International Human Rights Weekly News Roundup

by Pauline Canham

In focus

Amnesty International forced to cease operations in India

Amnesty_India_3Amnesty International says it has been forced to end its operations in India, after “reprisals” from the Modi government.  Amnesty’s bank accounts were frozen without warning, in what it calls a “witch-hunt” by the Hindu nationalist government against human rights NGOs.  Amnesty’s senior director of research, advocacy and policy, Rajat Khosla, claimed they have been faced with “an onslaught of attacks, bullying and harassment by the government in a very systematic manner.”

Several raids have taken place on Amnesty offices since 2018 under accusations of money laundering – allegations the NGO strenuously deny.  The ministry of home affairs claim that Amnesty India has brought foreign funding into the country in a contravention of the regulations.  The ministry stated “the stand taken and the statements made by Amnesty International are unfortunate, exaggerated and far from the truth”.  Amnesty India’s executive director, Avinash Kumar, said that the Indian government is stoking a climate of fear, and ignoring “the human cost to this crackdown, particularly during a pandemic, and violates people’s basic rights.”

Fifteen international human rights organisations have condemned the move, pledging continued support for human rights defenders and NGOs critical of India’s nationalist government crackdown.  Human Rights Watch stressed the need for a “robust, independent, and vocal civil society” which it said is “indispensable in any democracy to ensure a check on government and to hold it accountable”.

Julie Verhaar, Acting Secretary General of Amnesty International said “This is an egregious and shameful act by the Indian Government, which forces us to cease the crucial human rights work of Amnesty International India for now.  However, this does not mark the end of our firm commitment to , and engagement in, the struggle for human rights in India.”

 

UK exploring options to send asylum seekers to detention centres overseas

ASCENSION_ISLAND_WIDEAWAKE_AIRFIELDThe Guardian revealed yesterday that it has seen documents that suggest Foreign Office officials have been asked by Downing Street to examine the possibility of sending UK asylum seekers to detention centres in Morocco, the Maldives and Papau New Guinea.  It has also come to light that the Home Secretary, Priti Patel has been looking at the idea of constructing detention centres on the islands of Ascension or St Helena, in a similar model to the Australian asylum processing centres on Naura and Manus.  Ascension and St Helena are part of an isolated British Territory in the South Atlantic. 

The Shadow Home Secretary, Nick Thomas-Symonds, called the idea “inhumane, completely impractical and wildly expensive”.  Another option being considered is to accommodate asylum seekers on disused ferries anchored off Britain’s coast, converting them into processing centres.  One Conservative MP said that the UK needs to find a “civilised version” of the Australian model.  But experts familiar with Australia’s immigration system have warned that implementing such proposals could cause a “human rights disaster”.

 

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Freedom of expression and sexual orientation: Textualist Singapore vs expansionist India

by Kartikeya Jaiswal and Pranay Modi 

This article was originally posted on Rightsblog.net

Introduction

‘Freedom of expression’ is a fundamental right guaranteed  by the constitutions of several democratic countries. It is an internationally recognised ‘human right’ and finds mention in Article 19 of the Universal Declaration of Human Rights (UDHR) . But while the right exists on paper, its actual extent, in different countries, depends entirely on the interpretation accorded to the words by those jurisdictions.

Sexual orientation and gender identity are pertinent examples here – whether the freedom of expression covers them or not depends entirely on the legal interpretation of ‘expression’.  In certain countries, the constitutional interpretation of this right has enabled the legal recognition of sexual orientation and gender identity as human rights. In others, it has led to the continued criminalisation of sexuality and gender identity

Issue

Recently, the Singapore High Court, while deciding the constitutionality of Section 377A of the Penal Code – having implications on the legalisation of homosexuality – was faced with the question; does freedom of expression include sexual orientation? The court, vide Ong Min Johnson v. Attorney-Generalanswered  in the negative; and its analysis was in stark contrast to the analysis of the Supreme Court of India in Navtej Singh Johar v. Union of India, where the question was answered in the affirmative.

 

Singapore

Section 377A of the Penal Code criminalises ‘acts of gross indecency’ between men in public or private. In Johnson, the question arose:  does Article 14(1)(a) of the Singapore Constitution– which protects the freedom of expression – encompass sexual orientation as well? To answer the question, the Court applied the Tan Cheng Bock framework – a three-pronged method deployed for the interpretation of statutes.

First, the court considered the context in which ‘expression’ was used within the legal code as a whole (para 245). It determined context by noting the marginal note accompanying Article 14, which reads “Freedom of speech, assembly and association:. The absence of the term ‘expression’ from the marginal note, was interpreted as a clear indication that the expression was not a stand-alone right. ‘Expression’ must be read with ‘speech’ and must “necessarily point towards some form of verbal communication”. Thus, ‘expression’ under Article 14(1)(a) protects “freedom of speech encompassing matters of verbal communication of an idea, opinion or belief and not male homosexual acts”(para 255).

