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Chaturanga

~ statecraft, strategy, society, and Σοφíα

Chaturanga

Tag Archives: ICCPR

Young Monsters

24 Tue Jun 2014

Posted by Jaideep A. Prabhu in Opinion and Response

≈ Comments Off on Young Monsters

Tags

adulthood, Convention on the Rights of the Child, CRC, ICCPR, India, International Convention on Civil and Political Rights, Juvenile Justice Act, murder, Nirbhaya, rape, Roper v. Simmons

The horrific beating and gang rape of a 23-year-old physiotherapy student in Delhi in 2012 sent shockwaves across India. Six men, including a juvenile, were arrested and charged with sexual assault and murder. Of the five adults, one died in police custody (officially suicide but some suspect murder) and the remaining four were sentenced to death by hanging. The juvenile was sentenced to the maximum sentence possible under Indian law – three years in a reform institution.

The Nirbhaya case, as it came to be called in the media, was not the first gang rape in India, nor has it been the last. Its brutality is not unique either and yet it caught the nation’s attention. There was a public outcry for the death penalty or even something cruel and unusual. This was further fuelled by the juvenile sentencing, which in comparison to the adult equivalent, was a mere slap on the wrist. There was widespread demand to lower the juvenile age limit from the present 18 to 16 from the public, including prominent people like the Delhi police commissioner, Karnataka state public prosecutor HS Chandramouli, and Subramanian Swamy. The ruling Congress Party was also quick to jump on the bandwagon.

The anger the country felt in the aftermath of the Nirbhaya nightmare is understandable. However, amending the Juvenile Justice Act is a broader issue than the Nirbhaya case. Leaving aside discussions on whether lowering the juvenile age limit will achieve the stated goals and even ignoring the broader philosophical issues such as the death penalty, the purpose of the justice system – punishment or rehabilitation – and even the basis of the definition of ‘juvenile’ – physical or mental – there are legal quandaries in lowering of the juvenile age limit.

One obstacle to amending the Juvenile Justice Act is the United Nations Convention on the Rights of the Child, an international treaty India signed and ratified in December 1992. Although Article 1 of the CRC allows each acceding state to define the juvenile age limit, Article 37(a) nevertheless stipulates that “No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age.”

A second hurdle to reducing the juvenile age limit is the International Convention on Civil and Political Rights, which India acceded to in April 1979.  Article 6(5) of the ICCPR states, “Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.”

As per India’s international commitments, it may well lower the juvenile age limit from 18 to 16 but may not pursue the death penalty or a sentence of life imprisonment without possibility of parole. Thus, a new category is created between juvenile and adult. This is not very helpful for Indian bureaucrats who are considering a waiver of the juvenile age bar only in cases of the most grievous crimes such as murder, acid attack, rape, and repeat offenders in cases of robbery, kidnapping, and dacoity. In essence, international law prohibits the very sentences for which Indian legislators are considering lowering the juvenile age limit.

India may still withdraw from the treaties or enter into the record certain exceptions in congruence with new national laws. However, this move is bound to result in international pressure and greater difficulty in concluding extradition treaties with other states. For example, European law forbids extradition in cases where the offence for which extradition is requested carries the the death penalty under the law of the requesting country. Some countries such as the United States enact automatic sanctions if a country’s human rights ratings fall below a certain level. India narrowly escaped sanctions over not doing enough to prevent child trafficking in 2011 thanks to political reasons.

None of this is to argue that the juvenile age limit should not be lowered or that it should be. In the landmark Roper v. Simmons case in the United States, the Supreme Court ruled that capital punishment may not be imposed for crimes committed as minors. The opinion, delivered by Justice Anthony Kennedy, declared that minors had diminished culpability due to immaturity and therefore their execution was cruel and unusual under evolving standards of decency. The opinion also cited significant US legal opinion as well as international consensus in its favour.

The US Supreme Court did not deny the brutality of some of the crimes committed by juveniles but made the interesting point that this very factor – the brutality of the crime – may overpower any mitigating arguments based on youth as a matter of course if the application of the death penalty was allowed.

However, many question the diminished culpability of juveniles. Setting the age of adulthood at 18 is arbitrary and is a cultural evolution more than a scientific one, dictated more by going to college or being drafted for military service. In a media-saturated age, juveniles today are far more aware than their predecessors were. However, awareness is not the same as maturity – in fact, researchers have shown that adolescence can last well into the mid-20s for many people while some attain a maturity much earlier.

