P.K.BALACHANDRAN | 4 MARCH, 2020
India rejects criticism
International pressure over the anti-Muslim Citizenship Amendment Act (CAA) and the pogrom which followed in Delhi will only increase if the Narendra Modi government continues to be dismissive about expressions of disapproval from several countries and world organizations such as the UN Human Rights Council (UNHRC). The UNHRC has taken the unusual step of taking legal action.
New Delhi has dismissed expressions of concern from abroad as an unwarranted outside interference in its domestic affairs. But such dismissiveness smacks not only of arrogance but is unbecoming of a country which claims to be the world’s largest democracy and a responsible member of the international community.
Granted Modi got the endorsement of US President Donald Trump when the latter was in India recently, but the UN Human Rights High Commissioner Michele Bachelet had a different take on the issue which caught the Modi regime off guard.
On Tuesday, Bachelet filed an “intervention application “ in the Indian Supreme Court in a case on the CAA filed by Deb Mukharji, a retired Indian diplomat. Muslim-majority countries like Malaysia, Iran, Indonesia, and Pakistan, and the Organization of Islamic Cooperation (OIC), have condemned India’s handling of the citizenship issue and the violence which followed.
In Bangladesh, the pro-India Hasina government has said that the CAA and the violence are domestic issues. But many Bangladeshi political, religious and citizens’ groups have held noisy demonstrations against the invitation given to Modi to participate in the celebrations connected with the birth centenary of Bangladesh’s founder, Sheikh Mujibur Rahman on March 17.
The intervention application filed by Michelle Bachelet states that the UN body wishes to intervene as "amicus curiae" in the matter by virtue of its mandate to "protect and promote all human right and to conduct necessary advocacy in that regard, pursuant to UN General Assembly resolution 48/141".
The petition said that the Office of the High Commissioner of Human Rights (OHCHR) said that the Citizenship Amendment Act (CAA) of 2019 has raised certain important questions on international human rights law and its application to migrants, especially refugees.
Referring to the International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic and Social Rights (ICESR), the applicant said: “ Under international human rights law, States must respect and ensure that migrants in their territory or under their jurisdiction or effective control, receive equal and non- discriminatory treatment, regardless of their legal status and the documentation they possess".
“The enjoyment of covenant rights is not limited to citizens of States Parties but must also be available to all individuals, regardless of nationality or statelessness, such as asylum seekers, refugees, migrant workers and other persons.”
Further, "States must ensure that their legislation, policies, and practice regulating access to citizenship and its application comply with the obligations enshrined in Article 26 of the ICCPR, by providing migrants in the same situation equal protection as well as protection from discrimination, including on the basis of religion".
The OHCHR’s petition stated that question also arises as to "whether the differentiation made with regard to persecution on religious grounds, as opposed to other grounds, is sufficiently objective and reasonable, in particular taking into account the prohibition of refoulement (the forcible return of refugees or asylum seekers to a country where they are liable to be subjected to persecution), and India's obligations under international human rights law".
In this regard, the petition observed that while reducing the risk of refoulement for certain communities, the CAA unequally places other communities at such risk.
“The narrow scope of the CAA, which extends protection from return only on religious grounds and limited to the specific ethno-religious groups, may not be sufficiently objective and reasonable in light of the broad prohibition of refoulement under international human rights law", the OHCHR stated.
"Without prejudice to the power of States to establish migration policies as a manifestation of their sovereignty, including measures in favor of migrants that may be subject to persecution and other serious human rights violations/irreparable harm in their countries of origin or previous residence, States must ensure that migration governance measures are in accordance with international human rights law, including the right to equality before the law, equal protection of the law and the right to nondiscrimination and the absolute and non-derogable principle of non-refoulement.”
“Measures adopted that constitute a difference in treatment ought to be in conformity with the law, pursue a legitimate objective, and be proportional to the objective pursued".
“The differences in treatment based on religion or immigration status would constitute discrimination if the criteria for establishing that difference, judged in the light of the objectives and purposes of the rights enshrined inhuman rights treaties, do not apply to achieve a legitimate objective and are not proportionate to the achievement of that objective,” the application said.
It pointed out that among persons excluded from the CAA, include persecuted communities like Ahmadi, Hazara and Shia Muslims. These would warrant protection on the same basis as that provided in the preferential treatment proposed by the CAA.
In this backdrop, the UN body said that it seeks to assist the Court in examining the compatibility of the CAA with India's Constitution, in the light of India's obligations under international human rights law. It said that it is inviting the Court to take due account of the "collective experience of the United Nations and its human rights mechanism.”
Immediately after the CAA was passed in December last the UNHRC had issued a statement saying: "We are concerned that India's new Citizenship (Amendment) Act 2019 is fundamentally discriminatory in nature.”
"The amended law would appear to undermine the commitment to equality before the law enshrined in India's constitution and India's obligations under the International Covenant on Civil and Political Rights and the Convention for the Elimination of Racial Discrimination, to which Indian is a State party, which prohibit discrimination based on racial, ethnic or religious grounds. Although India's broader naturalization laws remain in place, these amendments will have a discriminatory effect on people's access to nationality".
"While the goal of protecting persecuted groups is welcome, this should be done through a robust national asylum system that is premised on the principle of equality and non-discrimination, and which applies to all people in need of protection from persecution and other human rights violations, with no distinction as to race, religion, national origin or other prohibited grounds,” the UNHRC said.
The CAA cleared by the Parliament in December 2019 liberalizes the grant of citizenship to non-Muslim migrants from Pakistan, Afghanistan and Bangladesh who had entered India before December 31, 2014.
On February 27, the Organization of Islamic Cooperation (OIC) called upon India to bring the instigators and perpetrators of the violent acts of to justice. It also urged the authorities to ensure the safety and security of all Muslim citizens and the protection of Islamic holy places across the country. The former Malaysian Prime Minister Mahathir Mohamad condemned the violence. In a tweet, the Iranian Foreign Minister Javad Zarif condemned the “wave of organized” violence against Indian Muslims.
“Iran condemns the wave of organized violence against Indian Muslims,” he tweeted. “For centuries, Iran has been a friend of India. We urge Indian authorities to ensure the well-being of ALL Indians & not let senseless thuggery prevail. Path forward lies in peaceful dialogue and rule of law,” Zarif said. India summoned the Iranian envoy here to lodge a protest against the statement.
Pakistan, Indonesia and Turkey have also criticized the riots in Delhi.
The UK Parliament has also taken up the CAA issue and the recent violence in India with the government sharing opposition concerns, and condemning recent violence and developments in Delhi. It expressed concern about the violence, and urged restraint from all parties saying the death of one protestor is one too many. The British government was clear in condemnding the violence, persecution and targeting of people on the basis of religion and trusted that the Indian government will address the concerns of people of all religions in India.
The video below captures part of the proceedings in the UK Parliament: