Human Rights: Constitutional Provisions and Practises in India and China
The Notion of Rights in General
According to the Oxford dictionary of Politics, ‘rights can be described as legal or moral recognition of choices or interests to which particular weight is attached’. According to Laski, ‘Rights, in fact, are those conditions of social life without which no man can seek, in general, to be his best.’ A right is basically a justified claim or an entitlement. It means that we are entitled to rights as citizens, as individuals or as human beings. It means to possess a right is to be entitled to do something or to have something done, for instance, right to speak, right to vote etc. In the Middle Ages, theory of rights rested on the idea of natural law. It meant that rights were not bestowed by a monarch, a government or a society; rather they are endowed by nature or god, that is, we are born with them. It was perceived that a man was born with three natural rights: to wit, the right to life, liberty and property.
Rights are regarded as indispensable claims which are essential for leading a life of dignity and respect. Rights are also necessary for our well being. People claim different kinds of rights to lead a meaningful life like right to livelihood, right to education, freedom of expression etc. But all rights carry with them corresponding responsibilities, that is, we should respect the rights of others. It implies that my rights are limited by the principle of equal and same rights for all.
Rights can be secured when they are legally and constitutionally recognized and limitations are placed on the arbitrary use of power by the state. State is considered as the means and an individual as an end, that is, the state exists for the well-being and good of the people. The rights of an individual exhorts the state what to do as well as what not to do. It places obligations on the state to behave in a certain kind of way. It keeps a check on the powers of the sovereign state. Rights protect individuals from the unrestrained use of force and power by the state or the ruling class, for, in the absence of rights of individuals the state assumes unbridled and absolute authority and degenerates into authoritarianism and tyranny.
The Idea of Human Rights
In recent times, the term, ‘Human Rights’ is being increasingly used. It is relatively a new concept. Human Rights are international moral and legal claims by the virtue of which all people are entitled to certain things simply because they are human beings. It is based on the notion that all human beings are born free and equal; and no one is born to serve others. This conception is advanced to challenge the existing inequalities and discriminations based on religion, gender, race, caste etc. Human Rights are rights which belong to every human being irrespective of his/her nationality, place of residence, ethnicity, caste, colour, religion, creed etc. Leaders of the states are expected to enforce these rights in their respective countries and comply with it, because these rights protect all people everywhere from severe political, legal and social abuses by the state government and its institutions. The universal, inalienable and indivisible Human Rights are very vital for the full development of an individual.
The contemporary concept of Human Rights has its origin in the post second world war period, when the problem of Human Rights emerged as a matter of serious concern for the whole world. After the war, some German Nazis were convicted for the crime committed on the Jews of their country, and these barbarous and inhuman atrocities were termed as ‘crimes against humanity’. In order to further prevent such crimes against humanity, on 10 December 1948 the United Nations expounded an elaborate list of Human Rights known as ‘Universal Declaration of Human Rights’. It aims to define a comprehensive code of conduct for the governments of its member-states and determines to promote the faith and respect of its member-states on the observance of fundamental Human Rights essential for leading a dignified life. It entails a list of rights like civil and political rights vide Articles 3 to 21 and several economic, social and cultural rights in Articles 22 to 27 and a preamble. In addition to this, UN General Assembly also adopted two covenants on human rights, namely, International Covenant on Economic, Social and Cultural rights and the International Covenant on Civil and Political rights on 16 December 1966.
With the advent of time and the exigencies of the situation, the scope of the Human Rights, which essentially emphasized on political freedom, has been expanded to incorporate those rights, which were earlier not included in it as society faces new threats and challenges like women and minorities rights, rights of the children and migrant workers, protection of environment etc. In fact, the scope of Human Rights should be subject to continuous evolution since society is afflicted with new challenges in the form of drug trafficking, scourge of terrorism, degradation of environment etc. Some of the characteristicsof Human Rights are following:1
Human Rights are Universal and Inalienable: The principle of universality of Human Rights is the cornerstone of International Human Rights Law. Human rights are inalienable. They should not be taken away, except in specific situations, and according to due process. For example, the right to liberty may be restricted if a person is found guilty of a crime by a court of law.
Human Rights are Interdependent and Indivisible: All Human Rights are indivisible, whether they are civil and political rights, such as the right to life, equality before the law and freedom of expression; economic, social and cultural rights, such as the rights to work, social security and education, or collective rights, such as the rights to development and self-determination, are indivisible, interrelated and interdependent. The improvement of one right facilitates advancement of the others. Likewise, the deprivation of one right adversely affects the others.
Human Rights are Equal and Non-discriminatory: Non-discrimination is a cross-cutting principle in International Human Rights Law. The principle is present in all the major human rights treaties, and provides the central theme of some of international human rights conventions such as the International Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination against Women.
The principle applies to everyone in relation to all human rights and freedoms and it prohibits discrimination on the basis of a list of non-exhaustive categories such as sex, race, colour and so on. The principle of non-discrimination is complemented by the principle of equality, as stated in Article 1 of the Universal Declaration of Human Rights, ‘All human beings are born free and equal in dignity and rights’.
Human rights are both Rights and Obligations: Human Rights entail both rights and obligations. States assume obligations and duties under international law to respect, to protect and to fulfill Human Rights. The obligation to respect means that States must refrain from interfering with or curtailing the enjoyment of Human Rights. The obligation to protect requires States to protect individuals and groups against human rights abuses. The obligation to fulfill means that States must take positive action to facilitate the enjoyment of basic human rights. At the individual level, while we are entitled our human rights, we should also respect the human rights of others.
Difference Between Fundamental Rights and Human Rights
- A person is eligible to certain Fundamental Rights of a country only when he/she is granted the status of citizenship of that particular country, however, Human Rights belong to every individual irrespective of his/her nationality, status of citizenship, religion, caste, creed, colour, ethnic origin etc. Human Rights are applicable univer sally, and belong to every human being by the virtue of being humans alone.
- In case of violation of universal Human Rights, international organization, that is, the United Nations is liable to take action and adjudicate, but if Fundamental Rights of a country are violated then that particular state government is responsi-ble to take action against the offender.
- Fundamental Rights have legal sanction and are enforceable in a court of law whereas Human Rights do not have such sanctity and are not enforceable in courts.
- Fundamental Rights are country specific that are formulated according to the needs of a country and are determined by culture and history of a country. However, Human Rights are very basic in nature and every human being on this earth is entitled to it without any discrimination irrespective of culture and history of a country.
The Indian Scenario: Part III of the Indian constitution defines the Fundamental Rights offered to thecitizens of the country. These fundamental rights are essentially Human Rights that are offered to every citizen irrespective of caste, race, place of birth, religion etc. Fundamental Rights enshrined in the Indian constitution are akin to the Human Rights delineated in the Universal Declaration of Human Rights. Since Fundamental Rights are in consonance with the Human Rights, any violation of the Fundamental Right would lead to the violation of Human Rights. The concept of providing the Fundamental Rights to the citizens has been taken from the England's Bill of Rights, United States Bill of Rights and France's Declaration of the Rights of Man. It is a comprehensive Bill of Rights containing 24 Articles from 12 to 32. Constitution of India not only grants, but also guarantees Fundamental Rights, that is, citizens of India, in case of violation of Fundamental Rights, have the right to seek protection from the Supreme Court and other courts for getting their rights enforced. However, Fundamental Rights are subjected to specific restriction for the maintenance of public law and order and security of the country. It has been a strong felt common belief by all that these rights are essential for the well being and protection of dignity of every individual and society at large. Indian constitutional provisions containing Fundamental Rights are as follows:
The Constitution of India guarantees six Fundamental Rights to the citizens. Right to Equality is the foremost right guaranteed to the citizens of India. It is provided in the Articles 14 to 18 of the constitution. This right is regarded as the principal foundation of all other rights and liberties. Article 14 guarantees Equality before law as per which citizens shall be equally protected by the laws of the country. Article 15 of the constitution states that there will be social equality and equal accessibility to public areas and prohibits discrimination among the citizens on the ground of religion, race, caste, sex or place of birth. Equality in matters of public employment is provided in the Article 16 of the constitution of India that defines that all the citizens can apply for government employment. Article 17 puts forth abolition of untouchability. The practice of untouchability is an offense and anyone found doing so is punishable by law. Abolition of tittles is another right to equality described by the Article 18 of the constitution. The constitution prohibits the state from conferring any title on citizens. However, honours for military and academic distinctions can be given and conferment of titles of ‘Bharat Ratna’, ‘Padma Vibhushan’, ‘Padmashree’ etc are not in violation of Article 18.
