Interview | India Must Stop Criminalising the Defence of Human Rights: UN Special Rapporteur

On May 1, 2020, Mary Lawlor, a Dublin-based human rights expert with over four decades of experience engaging in human rights work, took up the mandate of Special Rapporteur on the situation of human rights defenders (HRDs) at the United Nations. Along with her work globally, Lawlor has been closely following the deteriorating human rights conditions in India and feels the country has repeatedly failed to protect the rights and interests of HRDs in the country.

In the past year and half, Lawlor has written to the Indian state on several occasions, seeking the immediate release of HRDs incarcerated under unsubstantiated terror charges and held up in inhuman conditions in prison during the raging COVID-19 pandemic. The Indian government, she confirms, has ignored most of her official correspondence.

In a detailed interview conducted over email, Lawlor touches upon issues ranging from the ongoing Elgar Parishad case – that has forced many of India’s foremost HRDs into prolonged incarceration – to the Delhi riots case.

The Indian state has increasingly turned hostile towards human rights defenders in the country. Several activists, academics and journalists have been singled out, targeted, threatened and sent to jail for doing their jobs. Sedition and terror laws have never before been used so rampantly in the state. Many have even suffered prolonged incarceration simply for questioning the state’s policy. Do you feel concerned by the treatment being meted out to the HRDs in India?

On every continent, we are seeing the increasing misuse of anti-terror and national security legislation to persecute human rights defenders. Sadly, this is also true for India. The Unlawful Activities Prevention Act (UAPA), which Special Procedures has repeatedly raised concerns about, contains vague wording which allow for its discretionary application.

Many of those targeted with sedition and so-called counter-terrorist legislation are those who defend the rights of minorities in India. A communication from me became public last week, on the deplorable prison conditions faced by defenders of Dalit and Adivasi rights involved in the Elgar Parishad (Bhima Koregaon) case. Father Stan Swamy was arrested without proper evidence, held in pre-trial detention and allowed to die there without ever being convicted.

Human rights defenders are threatened or have their rights violated and the authorities are often reluctant to step in. Journalist and human rights defender Isravel Moses was killed in November 2020 after reporting to the police for months about the threats he was receiving. No investigation was opened at the time into the threats.

Woman human rights defender (WHRD) Parveena Ahangar and HRD Khurram Parvez in Jammu and Kashmir had their NGO premises raided by national security agents back in October 2020. They were working on investigating enforced disappearances in the region.

Also read: A Month Before Stan Swamy’s Death, UN Expert Had Rung Alarm Bell on Elgar Accused’s Health

Since the COVID-19 pandemic began, attacks against HRDs have continued unabated. They have been exposed to both physical and mental abuse, threats and smear campaigns for holding the state accountable. The Indian state too has resorted to regressive ways to shut down any and every critical voice in the country. Please share your thoughts. 

The pandemic has put many HRDs at further risk for a multitude of reasons. During periods of high transmission, they can find themselves locked in their homes, unable to flee when facing threats and attacks. Working online has made digital security even more important.

HRDs in prison are among those most at risk due to the close quarters in which they are held. India largely did not heed calls from civil society to release imprisoned human rights defenders. Many are held without trial, with pre-existing health conditions, in what may amount to a form of ill-treatment.

Several HRDs, academics and journalists have ended up in prisons for holding the state accountable. The state has used repressive laws like the UAPA to ensure prolonged incarceration and deny them their right to bail. And most of these arrests have continued through the pandemic. Your comments.

My report to the United Nations General Assembly (UNGA) this October is on the long-term detention of human rights defenders, and in the vast majority of the cases around the world, counter-terrorism legislation is used to jail human rights defenders for periods of ten years or more.

UAPA allows for human rights defenders to be held without bail. WHRDs Devangana Kalita and Natasha Narwal were arrested in May 2020 and placed in pre-trial detention under the UAPA. They were held for a year before a judge ruled that the allegations against them did not meet an offence under the Act. Even when bail was eventually granted last June, police waited two days before releasing them.

Also read: Former Civil Servants Say UAPA’s ‘Flaws and Loopholes’ Allow Abuse, Call For Replacement

The UAPA’s vague definition of ‘unlawful activities’ and ‘membership of terrorist organisations’ gives discretionary powers to state agencies, weakening judicial oversight and diminishing civil liberties.

HRDs, particularly those belonging to indigenous, Dalit and Muslim communities are vulnerable in the country. You have closely followed most cases and have intervened from time to time, like in the case of Hidme Markam from Bastar or the 16 HRDs arrested in the Elgar Parishad case. Do you think the Indian state has failed in its commitment to safeguard its citizens’ fundamental right to expression and dissent?

