UN knock on Supreme Court's door on CAA vital to secure human rights

The decision by the Geneva-based United Nations Office of the High Commissioner for Human Rights (OHCHR) to file an intervening application before India’s Supreme Court in the cases that seek to examine the constitutional validity of the  Citizenship (Amendment) Act, 2019 (CAA) in many ways is unprecedented.

The United Nations (UN), as part of its policy and long-standing practice, does not usually take a view or comment on the legal validity of a domestic legislation of any country. But, now it proposes to draw the Supreme Court’s attention, to existing Indian obligations under various international human rights conventions in the context of pending constitutional and legal challenges to CAA.

Why MEA has little to object

The Ministry of External Affairs (MEA), on its part, has termed the OHCHR’s move as dabbling in India’s ‘internal’ affairs, asserting that the international body has no locus standi to intervene in India’s internal affairs. In other words, MEA terms OHCHR as an outsider and seeks to regard such recourse to the Indian courts as violations without its consent. Although what MEA is stating is partly correct, it is finally for the Supreme Court to decide what it would do with this intervening application.

Despite its customary denials, MEA, however, cannot stop OHCHR from approaching the Supreme Court. The OHCHR, has stated that it has already and duly conveyed its decision to file this intervening application to the Indian Permanent Mission at Geneva. According to OHCHR, conveying of “mere information” of its decision is enough, no “consent” is required.

The OHCHR decision of this kind raises one basic question. Can a foreign entity, be it a UN body or any other governmental or non-governmental body suo moto and directly take recourse to the Indian judicial system? While the answer to this should be in the negative, considering the unique nature of the UN bodies like OHCHR and its mandate to uphold universal human rights, the court will have to accord it a careful treatment.

International laws, reference point for Indian judiciary

Moreover, India currently is an elected member of the UN Human Rights Council till 2021. Though UN Human Rights Council and the OHCHR are two distinct entities under the UN, they work in tandem to further the cause of human rights globally. Besides this, India is also party to several of the key international human rights instruments such as Universal Declaration of Human Rights (UDHR), 1948, International Covenant on Civil and Political Rights, 1966 (ICCPR), International Covenant on Economic, Social and Cultural Rights, 1966 (ICESCR), Convention on the Elimination of All Forms of Discrimination against Women, 1979 (CEDAW) and Convention on the Rights of the Child, 1989 (CRC) among several others.

All these international conventions, notably, refer to ‘right to equality,’ ‘right to nationality’ and host of several other rights which are part of our own constitutional mandate as well. There is a measure of congruence between these international human rights instruments and our Constitutional rights as well. The Supreme Court has also referred to most of these human rights instruments in its numerous judgments over the years.

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The entire Vishaka judgment (Vishaka vs State of Rajasthan) in 1997 that shaped the norms against workplace harassment for women, in the absence of domestic law and clear constitutional right, for the first time put in place a scheme to deal with these issues, is largely based on the norms that were drawn up from these international human rights instruments.

In this case, the apex court, inter alia, stated that “…any international convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee.”

There are, of course, limitations on the nature of power exercised by the Supreme Court while dealing with or incorporating some of these norms from such international legal instruments. The touchstone of legal validity for any domestic legislation ultimately within India is the Indian Constitution. The Supreme Court has used several means of creative interpretations to stretch the ambit of Article 21 in the absence of specific legislation or domestic legal norm in any given area.

Ball in SC’s court

The OHCHR is clearly aware of these innovative, bold and forwarding-looking nature of the Supreme Court. The ambit of Article 21 of the Constitution that deals with the concepts of ‘right to life and liberty’ has been interpreted by the Supreme Court, with the help of norms borrowed from these international human rights instruments.

The 12 page OHCHR document which it proposes to file as an affidavit before the Supreme Court makes these jurisdictional issues clear in its first paragraph itself when it states that it is filing this application through its High Commissioner Michelle Bachelet Jeria, seeking to intervene as amicus curiae (third party) in the case “…by virtue of her mandate to inter alia, protect and promote all human rights and to conduct necessary advocacy in that regard.”

