India Under a Draconian Shadow

by Chaitanya M. Hegde

While the world is busy fighting COVID-19,  India, a democratic and secular state consisting of different religions, is busy silencing the media and dissent.  The use of anti-terror laws to discriminate against Muslims has long been a problem in India, and more recently these laws have begun to be used against journalists too.

In the disputed land of Kashmir, invoking such stringent laws speaks to the silencing of the media, controlling the narrative and containing what is occurring in the region. Since the abrogation of Article 370, the world has been disconnected from Kashmir.  For example, telephone and internet services have separated the people of the valley and very few media outlets have been allowed to publish news in this region.  Journalists were being intimidated from publishing news against the government. The International Press Institute highly criticized India’s Hindu Nationalist government for the restrictions placed on journalists’ news coverage in this region post-abrogation of Article 370.

In a sudden turn of events, the government has taken a step further and Masrat Zehra, Peerzada Ashiq and Gowhar Geelani, have been arrested under the controversial, anti-terror, ‘Unlawful Activities (Prevention) Act’ (UAPA).  Originally enacted in 1967, the law has been censured for its recent 2019 amendments, which allows the central government to declare individuals as ‘terrorists’.   Masrat and Geelani were booked under the UAPA for social media posts which were deemed “anti-national” and Peerzada was booked for a news item that was eventually proven to be inaccurate. The way these arrests occurred shows how the government in India has cunningly made use of such a draconian law in such unstable times.

Peerzada Ashiq (L), Gowhar Geelani (C), and Masrat Zahra (R) | Photo: Twitter

While there are journalists like Arnab Goswami, who have been accused for their bigoted views and inciting hatred, it is journalists covering news in sensitive areas who are being arrested under the Terrorism Act.  Facing intimidation and harassment is nothing new for journalists in Kashmir.  Since the 1990s, they have been facing the wrath of both state bodies and non-state bodies (e.g. militants) for covering delicate issues in this region.  This pattern of intimidation has intensified lately.  Many have been humiliated, summoned by the police and interrogated exhaustively, and sometimes forced to give out their sources.   However, they are also now being charged for terrorist activities.

The surprising invocation of the UAPA against these journalists is problematic.  This action is clearly against freedom of speech as envisioned in Article 19 of the United Nations Human Rights Declaration of 1948, which guarantees the right to seek, receive, and impart information.  Threats to this principle of international law have emerged in recent times.  Though technology affords global communication, governments have challenged the very concept of press freedom, by avowing that it is not a universally accepted right, but rather needs to be adjusted to a nation’s needs and circumstances.

Section 15 of the UAPA  defines a terrorist act as one with “intent to threaten or is likely to threaten the unity, security, or sovereignty of India…”  The ambiguous wording of ‘security’ and ‘threaten’ has permitted the current administration wide scope to interpret this for their benefit and suppress other voices in this region.  This has resulted in journalists being booked as terrorists and punished under Section 13 of UAPA.   Although the Apex court of India has noted that vague provisions should be struck down from faulty legislation, the misuse of such provisions has continued.   Another astonishing part of this act is that any person can be confined for a maximum period of one year without a trial.   When looked at together, the fundamental notions of liberty and human rights are disregarded, as anybody could be labelled a terrorist without being granted a trial.

However, this power of free speech can be restricted under certain grounds such as the defense of national security, or to protect the reputation and rights of others.  Yet, one needs to question whether the acts of these journalists calls for usage of the UAPA.  Any usage of such laws for merely publishing news or pictures in the mainstream or social media is unwarranted.  The preamble of the UAPA mentions that the intent of this act is to ensure action is taken against terrorist activities and terror organizations.  The actions of these individuals do not come close to this.

The Editors Guild of India released a statement on April 21^st condemning the arrests of these journalists.  Free, autonomous and pluralistic media based on freedom of information and expression is an essential component of any working democracy.  Freedom of the media is in fact necessary for the assurance of all other human rights. Occasions of torment, segregation, debasement or abuse have commonly become visible due to insightful journalists.  Making the realities known to the general public is one of the fundamental tools to address human rights infringements and begin to hold governments responsible.  George Orwell observes, “If liberty means anything at all, it means the right to tell people what they do not want to hear.”   The UAPA might aim at taking action against terrorism, but by restricting such fundamental freedoms, it is doing more harm than good.

 

ABOUT THE AUTHOR

Chaitanya M. Hegde is a 2nd year undergraduate student student pursuing a BA LLB at Gujarat National Law University (GNLU), Gandhinagar.

 

International Human Rights News: Weekly Roundup

by Pauline Canham and Lauren Ng

COVID-19 Update – Stories from around the world…

Contact-tracing apps challenge the right to privacy

Countries, like the UK, looking to introduce a track-and-trace app to tackle the spread of coronavirus, would do well to learn the lessons from already-introduced schemes.  There is widespread concern about rights to privacy, freedom of movement and a slide towards totalitarian-style surveillance becoming a permanent fixture.  The Gulf state of Qatar has now introduced a contact-tracing app called EHTERAZ, which, since last Friday, is compulsory to download and use when leaving home.  Those not doing so face a fine of $55,000 or up to 3 years in prison.  Unfortunately, the security vulnerabilities of the app were not ironed out before its release, exposing those who had downloaded it to being easily hacked for extremely sensitive personal data such as name, health status and exact GPS location.  Amnesty International alerted Qatari authorities and have been assured that the issues were dealt with immediately and security fixes released within 24 hours.  Claudio Guarnieri, Head of Amnesty International’s Security Lab, said:  “If technology is to play an effective role in tackling the virus, people need to have confidence that contact-tracing apps will protect their privacy and other human rights.”

 

Community transmission underway in Cox’s Bazaar refugee camps

15,000 Rohingya have been quarantined in one area of the huge refugee camps of Cox’s Bazaar, Bangladesh.  Despite strict limitations on movement which have delayed the onset of the virus, it is now beginning to spread, prompting concern from Chief Health official, Mahbubur Rahman. “We are very worried because the Rohingya camps are very densely populated. We suspect community transmission (of the virus) has already begun,”   Overcrowding makes social distancing impossible and there is a lack of awareness of the virus, because the refugees are not permitted access to information, which adds to the difficulties of preventing the spread of infection.  Another concern is the impact on women of lockdown, with gender-based violence on the increase.

 

The humanitarian implications of COVID-19 in Yemen

With humanitarian aid reduced, funding pledges not being met and hospitals hit by air strikes, the victims of the war on Yemen, especially those living in displacement camps are at increased risk of contracting COVID-19.  Epidemiologists have estimated that coronavirus could infect 55 percent of Yemen’s population, some 16 million people.   Yemen’s health service was already collapsing under the weight of 5 years of intense war, famine, lack of fuel and overwhelming disease such as the annual cholera epidemic.  The UN Office for the Co-ordination of Humanitarian Affairs (OCHA) reports that that people are being “turned away due to a lack of oxygen, they do not have enough Personal Protective Equipment (PPE)”.  In a statement on May 14, Save the Children said nearly 400 people in Aden were reported to have died of coronavirus-like symptoms in just one week.

