Fabian Blog
April 10th, 2020

Why The UNHRC Intervention On CAA Is Justified

unhrc-madras-courier-03Given the targeted attempts at ethnic cleansing, the intervention by the UNHRC is justified.

A few days ago, the U.N. High Commissioner for Human Rights (HCHR) moved an intervention application in the Supreme Court of India on the Citizenship Amendment Act (CAA), and sent a communique to India’s Permanent Mission in Geneva about it.

This unprecedented move by the UNHRC has stunned Delhi. In response, the Ministry of External Affairs reacted apoplectically, maintaining that the CAA is India’s “internal matter.” Arguing that the Indian Parliament has the sovereign right to make laws, the MEA spokesperson Raveesh Kumar said:

“We strongly believe that no foreign party has any locus standi on issues pertaining to India’s sovereignty.”

Let us look at the big picture and find out whether Government of India’s (GOI) reaction is appropriate and reasonable. The Citizenship Amendment Bill was introduced by the Minister of Home Affairs, Amit Shah, on December 9, 2019, and was passed the next day – December 10, 2019.

We fail to understand why Shah was in such a hurry to push through such an important legislation without a comprehensive debate and discussion. In a healthy democracy, a Standing Committee would have discussed it and given its recommendations. Evidently, the manner of the passage of the CAA does not improve India’s standing as a democracy.

Furthermore, defending the bill, Amit Shah, in his speech, distorted history by claiming that the partition of India was on the basis of religion. This claim is egregious. Though Pakistan was established as a homeland for Muslims, India was not meant to be a Hindu Rashtra or a mirror image of Pakistan.

The Hindus and Sikhs who fled Pakistan on account of violence against them were permitted to enter India, not because of their faith. India chose to be a secular country and accepted the refugees on humanitarian grounds.

Incidentally, out of the 100 million Muslims in undivided India, about one-third remained in India and the rest did not go from India to Pakistan. Most of them were already there. The Muslims who chose to move to Pakistan were free to go, but no Muslim was asked to go by the Government of India.

Given this historical fact, Amit Shah’s thesis is morally, legally and historically unsound. Moreover, the policy pursued by his government is likely to have perilous implications for a diverse country like India.

In this context, we should also note two points: One – it was Lala Lajpat Rai who first advocated the partition of India. He proposed it in 1925 in a letter to C. R. Das. Rai uncannily predicted the boundaries of the future Pakistan.

Two, the BJP and its parent organisation, the RSS, want to establish a Hindu Rashtra where non-Hindus will be second class citizens. Such a move towards establishing a “Hindu Rashtra” fuelled the separatist movement of Jinnah, who tendentiously claimed that Muslims would not be safe in an undivided India.

Similarly, the combination of CAA and NRC, which makes Indian Muslims feel insecure in their own country, begat demonstrations against it in many parts of the country. In response, the Government of India decided not to talk to the agitating citizens who read out the Preamble to the Constitution. Amit Shah’s high-handed approach is that the Parliament has passed the law and the citizens are bound to comply – and there is no need to engage with the citizens.

The civil society, apart from demonstrating in the street, approached the Supreme Court, pointing out the legal and moral flaws in the CAA; over 143 petitions were submitted to the Court. One is from a student of the School of Law of the Pune-based Symbiosis University, an inspiring example of fearless youth talking truth to power. Another petition is from a group of retired civil servants led by Deb Mukherjee, a former High Commissioner to Bangladesh.

The Supreme Court has yet to deal substantively with the petitions. Many citizens were hoping that, in view of the rising tensions and, in particular, the mounting death toll (53 deaths in Delhi alone, perhaps still counting, not to mention Uttar Pradesh where 16 human beings were killed within 11 days of the passage of the act), the Court would start hearing the matter as early as possible.

On February 23, 2020, two political leaders spoke in public, neither with 20-20 vision. One was by the American President, Donald Trump, in Ahmedabad. Addressing Modi – who was the Chief Minister of Gujarat in the year 2002 when orchestrated violence against the Muslim community took place – he said:

India’s accomplishment in the last 70 years is completely unrivalled, no matter where you go. Your faith in the strength of a free society, your confidence in your people, your trust in your own citizens, and your respect for the dignity of every person, is what makes India and United States such a natural, enduring friendship.

Obviously, Trump forgot that his country, the United States, had denied a visa to Modi for years.

