Author’s: Tanaya Thakur and Amit Kumar*
The office of United Nations High Commissioner for Human Rights (OHCHR) has sought permission from the Supreme Court of India to intervene as amicus curiae in the writ petition dealing with the constitutional validity of Sections 2 and 6 of the Indian Citizenship Amendment Act 2019. No official confirmation of the petition having being filed is available as of yet; but an intervention application is widely being circulated on the internet. The Government of India through the Ministry of External Affairs condemned the OHCHR for interfering in its internal matter, stating that any foreign party does not have any locus standi on matters relating to state sovereignty.
The OHCHR has been established under the mandate of the United Nations General Assembly pursuant to UNGA Resolution 48/141. This resolution mandates that the OHCHR shall work towards promotion and protection of the effective enjoyment of all civil, cultural, economic, political and social rights by all individuals. The OHCHR is bound to respect the sovereignty, territorial integrity and domestic jurisdictions of the state. At the same time, it is also the duty of OHCHR to ensure that state’s fulfill their duty to protect human rights- by playing an active role in removing the obstacles in the way of full realization of human rights and preventing the continuation of human rights violations throughout the world; and by engaging in dialogue with Governments of all states for implementing the OHCHR’s mandate designed to secure respect for human rights.
The submissions made by the OHCHR in its amicus brief regarding questions of equality before law, non-discrimination, permissible differentiation, hold merit and should be given due weight age by the Apex Court. The concept of Public Interest Litigation is a dilution of locus standi; and the question of locus should not arise when sensitive matters of human rights, with international implications are at hand. Allowing the OHCR to act as amicus curiae in the petition would add a much needed dimension to the concept of public interest litigations. It has been through trials and errors that the Apex Court has realized the need for public interest petitions and a diluted understanding of locus has hence developed. Amicus curiae (literally, friend of the court) is a person or body which although not a party to a litigation; assists the court by furnishing information regarding any point of law or fact. As an international body working towards securing human rights obligations around the globe, the OHCHR could provide with expert opinions and insights on questions of human rights; that are allegedly being violated by the CAA. The opinion of an independent body may provide the Court with a fresh perspective to determine whether the CAA is violating international obligations undertaken by India or not. The involvement of OHCHR becomes all the more relevant in the present scenario considering that the CAA deals with issues of international migration from Afghanistan, Pakistan and Bangladesh. Thus, the Act could not only be potentially violating the human rights concepts of equality and non-discrimination; but also the arguably customary international law principles of non-refoulment.
The OHCHR works in close contact with the Human Rights Council, an inter-governmental body within the United Nations responsible for promotion and protection of human rights around the globe. Under the Council’s mandate all UN member states are to participate in a universal periodic review (UPR), where the human rights records of these states are assessed – providing states with an opportunity to improve the implementation of human rights. The OHCHR’s relationship with the HRC gives it an opportunity to study the human rights situations in various nations. Coupled with the fact that it has been established to enhance human rights protection, co-ordinate between international and regional human rights bodies, and engage with states to develop human rights; the OHCHR has the responsibility to ensure that state actions do not result in human rights violations. Under international law, the judiciary is considered to be an organ of the state. Hence, the OHCHR does not exceed its mandate by petitioning to act as amicus curiae in a human rights related matter before the Supreme Court.
The fundamental argument by India against OHCHR is that the Citizenship Amendment Act is a domestic matter and hence should not be interfered with. Ironically, through the Act India could itself be said to violate the principles of non-interference in sovereign matters of other states. The reason provided in the Act for differential treatment to members of certain religious communities from Afghanistan, Pakistan and Bangladesh is that these are minority communities in Islamic states and are often faced with religious persecution. Going by the argument of internal matter; India should not have passed an Act in light of the prosecution of religious minorities in foreign states. However, the question of protection of human rights superseded the issue of non-interference in domestic matters. Similarly, OHCHR’s application for submission of amicus brief should not be considered interference in domestic matter of a sovereign state; rather should be welcomed as a step in enhancing the human rights discourse in the state.
It should also be kept in mind that when a state becomes party to an international agreement, it cedes some part of its sovereignty. As held by the Permanent Court of International Justice (PCIJ) in the SS Wimbledon case; the nature of international law is such that it imposes certain limitations on state sovereignty. What also needs to be appreciated is that the limitation placed on the exercise of sovereign rights is in itself a manifestation of sovereignty. Thus, when India became a party to the United Nations and a signatory to international instruments on human rights, such as, the Universal Declaration of Human Rights (UDHR), its covenants, Convention against Torture, and others; it willingly agreed to abide by the principles laid down in them. If any legislation violates these instruments and has the potential of affecting a large number of people, as in the case of CAA, states cannot claim internal sovereignty as a defence. Moreover, OHCHR’s intervention has been made in India’s domestic forum and the Supreme Court has every right to hear the petition and then decide on merits. Mere intervention as amicus does not bind the Supreme Court to accept each argument put forth by OHCHR. However, an opportunity to be heard should be given to OHCHR considering the gravity of the issue at hand.
The petition not only brings forth pertinent legal issues; but has also presented us with a chance to introspect our own domestic human rights organizations. The arguments put forth in the petition should have come from the National Human Rights Commission (NHRC) which has been mandated to intervene in court proceeding relating to any allegation of violation of human rights. NHRC’s non-intervention in the matter after repeated requests by civil societies and non-governmental bodies symbolizes the failure of domestic machineries placed to secure protection of human rights. Had the domestic machineries been successful in fulfilling their functions, the question of international intervention would not have arisen.
This is not the first time that the OHCHR has intervened in a human rights issue before domestic or regional courts. Previously, the Office has intervened in the Supreme Court of US, UK, Korea, and the European Court of Human Rights in matters of human rights. Intervening as amicus has gradually become a mechanism for communicating the international aspects of human rights to states. The interventions have also at times helped in furthering human rights discourse. Through the petition, OHCHR has done nothing more than remind India of its international obligations. The Indian Constitution through Article 51 itself directs India to foster respect for international law and treaty obligations. By accepting the application and considering it on merits, the Supreme Court has an opportunity to analyze international human rights dimensions that could otherwise have gone ignored. The question of locus standi should not stand in the way of developing a better human rights protection mechanism in the country and the Supreme Court as the custodian of the Constitution should not shy away from developing a more inclusive human rights jurisprudence.
*Authors are Research Scholars at, IIT Kharagpur (RGSOIPL). They have completed their masters in international law from South Asian University, New Delhi.