In present case, United Nation High Commissioner for human rights files intervention application in Supreme Court to which the Indian government, through press release responded that it has claimed that no foreign party has “locus standi” on CAA as it pertains to Indian sovereignty[1]. It should be noted that a UN inter-governmental body may have intervened in Indian Supreme Court for the first time, even though foreign governments and nationals have been parties to several legal cases in Indian court system.[2]
Brief facts:
UN High Commissioner for Human Rights Michelle Bachelet is moving to file an intervention application in the Supreme Court against the Citizenship Amendment Act (CAA). In a statement on 3rd March, 2020, Ministry of External Affairs spokesperson Raveesh Kumar said that India’s 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)”[3]
Background:
The Citizenship Amendment Act was passed by the Parliament in December, 2019. Since then, India has witnessed protests in various parts of 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.[4]
The Act seeks to provide citizenship to non-muslims migrants from Pakistan, Bangladesh and Afghanistan who arrived in India on or before December 31, 2014.
In the case, Deb Mukharji & Ors vs Union of India & Ors[5], the draft of the intervening application is filed. The application states that
“The applicant is filing the present application seeking to intervene in Writ Petition (Civil) No. 1474 of 2019 and praying that she be allowed to make submissions before this Honourable Court in the instant case as per Order XV, Rule 3 of the Supreme Court Rules, 2013.”
According to UN High Commissioner Michelle Bachelet Jeria has filed intervening application with the objective of ensuring the implementation of India’s international legal obligations[6].
It further states that the applicant seeks to intervene in the matter as amicus curiae, by virtue of her mandate to inter alia protect and promote all human rights and to conduct necessary advocacy in that regard, established pursuant to the United Nations General Assembly resolution 48//141.
In regard with the protection of Human right, the application states that,
“The High Commissioner is the principal human rights official of the United Nations. The High Commissioner’s role is thus to promote adherence to international human rights law and, with this purpose inmind, to support domestic courts, with their constitutional or judicial function, in ensuring the implementation of international legal obligations.”
By stating that the office of the High Commissioner of Human Right (OHCHR) welcomes the CAA’s stated purpose, such as, the protection of some persons from persecution on religious grounds, simplifying procedure and requirements and facilitating the granting of citizenship such persons, including migrants in an irregular situation, as well as refugees, from certain neighboring countries,[7] it further states that in present case hon’ble Supreme Court is called to examine constitutionality of sections 2 to 6 of the Act.
After acknowledging the history of openness and welcoming that India has exhibited to persons seeking to find safer, more dignified life within its borders for themselves and their families including religious persecution in neighboring countries, application states that examination of CAA raises important issues with respect to international human right law and its application and interpretation of India’s human right obligation including right to equality before law and prohibition of discrimination and CAA’s impact on protection of human rights of migrants including refugees is of substantial interest to High Commissioner.
It further reminds that India is a State party, including The International Covenant On Civil And Political Rights (ICCPR)[8], The International Covenant On Economic Social, And Cultural Rights (ICESCR)[9], The International Covenant On The Elimination Of Racial Discrimination (ICERD)[10] The Convention On The Rights Of The Child (CRC)[11]And The Convention On The Elimination Of DiscriminationAgainst Women (CEDAW)[12]
Key features:
The intervention application made reference to following points[13]:
The Citizenship (Amendment) Act 2019 and its impact on some migrants:
As following two categories of migrants are excluded from the benefit of CAA:
Those from Afghanistan, Bangladesh and Pakistan who are not of Buddhist, Christian,
Hindu, Jain, Parsi or Sikh faith, including persons without a religion and (ii) those, of any religion, from countries other than the three stated in the law, including persons without a religion. The present intervention application provides international human rights standards relevant for the Honourable Court’s examination of the CAA with respect to the first category, namely, migrants from Afghanistan, Bangladesh or Pakistan who fall outside of the scope of the CAA. It states that there are no reliable figures regarding actual migration to India, particularly in respect of irregular migration.[14]
The principle of non-discrimination as well as that of equality before the law and equal protection before the law without discrimination:
It further states that the principle of non-discrimination as well as that of equality before the law and equal protection before the law without discrimination are firmly anchored in international human rights instruments and form the foundation of the rule of law. Thus it is an essential obligation of the States to eradicate discrimination. The right to equality before the law is to protect from arbitrary and unjustified differential treatment by the authorities in the public and private spheres which is included in The ICCPR, ICESCR and the CRC. Therefore, 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-discrirninatory treatment, regardless of their legal status and the documentation they possess.
