The UN High Commissioner for Human Rights “intends to file” an Intervention Application in the Supreme Court of India seeking to intervene in Writ Petition (Civil) No. 1474 of 2019 and praying that it be allowed to make submissions.
On what grounds is a UN body seeking to intervene in a case regarding a domestic Indian law?
The Office of the High Commissioner for Human Rights (UN Human Rights) is the leading UN entity on human rights.
The UN General Assembly entrusted both the High Commissioner and her Office with a unique mandate to promote and protect all human rights for all people.
As the principal United Nations office mandated to promote and protect human rights for all, OHCHR leads global human rights efforts speaks out objectively in the face of human rights violations worldwide.
This resolution, adopted by the UNGA in 1994, created the post of the UN High Commissioner for Human Rights.
The application says that successive High Commissioners have filed amicus curiae briefs on issues of particular public importance within proceedings before a diverse range of international and national jurisdictions.
It includes the European Court of Human Rights, the Inter-American Court of Human Rights, the International Criminal Court, and at the national level, the United States Supreme Court and final appeal courts of States in Asia and Latin America.
What exactly does the intervention application say?
The OHCHR has welcomed as “commendable” the CAA’s stated purpose, “namely the protection of some persons from persecution on religious grounds.
It also “acknowledges the history of openness and welcome that India has exhibited to persons seeking to find a safer, more dignified life within its borders”.
However the examination of the CAA raises important issues with respect to international human rights law and its application to migrants, including refugees, says the OHCHR.
The CAA, it says, raises “important human rights issues, including its compatibility in relation to the right to equality before the law and nondiscrimination on nationality grounds under India’s human rights obligations”.
The application acknowledges that “the issue of nondiscrimination on nationality grounds falls outside the scope of this intervention”, but insists that “this in no way implies that there are not human rights concerns in this respect”.
The application questions the reasonableness and objectivity of the criterion of extending the benefits of the CAA to Buddhists, Sikhs, Hindus, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan alone.
It points out that while the Indian government has suggested that persons of Muslim faith, regardless of denomination or ethnicity, are protected there.
However recent reports by UN human rights show that Ahmadi, Hazara and Shia Muslims in these countries warrant protection on the same basis as that provided in the preferential treatment proposed by the CAA.
Is there a specific basis on which the OHCHR has faulted the CAA?
The application flags some central principles of international human rights law:
the impact of the CAA on some migrants
the enjoyment of human rights by all migrants and the rights of all migrants (non-citizens) to equality before the law and
the principle of non-refoulment, which prohibits the forcible return of refugees and asylum seekers to a country where they are likely to be persecuted
The application mentions that all migrants “regardless of their race, ethnicity, religion, nationality and/or immigration status enjoy human rights and are entitled to protection”.
It cites international human rights instruments to urge the inclusion of non-discrimination, equality before the law, and equal protection before the law into the foundation of a rule of law.
International human rights law, the application says, does not distinguish between citizens and non-citizens or different groups of non-citizens for the purposes of providing them protection from discrimination, “including in respect of their migration status”.
The Citizenship Amendment Act is an internal matter of India and concerns the sovereign right of the Indian Parliament to make laws.
MEA spokesperson insisted that no foreign party has any locus standi on issues pertaining to India’s sovereignty.
The CAA was “constitutionally valid and complies with all requirements of (India’s) constitutional values”, and “is reflective of our long-standing national commitment in respect of human rights issues arising from the tragedy of the Partition of India”.