Global focus on the challenge of improving criminal justice performance vis-a-vis minority communities, discussed at a recent UN conference in Geneva (November 23-25) has come not a day too soon.
On the night of 28 September 2015 in India, a Muslim man Mohammad Akhlaq in the state of Uttar Pradesh was lynched in public by a self-appointed Hindu crowd of ‘moral policemen’ on the ground that he was allegedly preparing to eat beef, a ‘prohibited’ edible commodity. The district magistrate and the superintendent of police of the district, responsible for the proper functioning of the criminal justice system, ought to have been suspended but were not. Nothing happened to them and they were safe in their jobs. This is the meaning of impunity in India.
The massive failures of the criminal justice system in the Indian state of Gujarat, where in 2002 a colossal and well organised massacre of the Muslims was carried out by irate majoritarian Hindu mobs, has been documented in the three-volume report ‘Crime against Humanity’ produced by the eight-member, Supreme Court judge-led, Concerned Citizens’ Tribunal, which included the present writer.
Similar criminal justice failures occurred during the majoritarian violence against the minority Sikh community in Delhi and elsewhere (1984); the Christian community in Kandhamal, Odisha (2008); and against ethnicities in the Northeast of the country.
In all these deplorable incidents of individual and collective majoritarian violence against minorities in India, the state machinery remained complicit when it did not actively participate in the violence. Some criminal justice reforms were indeed attempted but they were of a ‘superstructural’ rather than ‘infrastructural’ nature. Fundamental structural reforms were avoided.
It is in this context that international pressure emanating from such bodies as the United Nations could potentially give a push to the needed far-reaching reforms of the criminal justice system in India.
The specific significance of the UN conference on minorities in the criminal justice system held at Geneva therefore is not to be minimized.
A brief review may now be made of the UN’s work on minority issues together with an assessment made of the work of the 8th session of the UN Forum on Minority Issues (November 23-25).
The discrimination, exclusion and violence to which minority communities are subjected arise from factors such as their numerical size; their non-dominant social, economic and political position; their distinct ethnicity, culture, religion and language; social stigma; and the suspicion and prejudice with which they are often viewed by the majority community.
In 1947, the UN Sub-Commission on minority rights focused on the prevention of discrimination against minorities and protection of their fundamental rights. Article 27 on minority rights was inserted into the International Covenant on Civil and Political Rights (ICCPR).
In 1992, United Nations took the lead in adopting the Declaration on the rights of persons belonging to national or ethnic, religious and linguistic minorities (the Minorities Declaration). The Declaration addresses individual rights with collective dimensions; sets out the fundamental standards for protecting the existence and identity of minorities; elaborates the principles of equality and non- discrimination; and underlines the right of persons belonging to minorities to participate in cultural, religious, social, economic and public life as well as in policy making on issues affecting them.
The UN Working Group on Minorities set up in 1995 was active till 2006 and provided an opening for dialogue on minority rights issues. It helped develop the conceptual framework for the practical realization of the objectives of the Minorities Declaration.
The Forum on Minority Issues replaced the Working Group in 2007 and it began contributing to the work of the Special Rapporteur on Minority Issues.
The 8th Forum on Minority Issues (November 23-25) assessed the progress made so far and reviewed the challenges that remained for the UN system for promotion and protection of minority interests.
Certainly, minorities today face special challenges in the various stages of the criminal justice system. Human rights violations against the minorities take a wide variety of forms: the police targeting individuals for identity checks, stop and search and the use of other coercive, privacy-invasive police powers; excessive use of force against minorities; frequency of torture or other ill-treatment in detention facilities; and so on. Minorities also face discrimination and bias during judicial proceedings, trials and sentencing outcomes and in relation to access to formal judicial mechanisms and processes.
Minorities are not only poorly represented within the administration of criminal justice; they are also rendered invisible by the failure of state governments to collect comprehensive and disaggregated data to monitor the progress of minorities at all stages of the criminal justice process.
Since its setting up in 2007, the Forum on Minority Issues has conducted its sessions annually. Each session produces an outcome document containing action-oriented thematic recommendations.
During its 8th session this year, a closed one-day expert meeting (November 23) brought together panelists and other relevant stakeholders together to debate the draft recommendations of the Special Rapporteur and suggest improvements to ensure the adoption of meaningful measures to address the needs and demands of the minorities in the criminal justice system.
The Special Rapporteur on Minority Issues has dedicated her 2015 report focusing on ‘Minorities in the criminal justice system’ to the 70th session of the UN General Assembly. The 8th session of the Forum dealt with the issue in depth.
The experts’ meeting on November 23 was followed by a two-day event, which brought together hundreds of participants from every region of the world, including representatives of States, inter-governmental organisations, UN bodies and civil society organisations and they discussed the issue in breadth and depth.
In four sessions, spread over two days (November 24-25) the participants discussed several major aspects of minorities in criminal justice: i) legal framework and key concepts; ii) minorities in the exercise of police powers; iii) challenges of criminal justice systems in addressing the needs and demands of the minorities; and iv) the root causes of discrimination in the criminal justice system. Presentations were made by 18 invited expert panelists from around the world (three panelists were from South Asia, two women from Nepal and Sri Lanka respectively and a man from India).
The presentations by the expert panelists were commented upon by the assembled stakeholders from around the world and the experts in turn responded.
The final Recommendations of the Special Rapporteur on Minority Issues would be presented to the UN Human Rights Council in early 2016 and then to the 70th session of the UN General Assembly.
It goes without saying that the 8th session UN Forum on Minority Issues and the Special Rapporteur are to be heartily congratulated for their outstanding work on ‘Minorities in the criminal justice system’.
The Special Rapporteur may, however, like to consider the following suggestions: i) the role of the criminal justice system in instances of organised mass violence against the minorities — as happened in India in Gujarat 2002; Delhi and elsewhere in 1984; and Kandhamal in Odisha, 2008 — needs examination and ii) its role in situations of mass violence in which civilian officials as well as policemen who, though mandated to promote and protect minority interests, often do not do so but go on to facilitate as well as participate in violence against minorities, as has often happened in recent experience.
The final recommendations of the Special Rapporteur’s 2015 report on Minorities in the Criminal Justice System’ will no doubt make a huge impact. One can only wish that these recommendations could be made binding on UN’s member states. This would, however, need far-reaching, consensual reform of the UN system itself.
(The writer, a former Director General of police in the Northeast of India, was a participant and panelist at the 8th session of the Minority Rights Forum. He is the author, most recently, of ‘State, Policy and Conflicts in Northeast India’, Routledge, 2015)
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