 

COVID-19 Protestors attacked by police in Ecuador

Protestors were beaten with clubs by police in Ecuador as they peacefully protested against the government’s handling of the coronavirus pandemic.  40 protestors were met with force by 15 police, with several protestors being injured, journalists attacked and 4 human rights advocates detained, though they were released the following day after a judicial hearing found them not guilty of any crime.

 

Human Rights part of COVID-19 planning in East Africa

Africa Day was marked this week on 25th May, under the theme ‘Silencing the Guns in the context of COVID-19’, to commemorate the founding of forerunner to the African Union, the Organisation of African Unity in 1963, in Addis Ababa.  In that same city, UN workers are fighting to keep human rights front and central of the plans to tackle coronavirus.   Ensuring healthcare access, while protecting against discrimination is vital, and the office has also organised webinars to support human rights defenders, particularly women’s rights campaigners.  The other important element of their work is to monitor violations and limitations of rights, brought about through exceptional policies during a state of emergency, such as freedom of movement, freedom of speech and association and the right to education and health. Nwanneakolam Vwede-Obahor, Head of the UN Human Rights East Africa Regional Office said the pandemic had “exacerbated all of the issues we had pointed out before it began, such as poverty, the lack of access to quality education and the lack of access to health services.”

 

Other stories in focus…

International Criminal Court’s investigations into the situation in Palestine

Earlier this week, Mike Pompeo, the US Secretary of State, released a statement condemning the International Criminal Court’s (ICC) pursuit on the war crimes committed on Palestinian territory.  Pompeo threatened that the US administration will “exact consequences” if the ICC continues with its investigations.

The ICC judges have yet to confirm their decision as to whether it maintains jurisdiction in Palestine.  Both Israeli and Palestinian authorities have failed to adequately investigate the crimes committed throughout the conflict.  It has been argued that should the ICC be permitted to carry out an impartial examination of these crimes, it would allow measures of accountability to be upheld, ensuring victims are given appropriate recourse to the rights and dignity they deserve.

 

Spotlight on Biodiversity Day 2020

In the midst of the Covid-19 pandemic, the link between health and its interaction within the global ecological system has been highlighted, reminding us of the importance in conserving sustainable resources.

May 22 is recognised as International Day for Biological Diversity. Released on this day, State of The World’s Forests report underscored that nearly 420 million hectares of forests have been lost due to ongoing land expansion, contributing to the destruction of biodiversity.  This deforestation has predominantly been attributed to large-scale agriculture expansion carried out by commercial entities, namely cattle ranching, soy bean cultivation and palm oil.

 

 

Other stories making the news around the world

International

• Can Covid-19 Help Ease the Climate Crisis? (Human Rights Watch)
• COVID-19: New women-led UN initiative aims to save lives and protect livelihoods (UN News)

 

Africa

• Rwanda genocide: How Félicien Kabuga evaded capture for 26 years (BBC)
• Somalia looks to first full elections in 51 years, despite COVID-19 crisis (UN News)
• Victims of intercommunal violence in South Sudan deserve ‘justice, truth and reparations’: Bachelet (UN News)

 

Middle East

• UN welcomes three-day ceasefire announcement by Afghan government and Taliban during Eid al-Fitr (UN News)
• Coronavirus: Sleepless nights for doctors in a war zone (The Guardian)

 

Asia

• Hong Kong: Beijing Threatens Draconian Security Law (Human Rights Watch)
• Japan lifts coronavirus emergency in all remaining areas (ABC News)
• Doctor who raised concerns over PPE shortage admitted to mental hospital (BBC)
• Myanmar: Imagery Shows 200 Buildings Burned (Human Rights Watch)

 

Europe

• Marie Cau: First transgender mayor elected in France (BBC)
• Malta: Disembark Rescued People (Human Rights Watch)
• Has coronavirus changed the UK justice system forever? (The Guardian)

 

South America

• In pictures: Indigenous nurse on frontline in virus fight (BBC)
• Venezuela: Urgent Aid Needed to Combat Covid-19 (Human Rights Watch)

 

North America

• Trans Mountain pipeline: Protest ban is ‘great time’ to build, says minister (BBC)
• Investigators Say One Man Shot Ahmaud Arbery. Why Are Three Charged With Murder? (New York Times)
• Why Native Americans took Covid-19 seriously: ‘It’s our reality’ (The Guardian)

 

The Human Cost of Clinical Trials in India

By Oshin Malpani on 26 of May 2020

The ever-growing demand for new drugs to ward off continuously evolving strains of diseases like AIDS and hepatitis makes clinical trials indispensable for ensuring present as well the future public well-being and more so in the current fight against the COVID-19 pandemic. However, out of thousands of newly discovered drug molecules, only a few hold the potential to be turned into viable drugs. Every molecule goes through a variety of tests, one of them being test of its toxicity and effectiveness on humans; for this, clinical trials are performed on human ‘subjects’ or participants. Multinational pharmaceutical and research companies across the world take up such biomedical trials to develop new drugs.

Due to such increased demand, the pharmaceutical industry is pushing for conducting more and more clinical trials. This requires a large and diverse set of volunteers. However, aware participants, stricter regulations and costly research makes it harder for them to enrol volunteers in large numbers in developed countries as compared to their developing or underdeveloped counterparts. Therefore, researchers from the wealthy, developed countries off-shore stages of their research to developing countries like India. According to the Drugs Controller General of India (DCGI), 72% of all the registered clinical trials being conducted in India are carried out by the pharmaceutical industry. Due to its significantly low costs, developed medical infrastructure, trained, English-speaking man power and a diverse, treatment-naive (untreated) population with most of the genetic varieties of the human race, makes India an attractive research hotspot.

Ethics and Clinical Trials – The Human Cost involved 

“…human beings have inalienable rights that supersede all other considerations that may be raised in the name either of science or of the general public welfare” (Topping, 1952).

There is an inextricable relation between health and human rights as, the manner in which a state accords rights to its citizens manifests in its health policies, programs, practices and their inclusionary or exclusionary nature, directly impacting public health. Further, violations of basic human rights have health impacts too, binding the protection of human rights and health in a dynamic relationship. Further, building upon Martha Nussbaum’s work on ethics, rights and capabilities, while human rights and capabilities are connected as violation of human rights inevitably leads to hampering of capabilities, their relationship should not be allowed to be proportional in availability; meaning that a group/section with weaker capabilities should not be seen as deserving only weaker, second class human rights than capable, privileged groups, enjoying first-class human rights.

Legally, the ethical treatment principles of “respect, beneficence and justice” for human subjects in biological trials, enumerated in the Nuremberg Code (concerning prevention of unethical “experimentations on human beings” like the ones conducted during the Nazi reign), the Belmont Report (concerning ethics in biological research) and guidelines issued by CIOMS (Council for International Organizations of Medical Sciences). These values recognize the fragility as well as the supremacy of human rights in clinical trials. They emphasise the requirement of a meditated, voluntary consent (without any coercion or pressure) complimented with the researcher’s personal liability to ensure the same – both in the developed and the developing countries. Thus, heath violations during clinical trials become human rights violations.

