'CAA' not Compatible with Int'l Human Rights Laws, UN Human Rights Chief Tells SC

New Delhi, March 5, 2020:

Michelle Bachelet Jeria, United Nations High Commissioner for Human Rights (the High Commissioner) has in an intervention application, urged the Supreme Court of India to re-consider the Citizenship Amendment Act (or CAA). Her office has filed an application urging the Supreme Court to make the UN body a third party in a petition filed by a former civil servant, Deb Mukharji, against the law.

Calling forth India's apex Court is to examine the compatibility of Sections 2 to 6 of the Citizenship (Amendment) Act 2019 (hereafter "CAA") 2 with India's Constitution.

The Office of the High Commissioner of Human Rights (OHCHR) welcomes the CAA's stated purpose, namely the protection of some persons from persecution on religious grounds, simplifying procedures and requirements and facilitating the granting of citizenship to such persons.

[caption id="attachment_54130" align="alignnone" width="660"] A portion of the intervention application; Courtesy: Live Law[/caption]

However, the UN Human Rights body reminded the Supreme Court that the sovereign power such as granting of citizenship is not unfettered and must be exercised in conformity with applicable human rights obligations. International human rights law, in this regard, requires the granting of citizenship under law to conform to the right of all persons to equality before the law and to be free from prohibited discrimination.

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The UN body reminded the SC 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."

Further, the Committee on the Rights of the Child has also stated that 'Nationality laws that discriminate with regard to the transmission or acquisition of nationality on the basis of prohibited grounds, including in relation to the child and/or his or her parents' race, ethnicity, religion, gender, disability and migration status, should be repealed. Furthermore, all nationality laws should be implemented in a non-discriminatory manner, including with regard to residence status in relation to the length of residency requirements, to ensure that every child's right to a nationality is respected, protected and fulfilled."

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The UN's general Assembly has also urged all States to review and where necessary revise their immigration laws, policies and practices to ensure that they are free of racial discrimination and compatible with their obligations under international human rights instruments", Jeria reminded the apex Court and its panel of Justices.

In the intervention application, Jeria also hinted that the decision to grant citizenship on the basis of religion is not "objective and reasonable."

The UN Human Rights Chief also pointed out that 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 (Afghanistan, Pakistan, and Bangladesh) 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.

Additionally, it was stated that in accordance with the obligations contained in the principle of non-refoulement, migrants should not be expelled or returned to another country without an individual, impartial and independent assessment of the real and personal risk of irreparable harm, by the administrative and/or judicial authorities.

Finally, the intervention urged the Court 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."

However, the Indian Government has defended the CAA in the aftermath of the filing of the intervention application. "Our permanent mission in Geneva was informed yesterday [Monday] 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 CAA," India's Ministry of External Affairs spokesman Raveesh Kumar said in a statement on Tuesday.

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