In Winter 2022, as part of McGill’s Legal Clinic on Academic Freedom, we created a draft report on behalf of the Scholars at Risk Network on academic freedom in India. This draft report contributed to submission that Scholars at Risk Network made to the United Nations Human Rights Council on March 31, 2022, as part of the Universal Periodic Review of India. A version of our report is available here.
The version of our report available on McGill’s website is slightly different from the report that was presented to the UNHRC as part of the UPR process. The report submitted to the UPR process was extremely pointed and concise, focusing on clear violations of academic freedom and providing actionable policy recommendations. For our final report, we added background information for readers to understand the social and historical context of the violent incidents we reference. In the final report, we also include incidents that we perceive as more incremental and implied, but still insidious, violations of academic freedom.
Methodology
As law students, we are used to turning to academic journals and jurisprudence when we conduct research. However, for the UPR report, we relied mainly on news sources. The UPR process is current. We scanned Indian and international online news sources for recent reports on incidents that could indicate a violation of academic freedom. We recognize that as Canadian students, we are not necessarily in the best position to conduct this type of research. On-the-ground reporting of recent violent incidents is not always available in English. Moreover, there were at times very few reports or conflicting reports of the incidents we were researching. When faced with uncertainty, a strict timeline to complete our report, and the limitations of being in Canada, we tried to only write about incidents that were reported by several sources.
In our advocacy, we took an approach that is narrow and focused. States are extremely strategic in implementing policy changes and may resist international interference. States also tend to be a step ahead of the international community; by the time advocacy organizations note what a state is doing, the state may be doing something else. As a result, advocacy must be current and recommendations actionable. In our recommendations, we tried to be clear, concise, and action-oriented. We included policy changes that we believe are actionable and manageable, and can make immediate and incremental impacts in reducing the types of violence we identified.
In drafting the UPR submission, we found the word limit to be a significant challenge. Academic freedom is a multifaced issue and some of the themes which we found to be of particular interest, could not be included in the final submission due to space constraints. Broad systemic issues, such as they division of domestic labour, impacts access to education and is somewhat of a threshold to academic freedom, particularly in the context of the COVID-19 pandemic.1 A robust discussion of all the social, political, and economic issues that impact academic freedom would be impossible to include in a UPR submission and thus we found that our approach to writing needed to be targeted and strategic.
Notably, we were encouraged to include a focus on violent events to demonstrate the severity of the need to protect academic freedom. Physical violence is without a doubt a devastating occurrence, but we also note that the limited space on the report meant that the UPR submission took more of a reactive approach than being able to anticipate how current socio-economic and political situations will create areas of need in the future. This speaks to the scope and role of the UPR, which is to review state’s past behaviours rather than taking a more comprehensive approach.
One of the most challenging aspects of preparing the report was the need to focus on the actions of the state. Tracing responsibility is an incredibly difficult task, particularly when the impacted issue is as far-reaching as academic freedom. For example, though it is intuitive that academic freedom would be impacted by COVID-19 limiting travel, space for discussion, and time that academics have available, finding a direct link between COVID-19, academic freedom, and the Indian government meant limiting the scope of the project to focus on positive government actions, such as internet shutdowns, rather than considering how a lack of government actions, such as not providing adequate childcare,2 impacted academic freedom.
Critical Reflection on the UPR Process
This section of our report proceeds by first providing an overview of the UPR process for states and then by providing an outline of the NGO process and reflecting on how the NGO process does and does not compensate for issues in the state process.
State UPR Submissions
It has been argued that the UPR process offers states and NGOs a formal opportunity to engage with “naming and shaming” practices to pressure states to comply with their expectations of human rights.3 After receiving voluntary reports on the human rights record of the state under review (provided by the impugned state), states are invited to provide reports on human rights in the country being reviewed.4 Reviewing states then provide feedback through specific recommendations, which states under review then publicly decide whether to accept or “note” (which in practice means to reject), the recommendations.5
The UPR process is run through the Human Rights Commission (HRC), which developed after criticisms that the UN Human Rights Council was too influenced by political bias.6 Concerns remain, however, that recommendations and whether they are accepted and implemented, is too impacted by political relationships between states.7 Indeed, Terman and Voeten found strong evidence that states are less likely to offer criticisms of strategic partners but that when they do, their recommendations are more likely to be accepted by the state under review than recommendations that are nearly identical from another state.8 Terman and Voeten argue that this does not in fact undermine the UPR process, but rather that the UPR process is political by design and that these politicized relationships can be used to leverage important human rights changes when effective recommendations come from strategically important sources.9 Cowell argues that UPR recommendations are designed to be political and that this accounts in part for why they do not have the same legal status as comments by human rights treaty bodies.10
The content of recommendations is also an important factor in whether they will be accepted.11 Scholarship notes that state recommendations are not only a function of the relationships between states, but also a function of the right being discussed. For example, Terman and Byun found that states are more likely to condemn violations of physical integrity, migration, and free expression in rival states than they are in strategic partners as an attempt to shame these states.12 Rights such as education and women’s rights are more likely to be criticized by friendly states, demonstrating that some rights are more politically contentious than others.13
