In a first, the Of­fice of The High Com­mis­sioner for Hu­man Rights knocks In­di­a’s Supreme Court against the main­tain­abil­ity of CAA, putting Naren­dra Mod­i’s BJP-gov­ern­ment on the back foot. For don­key years, hu­man rights groups, na­tional and re­gional iden­ti­ties have been shout­ing from rooftops that the United Na­tions must pro-ac­tively in­ter­vene to pro­tect and pre­serve hu­man rights in In­dia.  The Sikhs, Kash­miris, Tamils, Na­gas, Ma­nipuris and the Tripura peo­ple have been cry­ing hoarse for in­ter­na­tional in­ter­ven­tion. Fi­nally, we are there, with spe­cific thrust on the in­ter­na­tion­ally ap­plic­a­ble prin­ci­ple of non-re­foule­ment. 

I N A LAND­MARK DE­VEL­OP­MENT, LIKELY TO IM­PACT THE WAY THE IN­DIAN STATE PER­CEIVES ITS IN­TER­NA­TIONAL RE­SPON­SI­BIL­ITY at the United Na­tions to­wards the comity of na­tions and the world com­mu­nity, the dy­namic, per­sua­sive and un­re­lent­ing chair­per­son of the UN Hu­man Rights Coun­cil Michelle Bachelet has sought to be­come an am­i­cus cu­raie in the bunch of pe­ti­tions against the con­sti­tu­tion­al­ity and the di­vi­sive na­ture of the Cit­i­zen­ship Amend­ment Act, 2019, passed by the Naren­dra Modi-led Bharatiya Janata Party gov­ern­ment.

The pro­vi­sions of this law have at­tracted mas­sive in­ter­nal op­po­si­tion and tremen­dous in­ter­na­tional flak much to the cha­grin of the right-wing BJP gov­ern­ment which con­sid­ered it their in­her­ent right to con­vert In­dia into a Hindu coun­try and push black laws and anti-mi­nor­ity mea­sures.

The CAA has led to wide­spread protests across In­dia. Soon af­ter the mas­sive BJP loss in the Delhi elec­tions, in a planned pogrom, there have been deaths of scores Mus­lims in North East Delhi and the num­bers are still pour­ing in. The cli­mate of hate has been given more im­pe­tus by right-wing politi­cians. Trained and groomed lumpens and bi­ased po­lice have col­luded with the state in spread­ing may­hem and mur­der in broad day­light in the last week of Feb­ru­ary 2020.

Hu­man rights cam­paign­ers across the globe have been wait­ing for this move by any of the or­gans of the United Na­tions for decades. A for­mer In­dian For­eign Ser­vice of­fi­cer Deb Mukher­jee and oth­ers have filed an in­ter­ven­tion­ist pe­ti­tion on 3 March 2020, which will go a long way in mould­ing the thought processes of In­dia to­wards the world and vice versa.

Notwith­stand­ing the in­ter­na­tional op­pro­brium against the CAA and the car­nage against Mus­lims as a re­sult of the sys­temic hate-mon­ger­ing, the re­ac­tion of the gov­ern­ment of In­dia is no dif­fer­ent than what has been since decades. The stock re­ply is, “No one should in­ter­fere. This is an in­ter­nal mat­ter of our coun­try.”  Speak­ing to the me­dia, Raveesh Ku­mar -the spokesper­son of the Min­istry of Ex­ter­nal Af­fairs of the Gov­ern­ment of In­dia said, “We strongly be­lieve that no for­eign party has any lo­cus standi on is­sues per­tain­ing to In­di­a’s sov­er­eignty.”

Com­mend­ing some sec­tions of the CAA, the UN Hu­man Rights Coun­cil -UNHRC has ex­pressed con­cern about the com­pat­i­bil­ity of Sec­tion 2 and 6 of the Cit­i­zen­ship (Amend­ment) Act 2019 with the In­dian Con­sti­tu­tion in this pe­ti­tion.

Re­it­er­at­ing its oft-re­peated stand, the In­dian MEA said, “In­dia is clear that the CAA is con­sti­tu­tion­ally valid and com­plies with all re­quire­ments of its con­sti­tu­tional val­ues. It is re­flec­tive of our long-stand­ing na­tional com­mit­ment in re­spect to hu­man rights is­sues aris­ing from the tragedy of the par­ti­tion of In­dia.”

“In­dia is a de­mo­c­ra­tic coun­try gov­erned by the rule of law. We all have the ut­most re­spect for and full trust in our in­de­pen­dent ju­di­ciary. We are con­fi­dent that our sound and legally sus­tain­able po­si­tion will be vin­di­cated by the Supreme Court.”