Sadly, history is rife with unethical and illegal practices being carried out in seemingly legal trials in under-developed and developing countries leading to loss of health and life ( example- Hepatitis E vaccine trial in Nepal, Nevirapine PMTCT trials in Uganda, Letrozole Streptokinase and Cilostazol trials in India, Fortified ORS trials in Peru and Trovafloxacin trials in Nigeria).

In India, majority of the research participants are constituted by the poor, weak, illiterate or marginalized literates; the vulnerable who cannot afford costly treatments of chronic diseases and are there for free medical treatment, nutritious food/dietary supplements and monetary incentives provided for participating in the trails. Due to the widespread illiteracy and unawareness among this group, it remains quite questionable if they understand the terms and conditions and the risks & the benefits associated with the trials due to their limited knowledge about the concept of clinical trials and lack of prior experience. Obtaining meaningful and informed consent to make sure that the participants understand everything about the trial then becomes complicated and tedious in such scenarios. The same is confirmed by multiple instances of deaths caused by unethical research being carried upon groups incapable of giving free consent – children, mentally challenged people and illiterates like tribals and low-castes Dalits. The unprivileged composition of trial participants lack access to adequate healthcare and medicines to counter trial-related complications, which affects their inalienable, fundamental health rights and health equity (ameliorating discrimination and its effects with regards to health), outrightly violating not only the basic constitutional values but also the values contained in the Constitution of the World Health Organization, Article 25 of the United Nations’ 1948 Universal Declaration of Human Rights and Article 12 of the 1966 International Covenant on Economic, Social and Cultural Rights.

Further, the involvement of off-shoring and foreign companies, lack of public evidence, high costs of litigation, and cultural-logistical issues in these trials make it difficult for participants to hold them liable in event of loss of health due to negligent trials. Further, the researching countries often differ vastly from the language and culture from the host country. This requires that the trials be localized as per the host country entailing translation of the consent forms, the term and conditions containing the dos and don’ts and the risks involved with the trial in the language privy to them.

The consequences of unlocalized trials or inaccurate translations can be very serious.

Firstly, it costs the comprehension on the part of the participant due to which, they fail to understand the risks and the side effects of the trial and don’t act as prescribed before and after medical intervention. It is further intensified by the poor readability of consent forms and a hard writing style, filled with technical terms, difficult grammar and the tendency of the researchers to hammer out every detail legally and factually so that later on, no loopholes can be found in such consent forms to hold them in a vulnerable position. In India, informed consent also suffers when doctors ask their patients to sign up for such trials as the pharmaceutical companies offer them incentives and perks for encouraging their patients to do so, leading to a serious conflict of interests, detrimental to the well-being of the patients.

This can lead to a disparity in the administration of the drug during the trial. Further, the likelihood of follow-ups and treatment of the side effects or underlying conditions reduces significantly as the participant fails to connect such side effects with these trials. It can even lead to serious health impairments and participant fatality in the worst of cases. All this affects the participant physically, emotionally as well as financially. In some cases, even if the participant goes for the treatment of these side effects, he/she ends up spending more money to recover their deteriorating health than he/she had originally received from participating in the trial. 

Secondly, it may lead to wrongful interpretations and conclusions on the part of the researcher, impairing the validity of the trial. Many such foreign companies often carry out these trials improperly and in a sub-par manner due to limitation of money and resources and our weak laws allow them to do so. The policies regarding the matter are very lenient as there is a lack of specific legislations and laws relating to biomedical ethics. This helps the companies escape the difficulty they face in the west of recruiting volunteers from a limited population base, high costs and strict bureaucratic regulations and legal accountability.

Another problem is that Indian government is aggressively promoting such trials to be conducted in India for getting inflows of foreign investments without first properly setting up policy frameworks and mechanisms to inspect such trial sites; audit clinical trial data and regulate them in the public interest, whenever required.

The trials conducted on human beings are held to be fair by the whole world in name of ‘beneficial research,’ but there is an inherent cost that India bears. It is the human cost; the one which the poor, weak and the vulnerable population of India bears. It is reasonable to say that while these trials cannot be stopped altogether, they can at least be regulated. The rampant, unregulated conduct of trials can be regulated effectively through a decent, ethical and moral framework of laws and regulations. The terms of the trials must be simplified and be clearly explained to the participants and special care should be taken in cases of the old, poor and illiterate; comprehension and informed consents should be a continuous process rather than a single event.

Time for a Rights-Based Welfare State

by Rossella De Falco

Towards a more resilient economy after the COVID-19 global pandemic

The UN Special Rapporteur on extreme poverty and human rights has recently blamed austerity for weakening the resilience of societies in the face of shocks like the COVID-19 pandemic. The newly appointed Olivier De Schutter underlines how individuals are experiencing increased barriers in accessing healthcare as a result of regressive fiscal policies.   Indeed, even relatively robust healthcare systems, such as those of Italy and Spain, have been pushed to the brink after years of budget cuts.

De Schutter’s predecessor, Philip Alston, also denounced spiralling levels of hardship and material deprivation in the UK in the aftermath of the 2008’s global financial crisis. During his country visit, Alston depicted the lives of individuals depending on food banks and charities for their next meals, disabled people who were being told to go back to work against their doctors’ orders, as well as children growing up in poverty. Notwithstanding such appalling evidence, George Osborne, the main architect of fiscal retrenchment in the UK, is already calling for another period of belt-tightening to deal with the fiscal damage wrought by the coronavirus lock-down. However, is cutting social spending the only fiscal option available to governments at times of economic crisis?

The answer is no. Restructuring sovereign debt can, and must, be achieved in line with international human rights law. Technically, what is usually labelled as austerity is a pro-cyclical fiscal measure, which means reducing a state’s deficit by either raising revenues (increasing taxes) or decreasing spending (cutting public budgets) during a negative fluctuation in the business cycle. This explains the term pro-cyclical: as GDP growth turns negative, pro-cyclical politicians depress the economy even further by cutting the debt maturated during periods of prosperity.

Typical austerity measures implemented by governments around the world have encompassed eliminating subsidies on fuel, food or agriculture, rationalizing and narrow-targeting social safety nets, large-scale privatisation, tax increases on basic goods and services purchased by low or middle-income groups (instead of wealth and capital) as well as labour, healthcare and pension reforms. An exceptionally bleak example of these measures was Greece. The Southern European nation accepted the Troika’s international bailout programme, whose economic conditionalities included draconian budget cuts, with concerning implications for the rights to health, social security and work. As a result, Greece faced a public health emergency, with malaria outbreaks, peaks in suicides and mood disorders, an HIV epidemic, widened health inequalities and a severe deterioration in the underlying determinants of physical and mental health.