Among the Fundamental Rights, Right to freedom is included in the Articles 19 to 22. Article 19 provides freedom of speech and expression, right to assemble peacefully without arms, right to form associations and unions, freedom to move freely throughout the territory of India, freedom to reside and settle in any part of the country, freedom to practice any profession or to carry on any occupation, trade or business. Article 20 provides for protection in respect of conviction for offences. It says that no person shall be arrested except for the violation of law and also not beyond the period prescribed by the authority. It states that no person accused of an offense shall be compelled to be a witness against himself.
Article 21 provides Protection of Life and Personal Liberty to citizens as well as non-citizens. No person shall be deprived of his/her life and personal liberty except according to the procedure established by law. The Fundamental Right guaranteed under Article 21 relates only to the acts of State or acts under the authority of the State which are not according to procedure established by law and not to the private and autonomous bodies. The ambit of the Article 21 has been dilated with the subsequent decisions pronounced by the Supreme Court to include all those rights which are essential for protecting and securing life and liberty.
Article 21 has been accorded multi-dimensional meaning and various rights has been inferred from this article as a result of a liberal interpretation of the various provisions of the constitution, as seen in the various adjudications in a number of cases by the Apex Court. Some of the rights deduced from the judgments are also mentioned in the Directive Principles of State Policy in Part IV of the constitution. As a result of the various interpretations, this article is considered as the heart of the fundamental rights. The rights deduced from the decisions are as follows:
- The right to go abroad.
- The right to privacy.
- The right against solitary confinement.
- The right against hand-cuffing.
- The right against delayed execution.
- The right to free legal aid and speedy trials.
- The right to live with dignity.
- The right to shelter.
- The right against cruel punishment.
- The right against custodial death.
- The right to health of the workers.
- The right against denial of wages and arbitrary dismissal of workers.
- The Right to health and immediate medical assistance.
- The right to have primary education.
- The right to clean and hygienic conditions.
Article 22 provides protection against arrest and detention in certain cases. It says that the authority cannot arrest or detain a person without properly informing him/her of the grounds for such arrests and the arrested must be produced before the nearest magistrate within 24 hours of arrest.
Right against exploitation is another essential right among the Fundamental Rights. This right is given in the Articles 23 and 24. Article 23 guarantees Prohibition of traffic in human beings and forced labour. Article 24 lays down prohibition of employment of children below the 14 years of age in factories or any hazardous jobs. Articles 25 to 28 confer Right to Freedom of Religion to all the citizens of India. Article 25 guarantees Freedom of conscience, profession, practice and propagation of religion. But no one can be converted to any other religion through force or allurement. Article 26 provides freedom to manage religious affairs. Every religious denomination has the right to establish and maintain institutions for religious and charitable purposes. It also has the right to own and acquire movable and immovable property and administer such property in accordance with the law. Article 27 guarantees freedom as to payment of taxes for promotion of any particular religion. However, no person shall be compelled to pay tax for religious purposes. Freedom as to the attendance at religious instruction or religious worship in certain educational institutions is included under the Article 28. However, no person shall be compelled to attend such instruction.
Fundamental Rights also provide Cultural and Educational rights to its citizens, and it is covered in the Articles 29 and 30. According to Article 29, any section of citizen, residing in any part of the territory, having its own language, script and culture of its own has the right to conserve it. Article 30 states that all minorities, religious or linguistic, shall have the right to establish and administer educational institutions of their own choice in order to preserve and develop their own culture. Right to Constitutional Remedies is also provided in the Article 32 of the constitution. This right authorizes the citizens to move the court of law in case of denial of fundamental rights. The courts can issue various kinds of writs such as Habeas Corpus, Mandamus, Prohibition, Quo-Warranto and Certiorari. These writs help in preserving and safeguarding the Fundamental Rights of the citizens of India.
Besides this, several reformatory laws have also been enacted which endeavour to provide security and protection against various evils that can imperil the life of the citizens like the Dowry (prohibition) Act, the Bonded Labour (Abolition) Act, the Employees State Insurance Acts, Workmen Compensation Act, the Minimum Wages Act, the Protection of Civil Rights Act, the Environmental Protection Act etc.
National Human Rights Commission
Indian government has implemented some measures, in order to stop the ascendancy of human rights violation for the safety and security of the citizens of India. One such step taken in this direction is the implementation of Protection of Human Rights Act which came into force on 28 September 1993. This act provides National Human Rights Commission, States Human Rights Commission in every state and Human Rights Courts to monitor the human rights situation and the protection of Human Rights, defined as ‘rights relating to life, liberty, equality and dignity of the individual guaranteed by the constitution or embodied in the International Covenant and which are enforceable by the courts of India’.
Composition of National Human Rights Commission
The commission shall consist of:
- A Chairperson who has been a Chief Justice of the Supreme Court.
- One member who is or has been the judge of Supreme Court.
- One member who is or has been the Chief Justice of the High Court.
- The remaining two members must have the knowledge of or practical experience in matters relating to Human Rights.
- There shall be a Secretary-General who shall be the Chief Executive Officer of the commission and shall exercise such powers and discharge such functions of the commission as it may delegate to him.
Functions of the commission:
- The commission can enquire, suo motu or on a petition presented to it by a victim or any person on his behalf, into complaint of violation of Human Rights or abetment thereof or negligence in the prevention of such violation by a public servant;
- It can intervene in any proceeding involving any allegation of violation of Human Rights pending before a court with the approval of such court.
- It can also visit, with the prior approval of the state government, to prisons to study the living conditions of the inmates and make recommendations.
- It can review the safeguards provided by or under the constitution or any law for the protection of the Human Rights and recommend measures for their effective implementation.
- The commission also reviews the factors, including acts of terrorism, that inhibit the enjoyment of Human Rights and recommends remedial measures.
- It also studies treaties and other international instruments on Human Rights and makes recommendations for their effective implementation.
- It also undertakes and promotes research in the field of Human Rrights.
- It encourages the Non-governmental Organizations (NGO) working in the field of Human Rights.
- Finally, it spreads the human rights literacy among various sections of society and promotes awareness about the safeguards available for the protection of these rights through publications, media, seminars and other available means.
Human Rights Practice in India
India's strategy for growth and development is not inclusive. This has led to the rising levels of poverty and increasing protest and dissent against the government. On the surface, it seems that they are driven by ideological or religious causes, but the root cause is social or economic factors. However, these conflicts are viewed as contravention of law and order situation in the country. In order to deal with these situations, confinement or incarceration is seen as the only alternative. Such behaviour on the part of state apparatuses and security personnel is repugnant to fundamental rights mentioned in the India constitution and International Human Rights law.
Even though India has embraced and enforced most of the Human Rights in its constitution, but it has not been successful in preventing human rights violations in India. There are reportedly numbers of cases of human rights violation in India like arbitrary detention, deaths in police custody, children and women's rights abuses, religious violence, caste related abuses etc. According to the Human Rights Watch Report, 2011, India has ‘significant human rights problems’. The major concern expressed in the report was lack of accountability for security force abuses, impunity for abusive policing including police brutality, torture and extra- judicial killings.