Second, the court considered the legislative purpose of enacting the term ‘expression’. It noted that when the constitution was adopted, there was no reference to a free-standing right of expression and ‘expression’ was only used in furtherance of the right to free speech (para 257).

The third prong of the test – comparing purpose with ordinary meaning – only reinforced the court’s interpretation, that ‘expression’ only includes expression in the form of speech. Thus, the court concluded that Article 14(1)(a) does not confer the “right to engage in male homosexual acts as a form of ‘expression’”.

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India

The approach adopted by Justice See Kee Oon of the Singapore High Court, towards the interpretation of Article 14(1)(a), is in stark contrast to the approach adopted by the Supreme Court of India, while interpreting Article 19(1)(a) of the Indian Constitution – which is in pari materia to Article 14(1)(a) of the Singaporean Constitution.

In 2014, the Indian Supreme Court – in a judgement which conferred legal validity to the identity of transgender individuals – had held that Article 19(1)(a) guarantees not just speech, but also thenatural rights inherent in the status of the citizens of a free country”.

This expansion of Article 19(1)(a) allowed the Supreme Court to adopt a natural rights approach in Navtej as well. The court observed that “sexual orientation is one of the many biological phenomena which is natural and inherent” and any law which discriminates on the basis of such an inherent property of identity, would violate Article 19(1)(a) of the Indian Constitution.

 

Analysis

Despite being common law courts, there is a fundamental difference in the way both jurisdictions conferred meaning to the term ‘expression’. These diametrically opposite conclusions are a function of the method of interpretation adopted, rather than any normative opinion on homosexuality.

In Singapore, the court adopted a textualist approach and stuck to the core meaning of ‘expression’, refusing to consider the penumbra of meanings. At the heart of the judgement is the belief that the judicial process simply does not allow for the kind of social progress sought by the petition.

The Indian Court, on the other hand, disregards the fetters of textual limitations and expands the scope of the text. It confers meanings on ‘expression’ found beyond the core and within the penumbra. This expansionist approach – dubbed ‘transformative constitutionalism’ – enables the progression of rights. It displays the willingness of the Indian court to push the envelope and take up the mantle of social progress for itself.

 

Conclusion

Although to decide whether one of these approaches is better than the other is a matter for posterity. But for now, what is clear is that the Singapore High Court is not regressive in its normative morality, but simply that it is strict in its judicial process.

Nevertheless, the implications of this judgment on Singapore’s LGBTQI community – and their human rights – cannot be ignored. While the Singapore High Court has maintained the propriety of the judicial process and the separation of powers by leaving it to the legislature to take the final decision, it has failed to give immediate relief to LGTBQI persons. The continued denial of their human rights is predicated upon the continued persistence of Singaporean peoples’ political right to a disciplined judiciary. In this deadlock, it is incumbent upon the Singaporean Parliament to step in and protect the human rights of Singapore’s LGBTQI community, in line with the international standards of the UDHR and the Yogyakarta Principles.

Even though the Singapore High Court has given adequate reasoning by deeming it fit for the legislature to scrap Section 377A; expanding the scope of ‘freedom of expression’ would have sent a strong message, both domestically and internationally, as the LGBTQI community keep on fighting for their basic human rights.

 

ABOUT THE AUTHORS

KartikeyaKartikeya Jaiswal studied law at Jindal Global Law School in New Delhi, and graduated in August 2019.  He is now advocate practising law in new Delhi.

 

 

PranayPranay Modi studied law at Jindal Global Law School in New Delhi, and after graduating is now a Research Fellow at Vidhi Centre for Legal Policy, New Delhi

Reflections on India…. A democracy in peril

Gautam Singh reflects on the transformation of his home country of India, the recent riots in Delhi and the impact on his own village 

My India

I grew up in the small village of Jharkhand, India.  My village has a population of almost 1200 people, half of them being Muslim, the other half Hindu, divided into several casts.  This has been the demographic of my village for centuries.  Until the early 1990’s, every festival, whether it was Eid, Holi or Diwali, was celebrated by everyone, Muslims and Hindus alike.  Muslim villagers often led the Hindu Holi procession and Hindus often led the prayers and sweet distribution for Eid.  There were three places of worship in the village and everyone could worship in any of these places.  In this remote and isolated village, we all co-existed like members of a large extended family, maintaining a unique way of life; mellow and harmonious, celebratory and united.

All of this changed overnight on the 6th December 1992, when Babri Mosque in Ayodhya was demolished by a large group of Hindu nationalist activists.  We started receiving new visitors to our village.  Some came with ‘brick-in-hand’ to collect funds for a new Hindu temple in Ayodhya, while others preached that Islam was in danger in India. Some were wearing saffron robes with a sectorial mark on their forehead and others wore white robes and skull caps.  They divided our places of worship, converting two of them into temples and one into a mosque.  My village entered a transformatory phase.  Villagers began to disengage from people from other communities, growing religiously private, limiting interaction, and keeping to themselves and their respective religious communities.  We no longer celebrated festivals together.  We stopped inviting villagers from other religious communities to family functions.