While implemented at immense human cost, austerity did not even achieve its aims. Nobel-winning economists such as Joseph Stiglitz and Paul Krugman had tried to stop governments from applying austerity, calling it an “utter disaster”, a “suicide pact” and “a delusion”. Indeed, the International Labour Organization (ILO) calculated that spending cuts at times of crisis, far from stabilising the economy, generated more unemployment and depressed output in the long-term. Even the main supporter of austerity, the International Monetary Fund (IMF), recognized that fiscal consolidation was associated with lower growth than expected, due to an overestimation of fiscal multipliers, with the IMF’s former director, Christine Lagarde, declaring that the Fund misjudged the capacity of societies worldwide to absorb such ‘tough, frontal treatments’. Hence, the enactment of austerity worldwide after the 2008’s recession remains a conundrum. However, many suggest that austerity policies were nothing more than a by-product of neoliberal economic thinking, embodying a deliberate assault on universalism that prioritise free-markets over human rights. This is bewildering, as the crisis precisely resulted from the long-term shortcomings of unregulated financial markets, including mismanagement, corruption, as well as lack of transparency and accountability.

A rights-based approach to economic recovery can prevent another global backsliding in human rights, saving lives and placing people at the centre. Instead of austerity, governments can apply stimulus, embracing a counter-cyclical approach to fiscal policy. This has already happened, and it worked, in Iceland. According to The Economist, Iceland’s banking collapse was the hugest, relative to the size of an economy, that any country had ever suffered. Indeed, Iceland was particularly vulnerable to financial shocks after it reinvented itself as an offshore tax heaven for the world’s ultra-rich in the mid-1990s. Thus, Iceland considered IMF’s offer to apply an international bailout programme, absorbing private debt and cutting social spending. However, this galvanised public outrage and prompted several riots. As a result, in March 2010, a country-wide referendum was held, and Icelanders said “Nei!” – no in Icelandic – to austerity.

After rejecting the bailout, Iceland implemented a modern-day equivalent of the New Deal, boosting labour market programmes. This allowed the unemployed to get back to work and generate new income, which, in turn, stimulated aggregate demand. In the meanwhile, social spending rose from 21% to 25% of GDP over 2007-9, preserving pensions, social safety nets and universal healthcare. To shelter the most vulnerable groups, the Icelandic government also implemented debt relief programmes. As a result, the country achieved swift economic recovery and kept its position among the happiest nations in the world. None of the nightmares predicted by the staunchest austerity hawks came true. Bearing this lesson in mind, we can now turn to the upcoming crisis, with its own peculiarities.

Luckily, many in current global policy-making circles are supporting government intervention and spending to fight the virus slump. A rights-based approach to fiscal policy, matured after a long normative evolution, can now be brought to fruition. In addition to fiscal stimulus, debt restructuring and debt forgiveness should be carried out where needed, with the IMF and World Bank-proposed debt moratorium for the poorest countries being the first step. By the same token, the Costa Rican government has asked the World Health Organization (WHO) to create an intellectual property pool for sharing patents as to develop coronavirus vaccines and diagnostics. Furthermore, governments can invest in high-return public investment, build fairer progressive taxation systems, lift levies on wealth and capital, as well as combat corruption, tax evasion and illicit financial flows.

Even more ambitiously, states can reduce military spending and decrease corporate welfare. Before any reform, ex-ante human rights impact assessments (HRIAs) should evaluate the effects of policies on relevant stakeholders. In line with the recent UN Guiding Principles on Human Rights Impact Assessments of Economic Reforms (2019), a recovery policy that results in human rights backsliding can be pursued only after all other alternatives have been exhausted, and it must be temporary, legitimate, reasonable, necessary, proportionate, non-discriminatory and protective of minimum essential levels of need. Noteworthily, although human rights law does not dictate which economic system states should take, it demands strong procedural requirements on democratic participation, as to guarantee human rights in all policies.

A rights-based approach to public policy, however, cannot focus only on economic dips. The COVID-19 crisis is showing how universal healthcare and social protection floors save lives and make economies resilient. Therefore, socioeconomic systems that fulfil human rights are not only in line with international law; they are also economically feasible, sustainable and resistant to shocks. Neoliberalism is not the only economic theory: feminist, ecological, neo-Keynesian, innovation and public value economics are only some of the alternative views on how to arrange societies. Indeed, the traditional Manichean opposition between human rights and economics can be overcome through economic pluralism and democratic participation in policymaking. It is time to attain a  rights-based welfare state, placing people’s interests at the centre.

 

ABOUT THE AUTHOR

Rossella De Falco is a social scientist interested in advancing human rights.  She holds an LL.M. in Economic, Social and Cultural Rights from the University of Essex and an M.A. in International Affairs from the Johns Hopkins University, School of Advanced International Studies (SAIS).  She is currently a Ph.D. Candidate in ‘Human Rights, Society and Multi-Level Governance’ at the University of Padova, Human Rights Centre ‘A. Papisca’.  Her thesis investigates the relationship between fiscal policies and the right to health in Europe after the 2008 global recession.

 

Resisting the ‘Master’: How Memory can Advance Accountability for Sri Lanka’s Disappeared

By Stephanie Nicolle

In January 2020, newly elected President Gotabaya Rajapaksa claimed that Sri Lanka’s disappeared were ‘dead’.   Thereafter, the instructions communicated by the country’s highest office were brief.  ‘Death certificates’ would be issued to the families after conducting ‘necessary investigations’. The unrelenting finality of this messaging signalled to the families that the state had chosen to move on, and so should they.

Sri Lanka’s disappeared are among the highest in the world, resulting mainly from a nearly 30-year war and two Southern insurrections. Every year, on May 18, Sri Lankans remember the lives lost due to the war and those forcibly taken away. However, the current state’s commitment to deliver genuine accountability draws scepticism from the families of the disappeared.  On the one hand, the ‘investigations’ will be conducted under a president who served as the defence secretary during the final war years and immediately after. During that time, Rajapaksa and the then administration stood accused of committing war crimes. These allegations have cast doubts over the independence of the proposed investigations. On the other, the president’s messaging reinforces a familiar state narrative that has often denied, downplayed or deflected enforced disappearance.

This article presents a case for the role that memory can play in challenging the sense of finality conveyed by the state.  First, it reviews the memory advanced by the state that has dominated Sri Lanka’s post-war years, which can be explained through the concept of a ‘master narrative’. Thereafter, it analyses an instance where individual memories were able to resist the master narrative to a certain extent. Finally, it argues for a more ‘public’ form of remembering to effectively resist the state’s narrative and amplify calls for accountability.

 

Unravelling Sri Lanka’s ‘Master’

Prof. Brian F. Havel offers a useful way of understanding the political form and function of a master narrative.  To Havel, a nation’s master narrative comprises official memory.  It is an effort by the state to prescribe its selective, top-down version of events. Especially in post-conflict societies, the master narrative is perpetuated to reconcile citizens with the state.  Its ideological function often manifests through state-authored memorialisation projects, which help entrench it.

