Policy Brief Policy Center for the New South B. The International Human Rights Standards South Asia director at Human Rights Watch, Meenakski Ganguly asserted that the Citizenship Amendment Bill “uses the language of refuge and sanctuary, but discriminates on religious grounds in violation of international law14”. This form of the CAA violates the Article 3 of the Convention of New New York of 1984 on Torture, prohibiting parties from returning, extraditing or refouling any person to as state where there are substantial grounds for believing that they would be in danger of being subjected to torture. Although, India has not ratified the Convention against the torture, it comes under the customary law. Therefore, its provisions should be respected or India runs the risk of violating the Jus Cogens and Obligatio Erga Omnes principles of International law. The contentious CAA also undermines the norm of international human rights law and refugee law. Though India has neither ratified the Refugee Convention of 1951 nor its 1967 Additional Protocol, nevertheless, it has extended constitutional protection to refugees without any religious discrimination. Indeed, India became a member of the Executive Committee of the High Commissioner’s Program (EXCOM) in 1995 which supervises the material assistance program of the United Nations High Commissioner for Refugees. Membership of the EXCOM indicates greater commitment to refugee jurisprudence. Apart from this, India voted affirmatively to adopt the UN Declaration on Territorial Asylum in 1967 and accepted the principle of non-refoulement as acknowledged as a Jus Cogens which is binding on all nation-states irrespective of they have signed the refugee convention or not. Being a signatory to the Vienna Convention on the Law of Treaties and most significantly the Convention against Torture, India is under an obligation to provide asylum to persons who fears persecution, irrespective of the religion of the person. The CAA also conflicts with the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) which signed in 1965 and which has the basic premise that any form of discrimination and denial of religious freedom should be nullified and ensures recognition of all religious and cultural groups. Further, under international law, the right to equality 14. Human Rights Watch. India: Citizenship Bill Discriminates Against Muslims. December 11, 2019. https://www.hrw.org/news/2019/12/11/ india-citizenship-bill-discriminates-against-muslims www.policycenter.ma and non-discrimination is guaranteed by a number of instruments ratified by New Delhi, in particular Article A of the United Nations Declaration of Human Rights and Article 1.3 of the UN Charter. The ICERD in its entirety is devoted specifically to overcoming discrimination based on race, color, descent, national, religious or ethnic group. The right to non-discrimination is not limited to direct discrimination, but also applies to indirect discrimination that disproportionally affects particular groups. In 2016, with India as a member, the Human Rights Council adopted by consensus a resolution on human rights and arbitrary deprivation of nationality15, which reaffirmed that the international community shall “refrain from taking discriminatory measures and from enacting or maintaining legislation that would arbitrary deprive persons of their nationality on grounds of race, color, language and religion, especially if such measures and legislation render a person stateless16”. The CAA process could also amount to cruel, inhuman or degrading treatment or punishment. Muslim refugees from Pakistan, Bangladesh and Afghanistan, or citizens declared as foreigners by the Foreigners Tribunal, will be put into detention camps and face deportation, while being more and more isolated. A recent enquiry by a special monitor from India’s National Human Rights Commission (NHCR) into the detention center in India’s Assam state provides a chilling account17. The indefinite nature of such forms of detention, and the conditions of detention, can both contribute to cruel, inhuman or degrading treatment. As stated by the UN Special Reporter on the Human Rights of Migrants: “Substandard detention conditions may potentially amount to inhuman or degrading treatment, and may increase the risk of further violations of economic, social and cultural rights, including the right to health, food, drinking water and sanitation18”. 15. Human Rights Council. Third Second Session. Agenda item 3. Resolution adopted by the Human Rights Council on 30 June 2016: 32/5 Human rights and arbitrary deprivation of nationality. https://www. refworld.org/docid/57e3dc204.html 16. UNHRC, Res 32/5 (2016) (no 22), paras 2 and 4 17. Jyoti Punwani. “This is not atonement for partition”. The New Indian Express. January 9, 2019 / Also NHRC, Report on NHRC Mission to Assam‘s Detention Centres from 22 to 24 January, 2018. https://hrln.org/wpcontent/uploads/2019/06/Report-of-Public-Hearing-on-NRC-and-CAB. pdf: Annex No. 2) 18. François Crépeau. Report of the Special Rapporteur on the Human Rights of migrants. Human Rights Council. Twentieth session – Agenda item 3. Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development. April 2, 2012. Para. 26. https://www.ohchr.org/Documents/HRBodies/ HRCouncil/RegularSession/Session20/A-HRC-20-24_en.pdf 5