Nothing has evoked debate in India recently as much as Citizenship Amendment Act, 2019. What has intrigued me the most is the decision of UN Human Rights Committee to intervene in the matter as an intervening applicant at Supreme Court of India. The question is, is intervention legally tenable? This peace would analyse the legal position of the issue under the constitutional law and international law of the proposed intervention.
First let us set out the international law that slates mandate to UN Human Right Committee (UNHRC). It is UN charter that provides authority to UNHRC. UN charter spells down its purpose and principle under Art.1 and 2 thereof respectively. One of the cardinal principles enumerated under Art.2 is principle of non-intervention. A principle of non-intervention is etched out under Art.2(7) which categorically proscribes the UN to intervene in the matters of domestic jurisdiction of any state. Further, it also provides that states are not supposed to submit any matters of domestic jurisdiction to settlement to UN under the UN charter. The exception to this rule is the determination of any matter by the Security Council of a matter threatening or breaching international peace and security under Art.39 of Chapter VII. It must also be highlighted that UN charter obligations are superior to all international obligations under Art.103 thereof.
The critical legal question in this regard is the scope and ambit of the term ‘domestic jurisdiction’. Once a matter is domestic jurisdiction of a state, it creates two layers of protection for the states under international law. First, it out rightly and categorically oust the jurisdiction of UN in that matter and also it relaxes the state to take this matter to subject it to international law especially under the scheme of UN charter. Art.2(7), UN Charter does not carry the requirement that it predecessor had for the domestic jurisdiction under Art.15 paragraph 8 of Covenant of League of Nations. Art.15 paragraph 8 provides that warranted the determination of domestic jurisdiction by the international law, no such requirement is to traced in UN charter vis-a-vis domestic jurisdiction.
Now, let us examine if the Citizenship Amendment Act, 2019 (CAA) is domestic matter or it has spill over international law. First and foremost, it must be highlighted that Parliament of India has power to make law, which has extra-territorial application under Art.245. Nonetheless, the application of this law is not extra–territorial rather it is applicable plainly on those who are already present in the territory of India. Provisions related to the citizenship are etched out from Art.5 to Art.10 of the Constitution. The matter was given such importance that Constitution conferred the power to regulate the right to citizenship on the Parliament and that too in its plenary power of law making. In simple words Parliament has power under Art.11 to amend the constitution without resorting to amendment procedure as prescribed under Art.368 thereof.
I, for one, submit that law of CAA is quintessential domestic jurisdiction matter. For arguing so I must underscore the wisdom of PCIJ in Nationality Decrees case regarding the domestic jurisdiction (PCIJ 1923 reports, B4:23), it stated that the question of domestic jurisdiction is “relative and depends upon the development of international relations.” Thus question of domestic jurisdiction must satisfy the test of relativity and development of international relations. The relative fact that CAA has carved out special provision for Hindus, Christian, Buddhist, Sikkhs, Parsi and Jains is that all these countries (Pakistan, Bangladesh and Afghanistan) have expressly declared themselves an Islamic Republic and have made Islamic Shariah Law supreme law of the land. Religious minorities in these countries have been denied constitutional position expressly. Another critical relative fact is that Bangladesh and Pakistan are both divided territory of undivided India. Further, Taliban was propped up by Pakistani establishment and are basically from Pakistan. Fact that religious persecution has taken place in all these countries cannot be comprehended without taking partition of India and the reason thereof into consideration. The international relations between India and Pakistan and Afghanistan must be seen from the perspective of facts that when Indian civil career airplane was hijacked, Taliban government of Afghanistan gave it a safe landing and allowed the hijackers to negotiate with Indian authorities. No legal action was carried out against these hijackers. International relations between India and Bangladesh has common past of division of Indian subcontinent and the fact the Hindu population has dwindled dangerously which is easily verifiable.
Moreover, CAA only adds a special provision for these people in light of division of India and causes thereof and growing religious extremism in these countries. It does not disqualify anyone to acquire Indian citizenship as they can do so under different provision of Citizenship Act, 1955. Citizenship law must also not be confused with international refugee law. A refugee law only mandates a host state for giving safe place for persecuted persons; and one should not lose sight of the fact that repatriation is equally part of international refugee law. A grant of refugee status is not same as grant of citizenship; these two laws work independently of each other and are mutually exclusive. For example, an Ahamadiya Muslim from Pakistan is entitled to refugee status in India under international refugee law which India is bound under Art.51 of Indian Constitution and that person’s refugee status has no application citizenship law as citizenship law does not grant refugee law. By the same token, it is not violative of international human rights law for the fact that the violation of human rights must take place within the territorial jurisdiction of a country. And violation of IHRL of discrimination of Muslims in Pakistan vis-à-vis Hindu from Pakistan in Indian territory is beyond the scope of Art.2 of ICCPR which provides jurisdictional limits of signatory of ICCPR.
Art.2(7), UN Charter proscribes UN to intervene in any matter of a state which is domestic jurisdiction;
It also authorizes a state to not to submit a matter to International Law if the matter is of domestic jurisdiction ;
To determine domestic jurisdiction resort must be to ‘relative fact and development in international relations’
Parliament has power under Art.11 to make any law for citizenship, even to amend constitutional provisions of citizenship without resorting to amendment procedure of Art.368
CAA is made under Art.11 for illegal migrants from Pakistan,Afghanistan and Bangladesh