Human rights violation is also conspicuous in the social and economic situation of the country. India stands at 122 in the list of the countries by Human Development Index. India has not been able to provide social and economic rights to its citizens like right to food, right to work, the right to an adequate standard of living including food, clothing, shelter; the right to physical and mental health; the right to social security; right to healthy environment and right to education etc. India's record in guaranteeing these rights to her citizens has been dismal. Poverty, malnutrition, deteriorating health of the women and children, infant mortality, female infanticide is still very rampant in India. Lack of social and economic human rights has acted as a hindrance in the full enjoyment of civil and political rights.
Human Rights Situation in Kashmir
A popular movement and armed uprising began in Indian state of Jammu and Kashmir since 1989. Since then, it has become a heated issue in South Asian region. The unabated rise in terrorist activities in Kashmir has become a thorn in India's side. In the wake of this, Kashmir has witnessed an enactment of two most powerful acts as an instrument to curb such immoral and unlawful activities: Armed Forces Special Power's Act (AFSPA) and Jammu and Kashmir Public Safety Act, 1978 (PSA). These acts were especially enforced to ensure the security of the state and public order in Kashmir. However, in the last two decades these instruments have been increasingly misused by police and state machinery to mute the voices raised in the favour of Kashmir's independence. This stands as a gross violation of Article 21 of the constitution that provides for right to life and personal liberty.
Jammu and Kashmir Public Safety Act allows the state government for administrative detention of a person for a period of two-years without any trial, if the government finds any activity prejudicial to the maintenance of law and order in the state. As a result of this, complying with the act government has detained many activists, protesters and ordinary citizens, and tainted its own record on Human Rights. Assessing the situation in Kashmir, Amnesty International, a non-governmental organization, has recently come up with a report titled ‘A lawless law’: Detentions under Jammu and Kashmir Public Safety Act published in 2011.
Amnesty International has prepared this report on the basis of research conducted by its team during its visit to Srinagar in May 2010 and a subsequent analysis of government and legal documents relating to more than 600 individuals detained under the act between 2003 and 2010.2 According to this report, this act is so widely used that it has virtually replaced regular criminal justice system in Jammu and Kashmir. The report shows that instead of using the institutions, procedures and Human Rights safeguards of the ordinary criminal justice, the authorities are using the PSA to secure the long-term detention of activists, protesters and ordinary citizens to ‘keep them out of circulation’. Many of these individuals may have been detained after being branded as ‘anti-national’, solely because they support the cause for Kashmiri independence or a merger with Pakistan and are challenging the state through political action or peaceful dissent. Detainees do not enjoy any safeguards against detention, which they would have otherwise enjoyed under regular criminal justice system like access to judicial authority, access to legal counsel etc. It is also revealed that the detention is generally made on vague and general ground, it also involves the risks of fabricated detention, there are reports of torture during interrogation and forced confessions etc.
Amnesty International has asked the state government to repeal the act and charge the detainees with proper criminal offences and try them in the court of law with all the safeguards which are required and provided for a fair trial.3
Human Rights Watch, another international non-governmental organization trying to address the situation in Kashmir, have uncloaked few gut-wrenching facts related to human rights abuses in the state. According to its report, when the two year detention period under PSA expires, security forces fabricate a new case against the detainee often based on an alleged crime committed in the early 1990's when the Terrorist and Disruptive Activities Act (TADA) was in effect. It provides for one year of detention without trial. Although TADA lapsed in 1995, the security forces continue to charge the detainees under it, on the grounds that the crime was committed when TADA was in force.4 A disturbing rise has been witnessed in custodial deaths and extrajudicial killings. These instances have often been justified by security forces under the garb of fake gun battles with the militants.5 In 2009, in a letter addressed to the Chief Minister of Jammu and Kashmir, Omar Abdullah, Human Rights Watch called for an independent, transparent and time-bound commission to investigate allegations of enforced ‘disappearances’. It also called for the repeal of laws like Jammu and Kashmir Disturbed Areas Act, Armed Forces Special Powers Act, and Public Safety Act; since these provide extra ordinary powers to the armed forces leading to gross human rights violations.6
Armed Forces Special Powers Act is in force in North-East also. Irom Sharmila Chanu, who is also known as the Iron Lady of Manipur, a civil-right activist from the Indian state of Manipur, has been on hunger strike since 2 November 2000, to demand that the Indian government repeal the Armed Forces Special Powers Act, 1958, which she blames for the violence in Manipur and other parts of the India's North-East.
The police and security personnel sometimes used force and resorted to violent suppression of street protests in Kashmir. This has resulted in the deaths of hundreds of civilians including children and people at the hands of security forces. To express dissatisfaction and to avenge these casualties, the people of Kashmir have retaliated by pelting stones and entered into violent clashes with the forces; thus, prompting the rise of vicious circle of tit-for-tat violence. No such sincere efforts have been embarked upon to prosecute the security forces responsible for the human rights violation, since section 197 of the Criminal Code of Procedure provides immunity for crimes to security forces committed during the course of duty.
Laws like Armed Forces Special Powers Act (1958), the Unlawful Activities Prevention Act (1967) and the Chhattisgarh Special Public Security Act (2006) grants unfettered freedom to the security forces. These acts along with the Sections of the Criminal Procedure Code (1973), which requires prior government permission before starting legal proceedings against members of the armed forces and the police have made the situation more complex. These result in inordinate human rights violations and lack of accountability. India should ratify the U. N. Convention against Torture, and improve its stature on the international front.7 By the virtue of these acts, Indian security forces have committed massive human rights violation in the Northeast territory of India, territories afflicted by Naxalism, and Kashmir, where some of these acts are in force. Activists in all of these conflict areas have demanded repeal of the AFSPA, but these endeavours were impeded by strong opposing voices from army and nationalist parties.
India is inflicted with communal clashes and violence since colonial times. Despite being a secular and democratic country and enshrining the principle of Sarva Dharma Samabhava in its constitution, India has not been successful in preventing communal disharmony among various religious denominations. On the contrary, state apparatuses and police have connived and supported religious zealots and organized pogroms against religious minorities.
Even after 27 years, the state sponsored pogrom in which nearly 3000 Sikhs were massacred on the directives issued by secular-centrist Congress Party of India, as a consequence of the assassination of Prime Minister of India, Indira Gandhi, by her Sikh bodyguard. Justice has still not been delivered to the victims of the riots and majority of the officers who were charged with the dereliction of their duties and provided shield to the assaulters, have been absolved of all the charges.
Gujarat violence against Muslims in 2002 was another instance of state-orchestrated massacre against religious minorities. More than one thousand Muslims were killed in retaliation by Hindu mob as a consequence of burning of Godhra train carrying fifty-eight Hindu kar sevaks. The cases are still sub-judice and justice has not been delivered to the victims of the pre-meditated pogrom.
The displacement of Kashmiri Pundits in the 1990's from Kashmir by Islamic militants and more recent attacks on the Christians missionaries and their churches by Hindu organizsations like Vishwa Hindu Parishad and Bajrang Dal like burning alive of Graham Staines and his sons are few other examples of human rights violations. State has been a mute spectator in the attacks on Christians in Orrisa, Karnataka, and other states. Instead of dwindling in number, the cases of religious violence have only multiplied owing to callous attitude of the government.
Attacks on Human Rights Defenders
According to the Human Rights Watch report, human rights defenders in Kashmir and Gujarat have been threatened. In Kashmir, human rights lawyers and activists have reported threats from both security forces and militants, and several of them have been attacked. In 2005, some Gujarati lawyers and activists pursuing justice in the 2002 riot cases continued to receive anonymous, threatening phone calls.8 Another recent instance of attack on human rights defenders is the arrest of the Dr Binayak Sen. He is a human rights activist and vice- president of a non-governmental organization, People's Union of Civil Liberties. He criticized the government of human rights violation during anti-Naxalite operations. He was fighting for justice and Human Rights and was hence considered as a threat to national security by the Chhattisgarh government. In 2007, he was detained in a fabricated case for supporting outlawed Naxalites, thus violating the provisions of the Chhattisgarh Special Public Security Act, 2005 (CSPSA) and the Unlawful Activities (Prevention), Act 1967. In April 2011, after a long and tedious fight Supreme Court of India granted bail to him.