The argument to lower the juvenile age limit in select cases is exactly what the Roper v. Simmons opinion warned against – the lower age limit is sought only for some crimes as the public is swayed by an emotional response to their brutality than by reason alone. If India’s legislators genuinely felt that juveniles today were attaining a certain level of maturity earlier, then why is the age of adulthood itself not lowered? How is it possible for someone to be mature enough to commit rape, dacoity, or murder but not to drink, join the military, or vote?

It is also unclear why the arbitrary juvenile age limit of 18 should now be moved to the equally arbitrary age limit of 16. Should rapes that have been committed by boys as young as 15 be forgiven? Or should the limit be lowered even further? Does India now not recognise childhood, mandating that adult crimes receive adult punishment? Juvenile crime is indeed becoming more of a problem in scale as well as intensity but lowering the juvenile age limit is unlikely to be the magic bullet to solve the problem.

It would be interesting indeed to see the challenge to the international consensus by India if it were to lower the age of adulthood uniformly. However, such a move must be informed by reason and debate rather than frustration and an emotional reaction to cases like Nirbhaya. The problem with doing a copy-paste job on the structure and workings of government from a 19th century colonial master is that there is much Indians have not discussed among themselves.


This post appeared on Daily News & Analysis on June 30, 2014.

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A Matter of Law

07 Mon May 2012

Posted by Jaideep A. Prabhu in India

≈ 1 Comment

Tags

Christianity, disaster evangelism, Hinduism, ICCPR, IFRC Code of Conduct, India, Islam, Israel, Judaism, proselytisation, religion, sarva dharma sambhava, United States

Contrary to popular belief, restrictions on proselytisation placed by some state governments in India is neither in violation of the freedom of religion nor is it a departure from an international consensus.

The phrase, “the road to Hell is paved with good intentions” is supposed to have originated with St. Bernard of Clairvaux some 900 years ago (L’enfer est plein de bonnes volontés et désirs). One cannot help but admire the man for his insight into human affairs when thumbing through the Indian constitution. For a country as diverse as India – seven prominent religions, over 2,000 dialects associated with 14 languages, each with their own script and literature, and several racial groups – the promise of secularism, liberty, equality, and democracy was the only way to go. It would be naive to think that a few words in the constitution would be the end of the matter.

The Constituent Assembly of India (CAI) spent an inordinate amount of time debating the role of religion in the new state. There was a clash between two conceptions of secularism; the first position was that the state should keep entirely away from religious matters, leaving the field to individuals and communities, while a second theory argued that in a society such as India in which religion is very important part of daily life, the state should embrace all religions and treat them with equal respect. The second position was certainly one view of religious liberty, of Gandhian pluralism, but it was not a secular perspective. And it was that view which eventually won out. The final draft (of Article 25) entitled the citizens of India to the “freedom of conscience and the right freely to profess, practise and propagate religion.” In itself, the wording does not set off alarm bells, but a closer look – and subsequent history – marks religious pluralism as a road better left untravelled.

The word ‘religion’ comes to English from the Old French word, ‘religion,’ which itself derives from the Latin religio. In the original, the word may have meant “to consider carefully” (re = again + lego = read, read again, or carefully consider) or “to reconnect” (re = again + ligare = bind, connect, reconnect), but by the early 12th century, it took on the modern meaning, “action or conduct indicating belief in, obedience to, and reverence for a god, gods, or similar superhuman power; the performance of religious rites or observances.” All-encompassing though the definition may be, particular histories of different religions have developed different vocabularies. For example, in Hinduism, the term most often used to mean religion, dharma, is also translated as law, or duty. Even among the Abrahamic faiths, Hebrew does not contain a precise equivalent of the word either, and halakha, the closest approximation, is also usually translated as law. The different socio-political environments in which the Abrahamic faiths and the Indic faiths – Hinduism, Buddhism, Jainism – developed have also led to some divergent views on religion, metaphysically as well as in its practice and propagation.

On a day-to-day basis, the differing metaphysics hardly causes any problems. The point of friction, not only in India but worldwide, has been the propensity of Christianity and Islam to proselytise while Hinduism, Judaism, Buddhism, and Jainism discourage the practice (though recently, Theravada Buddhism has taken to proselytism). Not surprisingly, the wording of Article 25 was modified to include the right to propagate by the Minorities subcommittee of the CAI. In such a situation, a seemingly equal right to peddle one’s religion becomes unequal and unfair, much like giving wolves and sheep the right to eat one another. Lest the reader be misled into thinking all proselytism in India is Christian or Muslim targetted at Hindus and indigenous tribes, the two Abrahamic faiths have been known to poach followers from each other as well.