The Indian State failed in its commitment to protect Stan Swamy, I have no doubt about that. We all knew how at-risk he was, due to his pre-existing conditions and his age. They knew it too. But they let him suffer for many months and die.

I’ve been working with human rights defenders for many years; I tell states that I know the difference between a terrorist and a human rights defender. Peacefully defending the rights of others is not a crime and India must stop criminalising the exercise and defence of human rights.

You have been writing to the heads of state on a regular basis. What has your experience been like? Has the Indian state shown any willingness to engage?

I’ve written or joined 11 communications to the government of India since taking up my mandate on May 1, 2020. Of those 11, I have received a response from the state in just four cases, a response rate of 36%.

I have yet to meet with the Permanent Mission of India in Geneva but I look forward to doing so. You previously mentioned Hidme Markam.  The government did respond to my letter on her case. They said that they are “committed to ensure the safety and freedom of every person – including human rights defenders and civil society actors – to carry out their activities as long as they are legitimate and are not in violation of the laws in force in India.”

You had called Stan Swamy’s death a “stain” on the Indian human rights record. Swamy was, perhaps one of the oldest prisoners in the country. There are 14 more in the Elgar Parishad case still languishing in jails; they have been denied bail repeatedly. A similar pattern can be seen in other states like Kashmir, Uttar Pradesh, Delhi (post the 2020 riots), Karnataka, etc. Does the current state of India worry you?

Stan Swamy’s death is a stain on India’s human rights record. India can take steps to immediately release and safeguard the health of the remaining imprisoned human rights defenders. We know that sometimes progress is slow, but there is nothing to stop the Indian authorities releasing all its human rights defenders from detention tomorrow.

The right to dissent and protest has practically been overtaken by the state. Several sit-in protests in the country (for example, the Shaheen bagh protest) were halted soon after COVID-19. Criminal charges have been slapped against those joining protests anywhere in the country. But the government has itself been reckless in allowing political and religious congregations, purely for political gains. In light of COVID-19, do you see a rising challenge to organising and protesting?

Safeguarding freedom of peaceful assembly is difficult in times of COVID-19. Laws limiting public gatherings based on public health concerns are legitimate under international law. What is worrying is that in many countries, human rights defenders and civil society organisations were not consulted when these rules were designed. The laws have often been vague and have allowed for their discretionary enforcement. The Special Rapporteur of freedom of Peaceful Assembly and Association, Clement Voule, has written extensively on this and had warned at the beginning of the pandemic that public health legislation should not be misused as an excuse to cement control and crack down on dissenting voices. Sadly, in many cases, this is exactly what has happened.

It is not just individual HRDs who are being targeted. Many human rights organisations have been forced to shut down. Amnesty International was pushed out of the country last year; there are several other domestic and international NGOs awaiting a similar fate. What does it say about the Indian state’s commitment to human rights values? What, according to you, can be done to address this situation?

This is a trend not unique to India. We have seen human rights NGOs, and the defenders who often work in them, being targeted on a range of fronts – smeared and criminalised, harassed judicially, their computers hacked and offices attacked. International pressure can help slow or prevent these attacks, and we’re doing what we can, as often as we can, to remind the Indian authorities of their moral and legal obligations to support civil society.

Also read: Pegasus: Supreme Court Issues Notice to Centre on Pleas for Independent Probe

In July, the Pegasus Project, launched by 17 media organisations along with Amnesty International, exposed several governments that have been unlawfully spying on citizens using the Israeli spyware, Pegasus. In India, The Wire ran a series of investigations that exposed the dangerous patterns of use of this spyware against many journalists and HRDs. 

Against this backdrop, how do you think the secrecy and confidentiality of this industry can be pierced? When a country buys bombs, missiles or planes, it is declared publicly. Similarly, when the police buy CCTVs, it’s all done in the public eye. But spyware is not. What, according to you, can be done to get countries where these industries flourish to be more transparent?

That’s a big question and I can only speak from the perspective of human rights defenders. Highly sophisticated tools are used to monitor, intimidate and silence human rights defenders in programmes such as Pegasus. I know people personally whose phones were infected with it. The technology is new but the practice is age-old. What is frightening about this new digital surveillance is the scale and ease with which it can be abused.

One of the priorities of my mandate is to look at human rights violations carried out by businesses. Businesses who make surveillance technology must be held to account and so too must the States in which they are headquartered.