It further draws attention toward the fact that even though States are free to decide on such criteria under naturalization, nonetheless, such sovereign power is not unfettered and must be exercised in conformity with applicable humanrights obligations. It further made reference to in the Nottebohm case, the International Court of Justice stated that
“international law leaves it to each State to lay down the rules governing the grant of its own nationality”, such rules “shall be recognized by other States in so far as it is consistent with …international custom, and the principles of law generally recognized with regard to nationality.”[15]
It further states that with regard to access to citizenship in particular, the Human Rights Committee has stated that States should respect the rights enshrined in article 26 when adopting and implementing legislation.[16] It further made reference to The Committee on the Elimination of Racial Discrimination and The Committee on the Rights of the Child. While stating The United Nations General Assembly has been concerned States avoid invidious discrimination in the immigration context and the Global Compact for Safe, Regular and Orderly Migration, (“Global Compact on Migration”) endorsed by 152 {UN Member States on 19 December 2018, including India}. Similarly, the Global Compact on Refugees, affirmed by the General Assembly on 17 December 2018, also refers to commitment to uphold the right to non-discrimination in the context of tackling root causes of large refugee situations. Thus States must ensure that their legislation, policies, and practice regulating access to citizenship and its application comply with the obligations endorsed in article 26 of the ICCPR.
In regard with CAA, the intervening application states that the question is whether the differentiations drawn within the law (CAA), namely the exclusion of persons from the scope of the law, on the basis of their religion is sufficiently objective and reasonable.
The principle of non-refoulement under international human rights law and the obligation to carry out an individualized assessment :
The CAA protects Afghan,Bangladeshi and Pakistani Buddhist, Christian, Hindu, Jain, Parsi
and Sikh rnigrants who meet the conditions set out in the CAA, but it raises a number of issues related to India’s wider human rights obligations in the context of the fundamental principle of non-refoulement. The application went further by explaining principle of non- refoulement and states that
“While reducing the risk of refoulement for certain communities, the CAA unequally places other communities at such risk. Accordingly, the narrow scope of the CAA, which extends protectionfrom return only on religious grounds and limited to the specific ethno-religious groups, may not be sufficiently objective and reasonablein light of the broad prohibition of refoulement under international human rights law.”
The application ends with conclusion, wherein it invite attention of Supreme court to take into account international human right law norms and standards, in these proceedings related to the CAA, so important for India and the diverse communities it has welcomed.
Edited by Pragash Boopal
Approved & Published – Sakshi Raje
Reference
[1]https://www.scconline.com/blog/post/2020/03/03/breaking-un-high-commissioner-for-human-rights-files-an-intervention-application-in-supreme-court-of-india-with-regard-to-caa-read-the-press-note/
[2]https://thewire.in/diplomacy/un-human-rights-chief-intervention-application-supreme-court-caa
[3]https://indianexpress.com/article/explained/explained-why-has-a-un-body-intervened-in-a-supreme-court-case-against-the-caa-6297618/
[4]https://www.livelaw.in/top-stories/delhi-riots-instead-of-mocking-each-other-in-court-make-conscious-effort-to-let-peace-prevail-cji-bobde-says-153456?infinitescroll=1
[5]CIVIL ORIGINAL JURISDICTION I. A No. of 2020, WP (Civic) No. 1474 0F 2019
[6]https://www.barandbench.com/news/un-high-commissioner-files-ia-in-caa-challenge-before-supreme-court-to-ensure-implementation-of-international-legal-obligations
[7] Citizenship (amendment) bill 2019, statement of objects and reasons.
[8] India accorded to the ICCPR ON 10 April 1979
[9] India accorded to the (ICESCR) on 10th April 1979
[10]India ratified ICERD on 3 December 1968.
[11]India acceded to the CRC on 11 December 1992.
[12]India ratified CEDAW on 9 July 1993.
[13]https://www.scribd.com/document/449928296/Draft-Intervention-application-on-behalf-of-OHCHR#from_embed or pdf_upload-370845.pdf
[14] Page 4 of intervening application
[15]International Court of Justice, Nottebohm case, ((Liechtenstein v. Guatemala): Second Phase, judgment of 6 April 1955, p. 23.
[16]UN Human Rights Committee, Communication No. 2001/2010, Q v. Denmark, CCPR/C/113/D/2001/2010, para. 7.3.