The other speech was in Delhi by Kapil Mishra, a controversial BJP Member of Parliament who led a mob shouting “shoot the traitor.” Mishra addressed a crowd with a senior police officer standing next to him.

The DCP is with us. I’m making one thing clear one all our behalf—we will hold our peace until Trump leaves. After that, if roads are not cleared out, we won’t even listen to you.

What happened over the next few days was an absolute carnage, a bloodbath. The rioters targeted Muslims, attacked their homes and killed many who were in no way connected to the protests. In many instances, the police were present at the scene – as mere bystanders – and did nothing to stop the carnage.

In some instances, the police reportedly joined the rioters and pelted stones. The rioters killed many Muslims and dumped their dead bodies in the drains. Fearing for their lives, many Muslim families fled the area.

Where was the Home Minister? Where was the Chief Minister of Delhi? Where were the Members of Parliament and the 70 MLAs from Delhi? Why did they not stop this insane carnage? Is this how a country manages its sovereign affairs? Does a country’s sovereignty give it a right to facilitate the murder its own citizens just because they belong to a different religion?

To recall history once again. When a riot was on in Delhi, Prime Minister Nehru rushed to the spot, borrowed a lathi from a policeman and started beating the rioters.

Incidentally, the response from Delhi’s Chief Minister has been deeply disappointing. Why is there no phone number to which people can report about missing persons?

As I heard about the recovery of dead bodies by cranes, I asked a senior journalist whether a journalist was present next to every crane. I was told that there were too many cranes and not enough journalists.

The media, with a few honourable exceptions, have failed to investigate and report on the atrocities witnessed in India’s capital city from February 24, 2020, a mere distance of 10 to 12 kilometres from the seat of power on the Raisina Hill. A sensitive TV channel would have used the split-screen to show the banquet for Trump and the killing going on in the north-west of Delhi.

To prevent speedy delivery of justice against those who perpetrated the atrocities, Justice Muralidhar of the Delhi High Court was transferred at midnight after he ordered the Delhi Police to file FIRs without further delay. The next day, the Delhi High Court Chief Justice gave the police four weeks, till the next hearing. When an appeal was made to the Supreme Court, it ordered the High Court to do its job without delay.

Given the targeted attempts at ethnic cleansing, the intervention by the UNHRC is justified. The U.N. High Commissioner for Human Rights, Michelle Bachelet, in the context of the Deb Mukherjee petition, wanted to submit to the Supreme Court the current status of international law relating to the matter before the Court. Specifically, the High Commissioner wants to make submissions as per “Order XV111, Rule 3 of the Supreme Court Rules, 2013.” She is not interfering in India’s internal matters.

The Office of the High Commissioner for Human Rights (OHCHR) is mandated to promote and protect the enjoyment and full realization, by all people, of all rights established in the Charter of the United Nations and international law and treaties. The OHCHR is guided in its work by the mandate provided by the General Assembly in resolution 48/141, the Charter of the United Nations, the Universal Declaration of Human Rights and subsequent human rights instruments, the Vienna Declaration and Programme of Action the 1993 World Conference on Human Rights, and the 2005 World Summit Outcome Document.

The Ministry of External Affairs argues that no foreign party has any locus standi on issues pertaining to India’s sovereignty,” The High Commissioner is not a “foreign party.” India should recognise that when states agree to treaties or conventions, they are implicitly agreeing to the proposition that they are in some way answerable to each other. Therefore, the question of sovereignty does not arise.

Since the distortion of history has become a flourishing cottage industry, let us recall that on June 22, 1946, India’s Permanent Representative to the U.N., Vijayalakshmi Pandit, proposed that the treatment of Indians in South Africa be put on the agenda of the first General Assembly. South Africa argued that it was an internal matter and should not be discussed. Pandit persisted, appealing to the conscience of humanity. She won by a two-thirds majority.

Did Michelle Bachelet consult the Secretary-General before writing to the Indian Supreme Court? We do not know. All that we can say is that no such consultation was necessary.

Let us hope that the Supreme Court will agree to the request of the High Commissioner and declare ultra vires the unconstitutional CAA. Our hope is not without reason.

More importantly, with flaring communal tensions (read ethnic cleansing), India is going down a dangerous path. Within five years, a country which was once known as the world’s largest democracy is now called a “majoritarian state.” Let’s hope we tide over these dark times and return to the age of reason.

March 9th,2020   category: Book Reviews, International Affairs : Articles, Politics |   

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