The Umar Khalid and Sharjeel Imam case: An international campaign within the realm of possibility

The recent decision of the Supreme Court of India barring Mr. Umar Khalid and Mr.  Sharjeel Imam, from applying for bail for a year, to put it mildly, is astounding. They have both been under-trials for over 5 years. Other commentators have called into question much of the reasoning of the Supreme Court in their rejection of the bail application. Their sound criticism does not bear repetition here. 

This piece only seeks to underline both the apparent ignorance and pusillanimity of the political class, and most of civil society in not educating public opinion for the need and ability to access remedial international human rights mechanisms when domestic judicial or executive remedies are unequal to the task of undoing a wrong.

The unused architecture of international human rights remedies

Reference here is to the First Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) by ratification. India has been a party to the main ICCPR treaty since 1979, it is among the countries that differentiate the acceptance of substantive rights from the acceptance of international individual complaint mechanisms.

The First Optional Protocol establishes a mechanism allowing individuals to submit complaints to the UN Human Rights Committee if they claim their rights under the ICCPR have been violated by a state party. 

In South Asia, the countries that have become a party to the First Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) by ratification or accession are Bangladesh, Maldives, and Sri Lanka. Bangladesh acceded to the Protocol, which entered into force for the country on December 6, 2000.Maldives acceded to the Protocol, which entered into force for the country on September 21, 2011. Nepal acceded to the Protocol on May 14, 1991.Sri Lanka acceded to the Protocol, which entered into force for the country on October 3, 1997.

Other South Asian countries such as India and Pakistan have not signed or ratified the First Optional Protocol to the ICCPR.

In its concluding observations on the fourth periodic report of India, the UN Human Right Committee in September 2024 stated, “5. The Committee regrets that, while the Supreme Court of India gives effect to the provisions of the Covenant in its sentences, in cases of disparity with domestic law, the Covenant does not prevail. The Committee also regrets that the State party maintains its declarations and reservations to articles 1, 9, 12, 13, 19 (3), 21 and 22 of the Covenant and that it does not intend to become a party to the two Optional Protocols (art. 2).”

Earlier in August 1997, the UN Human Right Committee stated, “The Committee, noting that international treaties are not self-executing in India: recommends that steps be taken to incorporate fully the provisions of the Covenant in domestic law, so that individuals may invoke them directly before the courts. The Committee also recommends that consideration be given by the authorities to ratifying the Optional Protocol to the Covenant, enabling the Committee to receive individual communications relating to India.”

In this context the general comment no 33 of the UN Human Rights (UNHRC) offers guidance to States to observe their obligations correctly.