Displacement Due to Development
Scheduled Tribes or Adivasis suffer from high rates of Displacement. They constitute 8 per cent of the total population but constitute 55 per cent of the displaced people. The government continues to use the 1984 Land Acquisition Act to displace tribal or indigenous peoples from their lands without sufficient compensation. In 2005, the government proposed the Scheduled Tribes (Recognition of Forest Rights) Bill, which is designed to protect those who had been occupying forest land prior to October 1980. But, the draft fails to clarify access rights to common property resources such as pastures and forests and it appears to be in conflict with earlier forest and wildlife protection laws.9 They are displaced to implement developmental projects like mining etc.
People have also been forcefully evicted from Singur, Nandigram, Kalinganagar, Jagatsinghpur, Lanjigarh, Narmada and Chhattisgarh to execute development oriented projects like creating Special Economic Zones. Even the highest courts in India have pronounced the judgment in the favour of rich under the guise of being pro-development and at the cost of the poor.10
The Indian government has passed some legislations, among others, in order to set straight its record on Human Rights like National Rural Employment Guarantee Act (2005), the Right to Information Act (2005). In 2001, Supreme Court passed orders to implement right to food, annulling of Section 377 of the Indian Penal Code which criminalized consensual homosexual conduct between adults etc. At the ground level, many Indian-based non- governmental organizations like People's Union of Civil Liberties and People's Union of Democratic Rights have raised their concern on human rights violations and are doing a commendable job by bringing the issue of Human Rights to the fore. Nonetheless, human rights violations are rampant in India.
India has passed various legislations but the problem comes in the implementation of these legislations at the ground level and lack of political will to execute them religiously. India needs to further improve its human rights agenda by paying attention to the following areas of immediate concern. At the international level, India should become a signatory to international conventions like the UN Convention on the Status of Refugees, optional Protocols to the International Convention on Civil and Political Rights and the Protocol relating to the status of refugees, the UN Code of Conduct for Law Enforcement Officials, the UN Body of Principles for the Protection of All Persons under any form of Detention or Imprisonment and the UN principles on the Effective Prevention and Investigation of Extra- Legal, Arbitrary and Summary Executions. At the domestic level, India needs to pay heed to the standard minimum rules for the treatment of prisoners, code of conduct for law enforcement officials, body of principles on detention or imprisonment, principles of medical ethics, basic principles on the independence of the judiciary, basic principles on the role of the lawyers, declaration on protection from enforced disappearances, principles on the prevention of summary executions, obliterating the draconian laws that leads to the infringement of personal liberties of the people etc.
The Chinese Scenario
The Notion of Human Rights in China
According to Chinese leadership, the concept of ‘Human Rights’ is a western import and is not historically a Chinese concept. China denies the existence of the concept of ‘universal’ human rights. They assert that human rights are realized according to the cultural context and the economic status of a country. They vindicate their position by saying that the evolution of human rights in a country is based on its social and historical factors. Chinese leadership gives precedence to ‘National Sovereignty’ over Human Rights, and maintains that Human Rights cannot override sovereignty of a country. It means that China calls for non-interference in another country's affairs. China condemned U.S. intervention in Iraq on humanitarian grounds, for China does not support and champion the cause of Human Rights by violating a country's sovereignty and integrity on a mere pretext of protection of Human Rights.
There is no exact translation of the word ‘rights’ in Chinese language. This term is usually deciphered as ‘power’ (quan) and the term ‘human’ in ‘human rights’ is generally translated as ‘people’ (ming) or ‘citizens’ (gongming) instead of individuals. Therefore, Human Rights is translated as renquan, that is, ‘human power’. Since the term means human power, the struggle for Human Rights is considered by the Chinese communist state as fight for political power and therefore, is considered as a threat to the establishment.
Unlike western democracies which emphasize and uphold civil and political rights, China gives priority to social and economic rights. Chinese culture ascribes more significance to reverence towards a ruler, rule of a man rather than rule of law, duties-oriented citizens rather than rights-centered individuals, collective interests rather than individual interests, upholding community and socialist ideology. Unlike western liberal-democratic countries where an individual is considered as an end in itself, individuals in China is considered as a part of a organic-whole and social organization rather than individuals per se. A sense of collectivism instead of individualism is expected out of everyone, especially when there is a conflict between individual and collective interests. China believes that it cannot grant civil and political rights to the citizens at the cost of social harmony and public order. Therefore, the latter takes precedence over the rights of the individuals. China's emphasis on social and economic rights has its genesis in its imperial past when it was coerced into unequal treaties, its thrust for anti-colonialism compounded with Confucius philosophy and Marxist thinking, which have extensively emphasized on social harmony and collective rights of the society rather than individual rights. China's inability to implement genuine and full reforms in Human Rights and internalize international human rights norms can be explained by a combination of three determinative factors: (1) Confucian influence and imperial institutionalist heritage; (2) Maoist socialist order; (3) authoritarian developmentalism, which have interacted in multiple ways at different critical junctures and inhibited the Chinese state.11
Chinese Constitutional Provisions
Chapter 2 of the Chinese constitution delineates in detail the fundamental rights and duties enjoyed by all the citizens of China irrespective of any bias and prejudice based on class, religion, gender etc. However, there is a huge difference between theory and practice. Fundamental Rights enshrined in the constitution can be classified into economic, cultural, social, political and the civil rights. These are as follows:
- Right to Work has been guaranteed by the Article 42 of the constitution. Every able-bodied person has the right as well as the duty to work. The state shall impart vocational training to people before they are employed. The state shall create conditions for employment, improve working conditions, strengthens labour protection, enhance remuneration for work and social benefits.
- Article 43 provides Right to Rest to all the working population of the country. The state provides facilities for the rest and recuperation for the working people. The state has fixed the working hours and prescribed vacations for its workers.
- The citizens of China who are aged, ill or physically disabled are entitled to Material Security provided under the Article 45 of the constitution. The state makes provisions for social insurance, social relief, medical and health services which are necessary for the citizens to enjoy this right. The state provides livelihood, and imparts education to the blind, deaf and handicapped. Similarly, state ensures the livelihood of the disabled members of the armed forces, preferential treatment is accorded to the families of the military personnel and pension is provided to the families of the martyrs.
Social and Cultural Rights
The Chinese constitution guarantees number of social and cultural rights to all the citizens of China. These are as follows:
- Article 46 confers the Right to Education to all the citizens of China. To seek and receive education is a fundamental right as well as a fundamental duty of every citizen of China. However, this norm is applicable only to the early school education which has been made compulsory by the state. The state shall promote all-around moral, intellectual and physical development of the children and young people.
- Article 47 provides Freedom to engage in scientific research, literary and cultural pursuits by virtue of which every citizen has the right to engage in scientific research, literary and artistic creation and other cultural pursuits. The state also encourages all the creative endeavours only if they are in tandem with the interests of the people.
China has been successful in providing social and economic rights to its citizens, but political and civil rights are limited and are permitted only to the extent they do not contradict or violate the ideologies of Marxism-Leninism and Mao Zedong.
- Article 34 gives the Right to vote and contest election to all the citizens of China who are eighteen years of age and above irrespective of the differences based on race, sex, religious beliefs, educational qualifications, ethnic status, nationality etc. Similarly, any individual of twenty-one years of age and above has the right to stand and contest for elections without any discrimination. A citizen can be deprived of this right only in accordance with the law.
- According to the Article 41 citizens have the right to Freedom of Speech, that is, they have the right to criticize andmake suggestions to any state organ or functionary. In other words, citizens have the right to make bona fide complaints and level charges against any state organ or functionary for the violation of law or in event of conscious neglect of duty. According to the constitution, no one may suppress such complaints charges and exposures or retaliate against the citizens who have lodged the complaint. Any citizen whose civic rights have been infringed upon by any state organ or functionary shall have the right to compensation in accordance with the law.
