UN seeks to intervene in Citizenship (Amendment) Act. Is there precedence?

UN High Commissioner for Human Rights Michelle Bachelet has submitted an application for intervention to the Supreme Court in India, telling the court the UNHCR would like to act as an amicus curiae [“friend of the court”, third party] for the Citizenship (Amendment) Act (CAA) hearing.

On March 2, 2020 Monday Bachelet told India that her office has filed an application towards that end. India’s Ministry of External Affairs on March 3, 2020 commented against the intervention in a statement, saying the CAA is an internal matter.

In the application for intervention submitted to the Indian Supreme Court by the OHCHR against the CAA, the UN asks the Supreme Court to examine whether a part of the CAA is compatible with India’s constitution.

The document begins by the OHCHR praising India for the CAA’s stated purpose, “namely the protection of some persons from persecution on religious grounds, simplifying procedures and requirement and facilitating the granting of citizenship to such persons, including migrants in an irregular situation, as well as refugees, from certain neighbouring countries.”

The OHCHR then goes on to point out that while the CAA benefits some migrants, it excludes two categories of others: “(i) those from Afghanistan, Bangladesh and Pakistan who are not of Buddist, Christian, Hindu, Jain, Parsi or Sikh faith, including persons without a religion and (ii) those, of any religion, from countries other than the three [Afghanistan, Bangladesh or Pakistan] stated in the law, including persons without a religion.”

The OHCHR notes that “the naturalisation process in such cases [for migrants of faiths not mentioned in the CAA, for example Muslims] will be based on the more stringent criteria set out in the original Citizenship Act”, which has a higher bar to clear for migrants.

Summing it up, the OHCHR says “While reducing the risk of refoulement [forcing refugees or asylum seekers to return to a country in which they are liable to be subjected to persecution] for certain communities, the CAA unequally places other communities at such risk.”

India has bristled at the suggestion that the CAA is an uneven law that does not offer the same benefits to migrants of all backgrounds and that the OHCHR would like to intervene in its Supreme Court.

India’s Ministry of External Affairs released a statement on Tuesday, saying “We strongly believe that no foreign party has any locus standi [the right or capacity to bring an action or to appear in a court] on issues pertaining to India’s sovereignty.”

Precedent

The UN has previously filed amicus curiae briefs related to other countries’ lawsuits. For example, in relation to the case of Privacy International and Others v. the United Kingdom, the United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression filed an intervention before the European Court of Human Rights in September 2019 to “provide global guidance for the practice of government surveillance.”

Privacy International had won its case against the UK in May 2019, after a five-year battle, with the result, “UK Supreme Court rules that the UK spying tribunal - the IPT [Investigatory Powers Tribunal]- cannot escape the oversight of the ordinary UK courts.”

Regardless, an expert who spoke to Al Jazeera said India’s Supreme Court may “end up hearing the UNHRC application.”

"As a UN member, we are bound by our pledge under Article 56 of the UN charter to uphold fundamental freedoms of all people. We cannot discriminate on the basis of religion," Faizan Mustafa said, adding that the UNHRC move may "damage India's reputation."

Not everyone agreed, however. The former External Affairs Minister K. Natwar Singh called Bachelet’s application for intervention as “absolutely unprecedented in the diplomatic history of India”.

Likewise, former envoy to the UN Chinmaya Gharekhan told The Hindu the move was “objectionable”, and that “they [the UN] are not supposed to approach the Supreme Court of India."