New Delhi: 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 response, the Indian government has claimed that no foreign party has “locus standi” on CAA as it pertains to Indian sovereignty.

In a statement on Tuesday, 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)”.

The CAA, passed by the Indian parliament in December 2019, seeks to grant fast-track citizenship to non-Muslim migrants from Pakistan, Bangladesh and Afghanistan who arrived in India on or before December 31, 2014. The CAA had led to widespread protests in India, starting with northeastern states.

The UN human rights commissioner has highlighted several times that CAA would be discriminatory and violates India’s commitments made under international law.

Bachelet’s last statement related to CAA was during her update to the 43rd session of the UN human rights council on February 27. “Citizenship Amendment Act adopted last December is of great concern. Indians in huge numbers, and from all communities, have expressed – in a mostly peaceful manner – their opposition to the Act, and support for the country’s long tradition of secularism,” she stated.

India’s secretary (west) Vikas Swarup had met with Bachelet last week, but there was no mention about the plan for filing the intervention application.

The UN human rights chief had also expressed concern about reports of “police inaction in the face of attacks against Muslims by other groups, as well as previous reports of excessive use of force by police against peaceful protesters”.

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Earlier in December 2019, OHCHR had described the citizenship amendment act as “fundamentally discriminatory”.

After India was informed about OHCHR’s intention , Kumar asserted CAA was 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,” he added.

Kumar claimed that CAA is constitutionally valid and complies with all requirements of our constitutional values. “It is reflective of our long-standing national commitment in respect of human rights issues arising from the tragedy of the Partition of India,” he said.

The MEA spokesperson noted that India is a democratic country government by the rule of law. “We all have utmost respect for and full trust in our independent judiciary. We are confident that our sound and legally sustainable position would be vindicated by the Hon’ble Supreme Court”.

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The Supreme Court is hearing a total of 143 petitions seeking to examine the constitutional validity of the Citizenship Amendment Act.

At the last hearing in January, the Supreme Court had refused to stay the legislation and given the court four weeks to respond to the petitions. The matter was to be listed again after five weeks.

The OHCHR spokesperson Jeremy Laurence confirmed to The Wire that the high commissioner intends to submit “an amicus curiae brief on the Citizenship Amendment Act (CAA) in the Indian Supreme Court, in accordance with the Supreme Court’s established procedures, and that she has informed the Indian Permanent Mission in Geneva of her intention”.

“The amicus curiae will be filed shortly,” he added

He said that the high commissioner has “has great respect for the Indian Supreme Court’s independence and importance, and in accordance with similar interventions in domestic jurisdictions by the High Commissioner and her predecessors, the amicus curiae will focus on providing an overview of relevant and applicable international human rights standards and norms to support the Court’s deliberations in the context of its review of the CAA”.

In her draft application, Bachelet sought to intervene as an amicus curiae “by virtue of her mandate to inter aria 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”.

She noted that the office of the UN human right chief had filed amicus curiae briefs within proceedings before diverse jurisdictions, including International Criminal Court, US Supreme Court and final appeal courts in Asia and Latin America.

The former Chilean President noted that the while the government has said that CAA does not rule out citizenship to other faiths through the regular route, she stated that the naturalisation process in such case “will be based on the more stringent criteria set out in the original Citizenship Act, which requires (i) residency in Iidia for at least 12 years and (ii) not having entered the country ‘illegally’, unless the requirement for valid travel documentation has been waived.”

Draft Intervention application on behalf of OHCHR by The Wire on Scribd

She stated that under international human rights law, states have to ensure that migrants in their territory “receive equal and non-discriminatory treatment, regardless of their legal status and the documentation they possess”.

The High Commissioner said that states can adopt positive discrimination measures that constitute a difference in treatment if they “i) conform to the law; ii) pursue a legitimate objective, and iii) are proportional to the objective pursued”.

“For the purpose of this intervention application, in the present case, the question is therefore not a matter of the general purpose of the law, but 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”.

Referring to the Indian government’s argument Islam is a state religion in all three countries, Bachelet said that the implication is that this Constitutional recognition affords persons of the Muslim faith, regardless of denomination or ethnicity, protection in Afghanistan, Bangladesh and Pakistan.

“However, recent reports by UN human rights treaty bodies, special procedures and other mechanism ascertain that there exist a number of religious groups considered religious minorities in these countries, especially of the Muslim faith, including Ahmadi, Hazara and Shia Muslims whose situations would warrant protection on the same basis as that provided in the preferential treatment proposed by the CAA,” she wrote in the draft application.

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Further, migration governance measures have to be in accordance with the “absolute and non-derogable principle of non-refoulement”.

“Finally, I respectfully draw the attention of the Honourable Court to the Global Compact for Safe, Regular and Orderly Migration,” she said, adding that the international pact allows states to adapt options and pathways for regular migration.

“Policy options may include developing or building on existing national and regional practices for admission and stay of appropriate duration based on compassionate, humanitarian or other considerations for migrants compelled to leave their countries of origin, due to the sudden-onset of natural disasters and other precarious situations, such as by providing humanitarian visas, private sponsorships, access to education for children, and temporary work permits, while adaptation in or return to their country of origin is not possible”.

Past precedents

While a UN inter-governmental body may have intervened in Indian Supreme Court for the first time, foreign governments and nationals have been parties to several legal cases in Indian court system.

The Supreme Court is currently hearing a petition filed in 2017 against the Indian government’s plan to deport all Rohingya Muslims, estimated to be around 40,000, back to Myanmar.

On January 10, UN special rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance E. Tendayi Achiume filed an application seeking to intervene in the ongoing case, which is being heard by a three-judge bench headed by Chief Justice S.A. Bobde.

Special rapporteurs (SRs) are independent experts appointed by the UNHRC with specific thematic mandates.

Achiume offered to assist the Supreme Court with her “expertise and experience on the issue of state parties’ obligations under international law with regard to the prevention of racial discrimination”.

Earlier in the Italian marines case, the Italian ambassador had filed a petition challenging the jurisdiction of the Indian police after the arrests of the marines for the killing of Indian fishermen off the coast of India.