Raveesh Ku­mar, Spokesper­son, Min­istry of Ex­ter­nal Af­fairs, Gov­ern­ment of In­dia

A bunch of more than a hun­dred and forty pe­ti­tions are pend­ing in the Supreme Court of In­dia on the CAA, NPR and NRC. Those who have pe­ti­tioned in­clude ac­tivists Mahua Moitra, As­sas­ud­hin Owaisi, Jairam Ramesh, In­dian Union Mus­lim League, The Siasat Daily, the PUCL, Ka­mal Hasan, Tehseen Poon­awala, Ramesh Chen­nithala, SDPI and Harsh Man­der. Promi­nent po­lit­i­cal par­ties like DMK, CPI have also pe­ti­tioned. The Tripura Peo­ple’s Front is also a pe­ti­tioner.

In an at­tempt to ap­prise the judges of the Supreme Court of In­dia of the stand of the gov­ern­ment of In­dia, Raveesh Ku­mar of MEA stated, “In­dia is a de­mo­c­ra­tic coun­try gov­erned by the rule of law. We all have the ut­most re­spect for and full trust in our in­de­pen­dent ju­di­ciary. We are con­fi­dent that our sound and legally sus­tain­able po­si­tion will be vin­di­cated by the Supreme Court.”

The UN­HCR chief Verónica Michelle Bachelet Je­ria, -for­mer Pres­i­dent of Chile, its first fe­male Pres­i­dent, was along with her fa­ther sub­jected to tor­ture by the Pinochet gov­ern­ment. A doc­tor by pro­fes­sion and a for­mer head of the UN Women, she steadily earned her pre­sent po­si­tion and hence is aware of how re­pres­sive gov­ern­ments work. She knows her job in up­hold­ing hu­man rights for all at all places at all times and un­der all cir­cum­stances.

“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.”

Michelle Bachelet, chair­per­son, UN Hu­man Rights Coun­cil

It is this back­ground that prompts her into bold in­ter­ven­tion in var­i­ous fora in­clud­ing the pre­sent one in the In­dian Supreme Court to tell In­dia how the CAA flouts in­ter­na­tional oblig­a­tions un­der In­di­a’s com­mit­ment to UN treaties, con­ven­tions and in­ter­na­tional laws.

Within minc­ing words, in her open­ing re­marks at the in­au­gural ses­sion of the 43^rd Ses­sion of the UN Hu­man Rights Coun­cil, she said, “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.”

Cit­ing the im­por­tance of the role of the Of­fice of the High Com­mis­sioner for Hu­man Rights, the pe­ti­tion says, “The High Com­mis­sion­er’s role is thus to pro­mote ad­her­ence to in­ter­na­tional hu­man rights law and, with this pur­pose in mind, to sup­port do­mes­tic courts, with their con­sti­tu­tional or ju­di­cial func­tion, in en­sur­ing the im­ple­men­ta­tion of in­ter­na­tional le­gal oblig­a­tions.”

As re­gards her pro-ac­tive role, the pe­ti­tion says, “The cur­rent High Com­mis­sioner and her pre­de­ces­sors have filed am­i­cus cu­riae briefs on is­sues of par­tic­u­lar pub­lic im­por­tance within pro­ceed­ings be­fore a di­verse range of in­ter­na­tional and na­tional ju­ris­dic­tions, in­clud­ing at the in­ter­na­tional level, the Eu­ro­pean Court of Hu­man Rights, the In­ter-Amer­i­can Court of Hu­man Rights, the In­ter­na­tional Crim­i­nal Court, and at the na­tional level, the United States Supreme Court and fi­nal ap­peal courts of States in Asia and Latin Amer­ica.”

“The ex­am­i­na­tion of the CAA in the pre­sent case raises im­por­tant is­sues with re­spect to in­ter­na­tional hu­man rights law and its ap­pli­ca­tion to mi­grants, in­clud­ing refugees. The ex­am­i­na­tion by the Hon’ble Court of the CAA is of sub­stan­tial in­ter­est to the High Com­mis­sioner, con­sid­er­ing its po­ten­tial im­pli­ca­tions for the ap­pli­ca­tion and in­ter­pre­ta­tion of In­dia‘s in­ter­na­tional hu­man rights oblig­a­tions, in­clud­ing the right to equal­ity be­fore the law and the pro­hi­bi­tion of dis­crim­i­na­tion as well as the CAA’s im­pact on the pro­tec­tion of hu­man rights of mi­grants, in­clud­ing refugees in In­dia.”

