UN rights chief moves SC on CAA

TT, Legal Correspondent, 04 Mar 2020, New Delhi: Michelle Bachelet Jeria, United Nations High Commissioner for Human Rights, on Tuesday moved the Supreme Court pleading that the Indian government cannot discriminate between Muslims and others communities under the Citizenship Amendment Act (CAA). The high-ranking UN official has moved an application seeking the apex court's permission to intervene in the matter and assist it as amicus curiae (friend of the court) in the batch of nearely100 petitions already pending before the top court. The petitions had earlier chal- lenged the act as being unconstitutional.

The Indian government on Tuesday questioned the locus standi of the United Nations Commissioner for Human Rights to file the intervention application in the Supreme Court, insisting that the CAA is an internal matter and concerns the sovereign right of the Indian Parliament to make laws.

The controversial act, which is being stoutly defended by the Narendra Modi government, seeks to fast-track citizenship rights to non-Muslims in the Islamic countries of Pakistan, Bangladesh and Afghanistan.

The high commissioner is the principal human rights official of the UN.

It is the discretion of the Supreme Court to permit Jeria to intervene in the matter or not. The apex court is yet to fix a formal date for hearing the batch of petitions, although it had earlier issued notice to the Centre on the batch of petitions. The petitions are expected to be heard after a fortnight.

In her application, the UN High Commissioner has pleaded that while the CAA aimed at protecting the persecuted minorities from the three countries "is a worthy and commendable objective, it raises a number of issues related to India's wider human rights obligations in the context of the fundamental principle of non-refoulement (the refusal to forcibly send back refugees) which clearly man- dates that there cannot be any discrimination in the grant of refugee status on the basis of religion or raceThe 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.

"The principle of non-refoulment under international law prohibits return in any manner whatsoever to threats to life or freedom on account of five grounds, including but not restricted to religion.

The application filed by the UN wing said: "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.

"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 possibleAccording to the UN official, 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.

The application quoted India's 2011 population census which had declared that the country has a population of 5.87 million immigrants from outside the country. "The same census conclud- ed that over fifty per cent of those migrants by last residence were from Afghanistan, Bangladesh and Pakistan. Of those migrants, 6,600 were from Afghanistan, 2,3 million were from Bangladesh, and 707,000 were from Pakistan.

"The 2011 census found that out of the 5,87 million migrants from outside the country, 475,910 had arrived in India between five and nine years prior to 2011. It is unclear from these figures, whether the immigrants are irregular migrants, or what proportion of the migrants are of a religion not prescribed as benefiting from the provisions in the CAA," the application said..