Post Mortem

De-coding an ‘Internal matter’!

By Nagaland Post | Publish Date: 3/6/2020 12:01:01 PM IST

 The Government of India in recent times has been hitting the headlines for a variety of reasons. Two days ago it added one more feather to its cap. For the first time in India’s judicial history, a United Nation’s body—the UN High Commissioner for Human Rights (UNHCHR)—on Tuesday, the 3rd of March, 2020, sought to intervene as amicus curiae or  friend of the court, to assist the apex court in adjudicating the constitutional validity of the Citizenship (Amendment) Act. It said that CAA has a “worthy and commendable objective”, it appears to discriminate against persecution of Muslim communities. UNHCHR brought to the fore the objective of the CAA and the intention of the Government, wherein it has isolated the Muslim communities. This is where the caveat it presents. 

Responding to this move, the Ministry of External Affairs (MOEA) said it was an “internal matter” and so “no foreign party has any locus standi on issues pertaining to India’s sovereignty” and “the Indian Parliament’s right to make law”.  The triggering points are the constitutionality of CAA and Constitutional validity of CAA. Chief of the UNHCH added that the law “raises a number of issues related to India’s wider human rights obligations in the context of fundamental principle of re-foulement that is no forced repatriation of refugees to their home country.” Countering UNHCHR, the spokesperson of MOEA, Raveesh Kumar uttered, “We are clear 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 added that “India is a democratic country governed 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 Supreme Court.” GOI came to know only after India’s permanent mission in Geneva was informed by the Office of the UNHCHR that it was filing an intervention plea against CAA in the Supreme Court seeking to present itself as amicus curiae. In the wake of conflicting versions whether such application has been filed or not, a spokesperson for the UN body said UNHCHR Michelle Bachelet Jeria, first women President of Chile decided to file on CAA in the SC in accordance with court’s established procedures. Jeria has a background of human rights activism and represented the socialist party in Chile views CAA as one such Act that segregates communities that contradict all are equal before law. 

On this, there were some who raised questions about the authenticity of such a move for which Jeria said she 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 – European Court of Human Rights, Inter-American Court of Human Rights, International Criminal Court – and at national level—US Supreme Court and final appeal courts of states in Asia and Latin America.”  She made it clear that she intends to intervene in the CAA proceedings as an amicus curiae in the SC, but would not give up her diplomatic privileges and immunity which means she would not submit to the SC’s jurisdiction and not be liable for any averse order again her. 

Referring to the CAA promising expeditious citizenship for persecuted minorities, Jeria said, “The factual basis for the arguments provided in the statement of Objects and Reasons for the introduction of CAB for such preferential treatment, also find support in pronouncement by the UN human rights mechanism regarding the situation of religious minorities in Afghanistan, Bangladesh and Pakistan.” Substantiating further, “However, recent reports by the 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 added. 

There are some who point out that UNHCHR has failed to intervene where minorities live in Pakistan, Afghanistan and Bangladesh. Responding to this, “The question also arises as to whether the differentiation made with regards to persecution on religious grounds, as opposed to other grounds, is sufficiently objective and reasonable, in particular taking into account the prohibition of refoulement and India’s obligations under international human rights law,” she said. She in her brief was objective by invoking India’s role in championing the human rights to ‘equal protection of law’ in 1949 for ‘International Covenant on Civil and Political Rights’. She added that “It is remarkable that after sixty years, this very issues lies at the heart of the SC deliberations as it examines CAA. This presents SC with a historic and unique opportunity to give practical meaning to this fundamental right (equal protect of law) at the domestic level.” 

As against the backdrop, CAA being the central issue keep unraveling a number of innate contradictions such as it has been passed by both the Houses of parliament—supreme law legislating body comprised of peoples’ representatives and yet being questioned on the constitutionality of CAA to which the Supreme Court’s verdict is awaited. By evading questions and seeking protection under “India’s internal matter” shall not suffice. As pointed out by UNHCHR India has been the signatory to the International Human Rights Charter and is committed to protecting its citizens as per the laws enshrined within its legal framework.  She also requested the apex court to take into account international human rights law, norms and standards in proceedings relating to CAA and thus offered numerous examples whereby UNHCHR intervened in judicial forums of other countries in human rights issues.

(To be concluded)

Dr. John Mohan Razu


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