Sri Lanka’s post-war state advanced a specific master narrative.  This narrative framed the war as a ‘humanitarian’ effort and valorised state officials as ‘war heroes’. Such language disallowed the space for any recollection beyond the parameters of this narrative, including enforced disappearances.  State-authored memorialisation projects, promoting military triumph, indicate this erasure of alternative memories.

Individual memories that contested Sri Lanka’s master narrative were often dealt with through various strategies: (1) refutation, (2) reframing such memories as ‘exaggerated’ or a ‘betrayal of the war heroes’, and (3) reconciling such memories with the master narrative.

 

Resisting the ‘Master’

Given the dominance of the master narrative, we may then ask, ‘Can the master narrative be effectively resisted?’

Certain instances in Sri Lanka’s post-war years suggest the possibility of limited yet effective resistance. One such instance is the ‘Memory Wall’ erected by the Office on Missing Persons (OMP) in 2019, where families of the disappeared were invited to commemorate their loved ones. Commemorating the disappeared at the OMP—a government body—was, arguably, a significant moment for resistance campaigns led by the families.

‘Memory Wall at the Office of Missing Persons (OMP) in Sri Lanka’. Image by Saliya Pieris

 

At the outset, the Memory Wall, albeit a temporary structure, stood as a site of resistance. It was a testament to the years of individual memories and struggles to resist the state’s pervasive master narrative.  Concurrently, it indicated a slight change in the post-war state’s response to enforced disappearance—from years of denying and discrediting to an extent of respect and recognition.

The Memory Wall, which held personal photos and penned messages, also opened an avenue for broader conversations on memorialisation.  It gave families the freedom to decide the memories they were comfortable with displaying.  The memories were, therefore, theirs to keep or share. This way, the Memory Wall stood as a marked contrast to other post-war memorials that served to legitimise the state-authored master narrative.

However, the social impact generated by the Memory Wall was short-lived.  Its significance was, to a great extent, limited to an intimate, private realm comprising the families.  This limitation likely curbed its potential to create momentum around resistance campaigns.

 

Broadening the Resistance

To effectively resist the master narrative, individual memories need to transcend the private realm and penetrate the social realm of remembrance.  They need to become part of public memory. One approach resistance campaigns can use to draw public support is memorialisation.

Memorialisations draw various responses.  For some Sri Lankan families of the disappeared, they convey ‘an end’ to the hope of meeting their loved ones. However, transitional justice practitioners continue to highlight the value of memorialisations.

Memorialisations tend to have significant restorative potential.  For the victims of past abuses, they provide a kind of reparation by publicly calling out perpetrators and recognising victims’ memories.  For the community, they urge reflection and foster empathy.  To this end, they remind us of the importance of collectively ensuring non-recurrence.

Memorialisations also attract myriad voices that are beneficial for resistance campaigns. One benefit relates to overcoming barriers to resistance. To date, state-led intimidation and surveillance attempts to silence traumatic truths from becoming public.  A larger collective can help build solidarity and create a safe space for individuals to speak.  The second benefit relates to overcoming a drawback of individual memory.

Often, the significance of individual memory, which comprises lived experience, ceases to exist when the holder of this significance is no more. In Sri Lanka, at least 70 relatives of the disappeared have passed away without receiving answers. By appealing to public consciousness, resistance campaigns allow for individual memories and campaigns to become ‘public’ and live on, despite the death of an individual.

‘A family member holds a photo of a disappeared loved one’. Image by Human Rights Watch

Part of memorialising Sri Lanka’s past atrocities relating to enforced disappearance is confronting the legitimacy struggles over memory.  That is, the right to determine whose memories are publicly acknowledged and how.  To facilitate an inclusive form of public memory, memorialisations must balance the need to respect individual memories with the need to create collective resistance.  Here, Sri Lanka may learn from countries like Argentina and Chile, which have and continue to engage in these conversations.  Both Argentina’s Parque De La Memoria and Chile’s Museum of Memory and Human Rights grappled with highlighting victim-centred accounts, the extent of state involvement, and creating a public push for accountability.

Sri Lanka’s chapter on enforced disappearance risks being closed by a state advancing a sanitised narrative of the past.  By broadening the resistance, Sri Lanka finds itself as having an avenue to keep the space for accountability open.  In the pursuit of justice, this avenue is worth considering to firmly resist the ‘master’.

ABOUT THE AUTHOR

Stephanie Nicolle works as a researcher in Sri Lanka. Her research interests mainly include ethno-religious conflict, memory studies, media ghettoisation and postcolonial discourse. She graduated from the University of Colombo with a BA (Hons.) in English and minors in International Relations and Sociology.

 

 

 

 

 

 

 

 

 

International Human Rights News: Weekly Roundup

By Lauren Ng and Alana Meier

COVID-19 Update – The jury is out on Sweden’s approach

“You’re pushing your cases and deaths into the future – they are not disappearing.”  While lockdown measures have been implemented throughout the globe, Sweden has taken a different approach to the coronavirus.  Similarly to the UK’s initial strategy, the Nordic country refrained from employing a nation-wide lockdown and alternatively, opted to pursue the public health measure of herd immunity and social distancing.

Herd immunity is a form of protection which is achieved when the majority of a population becomes immune to a virus, either through a vaccine or exposure to the infection; thus, preventing further spread to the non-infected members of a group and stopping its lethality.  Part of Sweden’s model involves similar strategies to that of many countries, including banning gatherings with more than 50 people, advising citizens to social distance, closing educational institutions for individuals over-16 and isolating the vulnerable, for example prohibiting visits to nursing homes.  Yet, schools for children under 16 remain open, along with shops, factories and restaurants.

Sweden has pursued this policy on grounds that “draconian measures” were viewed as unsustainable for its economy, whereas voluntary restrictions would encourage compliance for a longer period and allow its citizens to preserve their right to liberty, preventing further stress on the safety and wellbeing of its population.  While measures promoting the protection of the economy could be argued as a violation of the right to health, Swedish leaders have urged countries to consider the wider implications of their policies using a “life versus life” approach – where the economy, security and social unrest are considered as much as part of the consequences to that of physical health.  However, more recently, analysts have predicted that Sweden is unlikely to emerge unscathed by the crisis, and is expected to find itself in a similar situation to that of most countries near the end of the pandemic, although its economy is currently less affected.

Furthermore, Sweden’s death rates per million are higher compared to its neighbours.  Still, their figures are notably lower than other countries where strict lockdowns have been enforced, for instance the UK and Italy.  Additionally, the deaths in Sweden have predominantly been attributed to the government’s delayed response in restricting care home visits, which accounted for a large proportion of its mortality rates.  Compared to its counterparts who currently sit at lower levels of immunity, such as France (4.4%) or the UK (5%), it is expected that Sweden will reach herd immunity by June.

