one of the areas outside the remit of my mandate on human rights defenders.
There is an obvious dichotomy, many say, about the government’s reluctance to act against Hindu extremists calling for genocide and the alacrity with which protestors and peace activists have faced criminal cases and lengthy jail terms under the UAPA, which of course makes bail almost impossible. Would you agree that the government has been adopting a partisan approach?
The UAPA’s vague definition of ‘unlawful activities’ and ‘membership of terrorist organisations’ gives discretionary powers to State agencies, and would facilitate its arbitrary enforcement with weak judicial oversight. As a result, those critical of government policy, such as HRDs, have been disproportionately targeted under its provisions.
Though the conviction rate for those charged under the UAPA is incredibly low, it allows for human rights defenders to be held without bail for extended periods of time with little proof. Women human rRights defenders Devangana Kalita and Natasha Narwal were arrested in May 2020 and placed in pre-trial detention under the UAPA. They were held for a year before a judge ruled that the allegations against them did not meet an offence under the Act. Even still, when bail was eventually granted last June, police waited two days before releasing them.
You have closely monitored the situation of Jammu and Kashmir (J&K), which was stripped of its special constitutional status in 2019, after which there has been a gradual erosion in free speech and democracy (here, here and here) In 2021 alone, the UN High Commissioner for Human Rights (OHCHR) have issued five joint communiqués to the government of India on UAPA, freedom of expression and arbitrary administrative changes. What now?
My role is confined to advising governments on the situation of HRDs, not on the status of regions. Though of course, HRDs from minority groups are often at more risk of retaliation for their human rights work. They can be targeted for their religion, ethnicity, sexual orientation or gender identity, or other characteristic and as part of my mandate, I prioritise those HRDs who find themselves in the most vulnerable situations.
Over the past few years, civilians in J&K have accused police of killing their kin in fake or contested encounters and even using them as human shields, with soldiers and police almost never facing prosecution. What would you expect the government of India to do, ideally?
I am only concerned with cases involving HRDs, but wherever HRDs are being attacked, it is the government’s responsibility to conduct a full, impartial investigation into the incidents with a view to bringing the perpetrators to account. One of the main reasons why we see the same violations happening again and again is because of government failure to properly investigate. Impunity for violations fuels their proliferation. A number of civil society organisations released the Esperanza Protocol last December, providing practical guidance on how to end the cycle of impunity, which I fully support.
Following the revocation of J&K’s limited autonomy, several changes were made in the former state. Over the last two years, the Jammu and Kashmir State Human Rights Commission, the local human rights body, has ceased to exist. This week, even the Press Club of Kashmir was shut down. How does this situation affect the reporting of human rights and your monitoring?
These are disturbing developments, which will have serious impacts to HRDs seeking protection and redress for human rights violations domestically. However it does not, and will not, stop information on violations against HRDs from reaching my office. HRDs learn to adapt even in the face of great adversity, and they will find ways to continue their vital work with the UN, and, after sustained collective efforts, realise their hopes for a better future.
Democratic decline, of course, is not unique to India. We’ve seen the same occur, in varying degrees, in Turkey, Hungary, Russia, Poland, Brazil and numerous other countries that were, partially or wholly, democracies. To what do you attribute the erosion of the values of freedom and democracy?
This is also outside the remit of my mandate.
(Muhammad Raafi is an independent journalist based in Srinagar.)