The United Nations High Commissioner for Human Rights, Michelle Bachelet, has signaled her intent to file an intervention in the Supreme Court petition challenging the constitutionality of the Citizenship Amendment Act. The Ministry of External Affairs has opposed this, stating that the Act is “an internal matter of India.” It further went on to characterise the United Nations body as a “foreign party” and the intervention itself as bereft of “locus standi” as it related to “issues pertaining to India’s sovereignty.”

Should the intervention be seen as an interference in the country’s internal affairs?

The move by itself is not unprecedented – UN agencies have filed amicus briefs in other jurisdictions before. Both the UN as well as the Office of the High Commissioner for Human Rights have submitted amicus briefs in many judicial forums, including the US Supreme Court, European Court of Human Rights, International Criminal Court, and the Inter-American Court of Human Rights.

Amicus briefs should be seen as a mode of assisting the court with the expertise available with the body, and their purpose is to draw attention to the states’ international obligations. For example, the commission has intervened in the European Court of Human Rights in cases involving Spain and Italy to underscore the principle of non-refoulement, which bars compulsory expulsion of illegal migrants. Similarly, the UN has intervened in the International Criminal Court in a case against the Central African Republic to explicate on the international jurisprudence on rape as a war crime.

The intervention by the UN High Commissioner for Human Rights in the Indian Supreme Court can add to the debate over the Citizenship Amendment Act by examining it from the lens of international law’s foundational principles, namely equality and non-discrimination.

Two forms of discrimination

The intervention by the UN High Commissioner for Human Rights with regard to the Citizenship Amendment Act raises questions regarding India’s conformity to its international obligations. Which obligation is India said to be in violation of here?

The core principle of international law that is relevant in this case is that of non-discrimination. This is not merely a legal rule embodied in the core UN treaties, such as the International Covenant on Civil and Political Rights or the Convention on the Rights of the Child, but is arguably at the heart of the international body’s founding vision itself. If we look back at history, the tenet was brought about as a counter to the colonial legal order and the Nazi state. As a member of the UN, India cannot ignore it.

The Citizenship Amendment Act perpetuates two forms of discrimination. First, the very classification on the basis of religion raises concern. The Act allows citizenship to members of six religious communities, excluding Muslims, from Pakistan, Bangladesh and Afghanistan who entered the country before December 31, 2014.

The question here is: Is it constitutional to extend protection only to those persecuted on grounds of religion? A secular country, committed to providing refuge to persecuted people from its own neighhourhood, should be able to think not in primordial terms of race, ethnicity or religion, but in constitutional terms. At its least, a constitutional imagination of persecuted minorities would include those persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, as laid out in the Refugee Convention of 1951.

Protesters at Shaheen Bagh oppose the amended Citizenship Act in New Delhi on Tuesday, December 31. Photo: PTI

The intervention by the UN High Commissioner for Human Rights will surely shed light on the global reality that people are persecuted on many grounds including religion, ethnicity, political opinion, sexual orientation and gender identity. For a state to fulfill the non-discrimination guarantee encoded in core human rights treaties, it shouldn’t pick out certain minorities for protection while arbitrary leaving out others.

The other aspect of non-discrimination here is that Muslim migrants will be excluded from the benefits of the Act. The reason for the exclusion, which can be discerned from the statement of objectives of the Bill, is that since the constitutions of Pakistan, Afghanistan and Bangladesh provide for Islam as a state religion, only religious minorities are subjected to discrimination in these countries.

However, documentation by the UN High Commissioner for Human Rights demonstrates that Muslim minorities are subjected to persecution even in states that have Islam as the state religion – be it the Ahmadis, Shias or Hazaras. The UN High Commissioner for Human Rights clearly has a specific expertise that it can contribute through its intervention petition.

An opportunity for India

To characterise the impleadment application as interference in the “internal affairs of India” is to misunderstand the role of the United Nations, the value of international law, as well as the mandate of the Constitution. Article 51(C) of the Indian Constitution mandates that the “state shall endeavour to foster respect for international law and treaty obligations in the dealings of organised people with one another.”

The intervention could potentially draw attention to this facet of state obligation as the Indian Constitution envisages the state as working within the framework of international law. There are good reasons to not fear the intervention as detracting from national sovereignty but rather, take it as an opportunity to view the Act from the lens of both the Constitution as well as international law.

Arvind Narrain is a lawyer and writer based in Bangalore.