Nevertheless, to achieve herd immunity, experts predict that at least 50% to 70% of the population would need to be exposed to the virus.  In countries with greater populations, the feasibility and moral dent of this strategy is less guaranteed, with opponents arguing that the healthcare system would rapidly be overburdened and at a significantly higher cost to the health of its citizens.  In addition, it is uncertain to what extent our immunity to coronavirus lasts.  Moreover, as with any population, Sweden’s demographic is unique.  First, many of its citizens live in single-occupancy households and normally keep a physical distance in their day-to-day activities in any case; thus, reducing the chance of infection spread.  Second, its government is not ministerial, meaning its constitution does not allow the government to easily dictate what its respective administrative agencies can do.  Therefore, the government is constrained in its ability to legally implement a more stringent approach.  Finally, the Swedish population has traditionally maintained a distinguished level of trust in its institution. 70% of Sweden’s general public support its policy.  Even in the absence of a lockdown mandate, its citizens principally upheld their collective obligations and adhered to their government’s recommendations.

As to whether this method remains the right one to have pursued, the verdict remains unclear.  Although countries with strict lockdowns will likely be more susceptible in the event of a second wave, if an effective vaccine is discovered soon enough, it will provide the same level of immunity to the population at a radically lower cost to peoples’ lives.  Thus far, the first human trials of a vaccine in the US have produced positive results in its first eight patients, with the UK taskforce not far behind in its progress.  While researchers are confident a vaccine will be ready within 18 months, the Chief Scientific Advisor has warned that, as with any new vaccines, these developments are long shots and the process “will take time”, with only some attempts resulting in success.

 

Spotlight on LGBTQ+ Rights in Honour of IDAHOBIT

In 1990 the World Health Organization removed homosexuality from its list of mental disorders recognising it as a natural variant of human sexuality. This landmark decision is honoured every May 17 with International Day Against Homophobia, Biphobia and Transphobia (IDAHOBIT).  Alongside celebrations of gender and sexual diversity taking place around the world such as the UN Free and Equal Campaign Video Release, this day offers a moment to reflect on both advances made and challenges remaining in LGBTQ+ rights.

 

With this year’s theme of “Breaking the Silence” Human Rights Watch presented a global report card on the status of LGBTQ+ rights. Yet, simply looking at this past week shows that while some countries make progress, others continue taking steps back. Ninety-six human rights and LGBT organizations signed and sent a letter to Japan’s prime minister demanding a law protecting against sexual and gender-based discrimination. Hungary passed new legislation banning the legal recognition of transgender and intersex people. Despite lawmakers around the world banning ‘conversion therapy,’ there is still concern over the success of purely punitive approaches. Protecting the advances made in human rights, is more important than ever amidst the COVID-19 crisis which has disproportionately impacted the rights of LGBTQ+ people.

 

Other stories making the news around the world

 

International

• Call to Action to Help Vulnerable Artisanal & Small-Scale Mining Communities (Human Rights Watch)

 

Africa

• SADC Leaders Meet to Discuss Urgent Opportunity to Assist Mozambique Civilians at Risk (Human Rights Watch)
• Arrest of Félicien Kabuga as Major Victory for Victims and Survivors of Rwandan Genocide (Al Jazeera)

 

Asia

• Nepal Laws Fail to Prevent Women and Girls from Growing Problem of Online Gender-Based-Violence (Human Rights Watch)
• Hong Kong Releases misleading IPCC report into Protests (Amnesty International)
• 25 Years After Tibetan Panchen Lama ‘Disappeared’ and China Battle for Religious Control Continues (Human Rights Watch)

 

South and South-east Asia

• Blogger Held over Land Dispute Report Raises Questions about Freedom of Speech in Indonesia (Human Rights Watch)
• Alarming Public Health Situation: Cambodia’s ‘War on Drugs’ Fuels Rising Human Rights Violations (Amnesty International)

 

Europe

• Open Letter Issued Urging France to End Discriminatory Police Stops and Fines (Human Rights Watch)
• France: Acquittal of Farmer who Helped Asylum Seekers Shows Acts of Solidarity should Not be Criminalized (Amnesty International)
• Must not Forget Vital Human Rights Issues in UK beyond the Pandemic (Human Rights Watch)

 

Middle East

• Families Protest Relatives gone Missing in Yemen’s Five-Year War (Al Jazeera)
• Kurdish Authorities in Iraq Suppress Protests over Unpaid Salaries (Human Rights Watch)

 

North America

• Memorandum of Understanding between Wet’suwet’en and Canada Marks Path Towards Negotiations on Aboriginal Title (Al Jazeera)
• Lawsuit Filed Against ‘Remain in Mexico’ Program seeking Answers about US Migrant Protection Protocols (Human Rights Watch)

 

Latin America

• Demonstrators in Chile Demanding Food and Medical Aid Clash with Police (Al Jazeera)

 

 

Spotlight on Sami Al Haj

By Pauline Canham

Each month, the HRC Blog will feature a significant figure, or team from the Human Rights community to go under the Spotlight, answering questions put by students from Essex University.  This month, we feature Sami Al Haj.

Image courtesy of Al Jazeera Media Network

About Sami

Sami Al Haj is the Director of the Centre for Public Liberties & Human Rights at the Al Jazeera Media Network (AJMN) in Doha, Qatar.  He was born in Sudan and started working for Al Jazeera as a cameraman in 2001.  Shortly after the events of 9/11, he was sent to cover the US invasion of Afghanistan in October 2001, an assignment that would change his life forever.  After two months, while crossing from Kandahar across the border into Pakistan, Sami was arrested and detained by Pakistani Intelligence on 15^th December 2001 and subsequently handed over to the Americans.  Nothing could have prepared Sami for the horrors that were to come and the course that his life would take as a result.  After some time at the infamous Bagram detention facility, where he experienced harsh and humiliating treatment, he was transferred to a facility in Kandahar and then on to Guantanamo Bay, where he remained as Prisoner 345 for 6 years, without charge.

 

While there, according to Sami’s lawyer and founder of Reprieve, Clive Stafford Smith, “Sami endured horrendous cruelty – sexual abuse and religious persecution”. He was beaten, deprived of sleep and force-fed after going on hunger strike.

On 1^st May 2008, Sami was released without charge.  He said that he was glad to be free but sad that his ‘brothers’ remained in the hands of “people that claim to be champions of peace and protectors of rights and freedoms.  But a true just peace doesn’t come from military force or threats to use…bombs or economic sanctions.  Justice comes from lifting oppression and guaranteeing rights and freedoms and respecting the will of the people…”

Shortly after his release, and his long awaited reunion with his wife and son, Sami returned to Al Jazeera, where he created a new team dedicated to the field of human rights and civil liberties.

 

Students’ Questions Answered

Sami was gracious enough to allow the students at Essex an opportunity to send him and his team some questions about his experiences and ongoing work in the field of human rights:

 

Q: It is almost 20 years since 9/11 – What are the biggest changes faced by journalists and humanitarian aid workers operating on the ground in war zones, and have the policies of the war on terror had a ‘chilling effect’ on journalists’ ability to hold truth to power?

