UNHCR, CAA & Sovereignty Issue – All You Need to Know
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The UN High Commissioner for Human Rights (UNHCHR) had filed an intervention application in the Supreme Court over the Citizenship (Amendment) Act (CAA). The CAA, which was passed by the Indian Parliament in December, aims to hasten citizenship for persecuted minorities from Afghanistan, Bangladesh, and Pakistan, leaving out the possibility of India giving citizenship to persecuted Muslims from these countries. Fears that this Act, along with plans to create a National Register of Citizens, could strip Indian Muslims of their citizenship have led to protests across the country. In this context, the UNHCHR seeks to intervene as amicus curiae (third party) in the petitions against CAA that is pending before the apex court.
What is the issue?
- The UN High Commissioner for Human Rights (UNHCHR), Michelle Bachelet Jeria, has filed an intervention in the Supreme Court on the Citizenship (Amendment) Act, 2019, and had informed India’s Permanent Mission in Geneva about it.
- It filed an application seeking to intervene as amicus curiae in the pending litigation in the Supreme Court against the Citizenship (Amendment) Act (CAA).
- Amicus curiae, which literally means “friend of the court”, is an individual who is not a party to a case and may or may not have been solicited by a party and who assists a court by offering information, expertise or insight that has a bearing on the issue in the case.
- While this intervention may be an issue of concern for the Indian government, it may enable the apex court to look into the principles of international law in determining the constitutionality of CAA.
- Ultimately, it can aid the government in laying down laws on the concepts of sovereignty in addition to determining the obligation of the nation-state to the international community at large.
What are the arguments made by the Office of the UN High Commissioner for Human Rights?
- The petition filed by the UNHCHR is not aligned with the arguments of the other petitioners. It is more focused on the dimensions of international law.
- It discusses issues related to migration and refugees. It pointed out that, while the CAA relates to the status of “illegal migrants”, the context in which the legislation goes beyond issues of citizenship and statelessness.
- The petition does not address the exclusion of other neighbouring countries from the CAA. However, the arguments are limited to those countries specified by the Act, which include Afghanistan, Pakistan and Bangladesh.
- The petition aimed to argue the need to address:
- The principle of equality between citizens and non-citizens, and non-discrimination in enacting legislation,
- Non-discrimination in enacting legislation, in accordance with international treaties that India is a signatory to.
- The petition emphasised that sovereign power is not an unrestrained right and there is a need, even in aspects such as citizenship, to conform to the principle of non-discrimination.
- In this regard, it pointed out Article 26 of the International Covenant on Civil and Political Rights (ICCPR).
- Committee of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD Committee), Convention on the Rights of the Child (CRC), International Covenant on Economic, Social and Cultural Rights, was also mentioned to back these arguments.
- Though the petition referred to acceptable differentiation, it indicated the restrictions under international law for it to be valid under the law.
- In this context, General Recommendation 32 of the CERD Committee provides parameters of what may be considered to be legitimate differentiation and not discrimination.
- In light of this, the question that needs to be answered is whether the CAA’s deviation is “sufficiently objective and reasonable”.
- The petition had acknowledged the factual basis for the bill, that of discrimination in the listed countries.
- However, it also pointed out that there the amended law did not protect other minority Muslim communities who are also being persecuted within these countries, like Ahmadis, Shias, Hazaras etc.
- The last part of the argument focuses on the obligation of non-refoulment under refugee law, which is enshrined in the treaty and customary law, and from which no derogation is possible.
- In the final assessment, the petition used numerous human rights bodies’ interpretation to conclude that there is a risk of irreparable harm.
- It argued that while CAA may reduce the risk for some communities, it places other communities at risk.
Does UNHCHR have locus standi?
Locus Standi means the right to bring an action, to be heard in court, or to address the Court on a matter before it. Several arguments prove that UNHCHR has locus standi.
Precedent:
- The legal intervention by the High Commissioner does have a precedent.
- There are instances where, the High Commissioner, as well as other UN agencies and experts, have intervened in courts around the world, regional courts as well as constitutional courts.
- It had intervened in courts in countries such as the US, the UK, Australia, South Korea etc.
- In India, High Commissioner has not intervened in cases before the courts.
- However, there is the precedent of intervention by UN Special Rapporteur on Contemporary forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance, in the case of deportation of Rohingyas.
Supreme Court relies on international laws during judgement:
- The SC does look into the international laws in its judgement.
- Thus, the High Commissioner’s expertise can be used by the apex court to refer to the international legal perspective of this case.
India’s obligations to international law:
- The application says that though India is a state party, it has a duty under international law to ensure that migrants in its territory or under its jurisdiction receive equal and non-discriminatory treatment regardless of their legal status or the documentations they possess.
- SC hearing on this perspective ensures that India is acting on par with the international laws.
What is the government’s response?
- Ministry of External Affairs had argued that CAA is an internal matter of India and that it is the sovereign rights of the Indian parliament to make laws.
- It also argued that no foreign party has any locus standi on issues about India’s sovereignty.
- However, if the SC does permit this intervention, it would serve as a precedent for several future applications.
- It would also provide an opportunity for the apex court to lay down conditions on whether such applications interfere with India’s sovereignty.
Is the UNHCHR interfering with India’s sovereignty?
- According to the ICJ judge James Crawford, sovereignty is, among other things, the “capacity to exercise, to the exclusion of other states, state functions on or related to that territory, and includes that capacity to make binding commitments under the international law” and further adds that “such sovereignty is exercisable only by the governmental institutions established within the state.”
- The Preamble to the Constitution lays out the position, wherein the people of India have resolved to constitute the Indian Republic into a sovereign and not just by one authority.
- Thus, courts (judiciary), the government (executive) and elected legislatures (legislature) are equally sovereign authorities. No one can claim exclusivity over sovereignty.
- Additionally, Article 51(c) of the Indian Constitution directs the state to “foster respect for international law”.
- Also, Article 14 extends the right to equality to all individuals, which is wider than the definition of citizens. Thus, even illegal immigrants shall, consequently, be treated by the government in a manner that ensures equality before the law.
- According to the International Commission on Intervention and State Sovereignty, “national political authorities are responsible to citizens internally and the international community through the UN”.
- From the above definitions and Articles, it can be concluded that a state’s sovereignty is not unfettered.
- It is subject to constraints including the responsibility to protect its citizens and the larger international community.
Conclusion:
The intervention by High Commissioner comes at a time when India’s human rights record is under intense international scrutiny. This intervention not only looks at the international legal perspective of the CAA but is also the seriousness of the issues of citizenship and potential statelessness is being taken by the international community.
Practice questions for mains:
Critically examine the legality of the intervention by the UN High Commissioner for Human Rights in questioning the legitimacy of the Citizenship (Amendment) Act, 2019. (250 words)
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