05 Mar Intervention of the UN High Commissioner for Human Rights at the Indian Supreme Court: International Law and the Citizenship Amendment Act
On 3 March, news reports indicated that that the UN High Commissioner for Human Rights (High Commissioner) filed an intervention at the Supreme Court of India, linked to petitions challenging the Citizenship Amendment Act of 2019 (CAA). This legislation – along with a population and citizenship register – has been the focus of nationwide protests across India.
In brief, the CAA seeks to ease a path to citizenship for those who entered India before December 2014 from Afghanistan, Pakistan and Bangladesh, who are “Hindu, Sikh, Buddhist, Jain, Parsi or Christian”. This would exclude adherents of Judaism, Islam or any other religion, save those specified. The protection is based on religious persecution and restricted to those following the religions indicated in the legislation. (For more detail on the CAA and the legal issues, see here)
While it is unclear if the application has in fact been filed with the court yet, a copy of it is available online and it appears that the Indian mission in Geneva has been notified. On the assumption that the intervention is proceeding, what does this mean and why is it important?
Legal approach of the High Commissioner
A recap of the legal intervention, focusing on particular aspects of the submission briefly.
The first is that the petition is at pains to point out that it is in the nature of an amicus brief and is not aligned to the arguments of the other petitioners – possibly in an attempt to keep the focus solely on the international law dimensions of the submission.
The next aspect is the discussion of issues related to migration and refugees. As pointed out by many commentators, while the CAA relates to status of ‘illegal migrants’, the context in which the legislation is enacted goes beyond to issues of citizenship and stateless. However, this emphasis on migrants and legal protection would seem to be a deliberate strategy to keep the focus restricted to the enactment and the direct legal issues.
The petition does not address the exclusion of other neighbouring countries from the CAA but the arguments are limited to those excluded from the purview of the legislation from the specified countries – Afghanistan, Pakistan and Bangladesh. Hence, this does not address the exclusion of Sri Lanka, Nepal, Bhutan or those fleeing from any other country.
The focus of the legal argumentation is to address the principle of equality between citizens and non-citizens, and non-discrimination in enacting legislation, emanating from the international treaties that India is a signatory to, such as the International Covenant on Civil and Political Rights (ICCPR). The petition emphasizes that sovereign power is not unfettered and there is a need even in regard to citizenship to conform to the principle of non-discrimination, as stipulated in Art.26 of the ICCPR. These are further reaffirmed in the interpretation of the Committee of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD Committee), Convention on the Rights of the Child (CRC) and the UN General Assembly.
While the intervention references permissible differentiation, it indicates the restrictions under international law for this to be valid under law – that it must be in line with legitimate objectives and must be proportional. General Recommendation 32 of the CERD Committee provides guidance on the parameters of what may be considered legitimate differentiation, and not discrimination. In light of this, the question that needs to be determined is whether the differentiation within the CAA is “sufficiently objective and reasonable”.
The High Commissioner acknowledges the factual basis of the bill – that of discrimination in the listed countries which is supported by UN Human rights mechanisms – but also makes the point that there is no blanket protection provided merely due to an adherence to Islam, detailing discrimination against Ahmadis, Shias, Hazaras among others.
The last part of the argument focusses on the obligation of non-refoulement under refugee law and which is enshrined in treaty and customary law, and from which no derogation is possible. In the final assessment, the risk of irreparable harm is raised in the intervention and the interpretation of a number of human rights bodies is relied upon. While the CAA may reduce the risk for some communities, it places other communities at risk. There are positive state measures of protection that India is obligated to follow.
The intervention closes with reference to the championing of the provision relating to ‘equal protection before the law’ by India in discussions on the draft ICCPR treaty in 1949 and the commitments that the government has undertaken, including in regard to the global compact for migration.
Significance of the intervention
The news has elicited a strong reaction from the Ministry of External Affairs of the Government of India, with the spokesperson stating,
“The Citizenship Amendment Act is an internal matter of India and concerns the sovereign right of the Indian Parliament to make laws. We strongly believe that no foreign party has any locus standi on issues pertaining to India’s sovereignty. We are confident that our sound and legally sustainable position would be vindicated by the Honourable Supreme Court.”
In addition, some have raised doubts as to the ability of the High Commissioner to intervene in the Indian Supreme Court, or indeed in any court for that matter, as well as on the subject matter (international law and human rights).
A few points to make here.
Firstly, legal intervention does have precedent. There are instances where the High Commissioner – as well as other UN agencies and experts (special rapporteurs and working groups) have indeed intervened in courts around the world – regional courts as well as constitutional courts.
A few examples to illustrate the point. The High Commissioner has intervened at the European Court of Human Rights in cases relating human rights of migrants such as in N.D. and N.T v Spain, Hirsi et al v Italy,and Raoufi and others v Greece.
UNICEF has intervened at U.S. district courts and the Special Court for Sierra Leone. The United Nations High Commission for Refugees (UNHCR) interventions – which can be found here – are too numerous to list. These include interventions in courts in the United States, Australia, and the United Kingdom. It is perhaps a matter of strategy that UNHCR has not filed an intervention in relation to the CAA in India, but that this has been taken on by the human rights office instead, given its wider ramifications.
There are interventions in court by experts or UN special rapporteurs on a variety of subjects, including freedom of expression and opinion, racism, and torture. In addition, the Working Group on discrimination against women has intervened in the Constitutional Court of South Korea, the supreme court of Brazil and the U.K, among others.
In India specifically, as far as I am aware the High Commissioner has not intervened in cases before the courts, but I am open to correction. However, there is precedent of intervention by the UN Special Rapporteur on Contemporary forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance, in the case of deportation of Rohingya. On 12 July 2019, the special rapporteur filed an intervention at the Indian Supreme Court in relation to international legal obligations incumbent on India, which would prevent mass deportations of Rohingya from India. The case is still pending before the Supreme Court and has been adjourned.
The question is how the Supreme Court will address this intervention and whether it is amenable to the expertise in international law that is on offer. The Supreme Court does reference and rely on international law in its judgments, and it should be glad of the expertise to assist in this case.
In regard to the broad argument relating to sovereignty – that is not carte blanche to legislate discriminatory laws that are violative of not only the Constitution, but also the international legal obligations that India is bound by, in treaty and customary international law.
The intervention of the High Commissioner comes at a time of heightened scrutiny of India’s human rights record. I have written previously about the scrutiny from the human rights machinery of the UN including special rapporteurs – this intervention is but an inevitable next step.
The intervention highlights not only the international law arguments that must be taken into account in the scrutiny of the CAA, but also serves to signal how seriously the issues of citizenship and potential statelessness are being taken by the international community.