There are two points this article assumes: 1. there is violence against missionaries, particularly Christian missionaries, and 2. there are forced conversions happening in India, again, particularly by Christian missionaries; evidence for both these points can be easily garnered with a quick internet search. In response to the violence and agitation caused by missionaries and their allegedly improper activities in communities around India, some states (Gujarat, Rajasthan, Himachal Pradesh, Arunachal Pradesh, Orissa, Madhya Pradesh, Chhattisgarh) enacted  a law that circumscribed the ambit of missionary work. According to the US Department of State’s International Religious Freedom Report of 2007, the law enacted by these states “prohibits an individual from using “force, inducement, or fraudulent means” when contributing, in speech or conduct, to another individual’s religious conversion.” Although the US takes objection to India’s weakening commitment to religious freedom, it needs to be pointed out that the so-called anti-conversion laws are in fact merely to prevent fraudulent conversion, which, by the way, is in complete accordance with the International Covenant on Civil and Political Rights (ICCPR). As per Article 18 of the international treaty signed and ratified by both, the United States and India,

  1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
  2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
  3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
  4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

Within this context, the laws limiting the ability of religious missions to proselytise do not seem at variance with the general freedom of religion.

A popular method by which proselytism is disguised is humanitarian activity. Disaster evangelism, as it has come to be called, describes the involvement of religious organisations in relief efforts after a calamity or the activity of religious organisations in providing basic infrastructural needs the state has failed in (such as water, education, basic health, and employment). In theory, this is prohibited and deeply frowned upon, for it creates obstacles in reconstruction and rehabilitation efforts. It is vitally important that beneficiaries do not feel there are strings attached to the aid they receive. Furthermore, offering (or being seen to offer) aid conditionally contravenes the International Federation of Red Cross and Red Crescent Societies (IFRC) Code of Conduct, which stipulates (Article 3) that “aid will not be used to further a particular political or religious standpoint, “and that the humanitarian imperative comes first. Proselytising by faith-based organisations creates barriers between the humanitarian actors and the people they seek to help, causing resentment and sometimes violence as it is often viewed as a threat to local customs.

The IFRC Code is a voluntary one that is only self-policed but has been widely accepted as a standard in humanitarian work, especially by NGOs working in concert with projects by international bodies such as the United Nations and Medecins Sans Frontieres. This means that many organisations not so pure in their motives honour the code, as Hamlet says, more “in the breach than the observance.” Nonetheless, there is a strong precedent of social opprobrium in combining missionary work with development or disaster relief.

Finally, there is the international context – many countries have placed an outright ban on proselytism, mainly Islamic countries. Even societies that exhibit far greater social tolerance and pluralism, such as Greece, have banned proselytism. Reasons range from disrupting local communities to recognising that the freedom of speech should also entail the freedom not to be harassed by views not to one’s liking at least in one’s own home or government institution. Israel is perhaps the best example for India, in that the majority religion in Israel is also non-proselytising and there is a fair amount of missionary activity in the country. Israeli lawmakers have also considered an outright ban on proselytism in the past but have settled for a more moderate position in accordance with the ICCPR – missionary activity is legal, it is illegal to offer money or other material inducements. The law some Indian states have passed is certainly more lenient than an outright ban, and should not cause comment.

While the right to preach and convert others must be staunchly defended, it must be accompanied by responsibility. Religious organisations must be made to adhere to the law of the land (which includes ratified international treaties). Bribery and fraud are separate crimes of their own in addition to the violation of the regulations of proselytism. Religious organisations must not be allowed to preach hatred of other faiths or exhibit irreverence towards them in the interests of public safety and social harmony (which is mandated by the Indian constitution). One option to reduce state interference in what is essentially a personal matter is co-regulation – religious groups could agree to a code of conduct which the state can legally enforce on their behalf, the agreement not being a religious but contractual matter.

Not surprisingly, in India, the problem is not the lack of legislation but in the implementation of existing laws that define the scope of religious freedom. Then there is, of course, the point of amending the constitution to reflect a truer meaning of secularism (rather than sarva dharma sambhava), but that is another matter.

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