A: Regrettably,  journalists are now facing a far worse reality with regard to field coverage. Authorities, militias, and armed groups all endeavour to suppress the voice of truth.   Counter- terrorism policies went to the extent to limit the range of ethical journalism and criminalize journalists.  Press freedom has been compromised all over the world.

 

Q: To what extent do you believe that the CIA Enhance Interrogation Program at Abu Ghraib and other so called ‘black sites’ emboldened repressive regimes in their own torture practices?

A: Tyrants and dictators felt at ease seeing the free world legitimizing water-boarding and torture, we can see that in the Middle East and elsewhere.

 

Q: After your experiences at Guantanamo, do you believe in the universality of human rights both as a concept and in practice?

A: Indeed. My personal experience has provided me with a more humane universal vision and understanding.   I believe human rights should be granted to all individuals regardless of their race, religion or nationality.   Human Rights mechanisms and intentions are good.   However, unfortunately, in practice, things are quite different.

 

Q: Were you told why you were being detained in Guantanamo?   And what gave you the strength to endure your detention?

A: My guards told me that I was being brought to Guantanamo and I would never leave alive.   No information was given except that YOU ARE GUILTY, YOU ARE A TERRORIST!!   I endured due to my strong belief in Allah, the Most Gracious, the Most Merciful.  Throughout my tormenting experience, I believed that I would go out and support my family.

 

Q: To what extent do we see a repetition of the policies of exceptionalism that we saw immediately after 9/11 playing out now in Syria, and how can we ensure a fair judicial process to those accused of involvement with ISIL?

A: Unfortunately, all Middle Eastern regimes  do not believe in an independent judiciary system, and the British and Americans do not want the defendants to stand trial in London nor in Washington DC.

 

Q: How can journalists, humanitarian workers and human rights practitioners maintain their safety in hostile environments?

A: They should adhere to safety guidelines, and subject themselves to strict professional training.   At our Centre at Al Jazeera, for example, we have a Safety Section, and we provide journalists in the Middle East and elsewhere with workshops on the necessity of safety.

 

Q: Can you tell us more about your team and objectives at Al Jazeera?

A: The Public Liberties and Human Rights Centre first started as a specialised desk within the Al Jazeera Arabic newsroom in 2008 and expanded to become a Centre in 2015.  The Centre now has a team of 14, all based at Al Jazeera’s headquarters in Doha, spread between the Arabic and English newsrooms and online, writing articles and doing research.  Our aim is to ensure human rights content across all AJMN platforms, to raise awareness and competence of international humanitarian law with journalists in the field,  and inform the public about human rights issues and legislation.  In addition, we endeavour to build and develop strategic partnerships with international, regional and local organisations to identify human rights violations and contribute to the promotion of freedom of expression and the press.

 

Q: How does Human Rights fit with Al Jazeera’s core business?

A: Human Rights issues are no longer fleeting news, but at the core of what the Al Jazeera Media Network does.  Al Jazeera’s interest in human rights has clearly emerged as a key element during analysis and discussion both in general and more particularly in the area of press freedom and the detention of journalists.

 

Q: What achievements you are most proud of in the work that you have done over the last 12 years?

A: I believe, over the last 12 years, we have done very well with regard to spreading the culture of human rights in the Middle East and North Africa.  We are now an effective partner of UNESCO, specifically with respect to Press Freedom and we work closely with the International Press Institution.   Our editorial section has contributed over 5,000 pieces and 6 full length documentaries and our partnership section has held more than 60 workshops with international experts from the UN and other global institutions benefitting over 1000 journalists from Al Jazeera and other media organisations.  We are also very proud of our Global Solidarity Initiatives, working in partnership with other media organisations in the areas of press freedom, anti-hate speech, protection of journalists and humanitarian workers, safeguarding displaced persons, rights of prisoners and detainees, and consolidation of transitional justice and the rule of law.

 

Q: What do you see as the biggest challenges and the top 3 priorities for human rights advocates around the world?

A: The biggest challenge right now is the rise of the far right all over the globe.  The top 3 priorities are Right to Religion, Right to Health and Press Freedom.

 

Q: What one piece of advice would you give to a human rights student just starting out on their career?

A: Never compromise.

 

My thanks to Sami and his team for engaging so generously with the questions from our students.  The HRC Blog Editorial team will be publishing further Spotlights in the coming weeks and months and welcome suggestions from students, staff and alumni for subjects they’d like to see featured.

 

 

The Plight of Language Rights Violations in Tibet

By Aryan Garg, published on 12 May 2020 

(In 2010, China officially announced its “Bilingual Education Policy” for subsistence and promotion of local languages in the schools of the minority areas of the country. On account of the said policy, institutions in the Tibet Autonomous Region (TAR) were given the choice to use Tibetan as a medium of instruction. However, according to the latest report by the Human Rights Watch, the condition seems otherwise.)

Pic Credits – Unsplash

INTRODUCTION

The situation of language autonomy in Tibet has been depressing since the advent of PRC’s Education Policy in the region. The official stance of the government is the promotion of Chinese and Tibetan together, but in the veil of “National Coordination,” the former is promoted at the cost of the latter. Non-Tibetan-Speaking teachers are filling the schools of Tibet. Tibetans are being taught in the same class along with the migrant Non-Tibetans under the “MixedClasses” Policy. An increased number of Boarding Schools are started under the “Concentrated Schooling” Policy to maximise diversity and culture mingling, but this, in turn, separates the children from their families and culture. Moreover, the curriculum for the Tibetan-Speaking students is not well developed, which in turn forces them to shift to the other language, i.e. Chinese. Learning Chinese also becomes an obligation as it is the standard language used in any government or other official work. Furthermore, recruitments in Tibet requires good command over the Chinese Language. Tibetans who do not know Chinese cannot find work.

RESISTANCE TO THE POLICY

There have been a large number of protests, in the forms of petitions, demonstrations, slogans and letters in Tibet following the Bilingual Education Policy. This started a decade back when about a thousand Tibetan students protested in Qinghai province of China against the Language Policy. A protest again followed in 2012 when officials in Qinghai province tried to introduce Chinese curriculum and textbooks in Tibetan Schools. Between 2015 and 2016, several petitions were filed concerning the lack of Tibetan-language teaching in schools in Qinghai and an increase in Chinese-language teachers in primary, secondary and high schools. Furthermore, there have been instances wherein people were detained when they spoke for their Language Rights and Individual Identity.

A LEGAL PERSPECTIVE

The shift in the curriculum of the schools of Tibet not only concerns International Law but also Domestic Law. It is pertinent to mention that the Constitution of the People’s Republic of China protects the educational rights of the linguistic minorities in the country. This is coupled with the Regional National Autonomy Law which gives freedom to minority schools for using their mother tongue as a medium of instruction. Moreover, Article 30 of the of the UnitedNations Convention on the Rights of the Child states that “In those States in which ethnic, religious, or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion or to use his or her own language.” It is to be noted that China is a signatory to the treaty and has ratified it. Similarly, Article 2 of the Universal Declaration of Human Rights recognises language identity as a human right.

