In a big development, the United Nations has moved an intervention application before the Supreme Court on the ongoing legal battle surrounding the Citizenship Amendment Act. Ms. Michelle Bachelet Jeria, the United Nations High Commissioner for Human Rights has sought to intervene as an amicus curiae (third party) in the case “by virtue of her mandate to protect and promote all human rights”. In a 12-page application filed before the top court, the UN delves into details of international humanitarian law and the obligations of a state under it.
UN states that, “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 form the foundation of the rule of law. In accordance with these principles, it is an essential obligation of the States to eradicate discrimination in the public and private spheres. The right to equality before the law is to protect from arbitrary and unjustified differential treatment by the authorities. The ICCPR, ICESCR and the CRC all include important non-discrimination clauses, including on the ground of religion.”
The application also states that the Committee on the Elimination of Racial Discrimination (CERD) has specifically called on states to “ensure that particular groups of non-citizens are not discriminated against with regard to access to citizenship or naturalisation”. The Committee has also found discriminatory immigration laws and policies “incompatible with the very principle of non-discrimination”. The UN recognises that not all differentiation constitutes discrimination or lack of equal treatment. It states that states may adopt policies regarding the governance of migration in the exercise of their sovereignty, but the states must ensure that the measures adopted by them-
i) conform to the law;
ii) pursue a legitimate objective, and
iii) are proportional to the objective pursued.
The earlier mentioned CERD Committee has also recognised this right of the states by saying that “differentiation of treatment will not constitute discrimination if the criteria for such differentiation, judged against the objectives and purposes of the Convention, are legitimate.” It further stated that “to treat in an equal manner person our groups whose situations are objectively different will constitute discrimination in effect, as will the unequal treatment of persons whose situations are objectively the same". The question, therefore, as told by the UN to the Supreme Court is whether the differentiation created by the CAA on the basis of religion is “objective and reasonable” or not.
The UN in its application states that the "Government of India has claimed that the CAA is a form of affirmative action for groups that would otherwise face religious persecution in their countries of origin. However, recent reports by the UN human rights treaty bodies 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 provided in the preferential treatment proposed by the CAA”. To further their stand, the UN has also spoken about the principle of “non-refoulement” under international refugee law which prohibits the return of refugees in any manner whatsoever when there is a threat of life or freedom on account of five grounds, including religion.
If there is a risk of an individual suffering “irreparable harm”, the State is obligated to ensure he is not sent back to his country of origin. The intervention by the United Nations is the second of its kind in recent times. A few weeks back, the United Nations Special Rapporteur had filed a similar plea before the top court on the Rohingya crisis. The Supreme Court will now decide whether the intervention by the United Nations will be entertained or not.