By Oxfam India
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Surya Deva on Why Indian Companies Need to Prioritise Human Rights

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Moved by the suffering caused by the Bhopal Gas Tragedy, academic Surya Deva decided to research the intersection between business and human rights. Two decades on, he has written extensively on this subject.

Currently teaching as an associate Professor at the School of Law, City University of Hong Kong, Prof Deva also serves as a member on the UN Working Group on Business and Human Rights.

Here, he talks about how his journey started and reflects on how the field of business and human rights has changed over the years. He also talks about what needs to be done by Indian companies to prioritise human rights.

Q: You have been teaching, writing and advising on business and human rights issues for several years now. What led you to choose this specific area over others?

Taking up a teaching position at the National Law Institute University (NLIU) in Bhopal in early 2000 was a turning point in my life.

When I looked at the continued suffering of the people impacted by the Bhopal gas disaster, I started thinking about how companies could violate human rights and still remain unaccountable. I decided to do further research in this area. This journey has continued since then.

Q: What are the major shifts you have observed in the area of business and human rights in the last two decades? Do you find more acceptance of BHR? Any other observations?

When I started working in the BHR field at the dawn of the twenty-first century, there were only a handful of specialised scholars and practitioners working in this area. Now there are thousands of people all over the world working on BHR issues in diverse capacities.

There have been several other changes since then. More and more companies have started realising the increasing relevance of human rights in their operations. Many social actors are also working together to push companies to respect human rights. Even states are slowly understanding the need to be more proactive in regulating the behaviour of their companies, including by setting expectations and offering (dis)incentives. But needless to say that more concrete actions are still needed on the part of both states and businesses in “walking the talk” on BHR.

Q: There are many national and international frameworks such as UNGPs, SDGs, Global Compact and NVGs that provide guidance on companies’ responsibility. How does one deal with this multiplicity of frameworks? Does this provide a bouquet of options to choose from or does it need a more nuanced approach?

It would be ideal from the perspective of companies as well as others (legal or social regulators) that there is only one framework at the national and international level. On the other hand, multiple frameworks might be needed because no single framework could perhaps capture all BHR issues or provide adequate guidance to all types of businesses operating in diverse sectors and settings. Moreover, new frameworks might be needed in future to respond effectively to new societal challenges

Therefore, striking a balance between these two sets of competing policy consideration is vital. Two tools may be useful in striking such a balance: a broad alignment amongst existing frameworks, and a cohesive evolution of standards in future. It is good to see an alignment between the UNGPs, the UN Global Compact, the OECD Guidelines, and the ILO MNE Declaration. The SDGs too make a reference to the UNGPs, but I think there is a scope for building better synergies here, and the UN Working Group on Business and Human Rights has made some recommendations as to how this could be achieved.

Similarly, as I have argued elsewhere, it would be critical that the proposed international treaty legally binding instrument on transnational corporations and other business enterprises with respect to human rights builds on the UNGPs, as part of this cohesive evolution of standards.

Q: The UNGPs three pillar framework puts the responsibility of companies to respect human rights together with the State’s duty to protect human rights. The SDGs too define the role of private sector very explicitly unlike the MDGs, which were only for the State. Does it signify the growing power and influence of the private sector or the failure of the State to hold private sector accountable?

This evolution is reflective of an increasing role of corporations in our lives and society generally.

At this point of time, there is hardly anything that we can do without the involvement or assistance of corporations.

In such a scenario, it is essential to impose direct human rights responsibilities (ideally obligations) on companies – these responsibilities are independent of the human rights obligations of states. An explicit recognition of independent direct obligation of companies is especially critical in situations when states are unable or unwilling to ensure that companies respect human rights.

Q: As someone who looks at the conduct of Indian companies within a broader international framework of business and human rights what is your sense of Indian companies on their awareness, understanding and conduct on human rights issues.

Historically, some of the Indian companies were at the forefront of giving it back to society. However, that model has several limitations. That is why Indian companies in the twenty-first century – like companies anywhere else – would need to “internalise human rights” into their operations.

At this stage, my impression is that Indian companies generally are still operating with a CSR or the old philanthropy mindset. Recent regulatory changes at the domestic level (e.g., the 2% CSR spending and the NVGs) and developments at the international level (e.g., the adoption of the UNGPs and SDGs) have certainly triggered discussions about what needs to change. But there is still a long way to go.

Q: India does not have a National Action Plan (NAP) yet but it does have NVGs. How necessary is it to have a NAP to operationalise the UNGPs framework?

States can implement the UNGPs in a number of different ways. However, it is always better to adopt a cohesive strategy so that different government ministries as well as governing units at all three levels of the Indian federal setup know their respective roles in achieving a collective goal. From that angle, adopting a NAP on BHR could be very useful. In fact, India already has several scattered legal or policy measures that could be pulled together to frame an overarching NAP.

Q: The 1984 Bhopal Gas Tragedy is perhaps the worst BHR violations in India. The affected community is still struggling to get remedy. The responsibility goalpost keeps shifting between the company and the state. Whose responsibility is it to ensure that affected communities get access to remedy – companies or state?

From the perspective of victims, it is really unfortunate when states and companies start passing the buck when it comes to providing effective remedies for human rights violations.

In the context of the Bhopal gas disaster, both the government and all the relevant companies have a responsibility to ensure that victims get full reparation (see the UN Working Group’s recent report on this issue) – it is not enough to provide one-time compensation.

A few years ago when I visited Bhopal, I was shocked to see that the site has still not been cleaned. Both the central and state governments should work together to clean the site and perhaps establish a museum there to remind future generations about the hazards of an inhumane business model. They should also do whatever is possible at this late stage to hold the involved companies accountable.

Q: India Responsible Business Index has seen an increasing number of Indian companies mentioning human rights in their sustainability reports. However, except for a few progressive Indian companies, most others do not have a human rights policy and even fewer report on it. What will it take to get a critical mass of Indian companies to adopt BHR policies aligned with the UNGPs framework?

To align their operation to the UNGPs, Indian companies’ current culture of doing business would have to undergo a transformation.

Bringing any such change is never easy, but it is possible to make progress towards this goal if all players – from the Indian government to courts, human rights commissions, companies, business associations, banks, investors, consumers, trade unions, civil society, universities, and the media – play their part.

Having continuous dialogues around the UNGPs and SDGs to raise awareness and build capacity of corporate managers could be a good starting point. These efforts should be complemented by the state creating a framework that encourages companies to respect human rights as part of profit making.

Disclaimer: The views expressed in this interview are Prof Deva’s personal opinion.

To get updates from Prof. Surya Deva, follow him on Twitter @ProfSuryaDeva.