Notably, China has been accused of violating the Language Rights of the Tibetans in the past. This included theCommittee on the Rights of the Child, which, in 1996 asked the Chinese Government to allow the people of the minority areas to gain knowledge in their local language, and additionally learn Chinese. Similarly, the United Nations’ Committee on Economic, Social and Cultural Rights (CECSR) also raised questions concerning the Linguistic and Educational Rights of the Tibetans and the Uighurs.

THE WAY FORWARD

One needs to understand that keeping minority language alive requires more than just the native language component in the curriculum. One should also pay heed to the content of the curriculum. It is often seen that the content in the minority language schools often contains a hidden assimilationist material which promotes the majority language and tends to perplex children of their own identity. It should be the responsibility of the schools to identify and weed out such content to protect their identity. Furthermore, it should be the duty of the educators to show greater appreciation and respect for the culture of the students. Perceptions that Chinese is better than the local language should not be transmitted. Also, the students must be exposed to real-life activities that would help them to connect with their culture and to appreciate the culture of others.

Apart from this, Good Governance always remains an option for protecting the overall Rights of the minority community. Deliberation in the form of identification of the problems, dialogue and participation can lead to the development in the form of a greater understanding amongst the communities. This includes strict adherence to the guidelines for Language Rights of Linguistic Minorities issued by the Office of the High Commissioner, United Nations Human Rights (UNHR). Opportunities should be enhanced for the people of the minority areas so that they can find employment and can live their lives peacefully.

CONCLUSION

The promotion of Minority Language is the basis of promotion of Minority Identity which requires policies to maintain, reproduce and further develop their culture. The issue do not only concern the development of the minorities culture but the generation of confidence among minorities about the protection of their identity. The current acts of the Chinese Government are not only hindering the Rights of the Tibetans but are also deviates them from their culture, ethnicity and identity. The results of the same are visible in Tibet.

COVID-19: India’s Overcrowded Prisons Once Again Under the Spotlight

by Ruchir Joshi and Esha Joshi

On 16^th March 2020, the Indian Supreme Court (“SC”) took suo moto cognizance of a “high risk of transmission of Covid-19 to prison inmates”, and issued notices to the States and Union Territories, directing them to submit written replies, containing particulars of the steps being taken, so as to prevent the spread of the novel coronavirus. The court observed that overcrowding of prisons, results in the violation of social distancing norms, and thus, poses a great threat during the ongoing pandemic. In the furtherance of which, on 23^rd March, it was proposed that parole or interim bail may be granted to prisoners convicted of, or charged with offences involving a prison term of seven years or less.

Overcrowding: Not really a new challenge

It is not the first time, that the court has taken the matter of overcrowding into cognizance, in 1966, the SC in Rama Murthy vs State of Karnataka, identified up to nine issues that needed to be addressed in regards to the prison system. Of these, overcrowding was at the forefront. This problem is not new and has been affecting Indian prisons for long. As early as the late 1950’s, it was observed by the All India Jail Manual Committee that “overcrowding in prisons has assumed the proportions of a major problem for the correctional administration.”

Since then there has been a steady increase in the overcrowding of jails. The size of the prison population throughout India is growing, placing an enormous financial burden on governments. It has been found that the prison population in India has taken a considerable jump from 2000 to the present day.

In the year 2000, the total number of prisoners which included the sentenced and the pre-trial detainees were 272,079, this increased to 466,084 in the year 2018, which has made India the fifth largest prison population in the world. Moreover, Indian prisons are severely stretched, with the current number of prisoners going 17.6% beyond the sanctioned strength.

Even though the courts have expressed their concerns repeatedly, no concrete steps have been taken yet. The National Human Rights Commission in its Annual Report stated that the primary reason for overcrowding, is the increased number of under-trial prisoners and the extended periods of time for which they are confined. The National Crime Record Bureau’s data shows that 69.42% of the total prisoners consist of undertrials. As, noted by the SC in Hussainara Khatoon’s case, this prevalence of undertrials can be attributed to the sluggish pace of trials, which is a crying shame on the judicial system.

Overcrowding: Violation of Human Rights

The ramifications of overcrowding are multifarious as it creates problems in the management of prisons and this results in deleterious effects on the health of prisoners. In 2018, again the SC emphasised the need for immediate action and asked all the High Courts to take up the matter suo moto as the issue involves a violation of Human Rights. By taking a strong exception to overcrowding, the SC said: “prisoners also have human rights and they cannot be kept in jail like animals.”

Overcrowding in prisons poses a serious health hazard because of the inhumane living conditions, poor nutrition and lack of sanitation. Overcrowding has led to India’s non-compliance with UN Standard Minimum Rules for the Treatment of Prisoners. The Rule 20, lays down the minimum quality requirements of food, which is blatantly violated by India, as the resources available are not in proportion to the overcrowded prisoners. Apart from the food quality being worse, most of the prisons in India have acute shortage of latrines and urinals due to overcrowding, in contravention of Rule 12, thus posing a serious threat to the health of the prisoners.

As, suggested by many reports there is a big gap which exists between the written policy and the actual practices in India. The report by UK Home Office on Prison Conditions in India states that most of the Indian jails fail to meet the minimum United Nations standards for such facilities. Even, the US Report on Human Rights practices, suggests that the Prison Conditions in India were frequently life threatening due to the above-mentioned problems. Thus, such overcrowded prisons results in the prisoners being riddled with various diseases and vulnerable immune systems.

Covid-19: Vulnerable Prison System in India

In the light of Covid-19, this has made prisoners more susceptible to contraction and thus made containment of the virus harder. The greater susceptibility of prisoners to this virus, due to the pathetic living conditions they are subjected to, poses a serious threat to their life. This is further aggravated by a poor prison health system in which there is lack of officers and supervision. It has been found that in prisons there are only 1,914 medical staff against the sanctioned strength of 3,220. Seeing the overcrowding rate, automatically the need for medical staff is higher, but the ground situation is different.

Hence, overcrowding, by causing unreasonable burden on the already inadequate resources,  not only violates the prisoner’s right to live in a clean and healthy environment but also the basic fundamental right to live with dignity guaranteed under Article 21 of the Indian Constitution. Moreover, in these pandemic situations, by putting prisoner’s life at risk, it further hampers their right to life.

The measures regarding the release and parole of prisoners announced by the SC, in light of the pandemic can only be considered as temporary. These measures have to be viewed sceptically for various reasons. Firstly, in the cover of administrative inefficiency, responsibility is being shifted onto law-abiding citizens and an unnecessary burden is being imposed on them. Secondly, there being no certainty as to how long it will take to contain this virus, the measures taken by the government seem short sighted. Lastly, prisons in their current state will always remain vulnerable to such a situation. It is therefore contended that, it is the need of the hour to modify the prison system and to provide a concrete solution to this problem.

Ruchir Joshi & Esha Joshi  B.A.LL.B.(Hons.) students at National Law University, Nagpur.