“The cur­rent High Com­mis­sioner and her pre­de­ces­sors have filed am­i­cus cu­riae briefs on is­sues of par­tic­u­lar pub­lic im­por­tance within pro­ceed­ings be­fore a di­verse range of in­ter­na­tional and na­tional ju­ris­dic­tions, in­clud­ing at the in­ter­na­tional level, the Eu­ro­pean Court of Hu­man Rights, the In­ter-Amer­i­can Court of Hu­man Rights, the In­ter­na­tional Crim­i­nal Court, and at the na­tional level, the United States Supreme Court and fi­nal ap­peal courts of States in Asia and Latin Amer­ica.”

Sharply bring­ing In­di­a’s in­ter­na­tional oblig­a­tions into fo­cus, the pe­ti­tion reads, “Spe­cial at­ten­tion is given to the core in­ter­na­tional hu­man rights treaties to which In­dia is a State party, in­clud­ing the In­ter­na­tional Covenant on Civil and Po­lit­i­cal Rights (IC­CPR) the In­ter­na­tional Covenant on Eco­nomic So­cial, and Cul­tural Rights (ECE­SCR), the In­ter­na­tional Covenant on the Elim­i­na­tion of Racial Dis­crim­i­na­tion (ICERD), the Con­ven­tion on the Rights of the Child (ICRC) and the Con­ven­tion on the Elim­i­na­tion of Dis­crim­i­na­tion against Women (CEDAW).”

The pre­sent in­ter­ven­tion “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…. The CAA also raises other equally im­por­tant hu­man rights 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. While the is­sue of non- dis­crim­i­na­tion on na­tion­al­ity grounds falls out­side the scope of this in­ter­ven­tion, this in no way im­plies that there are not hu­man rights con­cerns in this re­spect.”

The pe­ti­tion has re­minded In­dia that, “All mi­grants re­gard­less of their race, eth­nic­ity, re­li­gion. na­tion­al­ity and/​or im­mi­gra­tion sta­tus en­joy hu­man rights and are en­ti­tled to pro­tec­tion. 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 farm the foun­da­tion of the rule of law.”

UNHRC says, “The prin­ci­ple of equal­ity also re­quires that States adopt spe­cial mea­sures to elim­i­nate the con­di­tions that cause or help per­pet­u­ate var­i­ous forms of dis­crim­i­na­tion.” Also, “In­deed, in­ter­na­tional hu­man rights law does not dis­tin­guish be­tween cit­i­zens and non-cit­i­zens or be­tween dif­fer­ent groups non-cit­i­zens, within the ju­ris­dic­tion of a State party in their equal right to en­joy pro­tec­tion from dis­crim­i­na­tion and be equal be­fore the law.”

Pin­point­ing the need for abo­li­tion of dis­crim­i­na­tion un­der UN treaties and con­ven­tions, es­pe­cially the ICPCR, the pe­ti­tion notes that, “In­deed, in­ter­na­tional hu­man rights law does not dis­tin­guish be­tween cit­i­zens and non-cit­i­zens or be­tween dif­fer­ent groups of non-cit­i­zens, within the ju­ris­dic­tion of a State party in their equal right to en­joy pro­tec­tion from dis­crim­i­na­tion and be equal be­fore the law, in­clud­ing in re­spect of their mi­gra­tion sta­tus.”

The pe­ti­tion has ob­served that the United Na­tions Gen­eral As­sem­bly has also con­sented that States should avoid in­vid­i­ous dis­crim­i­na­tion in the im­mi­gra­tion con­text and In­dia too has ac­cepted to com­ply with this.  The prin­ci­ple of non-re­foule­ment un­der in­ter­na­tional hu­man rights law and the oblig­a­tion to carry out an in­di­vid­u­al­ized as­sess­ment.

In this con­nec­tion, the Hu­man Rights Com­mit­tee, the au­thor­i­ta­tive body over­see­ing the in­ter­pre­ta­tion of the IC­CPR has stated that “the gen­eral rule is that each one of the rights of the IC­CPR must be guar­an­teed with­out dis­crim­i­na­tion be­tween cit­i­zens and aliens. Aliens re­ceive the beat of the gen­eral re­quire­ment of non-dis­crim­i­na­tion in re­spect of the rights guar­an­teed in the Covenant, as pro­vided for in Ar­ti­cle 2 thereof This guar­an­tee ap­plies to aliens and cit­i­zens alike and that “aliens are en­ti­tled to equal pro­tec­tion by the law.”

