The UN Rights Body And The CAA

Shabir Ahmad
The office of the High Commissioner for Human Rights, which is a UN body said that it would be filing an application in the Supreme Court of India to be considered as an Amicus Currie in the petitions that are challenging the constitutional validity of the Citizenship Amendment Act, 2019. After the Citizenship Amendment Act was passed by the Indian Parliament, various UN bodies, such as, United Nations Human Rights Council (UNHRC), OHCHR and even UN Secretary General, Antonio Guterres had raised concern about the legislation and they regarded the provisions of the Citizenship Amendment Act to be discriminatory in nature. A few weeks back, UN Secretary General had also said that the Citizenship Amendment Act violates basic rights and hence he called upon Indian government to reconsider the legislation. The issue has been discussed repeatedly at the UNHRC and UNHRC have also called the provisions of the CAA to be fundamentally discriminatory against Muslims. In all these instances, the government of India have defended against these allegations by stating that this is an internal matter of India and the CAA is in line with India’s Constitution and anyways, the statements of UN Secretary General at UNHRC would not have a direct impact on Indian government.But now in an unprecedented development, the Office of The High Commissioner for Human Rights (OHCHR) has said that it would be filing an application in the Supreme Court of India to be considered as an Amicus Currie in the petitions that are challenging the constitutional validity of the CAA, 2019. In legal terminology, Amicus Currie refers to someone who is not a direct party to the case but is seeking to assist the court by sharing his valuable expertise and inputs about the case with the court. And even, the affectedparty had not sought their assistance, the outside party can request the court to be considered as an Amicus Currie in the case so that the outside party can share his valuable expertise and inputs with the court. But the decision to accept the outside party as an Amicus Currie is left to the discretion of the court. So, it is up to the Supreme Court of India whether to accept or reject this application but either ways, the decision of the OHCHR is bound to have serious diplomatic consequences for the Indian government. In response to this application, the Ministry of External Affairs has said that the OHCHR has no locus standi or no standing in the case.
Even since the CAA, 2019 was passed; India has been facing a lot of international criticism. Countries, such as, China, Pakistan, Turkey, Malaysia, Iran and even a few other countries have criticised the legislation and have expressed serious concern about the ongoing protests against the CAA in various regions of the country.
India has rejected the claims of the OHCHR and it has reiterated that this is an internal matter of India and the law has been passed according to the established constitutional norms. Some foreign diplomats and legal experts agree that this is an objectionable move because the United Nations Organisation and its institutions are essentially inter governmental bodies and they are not supposed to directly approach the Supreme Court of any country. One recent precedent which comes into mind when UN special approach of human rights of the UNHRC had filed a petition in the Supreme Court challenging the mistreatment of Rohingya Refugees by the Indian government. In this case, the Supreme Court had accepted the petition but it forwarded the case to government of India for its suitable response without passing any ruling. So, it means, whether the Supreme Court would accept this application filed by OHCHR and if it is accepted, it is going to have significant impact on India’s International standing. Even since the CAA, 2019 was passed; India has been facing a lot of international criticism. Countries, such as, China, Pakistan, Turkey, Malaysia, Iran and even a few other countries have criticised the legislation and have expressed serious concern about the ongoing protests against the CAA in various regions of the country. But India regarded their criticism rooted in their respective geo-political motivations; that is a half truth. The government of India says that these countries have a geo political motivation to target India and the CAA provides them an opportunity. Even though India can ignore and fight back against these countries, what should be the concern for Indian government? The criticism of CAA has faced US, across Europe and most importantly at UN and its various institutions. Now, it is pertinent to mentions here what OHCHR basically is? The OHCHR is a department of the UN Secretariat which in turn is one of the principal organ of the UNO. The United Nations Secretariat is headed by the UN Secretary General, who is the top most officer of UN and under UN Secretariat, there is a department called OHCHR whose mandate is the promotion and protection of human rights that are guaranteed under the UN Charter and stipulated in the Universal Declaration of Human Rights, 1948. This office was established by the UN General Assembly in 1993 in the context of world conference on human rights that was held in the same year. But, please, do not confuse the OHCHR with UNHRC, both are different institutions and even though, both are headquartered at Geneva, Switzerland. The OHCHR functions as the secretariat to the UNHRC, so, as the Secretariat to UNHRC, the mandate of the OHCHR is to coordinate all human rights related activities throughout the UN system. It also hold the ex-officio position at the United Nations Development Goal and it’s mandate is drawn from the provisions of UN Charter and the Vienna Declaration and Programme of Action, which was adopted at the World Conference on Human Rights held in 1993.Following the Vienna Declaration, the United Nations General Assembly adopted a resolution in 1993 which provided for establishment of OHCHR. Through this mandate, the OHCHR is empowered to protect and promote human rights around the world. It can even encourage the members of the UN to establish strong national human rights institutions in their respective countries. It can even respond to any violation of human rights committed by the UN members. It can even try to prevent any possible violation of human rights by the UN members. However, it is still not very clear, whether the OHCHR has any locus standi to directly approach the Supreme Court of a particular country and challenge the government.
( The Author writes regularly on contemporary issues concerning Jammu & Kashmir. Views are his own, [email protected])