United Nations Commissioner Of Human Rights To Move SC On CAA

In a significant development, the United Nations Human Rights Commissioner (OHCHR) is set to intervene in the Supreme Court in one of the petitions challenging the constitutional validity of the Citizenship Amendment Act 2019.

The Ministry of External Affairs on Tuesday criticized this move by the UN body. 

In a press release, the MEA spokesperson said that India's Permanent Mission in Geneva was informed on Monday evening by the UN High Commissioner for Human Rights that her Office had filed an Intervention Application in the Supreme Court of India.

The MEA said that the Citizenship Amendment Act is an "internal matter" of India and concerns the "sovereign right of the Indian Parliament to make laws".

"We strongly believe that no foreign party has any locus standi on issues pertaining to India's sovereignty", MEA spokesperson Raveesh Kumar said.

Ground of application

The intervention application is filed in the writ petition filed by retired IFS officer Deb Mukharji challenging the CAA.

The intervention application filed by Ms Michelle Bacehelet Jeria, states that the UN body wished to intervene as "amicus curaie" in the matter by virtue of its mandate to "protect and promote all human right and to conduct necessary advocacy in that regard... pursuant to UN General Assembly resolution 48/141".

The OHCHR acknowledged that the CAA can potentially benefit thousands of migrants and that it had a "commendable purpose". The applicant also clarified that its intervention should not be seen as an endorsement of the allegations raised by the petitioners in the proceedings before the SC.

At the same time, it said that the CAA raised certain important questions on international human rights law and its application to migrants, especially refugees.

Referring to the International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic and Social Rights (ICESR), the applicant said:

"Under international human rights law,States must respect and ensure that migrants in their territory or under their jurisdiction or effective control receive equal and non- discriminatory treatment, regardless of their legal status and the documentation they possess".

The enjoyment of Covenant rights is not limited to citizens of States Parties but must also be available to all individuals, regardless of nationality or statelessness, such as asylum seekers, refugees, migrant workers and other persons.

Further, 

"States must ensure that their legislation, policies, and practice regulating access to citizenship and its application comply with the obligations enshrined in article 26 of the ICCPR, by providing migrants in the same situation equal protection as well as protection from discrimination, including on the basis of religion". 

The OCHR stated that question also arises as to "whether the differentiation made with regard to persecution on religious grounds, as opposed to other grounds, is sufficiently objective and reasonable, in particular taking into account the prohibition of refoulement and India's obligations under international human rights law".

In this regard, it observed that while reducing the risk of refoulement for certain communities, the CAA unequally places other communities at such risk. 

"the narrow scope of the CAA, which extends protection from return only on religious grounds and limited to the specific ethno-religious groups, may not be sufficiently objective and reasonable in light of the broad prohibition of refoulement under international human rights law", the OCHR stated.

"Without prejudice to the power of States to establish migration policies as a manifestation of their sovereignty, including.measures in favour of migrants that may be subject to persecution and other serious human rights violations/irreparable harm in their countries of origin or previous residence, States must ensure migration governance measures are in accordance with international human rights law, including the right to equality before the law, equal protection of the law and the right to nondiscrimination and the absolute and non-derogable principle of non-refoulement. Measures adopted that constitute a difference in treatment ought to be in conformity with the law, pursue a legitimate objective, and be proportional to the objective pursued".

The differences in treatment based on religion or immigration status would constitute discrimination if the criteria for establishing that difference, judged in the light of the objectives and purposes of the rights enshrined inhuman rights treaties, do not apply to achieve a legitimate objective and are not proportionate to the achievement of that objective., stated the application.

Citing several UN reports, it was stated that the categories of persons excluded from the CAA, such as Ahmadi, Hazara and Shia Muslims, would warrant protection on the same basis as that provided in the preferential treatment proposed by the CAA.

In this backdrop, the UN body said that it seeks to assist the Court in examining the compatibility of the CAA with India's Constitution, in light of India's obligations under international human rights law. It said that it was inviting the Court to take due account of the of the "collective experience of the United Nations and its human rights mechanism

UN body's immediate response to CAA

Immediately after the Act was passed by the Parliament in December last year, the UNHRC had issued a statement against it saying that it was "fundamentally discriminatory in nature".

"We are concerned that India's new Citizenship (Amendment) Act 2019 is fundamentally discriminatory in nature", said the statement issued by Jeremy Laurence the Spokesperson of UN High Commissioner for Human Rights.

"The amended law would appear to undermine the commitment to equality before the law enshrined in India's constitution and India's obligations under the International Covenant on Civil and Political Rights and the Convention for the Elimination of Racial Discrimination, to which Indian is a State party, which prohibit discrimination based on racial, ethnic or religious grounds. Although India's broader naturalization laws remain in place, these amendments will have a discriminatory effect on people's access to nationality".

It called for providing protection to all persecuted groups without discrimination based on identity:

"While the goal of protecting persecuted groups is welcome, this should be done through a robust national asylum system that is premised on the principle of equality and non-discrimination, and which applies to all people in need of protection from persecution and other human rights violations, with no distinction as to race, religion, national origin or other prohibited grounds".

The law cleared by the Parliament in December 2019 liberalizes the grant of citizenship to non-Muslim migrants from Pakistan, Afghanistan and Bangladesh who had entered India before December 31, 2014.

The Act is under severe criticism for excluding Muslims from its purview and for linking religion with citizenship. The passage of the Act has triggered mass protests across the country.

As many as 140 petitions have been filed in the Supreme Court challenging the constitutional validity of the Act. On January 22, the SC had asked the Central Government to reply to the petitions within four weeks.

The State of Kerala has filed an original suit against the Act.