- Article 35 provides number of civil rights and personal liberties like freedom of speech, press, association, assembly, procession, and demonstration.
Article 36 guarantees religious freedom to all the citizens of China. It states that no state organ or individual may compel citizens to believe in or not to believe in any religion. The state shall also not discriminate against the citizens; if s/he happens to be theist, atheist or an agnostic. The state safeguards normal religious activities. Religious bodies and religious affairs are not subject to any foreign domination.
- The citizens of China are guaranteed few personal freedoms which cannot be violated according to the constitution of the country. The citizens are provided protection against unlawful detention and deprivation under Article 37. A person can be arrested only with the approval of a competent authority. Unlawful search of the citizens is prohibited and can be carried out only with the permission of a competent authority or state functionaries.
- Article 38 states that the personal dignity of a citizen of People's Republic of China cannot be profaned. Insult, libel, false charges, defamation directed against citizens by any means is prohibited.
- Article 39 provides privacy of residence to the citizens of China. The unlawful searches of the residences are legally forbidden, and intrusion into the houses of the citizens is not permitted according to the law.
- Article 40 protects the privacy and freedom of correspondence of the citizens of People's Republic of China. No person or organization can infringe upon the right to privacy of correspondence of citizens under any circumstances except in the interest of the security of the state or in case of investigation into criminal offences. Certain organs of the state can trespass this law according to the procedures established by law.
Women in China enjoy equal rights with men in all fields of life like economic, social, cultural, political and family life. The state protects the interests of women and the principle of equal remuneration for equal work for both men and women is observed in China. The state also selects and trains cadres from among the women.
Rights of Chinese Nationals Abroad
According to the Article 50, the rights and interests of the Chinese nationals and their family members residing abroad are protected by China.
Historical Account of Human Rights Situation in China
While some scholars have argued that the changes in the human rights discourse in China can be attributed to the mounting international pressure by the western states and transnational actors which has forced China to comply with international human rights norms since late 1970s. Others have ascribed this change to the ‘opening and reform’ policy adopted by China after 1978. With this policy, China could not ignore the western states and started viewing them as significant states with which China needed to interact. Some other scholars while partly refuting these arguments have asserted that even though international criticism has impacted the changes in human rights discourse in China, but it would not be prudent enough to completely rely on this factor as it cannot sufficiently explain the changes. On the other hand, even though ‘reform and opening’ policy made it possible for China to view other states as equals instead of class enemies that China should eliminate. However, there are other important reasons that can explain the changes in human rights discourse includes China's self-reflection and self-criticism in the late 1970s. China's self-criticisms resulted in a reassessment of China's national conditions and national goals, which in turn resulted in the ‘reform and opening’ policy and the shift to economic construction as a central task of the party.12
The term, ‘human rights’ never existed in the Chinese discourse till late 1970s. It also never appeared in official communist party documents and state laws. Prior to 1978 the concept of ‘human rights’ was seen in the negative terms by the Chinese state. The term was denounced as hypocritical slogan held by the bourgeoisie and the term was also criticized as an ideological weapon by capitalist countries to attack socialist systems.13 After Mao's death in 1976, Deng Xiaoping assumed power and implemented the ‘open door’ economic policy.
This allowed the human rights idea and international human rights movement to reach the Chinese population. The new constitution of 1982 devoted a whole chapter to a detailed description of ‘fundamental rights and duties’ of the citizens which concords with the international human rights standard. However, it should also be noted that the constitution insisted on the ideas of ‘four cardinal principles’ which includes the socialist path, the people's democratic dictatorship, leadership of the communist party, and Marxist-Leninist- Mao Zedong thought. Arguably, in order to uphold these principles restrictions can be imposed on civil and political rights.14
The present human rights discourse was sparked by the Tiananmen Square incident of 1989, as the international actors mounted pressure and criticized the Chinese handling of the situation. In response to the international criticism, China published a White Paper on Human Rights in 1991. For the first time, China acknowledged that it is answerable to the international community on its human rights record. It also acknowledged the right of the international community to monitor the China's human rights situation. However, it was an attempt by the Chinese government to interpret Human Rights in relation to the national and historical conditions. The White Paper expressed government's view on Human Rights and placed high priority on the ‘right to subsistence’ and economic development as a precondition for the full enjoyment of Human Rights. It was argued that right to subsistence was the most important human right, for without it other rights could not be protected.
Thereafter, a series of White Paper were published on various human rights issues. Many research institutions were set up by the Chinese government to further the research in Human Rights. An official human rights organization, the China Society for Human Rights Studies, was also created by the government in 1993. The government also sent out a number of delegations consisting of scholars and officials to the western countries to exchange views on Human Rights. These endeavours and initiatives taken by the Chinese government are seen by some scholars as the will and intention on the part of the government to put human rights at the centre of the China's modernization project.15 In the political report to the 15th National Congress of the Chinese Communist Party in 1997, for the first time the phrase ‘respecting and safeguarding Human Rights’ was written into a formal document of the party's national congress. In 1998, as a tribute to the 50th anniversary of the Universal Declaration of Human Rights, China organized an International Symposium on World Human Rights towards the 21st Century in Beijing. This was the first ever international conference on Human Rights hosted by China. China also signed two international covenants on Human Rights, International Covenant on Economic, Social and Cultural Rights on 27 October 1997 and the International Covenant on Civil and Political Rights on 5 October 1998.
Even though, the Chinese government have laid more emphasis on maintaining social stability than economic or political reforms, it has enacted several major laws that may reduce the human rights violations in the country. In 2004, the phrase, ‘the state respects and protects Human Rights’ was added to the Chinese constitution, is a positive development in regard to Human Rights. In April 2009, the PRC State Council released a two year ‘action plan’ to address human rights abuses such as torture, unlawful detention and the lack of due process and to promise greater civil right.16 Laws and regulations designed to protect Human Rights include those related to the use of torture, the death penalty, labour conditions, private property and government transparency. The list of regulations is as follows.:17
Rights of the Accused: In July 2006, the state enacted prohibitions on specific acts of torture and requirements that interrogations of suspects of major crimes be video-recorded. These regulations followed a 2004 law forbidding the use of torture to obtain confessions. In March 2007, the Standing Committee of the National People's Congress (NPC) debated a law that would grant suspects to remain silent.
The Death Penalty: In March 2007, the Supreme People's Court was granted power to review and ratify all death sentences, following four years of discussion among the Chinese Communist Party leadership. Xiao Yang, president of the Supreme People's Court, stated that the death penalty would be exercised ‘more cautiously for only a small number of extremely serious offenders with hard evidence’. An effort to use the death penalty may have been responsible for a reduction in the use of capital punishment from roughly 15,000 annually a decade ago to 6,000.
Labour Rights: In 2006, the National People's Congress issued a report that highlighted China's labour rights abuses. In March 2007, China's legislature passed a Labour Contract Law. The law went into effect in January 2008, however, workers still do not have the right to strike or form their own unions.
Property Rights: In March 2007, the NPC passed a constitutional amendment designed to protect property rights that had been debated since 2002. Although the new Property Law would preserve the state's ownership of all land, backers of the law argued that it would help to protect not only the private entrepreneurs, but also urban families who own apartments and farmers whose crop lands risk seizure by government-backed real estate developers. In October 2008, the government issued new measures allowing farmers to lease and transfer or sell rights to use the property allocated to them by the state.
Government Transparency: In April 2007, the PRC government announced new rules to take effect in 2008, requiring greater disclosure of official information. In addition, institutional and legal mechanisms were set up to provide for greater government responsiveness and accountability. In part, these measures represented attempts to compel local governments to reveal financial accounts related to land takings in rural areas.
Organ Transplant: In 2006 and 2007, the PRC regulations banning trade in human organs went into effect. They also stipulated that the donation of organs for transplant be free and voluntary. These restrictions followed growing evidence and international criticism of a booming and unregulated international trade in organs of executed Chinese prisoners including what one report said were ‘large numbers of Falun Gong practitioners’. The PRC government has denied this allegation.