However, with the passage of time, villagers overcame the polarization, rejecting what they saw as a dividing tactic of some extreme religious groups.  By the beginning of the 2000s, the community spirit of my village had returned.  Although, the tradition of a Muslim man leading the Holi procession and Hindus distributing sweets in Eid were never revived, members of both religions began again to celebrate festivals and family functions together.

Holi_1

By this time, I had moved to Mumbai and subsequently to Qatar.  But I never missed a single Eid, Holi or Diwali in my village and would always talk with great pride about how Hindus and Muslims of my village lived and celebrated life together for centuries.

Sadly, last year, this pride was totally shattered, when I returned to take part in the Holi procession in my village.  Since the early 2000s, during a Hindu festival, Muslim men would walk along with the procession and women would stand outside their homes with water and sweets.  But this time, the door of every Muslim house was shut.  Not a single person from the Muslim community came out in the street to join the festival.  As I went to knock on the door of some of my Muslim friends who lived near the village mosque, the procession loudspeaker started broadcasting loud Hindu nationalist slogans:

“Jai shree Ram” (Hail Lord Ram)

“Mandir wahi banayenge” (We will build the temple there only)

“Goli maro salon ko…desh ke gaddaron ko” (Kill the traitors)

“Kheer mango kheer denge…Kashmir mango cheer denge” (We will slaughter you if you ask for Kashmir)

These slogans referred to the site of the destroyed Mosque at Ayodhya, claiming it to be the birthplace of the Hindu God, Rama and pledging to rebuild a Hindu temple there.  I then realised why my friends weren’t joining the parade and why the majority of the houses in my village were shut, as the Holi procession continued on through the ghostly streets.

But this story of my village of Jharkhand is not simply the story of one village.  It is a story that has played out in villages, towns and cities across India over the last half century.

 

Modi’s India

India is a country of 1.30 billion people, including 965 million Hindus and 170 million Muslims and despite differences, a long tradition of tolerance has pulled this huge nation together.  However, since 2014, when the Hindu majoritarian Bharatiya Janata Party (BJP), lead by Narendra Modi, came to power, tensions between Muslims and Hindus have increased in many parts of the country.

Modi has been an activist for the Hindu far-right paramilitary RSS (Rashtriya Swayamsevak Sangh) and its affiliates for the entirety of his political life.  He remains committed to the supremacist ideology of Hindutva which says that India should be an exclusive Hindu nation-state in which minorities are treated as second-class citizens.  Muslims, in the last 6 years have faced regular attacks after being accused of eating beef or killing a cow, an animal considered sacred in Hinduism.

Modi_BJP

After being re-elected in 2019, Modi and his deputy Amit Shah pushed the Citizenship Amendment Act (CAA) through Indian parliament.  The Act prohibits ‘illegal migrants’ from becoming Indian Citizens, allowing for exceptions for six religious minorities, but not for Muslims.   The creation of a National Register of Citizens (NRC), couched in the language of ‘national security’ and ‘muslim-only’ detention centres has caused an atmosphere of extreme mistrust among a large section of Indian Muslims.  Anti-CAA protests have spread around the country and have been met with brutal force by authorities.

A Hindu-Muslim divide is growing.  Even the visit of US President, Donald Trump to India did not prevent communal passions from taking a violent turn in the national capital, Delhi.  Parts of Delhi were literally burning and rioters rampaged the streets as the US President was being welcomed by Prime Minister Narendra Modi at a well-orchestrated “Namaste Trump” ceremony.  Delhi cried for 72 hours while Lutyen’s Delhi (the political heart of New Delhi) left not a single stone unturned to blow Trump’s Trumpet.  While images of the Delhi riots spread around the globe, the two leaders were busy exhibiting showmanship and sycophancy.

Trump_Modi_India

The violence erupted following the ‘rabble-rousing’ of a local politician named Kapil Mishra whose speech provoked the targeting of Muslims protesting against the CAA.  A mob went on the rampage in minority-dominated neighborhoods, and in some specific areas, Hindu-owned properties including schools, shops and homes were also attacked and burnt. 50 died and hundreds were injured.  Instead of controlling the violence, the police became active participants in many areas.  This was symbolized by a video which went viral, showing uniformed officers beating five young men, all of them injured, telling them to sing the national anthem.  One of the men, Faizan, died of his injuries days later.

For three days the Prime Minister of India remained silent and the Home Minister was absent.  When the state not only fails to provide the same protection of law to all sections of society but  emboldens the rioters, one cannot put it down simply to the incompetency of state machinery to protect its citizens.  Instead it exposes the reality of a more sinister wholescale discrimination against one religious minority, and deeply troubling signs for the future of the world’s biggest democracy.

GAUTAM SINGH

Gautam_SinghAbout the author: Gautam Singh is an independent film-maker, cinematographer, writer, director and a program-maker at Al Jazeera Media Network.  His films include  ‘Gaon – The Village No More’, ‘Daughters of Brothel’, ‘The Burning City’, ‘Indian Hospital’, and ‘My Sister Laxmi’.  Currently, he lives in Doha, Qatar along with his family.