UN human rights body moves top court on CAA
■ Issue of exclusion of persecuted Muslims raised ■ MEA irked, says CAA is India’s internal matter
I have great concern over the CAA and seek to assist the court in examining the compatibility of the CAA with India’s Constitution, in light of India’s obligations under the international human rights law. — Michelle Bachelet, UN-HCHR
■ UN Human Rights Commissioner, former Chile President Michelle Bachelet, has justified her intervention by citing her mandate, which is to ‘protect and promote all human rights’
■ The move has sent shock waves through New Delhi and is being viewed as serious because now the UN itself is seeking to wade through the Indian judicial process to challenge the CAA
In a serious development that highlights growing international concern over the Citizenship Amendment Act, the Geneva-based United Nations Office of the High Commissioner for Human Rights (UN-OHCHR) on Tuesday approached the Supreme Court over “the exclusions of persons... on the basis of their religion” from the CAA.
The intervention plea, in which the UN High Commissioner for Human Rights (UN-HCHR), former Chile President Michelle Bachelet, asks to be made party in the case against CAA that is being heard by the top court, says that the “differentiations” drawn by the law are not “sufficiently objective and reasonable”.
Ms Bachelet, in her intervention as “amicus curiae (friend of the court), has voiced “great concern” over the CAA and seeks to “assist the court in examining the compatibility of the CAA with India’s Constitution, in light of India’s obligations under the international human rights law”.
New Delhi reacted swiftly, saying the CAA is an internal matter” of India and that “no foreign party has any locus standi on issues pertaining to India’s sovereignty”.
Terming the CAA as “constitutionally valid”, the Indian government expressed confidence that its “sound and legally sustainable position (on the CAA) would be vindicated by the Hon’ble Supreme Court”. New Delhi also linked the need for the CAA to the “tragedy arising from the Partition of (undivided) India” in 1947.
Nevertheless, Tuesday’s development has sent shock waves through New Delhi and is being viewed as serious because now the UN itself is seeking to wade through the Indian judicial process to challenge the CAA.
The apex court is currently hearing a batch of petitions challenging the constitutional validity of the amended citizenship law and had on December 18 sought the response of the Centre.
It is understood that the Supreme Court will now determine the locus standi of the UN-OHCHR in the cases challenging the CAA.
Ms Bachelet has justified her intervention before the Supreme Court by citing her mandate, which is to “protect and promote all human rights”. She has said in the plea that the High Commissioner is the principal human rights official of the United Nations whose role, thus, is to promote adherence to international human rights law and to support the domestic courts with their constitutional or judicial functions. Ms Bachelet stated that she and her predecessor have filed several amicus curiae briefs on issues of public importance.
Just last month, in what is being seen as somewhat of a precedent, a Special Rapporteur of the United Nations had moved the Supreme Court seeking to assist it in the matter concerning deportation of Rohingyas from India. Rohingyas are facing persecution in Myanmar and the Supreme Court is hearing a petition filed in 2017 against the Indian government fs plan to deport all Rohingya Muslims, estimated to be around 40,000, back to Myanmar.
In its 12-page intervention application, the UN-OHCHR has welcomed as commendable the “stated purpose of the CAA”, which is to protect “some persons from persecution on religious grounds”, but raised the issue of exclusion of various sects of persecuted Muslims.
“The CAA can potentially benefit thousands of migrants in an irregular situation, including refugees, who might otherwise face obstacles in obtaining protection from persecution in their countries of origin including through the grant of citizenship. This is a commendable purpose,” OHCHR said in its application, but then added that there exist “religious minorities in these countries, especially of the Muslim faith, including Ahmadia, Hazara and Shia Muslims whose situations would warrant protection on the same basis as that provided in the preferential treatment proposed by the CAA”.
The plea maintains that all migrants, regardless of their race, ethnicity, religion, nationality or immigration status, enjoy human rights and are entitled to protection. The OHCHR said the CAA raised important issues with respect to international human rights law and its application to migrants, including refugees.
The CAA also raises other issues, “including its compatibility in relation to the right to equality before the law and non-discrimination on nationality grounds under India’s human rights obligations”.
Referring to several international covenants, it says India has “championed the right to equal protection of the law” and the right to equality before the law.
Ms Bachelet stated that the plea “seeks to provide this Honourable Court with an overview of the international human rights norms and standards with respect to states’ obligations to provide international protection to persons at risk of persecution in their countries of origin; the enjoyment of human rights by all migrants; and the right to equality before the law, equal protection of the law and the right to non-discrimination, as applied to migrants”.
Reacting to the plea in Supreme Court, the ministry of external affairs (MEA) said, “Our Permanent Mission in Geneva was informed yesterday evening by the UN High Commissioner for Human Rights that her Office had filed an Intervention Application in the Supreme Court of India in respect to the 2019 Citizenship Amendment Act (CAA). We strongly believe that no foreign party has any locus standi on issues pertaining to India’s sovereignty.”