The UN intervening application, the OHCHR argues, is being filed pursuant to Order XVII, Rule 3 of the Supreme Court Rules 2013.

According to these Supreme Court rules, it is for the court to finally decide the fate of the intervening application and it could allow the intervener to make submissions. It is, entirely, left to the court to decide this. The court might simply take cognisance of this intervening application and might not allow the OHCHR to make any submissions. Subsequently, the court might make a reference to this intervening application in its final verdict.

Even if the Supreme Court decides not to allow any submissions by the OHCHR, the larger point appears to have been made. This move by the UN body seems to be more symbolic keeping in view all the complex procedural niceties of a court about allowing a foreign entity to argue before it.

Immunity conditions thrown in

Unlike other foreign entities, the UN bodies will have to negotiate another unique problem specific to them. This relates to the protection of their privileges and immunities under the 1946 Convention on the Privileges and Immunities of the United Nations. This convention, to which India is a party, provides absolute immunity to UN officials from any kind of legal process before the courts (both civil and criminal), arrest and other related issues in territorial jurisdictions of member countries. India has adopted this convention as a domestic legislation providing absolute protection to UN officials.

Voluntary appearance of the UN official, in this case the OHCHR, should in the normal course automatically waive these privileges and immunities. In order to overcome this legal problem, in a footnote in the first paragraph the intervening application makes it clear that the “…intervening application (amicus curiae) is made on a voluntary basis without prejudice to and should not be considered as a waiver, express or implied, of the privileges and immunities of the United Nations, its officials and experts on mission.”

The mandate of the OHCHR and also the UN Human Rights Council is unique in many ways. States do not take it kindly for their frequent interventions and constantly disregard or dismiss their efforts to intervene and comment on human rights situations. Some of the averments and statements by the OHCHR in the past have created controversies resulting in far-reaching consequences.

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In one case in 1999, the matter even went up to the International Court of Justice (ICJ) for an advisory opinion sought by the Economic and Social Council of the United Nations with regard to the privileges and immunities of Param Cumaraswamy, a Malaysian national and a special rapporteur of the UN Commission of Human Rights for certain remarks made by him while in his home country. He was prosecuted in the domestic courts for such remarks. ICJ, after considering the relevant provisions of the Convention on the Privileges and Immunities of the United Nations, upheld immunity granted to him.

Jeria, the OHCHR, being aware of these challenges, in the proposed affidavit points out “…her role is thus to promote adherence to international human rights law and with this purpose in mind to support domestic courts, with their constitutional or judicial function in ensuring the implementation of international obligations.”

The OHCHR also points out that this role of the UN High Commissioner is not unusual as they had done it in “…diverse range of international and national jurisdictions, including at the international level, the European Court of Human Rights, the Inter-American Court of Human Rights, the International Criminal Court and at the national level, the United States Supreme Court and final appeal courts of States in Asia and Latin America.”

International vs domestic legal system

The first basic point that needs to be addressed and understood is about the operational domain of international and domestic legal systems. To begin with, it should be noted that both these legal systems scrupulously operate independently. International law-making, in the current globalised world, takes place in the UN and other related forums. The domestic legal system is what we do within our own territory and within our constitutional mandate. Our Constitution, as in other countries as well, defines the parameters of recognising, accepting and incorporating international norms into our own legal system.

There are, however, certain binding international norms from which there can be no derogation for states. These norms are termed as jus cogens norms under international law such as norms against slavery, genocide, equality, non-refoulement (under refugee laws) and several others. Some of the international human rights instruments incorporate these norms and all parties to these international conventions cannot point towards their domestic legislation as an impediment to implement these binding international norms.

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The OHCHR proposed intervening application, perhaps for all right reasons, seeks to draw our Supreme Court’s attention to these non-derogable norms in the context of CAA cases that seek to challenge its constitutional validity.

(The author teaches international law at the Centre for International Legal Studies, School of International Studies, Jawaharlal Nehru University, New Delhi)

(The Federal seeks to present views and opinions from all sides of the spectrum. The information, ideas or opinions in the articles are of the author and do not necessarily reflect the views of The Federal)