Who is defending the defenders in India: Human Rights

Reports have come in of an attack on Tribal Rights Activist and leader Soni Sori. Reports suggest that oil paint mixed with chemicals was thrown on her face by unknown assailants. This attack, which has left the activist in intense pain, and other reports of intimidation of persons such as lawyers and journalists working in the Jagdalpur area raises the question of the safety of human rights defenders and shows that there isn't enough being done by the State machinery to defend the defenders.

Human rights defenders are those who work to protect or promote human rights. The State has an obligation to protect human rights defenders from violence, and also to create an enabling environment for them to work in. The phrase 'human rights defenders' been used increasingly since the Declaration of Human Rights Defenders was adopted in 1998. Though the Declaration is not a legally binding document, the roots of the State's duty to protect the defenders can also be found in the International Covenant on Civil and Political Rights, which India has ratified. These rights can also be derived from Indian Constitutional law, particularly the celebrated golden triangle of Article 14, 19 and 21 of the Constitution.

We often refer to these defenders using many phrases such as 'activists' 'monitors' 'development professionals' etc. It is not necessary to be a person being paid to do full-time human rights work, to qualify as such defender, and many other professionals may be doing work that is strongly allied with rights of a human. For example journalists, doctors, teachers, or even engineers may, in the course of their work, promote or protect the human rights of people, and as such they are human rights defenders.

Further, it is not necessary to be correct to qualify as a human rights defender. For example, the criticism of a Human Rights Defender to a particular development project may not be legally correct. However, this does not and should not disentitle them to the protection of the State against violence and reprisals. The reason for this will become clear when we examine the role human rights defenders play in a society.

These Defenders face problems, in many parts of the world, and India is not an exception. Often the work being done by human rights defenders brings them in conflict with vested interests such as the land mafia, the mining lobby, or other corporations. A case in point is the story of Satyendra Dubey, an officer in the Indian Engineering Service, who lost his life due to exposing corruption in a highway construction project.

At other times, the advocacy done by them requires them to be critical of the State action including in areas where there is considerable unrest. Given that human rights essentially are rights that people hold against the state (most civil and political rights) or rights that the state is required to nurture (most social and economic rights), it is not surprising that the criticism of State action forms a large part of the work done in human rights advocacy.

This gives room for propaganda that human rights defenders or NGOs are 'anti-development' or even 'anti-national'. It leads to them facing the wrath of more draconian security legislations, or attacks on them by vested interests. It is very easy to make the mistake of thinking 'Why should we use state resources to protect those who are critical of the State? The obvious answer, is that the State may not always be correct.

Given the great power state and corporate entities enjoy, their ability to make mistakes if unchecked is also correspondingly large. A hard reckoning of the work done by human rights defenders shows that they act as an essential check and balance on the State, and throw light on existing state-industry nexus, to protect the rights of people.

The State derives its legitimacy from an implicit contract with its citizens, which necessitates a mechanism to check that the State adheres to this contract, and this is a function carried out by the human rights defenders. In this sense, human rights defenders are necessary for a healthy functioning democracy.

The Whistle-blower's Protection Act of 2011 addresses some of these concerns by protecting those who expose corruption by public servants. India, however, needs a comprehensive legislation to protect the rights of these defenders.

Cases of harassment that is faced by RTI Activists, LGBTQ Activists, as well as Human Rights Defenders who work for the rights of Tribals and Scheduled Caste Persons has been documented by the Special Rapporteur on Human Rights Defenders, as well as the National Human Rights Commission. The gravity of these hurdles faced can extend from harassment, illegal detention, custodial torture, to grievous hurt or murder (including what is known as 'RTI killings'). In this environment, it becomes difficult for human rights defenders to do their work without fearing for the physical safety of themselves and their families.

While there are general laws that can be (and are) used to protect these defenders, but those working for the enactment of a special law argue that the role of the law is also to play a certain 'normative, expressive and educative' function. By this, they mean that a special law to protect human rights defenders will also confer legitimacy on the work that they are doing, and create an enabling environment where they may do so peacefully.

Of course, the enactment of a special law is not adequate to ensure the protection of human rights defenders. It has to go hand in hand with better law and order, better legal services in areas where these defenders work, transparency in governance, toleration of dissent by the State machinery, and continued proactive action by the Focal Point for the protection of Human Rights Defenders, at the National Human Rights Commission.

This focal point is involved in providing assistance to such Rights defenders, and following alleged violations of their rights. Although there has been greater collaboration between the NHRC and Human Rights defenders, much needs to be done to ensure that defenders can work in a safe and enabling environment.

This article was first published at Kafila.org. Srishti Agnihotri is a lawyer appearing in Trial Courts and the Delhi High Court, and has been involved in research and advocacy on women's rights and child rights. She completed her Masters in International Human Rights Law from the University of Notre Dame, USA.