CAA: Reading the UN body’s intervention in India’s Supreme Court

The intervention doesn’t touch upon the sovereignty of Parliament. It may be prudent for the SC to allow it

On March 4, the United Nations High Commissioner for Human Rights, Michelle Bachelet Jeria, filed an intervention in the Supreme Court on the Citizenship (Amendment) Act, 2019 (CAA). She sought to intervene as an amicus in a petition challenging the constitutionality of the CAA. This move raises some interesting questions such as the locus of international law actors to intervene in domestic proceedings, and the extent to which international law influences the interpretation of domestic legal provisions. More generally, the intervention and the government’s attitude to it also reflects on the latter’s willingness to engage with international law actors on domestic issues, which have international legal implications, and the consequences for its standing in the world community as an international law-abiding nation.

As regards the locus of intervention, it is important to note that the application seeking intervention filed by the High Commissioner (HC) is not unusual. It is useful to remember that the post of the HC was established pursuant to the UN General Assembly Resolution 48/141 (1993) with the mandate to, inter alia, promote and protect the effective enjoyment of human rights; take an active role in preventing the continuation of human rights violations; and engage in dialogue with governments in the implementation of human rights obligations. As part of its mandate, the HC routinely intervenes before regional and domestic courts across the world, with a view to support such courts in their judicial or constitutional function, by highlighting the international human rights law dimensions of a case. Accordingly, the HC has previously filed amicus briefs before regional courts such as the European Court of Human Rights and the Inter-american Court on Human Rights as well as domestic courts such as the US Supreme Court and final appellate courts in Asia and Latin America.

It is also important to appreciate that the submissions of the HC before the SC are not aligned with the petitioner, and concern a very narrow field: The implications of the CAA on India’s international human rights obligations, specifically the right to equality before the law, and the prohibition against discrimination codified under, inter alia, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic Social and Cultural Rights (ICESCR). In this sense, the intervention is not directly concerned with the domestic/constitutional law implications of the CAA, and may, therefore, not be seen as touching upon Parliament’s internal sovereignty in enacting laws.

However, it is important to appreciate that Indian courts have, while interpreting fundamental rights under the Constitution, taken into account and given due weightage to India’s international legal obligations. In the KS Puttuswamy case, the SC’S conception of the “right to privacy” was informed by India’s international law obligations. In fact, this appears to be the very object of the HC’S intervention before the SC, namely, that the SC, take in account international human rights standards while examining the constitutionality of the CAA. As the principal human rights official of the UN System, the HC is uniquely placed to expound upon the applicable human rights law framework.

Under the Indian law, the SC is bestowed with fairly wide discretion on whether to allow an intervention. In this context, given the limited nature of intervention — international law implication of the CAA and the status of the HC within the UN system — it may be prudent for the apex court to allow the application of the HC to intervene. It does not follow that the SC will have to decide the issue based on such intervention and could interpret our constitutional norms independently. Moreover, if the intervention is allowed, the Indian government will also have the opportunity to address the implications of the CAA under international law. If it is able to satisfy the SC of the compatibility of the CAA with international law, it will also send a strong signal to the international community that India is a nation that respects the rule of international law, particularly at a time when it has argued that our neighbour has failed to adhere to its international human rights law obligations under the ICCPR in the Kulbhushan Jadhav case.

The news of the intervention initially provoked a strong reaction from the government, which stated that the CAA was an internal matter, concerning the sovereign right of Parliament to make laws, and that no foreign body had any locus standi on issues pertaining to India’s sovereignty. Although not wholly unexceptional, the government’s stand does not fully appreciate the nature of sovereignty in law. The intervention does not directly touch upon India’s internal sovereignty. As regards external sovereignty, the limitations emanate from India’s actions of undertaking international human rights obligations by signing and ratifying international human rights instruments. It may, therefore, be apt for the government to temper its present stand before the SC.

IF ADMITTED, THE GOVERNMENT WILL HAVE A CHANCE TO SATISFY THE SC ON THE COMPATIBILITY OF THE CAA WITH INDIA’S INTERNATIONAL LAW OBLIGATIONS. THIS WILL SEND A POSITIVE MESSAGE