“Covenant rights is not lim­ited to cit­i­zens of States Par­ties but must also be avail­able to all in­di­vid­u­als, re­gard­less of na­tion­al­ity or state­less­ness, such as asy­lum seek­ers, refugees, mi­grant work­ers and other per­sons, who may find them­selves in the ter­ri­tory or sub­ject to the ju­ris­dic­tion of the State Party.”

The pe­ti­tion­ers have pointed out that, the Com­mit­tee on the Elim­i­na­tion of Racial Dis­crim­i­na­tion has specif­i­cally called on States to “En­sure that par­tic­u­lar groups of non-cit­i­zens are not dis­crim­i­nated against with re­gard to ac­cess to cit­i­zen­ship or nat­u­ral­iza­tion …” It has ad­di­tion­ally found dis­crim­i­na­tory im­mi­gra­tion laws and poli­cies “in­com­pat­i­ble with the very prin­ci­ple of non-dis­crim­i­na­tion.”

The pe­ti­tion has ob­served that the United Na­tions Gen­eral As­sem­bly has also con­sented that States should avoid in­vid­i­ous dis­crim­i­na­tion in the im­mi­gra­tion con­text and In­dia too has ac­cepted to com­ply with this.  The prin­ci­ple of non-re­foule­ment un­der in­ter­na­tional hu­man rights law and the oblig­a­tion to carry out an in­di­vid­u­al­ized as­sess­ment.

The prin­ci­ple of non-re­foule­ment is en­shrined in in­ter­na­tional hu­man rights law, in­ter­na­tional refugee law, in­ter­na­tional hu­man­i­tar­ian law and cus­tom­ary in­ter­na­tional law. Since it was for­mally cod­i­fied in the 1951 Con­ven­tion on the Sta­tus of Refugees, it has been de­vel­oped and in­te­grated into in­ter­na­tional hu­man rights in­stru­ments. Among other treaties, this prin­ci­ple is en­shrined in the Con­ven­tion on the Rights of the Child (CRC) and im­plic­itly es­tab­lished in the In­ter­na­tional Covenant on Civil and Po­lit­i­cal Rights (IC­CPR).

The prin­ci­ple of non-re­foule­ment un­der in­ter­na­tional refugee law pro­hibits re­turn in any man­ner what­so­ever to threats to life or free­dom on ac­count of five grounds, in­clud­ing but not re­stricted to re­li­gion. Un­der in­ter­na­tional hu­man rights law re­turn is pro­hib­ited where there is a real risk of the in­di­vid­ual suf­fer­ing “ir­repara­ble harm”, which is a con­cept broader than per­se­cu­tion and does not re­quire that the risk of harm be linked to spe­cific grounds.

Specif­i­cally, the Of­fice of the High Com­mis­sioner of Hu­man Rights has asked the Supreme Court of In­dia to “take into ac­count in­ter­na­tional hu­man rights law, norms and stan­dards, in these pro­ceed­ings re­lated to the CAA, so im­por­tant for In­dia and the di­verse com­mu­ni­ties it has wel­comed.”

Un­der in­ter­na­tional hu­man rights law, the prin­ci­ple of non-re­foule­ment pro­hibits the ex­pul­sion, re­turn or ex­tra­di­tion of a per­son in the ter­ri­tory of a State or un­der its ju­ris­dic­tion or ef­fec­tive con­trol to an­other State when there are sub­stan­tial grounds for be­liev­ing that the per­son would be in dan­ger of be­ing sub­jected to ir­repara­ble harm, such as vi­o­la­tions of the right to life, tor­ture, ill-treat­ment and en­forced dis­ap­pear­ance, among oth­ers. This prin­ci­ple ap­plies to all forms of ex­pul­sion or re­turn of per­sons, re­gard­less of their na­tion­al­ity, le­gal sta­tus, im­mi­gra­tion sta­tus, state­less­ness or cit­i­zen­ship. It is an ab­solute prin­ci­ple from which no dero­ga­tion is pos­si­ble.

Specif­i­cally, the pe­ti­tion­ers have asked the Supreme Court of In­dia to “take into ac­count in­ter­na­tional hu­man rights law, norms and stan­dards, in these pro­ceed­ings re­lated to the CAA, so im­por­tant for In­dia and the di­verse com­mu­ni­ties it has wel­comed.”

What­ever the out­come -the Supreme Court of In­dia may ac­cept it or may not ac­cept the pe­ti­tion on the ques­tion of lo­cus-standi, but the United Na­tions Hu­man Rights Coun­cil chief Michelle Bachelet has taken the first con­crete step -a unique oc­cur­rence in the an­nals of the con­tem­po­rary his­tory of na­tions who suf­fer gross hu­man rights abuse.