Human Rights Practise in China
Personal freedom like freedom of cultural pursuits, freedom to criticize government etc enshrined in the Chinese constitution is a mockery and exists only in name, for the citizens of China do not enjoy any real freedom given in the constitution. The civil and political freedoms are in fact negated in the larger interests of the state, society and social stability. Hence, citizens are expected to sacrifice their so-called narrow rights for the sake of superior interests of public order.
In the recent years, China has witnessed a mixed picture on the progress of human rights situation. That is to say both, increasing government crackdown and restrictions on human rights activists, defenders and peaceful demonstrations and growing awareness and assertion of greater civil rights, have occurred simultaneously. Chinese government have enacted various legislations and laws to address the human rights abuses in the country, but it has also indulged in flagrant and glaring human rights violations especially of those sections of society which have resorted to mass protests and openly called for fundamental change and democracy. These include Tibetans, Uighur Muslims, Falun Gong practitioners, leaders of unsanctioned Christian churches and ‘human rights defenders’. The government have resorted to various methods of repression which includes excessive use of violence by security forces, torture, unlawful arrest and detention, arbitrary use of state security laws against political dissidents etc. A brief account of the human rights violations committed by the Chinese government is as follows:
Human Rights Defenders
Individuals who peacefully exercised their rights to freedom of expression, assembly and association remained at high risk of harassment, house arrest, arbitrary detention, torture and other ill-treatment. Family members of human rights activists, including children were increasingly targeted by the authorities, including being subjected to long term house arrest and harassment by security forces.18 Police and security forces detained, harassed and abused lawyers representing politically sensitive human rights defenders, Falun Gong practitioners, farmers with claims against local officials regarding land rights or corruption and those who had been involved in advocating reform of lawyers’ association. Lawyers were at a particular risk of losing their license to practice. Authorities continued to use vague laws governing the use of ‘state secrets’ and ‘subversion of state power’ to arrest, charge and imprison human rights defenders.19 Yet, the domestic ‘rights defense movement’, an informal movement connecting lawyers activists, dissidents, journalist, ordinary citizens, peasants and workers’ advocates, continues to expand as demands grow for the state to respect its own laws.20 An account of selected human rights activists and dissidents, who have been incarcerated by the security officials:
Gao Zhisheng, human rights lawyer, has represented numerous individuals, activists, writers and religious leaders. On 18 October 2005, Gao wrote an open letter to the President Hu Jintao and the Premier Wen Jiabao, urging an end to the persecution of Falun Gong practitioners. He was convicted on 22 December 2006, of ‘inciting subversion of state power’ and handed a suspended sentence. In February 2009, Gao was presumed to be taken by government authorities to an undisclosed location.21 He re-emerged in Beijing in early April 2010 after a year of official obfuscation about his status, telling journalist and supporters that security agents had reportedly tortured and kept him captive. He disappeared again a few days later. In October, police rejected his brother's effort to register him as a missing person.22
Chen Guangcheng, a blind activist and legal advisor, continued to suffer ill-treatment in prison. He was arrested in June 2006, and was sentenced to four years and three months in prison after he tried to hold local officials in Shandong accountable for conducting forced abortions and sterilizations in order to enforce birth quotas.23 He was freed from prison in September 2010, only to be confined with his entire family in his home village, and was denied access to medical treatment for ailments he developed in prison. Unidentified men worsking at the behest of local police officials threatened and roughed up journalist and activists who tried visiting him.24
On 23 November 2009 human rights defender Huang Qi was sentenced to three years imprisonment for ‘illegally possessing state secrets’. He had posted the demands of parents whose children had died in the Sichuan earthquake on his website.25 In August 2009, human rights defender Tan Zuoren was charged with ‘inciting subversion of state power’. He had organized an independent investigation into the collapse of school buildings during the May 2008 Sichuan earthquake.26
Justice System and Unfair Trial
The criminal justice system remains highly vulnerable to political interference. The courts, the prosecuting organ and the police remained under the supervision of the Chinese Communist Party. The authorities continued to use broad and vaguely defined provisions of the criminal law relating to state security and ‘state secrets’ to silence dissent and punish human rights defenders. Many of those charged under ‘state secrets’ provisions received unfair trials; and, in accordance with criminal procedure law provisions, were not given the protections afforded to other criminal suspects regarding access to legal counsel and family, and open trials.27 Confessions extracted through torture continued to be admitted as evidence in the court. Millions of citizens tried to present their grievances directly to government authorities through the ‘letters and visits’ system, otherwise known as the ‘petitioning system’. Despite being legal, police often harassed petitioners, forcibly returned them to their home provinces, and detained them in illegal ‘black jails’ or psychiatric hospitals where they were at risk of ill-treatment.28
Freedom of Expression
Despite a clear reference of freedom of speech and expression as one of the fundamental rights in the constitution, the state still directly controls media outlets, pressurizes media against covering major or sensitive issues and imposes severe restrictions on its critics. According to one study, the central government has employed a two-pronged strategy approach, relying on traditional coercive tactics such as intimidation and incarceration of critics as well as adapting to both society's growing expectations and innovations in communications technologies.29 As the internet was increasingly being used to disseminate news and conduct debates, the authorities tried to control its use by restricting news reporting and shutting down publications and internet sites, including ones that ‘slandered the country's political system’, ‘distorted the history of the party’, ‘publicized Falun Gong and other evil cults’, and ‘incited ethnic splittism’. The government blocked access to content and recorded individual's activities through new filtering software such as Blue Shield.30 The government required state media and internet search firms to censor references to issues ranging from the June 1989 Tiananmen massacres to details of the 2010 Nobel Peace Prize. On 12 January 2010, the U.S. search engine company Google announced it would seek an agreement with China's government to end the firm's self-censorship of Chinese internet users’ search results, which it undertook partly because of government requirements. The government refused. On 22 March 2010, Google stopped censoring searches on its site and began redirecting them to its uncensored Hong-Kong based site. Foreign correspondents in China continue to face reporting restrictions despite the government's October 2008 decision to eliminate requirements for official permission to travel the country and interview the Chinese citizens. These restrictions include a prohibition on foreign correspondents visiting Tibet freely.31 Some instances of government's harassment includes, following the publication and online dissemination of Charter 08 in December 2008, a document calling for political reform and greater protection of human rights, police questioned signatories and put them under surveillance for many months. Liu Xiaobo, a prominent intellectual and signatory originally detained in December 2008, was sentenced to 11 years’ imprisonment on 25 December for ‘inciting subversion of state power’. His lawyers were given only 20 minutes to present their case, a trial that lasted less than three hours.32
Detention Without Trial
The Chinese authorities have expanded the use of illegal forms of detention including prolonged house arrest without legal grounds, detention in ‘black jails’, ‘brain-washing’ centres, psychiatric institutions and unidentified ‘hotels’.33 The authorities frequently used administrative punishments including Re-education through Labour (RTL), to detain people without trial. RTL is an administrative measure that empowers the police to sentence persons guilty of minor or non-criminal offenses such as petty theft, prostitution, unlawful religious activity, and ‘disrupting social order’ to a maximum of three to four years in detention. According to the government, 190,000 people were held in RTL facilities, down from half a million several years ago, although the real figures were likely to be much higher. Former RTL prisoners reported that Falun Gong constituted one of the largest groups of prisoners and political activists, petitioners, and others practizing their religion outside permitted bounds were common targets.34 According to a government survey, between 2003 and 2007, 33,643 persons were detained for periods longer than what was allowed by law.35
China has continued to use death penalty extensively for both violent and non-violent crimes, with thousands being executed after unfair trials. Statistics on death sentences and executions remained classified as ‘state secrets’.36 The Chinese authorities have expressed their intention to use the increase of lethal injection as a ‘more humane’ method of execution than firing squad. China has also voted against a UN General Assembly resolution calling for a worldwide moratorium on executions.37
