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Photo: PTI
Photo: PTI

Opinion | Diplomatic denial won’t soften CAA for the world

India will, however, have a harder time explaining away Bachelet Jeria’s intervention

Even diplomacy might not reverse the repercussions that the Citizenship (Amendment) Act, 2019 or CAA continues to have beyond the loss of life, livelihood and property. A week after structured rioting in Delhi aimed at those who protest against CAA stunned the world with its brazenness and unapologetic aftermath, comes scrutiny of a different kind. The Office of United Nations’ High Commissioner for Human Rights has filed what is called an intervention application in the Supreme Court over CAA. The intervention is the diplomatic equivalent of a slap and further globalizes, as it were, the latest incidence of CAA-related violence in particular, and the political maturity of majoritarian aggression in general.

The Geneva-based office of the high commissioner, Michelle Bachelet Jeria, tacked the application onto the writ petition challenging CAA that former diplomat Deb Mukharji filed in the Supreme Court in December, one of 60 by human rights activists, politicians and political parties, including from North-East India. Bachelet Jeria wants her office to be amicus curiae, or impartial observer or ‘friendly’ advisor to the court, for the petition. The high commissioner wants to intervene with neutrality—suggesting there is need to ensure such neutrality—and, by extension, nudges the Supreme Court to do right.

The government of India officially acknowledged the UN high commissioner’s plea on 3 March, when the foreign ministry put out a terse release stating that India’s permanent mission in Geneva was notified of the move a day earlier. Usual rebuttals followed: “internal matter", “sovereign right of the Indian Parliament to make laws", and “no foreign party has locus standi on issues pertaining to India’s sovereignty".

The statement sourced to the ministry’s official spokesperson extended the rebuttal to a decidedly tricky plane that can be contested on several grounds and, indeed, forms the bedrock of anti-CAA sentiment and protests against heavy-handed politics. “We are clear that the CAA is constitutionally valid," the spokesperson declared, “and complies with all requirements of our constitutional values." The ministry then extended its political neck. “We are confident that our sound and legally sustainable position would be vindicated by the Hon’ble Supreme Court" which is part of “our independent judiciary".

That will likely fly in India, which is in any case the political marketplace for CAA and its controversial associates, the National Register of Citizens and the National Population Register. But India will have a harder time explaining away Bachelet Jeria’s impeccably worded, grounded and quite deliberate intervention. And, even as it marks the former Chilean president’s independent streak, it also morally weakens India’s current membership of the UN’s Human Rights Council. Much like the petitioners who question CAA, the high commissioner decried the “narrow scope of the CAA". Her office also highlighted another aspect, that “in light of the broad prohibition of refoulement"—the forcible return of asylum seekers or refugees and the possibility of continued persecution—CAA “may not be sufficiently objective and reasonable … under international human rights law."

In other words, as CAA excludes Muslims, even those Muslim sects persecuted in Pakistan, Afghanistan and Bangladesh, it distorts the parameters that ought to be in “accordance with international human rights law, including the right to equality before the law, equal protection of the law, and the right to non-discrimination and the absolute and non-derogable principle of non-refoulement."

Bachelet Jeria is within her rights to intervene—by a resolution adopted by UN General Assembly in January 1994. Resolution 48/141 created the post of the high commissioner for human rights. Among other things, it also empowered the high commissioner “to play an active role in removing the current obstacles and in meeting the challenges to the full realization of all human rights and in preventing the continuation of human rights violations throughout the world, as reflected in the Vienna Declaration and Programme of Action" and “To engage in a dialogue with all Governments in the implementation of his/her mandate with a view to securing respect for all human rights …"

Various governments of India have displayed a patchy, even disastrous, human rights record across the country against its own citizens, that mocked India’s signing of the Universal Declaration of Human Rights in the 1940s. In that, the current government is not an exception. But it does function in a world that increasingly views India as having joined the ranks of countries where majoritarian stick is the schtick.

This column focuses on conflict situations and the convergence of businesses and human rights and runs on Thursdays.

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