NGO UPR Submissions
NGOs have relationships with states that are different from those between states, though this does not mean that the relationships between states and NGOs are not political in other manners. As demonstrated above, there is some justified concern that UPR reports provided by states are influenced by social, economic, and political relationships between governments.14 UPR reports submitted by NGOs are created from different institutional positionings and are meant to provide some sort of “balance” to the human rights issues that may be raised, misrepresented, or avoided entirely by states with political stakes in their relationships with the country under review.15
NGO submissions follow a different process than government reports and must be submitted at minimum six months before the UPR Working Group session and NGOs frequently do not have the benefit of seeing the Government report in advance and being able to formulate their UPR submissions in response to Government reports.16 The UPR Secretariat then summarizes submissions received from NGOs and National Human Rights Institutions into a ten-page stakeholder summary report.17 An ethnographic study from 2015 found that those drafting the summary reports operate on additional criteria that is not made public but may impact which NGOs have their findings and recommendations included in the final report.18 For example, NGOs that are ECOSOC (United Nations Economic and Social Council) accredited may be given priority.19 Covert criteria like these are likely to disproportionately impact submissions from the Global South and demonstrate that, though NGO submissions are meant to balance the political nature of state submissions, politics remain an infused issues with the UPR process.20
Individual NGOs have a very tight word limit of 2,815 words with joint reports being allowed 5,630 words and are not provided with a formal opportunity to brief states that are making UPR recommendations.21 Rather, NGOs may make a two-minute statement before the final summary report is adopted by the Working Group.22 As a result, NGOs have to be incredibly focused with the content of their reports and have a well-develop strategic understanding of which arguments, facts, and events will be most effective in communicating their objectives.
India’s Implementation of Past UPR Recommendations
India has undergone the Universal Periodic Review process three times in the past; it was most recently reviewed in 2017, during the UPR’s third cycle. At the conclusion of each review, India receives a number of recommendations from other governments, urging it to address particular issues. The Indian government acknowledges each suggestion, pledging to do its best to implement them and generally work on the human rights condition.
Among the many themes and recommendations India has received, the Indian government has focused the bulk of its efforts in addressing issues concerning social and economic rights, prioritizing issues identified in the 2030 Sustainable Development Goals.23 As the country with the largest number of urban poor and landless people, access to adequate housing has been a priority for India, one that has been the source of several recommendations. In response, India has enacted several schemes and policies, funding programs such as “Housing for All 2022” or an amended Mahatma Gandhi National Rural Employment Guarantee Act (MNREGA) to construct millions of permanent homes across the country, targeting underprivileged populations to further the right to adequate housing.24
On her visit to India in 2017, the UN Special Rapporteur on the right to adequate housing acknowledged the central government’s efforts to increase accessibility and affordability of housing options across the country, praising the government’s many policies, such as the Housing for All initiative addressing the problem and recommending that these programs be maintained to their completion.25
Following a series of recommendations pushing India to further gender-parity and universal access to primary education26, the Indian government has placed significant efforts in the domain, particularly through their flagship policy: the Rights of Children to Free and Compulsory Education Act; which enshrines the fundamental right to education for all children and pushes for universal enrollment of grades 6 to 14. The government’s continued efforts on this topic have led to an increase in primary school enrollment and an initial positive increase in funding towards education.27
While significant work remains to be done regarding the quality of education, availability of secondary education or the even access to schools in some rural regions28, the Indian government has recently pledged to evolve its programs and adapt its strategy to focus more specifically on those issues, considering their initial goals of increase access as having been met.29
The implementations of the UPR’s recommendations are not all crowned with success, however. Recommendations to ratify the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment for instance seem to be continually ignored by India, despite the fact its ratification has been recommended since India’s first review in 2008.30 In the last completed review (3rd cycle), a total of 14 recommendations, supported by 33 countries, urged India to ratify the international treaty. Though India pledged once again to finish the ratification process, the convention remains unratified.31
In some cases, steps taken to adhere to certain recommendations has complicated efforts to address other issues noted by the UPR process. For instance, following recommendations from both Russia and the United States, the Indian government has introduced a new identification scheme for all Indians: the Aadhaar Unique Identification Number. Through this policy, the government hoped to streamline access to services and reduce the opportunities of misappropriating public funds.32 However, the UNHCR has reported that the Aadhaar Number has become a clear obstacle for many migrants and refugees in accessing services they would usually be entitled to.33 The Special Rapporteur on violence against women has also noted a general difficulty for women to obtain identification documents, complicating their participation in public life and their access to public services.34
[1] See Irene George & Moly Kuruvilla, “From Conventional Classrooms to Online Platforms: Experiences of Women Students and Faculties in Indian Higher Education During COVID-19 Pandemic” in Irene George & Moly Kuruvilla, ed, Gendered Experiences of COVID-19 in India, (Switzerland: Palgrave Macmillan, 2021) 167 at 179–180, 181 [George & Kuruvilla]; See UNHRC, General Assembly Agenda Item 3, 17th Sess, “Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue” (16 May 2011), 1 at para 22 online: <https://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf>.