Torture And Other Ill-treatment
Despite legal reforms, torture and other ill-treatment continued in prisons, police stations, Re-education through Labour camps and other unofficial detention facilities. Human rights defenders, petitioners, Tibetans, Uighurs, Falun Gong practitioners, Christians, and others practizing their religion in officially unsanctioned ways were at particular risk of torture and other ill-treatment by the authorities and unidentified individuals.38 Torture methods used on detainees included beatings, often with an electric prod, hanging by the limbs, force feeding, injecting unknown drugs and sleep deprivation.39 In July 2010, new regulations were introduced to strengthen prohibition against the use of illegal oral evidence in criminal cases including coerced confessions. However, China's Criminal Procedure Law has not yet been amended to explicitly prohibit the use of confessions obtained through torture and ill-treatment as evidence before the courts.40
Coercive Family Planning
China's ‘one child policy’ continued with sporadic reports of coercive abortions, forced sterilizations and other unlawful government actions against individuals some of which has triggered protests. However, exceptions to one child policy have been made for ethnic minorities, couples whose first child was a girl in rural areas or one with a disability and couples who agreed to pay a ‘social compensation fee’ or fine.41
Tibet Autonomous Region
Tibetan religious practices are restricted by governmental policies and local people have expressed their resentment regarding the influx of Han Chinese, the majority ethnic group in China, to Lhasa, the capital of the Tibet Autonomous Region (TAR). According to the official Chinese statistics, Tibet's resident population is 2.84 million (2007). Han Chinese forms a small majority in the TAR (4%), but constitutes half of Lhasa's population. Many Han Chinese believe that the PRC government has brought positive economic and social development to the region. By contrast, many Tibetans claim that such development has not benefitted them economically and has accelerated the erosion of their traditional culture. In September 2007, the State Administration for Religious Affairs issued a set of regulations that required all Tibetans lamas wishing to reincarnate to obtain prior government approval through the submission of a ‘reincarnation application’.42 Thousands of Tibetan students have demonstrated against an official language policy which imposed Mandarin Chinese as the main language of instruction in schools at the expense of Tibetan. The policy is widely seen by Tibetans as a threat to the preservation of their culture. Although the authorities did not suppress these protests, they reiterated their commitment to the policy.43
On 11 March 2008, the 49th anniversary of the Tibetan uprising against the Chinese rule, 300 Buddhist monks demonstrated peacefully to demand the release of Tibetan prisoners of conscience. These demonstrations sparked others by monks and ordinary Tibetans demanding independence from China or greater autonomy, one of the most sensitive political issues for Beijing. On 15 March, demonstrations in Lhasa turned violent as Tibetan protesters confronted PRC police and burned shops and property owned by Han Chinese.44 The authorities reported that 21 people had been killed by violent protesters and overseas Tibetan organizations reported that over 100 Tibetans had been killed. While Chinese authorities announced that over 1000 individuals detained in the protests had been released, overseas
Tibetan organizations estimated that at least several hundred remained in detention at year's end. Exact numbers were difficult to determine because the authorities denied access to media and independent monitors. There were reports of torture and other ill-treatment in detention, in some cases resulting in death. Major monasteries and nunneries were reported remain under virtual lock-down. Local authorities renewed the ‘Patriotic Education’ campaign which required Tibetans to participate in collective criticism sessions of the Dalai Lama and to sign written denunciations against him. Tibetan members of the Chinese Communist Party were targeted by this campaign, including being forced to remove their children from Tibet exile community schools, where they were obtaining religious education.45 In 2009, the international human rights organizations reported a rise in the number of Tibetan political prisoners prior to sensitive anniversaries, including the 50th anniversary of the failed Tibetan uprising which led to the Dalai Lama's exile. The authorities blocked communication flow to and from the region, and prevented independent human rights monitoring. Tibetan's right to freedom of expression, religion, assembly and association continued to be severely restricted. The Chinese authorities became more assertive in their international policy regarding the Tibet issue, with public statements by Chinese officials that suggested their willingness to punish countries economically and diplomatically for perceived support of the Dalai Lama and Tibetan issues.
Two Tibetans were executed for crimes alleged to have been committed during the March 2008 unrest. In October 2009, two Tibetan men, Losang Gyaltse and Loyar, were executed. They were convicted of arson and sentenced to death on 8 April 2009 by the Lhasa Municipal Intermediate People's court. They had been arrested during unrest in the Tibet Autonomous Region and Tibetan-populated areas in neighbouring provinces in March 2008. On 28 December 2009, Dhondup Wangchen, an independent Tibetan filmmaker, was sentenced to six years of imprisonment for the crime of ‘subverting state power’ after a secret trial by the provincial court in Xining, Qinghai province. The lawyer originally hired by his family was barred from representing him, and it is unclear if he subsequently had any legal representation or was able to defend himself during the trial.46
In 2010 also, government continued to maintain a heavy security presence across the Tibetan plateau, and still continues to sharply curtail outside access to most Tibetan areas. In July 2010, the Chinese government rejected the findings of a comprehensive Human Rights Watch report, which established that China had broken international law in its handling of the 2008 protests. The government accused Human Rights Watch of ‘fabricating material aimed at boosting the morale of anti-China forces, misleading the general public and vilifying the Chinese government’, but failed to respond to any of the report's substantive allegations.47
Xinjiang Uighur Autonomous Region
Social and political tensions and harsh religious policies have long plagued China's far north-western Xinjiang Uighur Autonomous Region (XUAR). The XUAR is home to 8.5 million ethnic Uighur Muslims, 45% of the population. The PRC government fears not only Uighur demands for greater religious and cultural freedom but also their linkages to the Central Asian countries and foreign Islamic organizations, including terrorist groups. The East Turkestan Islamic Movement, a Uighur organization that the PRC alleges to have ties with Al-Qaeda and that advocates the creation of an independent Uighur Islamic state, is on the United States’ and United Nations’ lists of terrorist organisations.48 Because of the perceived national security related concerns, the PRC government monitors and imposes restrictions upon Uighur society more stringently than it does most other religious and ethnic groups, focusing on Uighur religious leaders and practices. Such restrictions include those related to the training and duties of the imams, Uighur and Arabic language, literature and education, public access to mosques, the celebration of Ramadan, contacts with foreigners, travel abroad, and the hajj. Uighur children and youth under 18 are forbidden from entering mosques and government workers are not allowed to practise Islam.49 According to the Amnesty International, in 2007, Uighurs were the only known group in China to be sentenced to death for political crimes such as ‘separatist activities’.50
The authorities intensified already tight restrictions on freedom of expression, association and assembly in the Xinjiang Uighur Autonomous Region (XUAR) following the eruption of unprecedented violence in Urumqi on 5 July 2009. Uighur has posted online calls for a protest in reaction to government inaction over the beatings and deaths of Uighur migrant workers by Han workers in a toy factory in Guangdong province in June. The government reported that 197 people were killed, the majority of whom were Han killed by Uighurs, and more than 1,600 were injured. Eyewitness accounts of events on 5 July suggest that police and security forces cracked down on peaceful Uighur demonstrators to prevent thousands from marching through the city. According to these reports, police beat peaceful protesters with batons, used tear gas to disperse the crowds and shot directly into crowds of peaceful demonstrators with live ammunition most likely resulting in many deaths.51
Following the unrest, the authorities detained hundreds on suspicion of participation in the protests including boys and elderly men, in door-to-door raids. Family and friends of several detainees denied that the detained individuals had any role in the violence or the protests. Dozens of detainees remained unaccounted for at the end of the year. In august 2009, the authorities announced that they were holding 718 people in connection with the unrest, and that 83 of these faced criminal charges including for murder, arson and robbery. On 9 November 2009, the authorities announced the execution of nine individuals after unfair trials. Based on their names, eight were Uighurs and one was Han Chinese. In December 2009, an additional 13 individuals were sentenced to death and the authorities announced the arrest of an additional 94 people on suspicion of involvement in the July unrest.52
