Time for SC to draw the line

The Citizenship Amendment Act CAA was enacted by the parliament of India on December 11, 2019. There was an amendment made to the Citizenship Act, 1955 providing a path to Indian citizenship for illegal immigrants of Hindu, Sikh, Buddhists, Jain and Christian religious minorities, who had fled persecution from Pakistan, Bangladesh and Afghanistan before December 2014. Such a benefit is not conferred upon the Muslim

illegal immigrants from the said countries.

The said Amendment Act has been challenged before the Hon’ble Supreme Court on the ground that the same offends Article 14 of The Constitution of India. The thrust of the argument is that the exclusion of the Muslim immigrants fled from the said countries, constitutes discrimination amongst illegal immigrants and therefore it is in violation of Article 14 of the Constitution.

The scope of the adjudication before the Honorable Supreme Court is to test the said Amendment Act, 2019 on the touchstone of Article 14 of the Constitution of India. There is no argument with regard to any violation of Human Rights vis-à-vis the said excluded class of Muslim illegal immigrants from the said three countries. It’s relevant to notice that the illegal immigrants had fled those three countries since the said countries had subjected them to human rights violations. Unable to withstand the said human rights violations meted out to them, they entered India and continue to stay as illegal immigrants.

By amending the Citizenship Act 1955, the legislation has taken into its fold certain class of illegal immigrants. In fact, this amendment legislation is conferring certain status upon the said class of illegal immigrants and thereby assimilating them into Bharateeya citizenship. This enabling provision cannot be termed as violation of human rights merely because of exclusion of a particular class of illegal immigrants. The Geneva-base Office of the High Commissioner of Human Rights (OHCHR), United Nations has announced that it plans to file an intervention amicus curiae petition in the pending case before the Hon’ble Supreme Court.

United Nations Convention defines “Refugee as a person who owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular group or political opinion, is outside the country of his nationality and is unable or owing to such fear, unwilling to avail himself of the protection of that country”.

This definition shows that the refugees (illegal immigrants) are subjected to human right violations in the respective countries. It cannot be said that merely because a particular right is not conferred upon the refugees (illegal immigrants) due to a particular policy of the country to which they have illegally migrated, there is a violation of human rights by the said country.

India is the founding member of the United Nations and strongly supports the purposes and principles of the United Nations.

The Office of The United Nations High Commissioner for human rights has a lead responsibility in the promotion and protection of human rights. The history shows that UN is involved wherever there is a violation of human rights in a country against their own citizens. Therefore the violation of human rights in the context of the policy of the United Nations is directed against those countries which are violating the human rights of their own people. There is a difference between the violation of human rights by the state in relation to their people and adopting a particular policy in relation to illegal immigrants. In the former case, the UN may have a right to intervene but in the latter case, UN doesn’t have any right unless it is shown that the illegal immigrants are subjected to coercion, duress and refoulement which constitute violation of human rights.

India is not a signatory to the United Nations Refugee Convention of 1951 or the 1967 protocol which protects refugee rights. However, as per the UN report, we have been granting asylum to large number of refugees from the neighboring countries respecting the United Nations policy governing refugees (illegal immigrants). Though India is not bound by the said policy of the UN, wherever it is necessary, the Government of India has been taking appropriate policy decisions in this regard taking into consideration its security and safety interests.

The policy of the United Nations in relation to the refugees is mainly on the aspect of refoulement.

The UNHRC has announced to file an intervention petition before the Supreme Court in the matter relating to the challenge of the CAA. At the very outset, UN doesn’t have any locus in the subject matter for the reason that it is a legislation that has been made by the parliament as per the Constitutional framework of the country. Unless it is made out that the illegal immigrants are subjected to human rights violations because of the CAA, the UN doesn’t have any locus.

The amicus curiae is a legal Latin phrase literally translated as a friend of the court who volunteers to offer information on point of law or some other aspects of the case to assist the court in deciding the matter before it. The information may be a legal aspect which is material to the case. It is to help the court by expounding the law impartially or if the one of the parties is unrepresented, advance the legal arguments on his behalf.

In the present case there is no requirement of assistance from the human rights wing of United Nations. It is not a case pertaining to violation of human rights of particular class of persons. It is not a case that a particular class of people has been deliberately excluded from the benefit conferred by the amendment act for refoulement.

Mere exclusion of a particular class of illegal immigrants from the benefit conferred by the amendment Act. doesn’t constitute any of human rights violations.

The present subject matter of challenge to the amendment Act CAA before the Supreme Court is purely an internal matter within the framework of Indian constitution and merely because the challenged law is in relation to certain benefits conferred upon a particular class of illegal immigrants, no outside agency can involve in the matter by contending that it would act as an amicus curiae.

The subject matter is in relation to the constitutional validity of CAA and therefore there is no element of the human right violation for

United Nations to file an amicus curiae petition.