[2] See George & Kuruvilla, ibid at 181.
[3] See Rochelle Terman & Erik Voeten, “The relational politics of shame: Evidence from the universal periodic review” (2018) 13:1 Review of International Organizations 1 at 3 [Terman & Voeten].
[4] See Terman & Voeten, ibid at 2; see generally OHCHR, “Universal Periodic Review (Fourth Cycle): Information and Guidelines for UN Resident Coordinators, UN Country Teams and UN Entities’ Written Submissions to the UPR Compilation”, online: < https://www.ohchr.org/sites/default/files/2022-03/TechnicalGuidelines4thCycleUNEntities_final.pdf.
[5] See Terman & Voeten, ibid at 2; Frederick Cowell, “Understanding the Legal Status of Universal Periodic Review Recommendations” (2018) 7:1 Cambridge International Law Journal 164 at 167 [Cowell].
[6] See Fiona McGauhey, “Chapter 5: NGOs and the Human Rights Council” in Non Governmental Organisations and the United Nations Human Rights System in Fiona McGauhey, ed, (Abingdon, Oxon; New York, NY: Routledge, 2021) at 73 [McGauhey]; “Information and Guidelines for UN Resident Coordinators, UN Country Teams and UN Entities’ Written Submissions to the UPR Compilation” at 1.
[7] See Terman & Voeten, supra note iii at 16; McGauhey, supra note vi at 72; Rochelle Terman & Joshua Byun, “Punishment and Politicization in the International Human Rights Regime” (2022) 116:2 American Political Science Review 385 at 398 [Terman & Byun].
[8] See Terman & Voeten, ibid at 3.
[9] See Terman & Voeten, supra note iii at 3, 6.
[10] See Cowell, supra note v at 165, 182.
[11] See Terman & Byun, supra note vii at 385; Terman & Voeten, supra note iii at 16.
[12] See Terman & Byun, ibid at 398
[13] See Terman & Byun, ibid at 398.
[14] See Cowell, supra note v at 165; Terman & Byun at 398; Terman & Voeten, supra note iii at 16.
[15] See McGauhey, supra note vi at 72.
[16] See OHCHR, “Universal Periodic Review (Fourth Cycle): Information and Guidelines for Relevant Stakeholders’ Written Submissions”, online: < https://www.ohchr.org/sites/default/files/2022-03/StakeholdersTechnicalGuidelines4thCycle_EN.pdf > at para 20 [“Universal Periodic Review (Fourth Cycle): Information and Guidelines for Relevant Stakeholders’ Written Submissions”]; McGauhey, ibid at 72.
[17] See Universal Periodic Review (Fourth Cycle): Information and Guidelines for Relevant Stakeholders’ Written Submissions” at para 1(3); McGauhey, ibid at 73.
[18] See McGauhey, ibid at 73; Julie Billaud, “Keepers of the Truth: Producing ‘Transparent’ Documents for the Universal Periodic Review” in Hilary Charlesworth & Emma Larking, eds, Human Rights and the Universal Periodic Review: Rituals and Ritualism (Cambridge: Cambridge University Press 2014) at 77 [Billaud].
[19] See McGauhey, ibid at 73; Billaud, ibid at 68.
[21] See “Universal Periodic Review (Fourth Cycle): Information and Guidelines for Relevant Stakeholders’ Written Submissions” at para 11.
[22] See McGauhey, supra note vi at 73.
[23] See National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21, HRC, 27th Sess, A/HRC/WG.6/27/IND/1 (2017) at para. 6-7.
[24] Special Rapporteur on the right to adequate housing, Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context, on her mission to India, HRC, 34th Sess, UN Doc A/HRC/34/51/Add.1 (2017) at para. 20 – 21.
[26] See Report of the Working Group on the Universal Periodic Review, HRC, 21th Sess, A/HRC/21/10 (2012) at para. 138.
[27] “School enrollment, primary (% gross) – India” (September 2021), online: The World Bank < https://data.worldbank.org/indicator/SE.PRM.ENRR?locations=I>.
[28] See Summary of Stakeholders’ submissions on India, HRC, 27th Sess, A/HRC/WG.6/27/IND/3 (2017) at para. 69.
[29] See National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21, HRC, 27th Sess, A/HRC/WG.6/27/IND/1 (2017) at para. 114.
[30] See Report of the Working Group on the Universal Periodic Review - India, HRC, 8th Sess, A/HRC/8/26 (2008) at para. 86.
[31] See National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21, HRC, 27th Sess, A/HRC/WG.6/27/IND/1 (2017) at para. 32.
[34] See Report of the Working Group on the Universal Periodic Review - India, HRC, 8th Sess, A/HRC/8/26 (2008) at para. 34.