In November 2009, the authorities formally announced a ‘strike hard and punish’ campaign in the region to last until the end of the year to ‘root out criminals’. The authorities blamed the unrest on overseas Uighur ‘separatist’, particularly Rebiya Kadeer, the President of the World Uighur Congress and failed to acknowledge the role of govern-ment policies in fuelling discontent among Uighurs. These policies included restrictions on freedom of expression, association and assembly; restrictions on religious and other cultural practices; and economic policies that discriminate against Uighur and encourage Han migration to the region. New regulations further tightened already strict controls on the internet in the region, criminalizing its use with the vaguely defined crime of ‘ethnic separatism’. Restrictions on internet access, international telephone calls and text messaging, blocked in the aftermath of the July unrest, remained in place at the end of the year.53 Ablikim Abdiriyim, the son of the exiled Uighur human rights activist, Rebiya Kadeer, remained in Baijiahu prison on a charge of ‘separatism’, for which he was sentenced to nine years in prison in April 2007. On 6 December 2007, during the first permitted visit since his detention, his family found him to be in extremely in poor health. Prison authorities attributed this to his heart condition, suggesting that it could deteriorate further if he refused to ‘cooperate’ or ‘admit his guilt’. Despite ongoing requests from his family, the authorities refused to grant him parole for medical treatment.54 In April 2010, Beijing installed a new leader for the autonomous region, Zhang Chunxian, to preside over an ambitious economic overhaul. In May, the first national Work Conference on Xinjiang unveiled numerous measures that are likely to rapidly transform the region into an economic hub, but it also risks further marginalizing ethnic minorities and accelerating migration of ethnic Han Chinese into the region.55
Falun Gong combines an exercise and meditation regimen derived from qigong with spiritual beliefs. It reportedly gained millions of adherents across China in the late 1990s. On 25 April 1999, thousands of practitioners gathered in Beijing to protest the government's growing restrictions on their activities. Following a crackdown that began in the summer of 1999 and deepened in intensity over a period of about two years, the group, which the government labelled dangerous or ‘evil’ cult, has largely diminished as a social or political problem in China. Nonetheless, the continuation of government vigilance against Falun Gong indicates that some followers continue to practise.56 Since the crackdown, estimates and claims of the number of Falun Gong adherents who have died in state custody have ranged from several hundred to a few thousand, including 100 deaths in 2008.57
Recently, the authorities have renewed the campaign to ‘transform’ Falun Gong practitioners, which required prison and detention centres to force Falun Gong inmates to renounce their beliefs. Those considered ‘stubborn’, that is, those who refuse to sign a statement to this effect, are typically tortured until they cooperate; many die in detention or shortly after release. Falun Gong members continued to be targeted in security sweeps carried out prior to major national events. Falun Gong sources documented 124 practitioners detained in Shanghai prior to the World Expo of 2010, with dozens reported to have been sentenced to terms of RTL or prison. Human rights lawyers were particularly susceptible to punishment by the authorities for taking on Falun Gong cases, including losing their licenses, harassment and criminal procedures. For instance, Guo Xiaojun, a former lecturer at a Shanghai university and a Falun Gong practitioner, was detained in Shanghai in January and later charged with ‘using heretical organizations to subvert the law’. He was sentenced to four years in prison for allegedly having distributed Falun Gong materials. He was tortured in detention, kept in solitary confinement, and he eventually signed a confession that was used to uphold his sentence at a closed appeal hearing. He had already previously served a five-year prison term for his beliefs. Another example is lawyers Tang Jitian and Liu Wei had their licenses permanently revoked in April by the Beijing Municipal Justice Bureau, on grounds of ‘disrupting the order of the court and interfering with the regular litigation process’. The two had represented a Falun Gong practitioner in April 2009 in Sichuan Province.58
Comparison Between India and China
Chindia is a portmanteau word used for India and China together. Both countries houses one- third of the world's population. There are lot of similarities and dissimilarities between India and China in the exercise of fundamental rights attributed to the citizens and human rights record of both the countries. In the economic sphere, the economies of the countries are considered to be complementary, in the sense, that if China is strong in hardware, then India is strong in software. If China has a good potential in manufacturing and infrastructure, then India is also adept at services and information technology. Furthermore, if China is strong in physical markets then India is perceived to be stronger in financial markets. China and India have made a remarkable progress in economic sphere.
However, both countries vary in the political sphere, for the political systems of both the countries are quite different. India is a multi-party, multi-ethnic democracy where the entire parliament is elected directly by the people for the period of five years. Whereas, China is run by a single communist party whose members are elected indirectly. Elections in China is a farce, for only those members are allowed to contest who are willing to dance to the tune of the party and ready to accept its ideology. India has decentralized form of government and decision making is bottom-up. On the other hand, China is still highly centralized and control oriented where decision making is top-bottom, that is, it exercises democratic centralism.
Tibet and Kashmir both are very sore and politically sensitive subjects of discussion in China and India respectively. Both the regions are demanding independence and their peaceful and non-violent protests are meted out with brutal state violence and oppression. Both the regions are subject to blatant injustice and flagrant inhuman treatment at the hands of the security forces. Illegal detention, fake encounters, torture, rapes are rampant in both the regions.
On the religious front, in Tibet many of the monasteries have been vandalized and monks and nuns are subjected to ‘patriotic re-education’. In Tibet, the main problem is the Chinese conception of Buddhism as an enemy that prevents Tibetans from making material progress. Muslims in Tibet are facing a serious cultural deprivation because in the state controlled education socialism and communism is taught at the expense of the religious teachings. However, at this front India is in a relatively better condition. Religious faith and beliefs of Muslims are not tampered with and challenged. Religious places are revered and care is being taken to preserve the sanctity of the mosques.
Another area of difference between India and China is the exercise of very basic fundamental right of freedom of speech and expression. The citizens of India can freely criticize and appraise the governmental actions and policies affecting people and can freely express their critical views and suggestions in print media like newspapers, magazines and electronic media. Even though, there have been instances of violent suppression of protests, people still have the full right to exercise the right to speak and organize rallies and peaceful protests for authentic reasons and concerns. India is a country where separatist leaders like hard-line Hurriyat Conference leader Syed Ali Shah Geelani can freely attend a seminar and give a call for independent Kashmir, and where an author Arundati Roy draws a comparison and equates the protest in Kashmir with the Naxals operating in central India. She also called for the people to fight against what she calls a ‘very hollow super-power’. On the other hand, China is a very intolerant country which considers every protest and disagreement with the party's stand and ideology as a threat to security and stability of the country and against the interests of the society. It has still not provided its citizens with civil and political rights and any attempt which aims to subvert the ideology of Marxism-Leninism and Mao Zedong, as against the peaceful development of the society. Liu Xiabao, a human rights activist, who called for the political reforms and end to the single party rule in China, was recently incarcerated in the response to his participation in Charter 08. In 2010, he was awarded Nobel Peace Prize for his long and non-violent struggle for fundamental rights in China. However, he was denied the right to have a representative to collect the award on his behalf. His wife, Liu Xia was under house arrest and she was not allowed to talk to the reporters. The announcement of the award was censored in China and foreign news broadcasters like CNN and BBC were immediately blocked. Even though many countries were invited to the ceremony, only few of them attended perhaps due to heavy lobbying by China. In retaliation to the Nobel Peace Prize award, China introduced a new prize known as Confucius Peace Prize which was awarded to the former vice-president of the Taiwan, Lien Chen, for building the bridge of peace between Taiwan and the mainland.
However, the social and economic human rights situation is better in China than India. This is substantiated by the fact that China ranks 91 in the list of countries by the Human Development Index as compared to India which ranks 122 in the list. While India has set as an example on the international front, with burgeoning economy and responsive democracy moving hand in hand, it is yet to see how far China can go on with remarkable economic progress at the expense of political rights of the citizens.