Day: May 6, 2021

Deprivation of Citizenship

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The Centre for Public Interest Law, Jindal Global Law School is currently offering the year-long Clinic on Citizenship and Statelessness, where students are developing research outputs on citizenship issues in India and assessing the citizenship determination framework under international law. This research note, prepared by Khush Aalam Singh, is part of the clinic’s outcomes.

Deprivation of citizenship can be defined as an involuntary loss of citizenship status that was previously held by a person. It is a predominantly legal concept which carries serious consequences. This is because citizenship of a state gives a person access to several rights and protections guaranteed by the state. Acquiring citizenship carries a sense of recognition in social, political, and legal terms. Citizenship also provides access to the conditions and services which are vital for a person’s dignified existence. If a person is deprived of their citizenship, they no longer have a claim to its benefits. This can also get carried forward to the person’s descendants, impacting their access to rights. Additionally, citizenship deprivation may result in the removal of the person from the territory of the state, thereby violating their right to reside in their country.

The idea of deprivation of citizenship has been echoed in various similar expressions. These include terms such as: revocation of citizenship, involuntary loss of citizenship, denationalisation, citizenship erasure etc. While revocation, denationalisation, and involuntary loss do not carry substantial difference from deprivation, citizenship erasure is a concept that requires further classification. Citizenship erasure is described as the “arbitrary retroactive non-recognition” of citizenship of a person. This has been considered distinct from deprivation as it denies the very existence of citizenship status claimed by a person outright, whereas deprivation is carried out in accordance with law. In other words, deprivation takes place in accordance with deprivation provisions contained in a state’s citizenship law, whereas erasure does not involve the formal procedure. Nonetheless, for the purposes of this note, citizenship erasure falls within the ambit of deprivation, as the consequence is the loss of nationality which was not voluntary in nature. In many situations, deprivation of nationality can result in a person becoming stateless. This may leave them vulnerable to human rights violations without any effective recourse.

Deprivation of Citizenship in Domestic and International Law

Under Indian law, the principal framework for deprivation of nationality is the Citizenship Act, 1955 as well as the rules made thereunder. Section 10(2) of the Act empowers the Central Government to deprive a person of their citizenship. This power to deprive citizenship, however, applies only in the case of persons who have acquired citizenship by naturalisation, registration or by ordinary residence in Indian territory five years prior to the commencement of the Constitution. This means that persons who are born in Indian territory or to parents who are Indian citizens cannot be deprived of their citizenship under this provision (jus soli and jus sanguinis citizenship).

Deprivation of citizenship under Section 10 of the Act can only be ordered on specific grounds. The implication of these grounds is that the state cannot arbitrarily deprive persons of their citizenship. The grounds set out in Section 10 must be adhered to. These include (among others) – obtaining citizenship by fraud, disloyalty or disaffection by act or speech to the Indian Constitution, unlawful trade or communication with an enemy, etc. Section 10(3) provides that the Central Government shall not deprive a person of their citizenship unless it is satisfied that the continuation of citizenship is not conducive to the public good. The Telangana High Court in Dr. Ramesh Chenammameni v. Union of India has held that the requirement under Section 10(3) is mandatory, and that a person cannot be deprived solely on the ground of satisfying the conditions under Section 10(3). The Central Government has to satisfy both counts – that the person in question has violated the provisions of Section 10(2) and that the continuation of citizenship is not conducive to the public good.

The principal framework under international law dealing with deprivation of citizenship is the 1961 Convention on the Reduction of Statelessness. Article 8 of the Convention prohibits depriving a person of their nationality where the result of such action would be the person becoming stateless. Clauses 2 and 3 of the Article contain exceptions to this prohibition, which include obtaining nationality of the Contracting State by fraud or misrepresentation, conduct that is seriously prejudicial to the vital interests of the state etc. Article 9 of the Convention prohibits deprivation of nationality of a person or a group of persons on racial, ethnic, religious or political grounds. While India is not a signatory to this Convention, its courts have been mindful of statelessness as a consequence of deprivation of citizenship.

Additionally, India is obliged under its treaty obligations to prevent statelessness as a consequence of deprivation of nationality. It is also obliged to ensure that no person is arbitrarily deprived of their nationality. Article 15(2) of the Universal Declaration of Human Rights (UDHR) prohibits arbitrary deprivation of nationality. This prohibition has now been recognised as a well-established norm of customary international law. Furthermore, India had a vital role to play in advocating for the insertion of Article 15(2) during the drafting of the UDHR.

The Right against Arbitrary Deprivation of Nationality

The right against arbitrary deprivation of nationality finds mention in the UDHR and several international conventions, such as the International Covenant on Civil and Political Rights (ICCPR) etc. This is supplemented by its inclusion in regional frameworks, such as the American Convention of Human Rights (Article 20). This right is of crucial importance when looking at instances of deprivation of citizenship. This is because this right covers two situations of deprivation. Deprivation can be a result of the procedure established in municipal law or by discriminatory refusal to recognise a person or group of persons as citizens. The understanding of arbitrariness under international law is not limited to something being ‘against the law’. It has been understood in a broader sense, encompassing elements of unfairness, inappropriateness and injustice. Arbitrariness also seeks to ensure that ‘lawful’ interference with rights of a person is reasonable. This requires robust substantive and procedural safeguards, as well as conformity to both domestic and international law.

There are several aspects of citizenship deprivation in India that remain unaddressed, raising strong concerns about arbitrariness. Several bonafide Indian citizens face the threat of arbitrary deprivation of their nationality as a result of the process of expelling ‘foreigners’. In particular, over 1.9 million persons in Assam excluded from the National Register of Citizens (NRC) are at the brink of statelessness. Their fate will be decided by the Foreigners Tribunals which raise many significant due process concerns. The current policy on deprivation does not account for deprivation of citizenship through parallel procedures sanctioned by law. Furthermore, there are several inadequacies in terms of substantive and procedural rights for persons being deprived of their citizenship. As a result of wrongful deprivation, a person will languish in detention for the purpose of deportation. These consequences are particularly grave and debilitating, therefore requiring extreme caution and respect for human dignity. Thus, citizenship deprivation calls for greater attention as an urgent issue that needs to be addressed.

Suggested Readings:

Naturalisation

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The Centre for Public Interest Law, Jindal Global Law School is currently offering the year-long Clinic on Citizenship and Statelessness, where the students are developing research outputs on citizenship issues in India and assessing the citizenship determination framework under international law. This research note, prepared by Pritha Paul, is part of the clinic’s outcomes.

Naturalisation refers to the incorporation of migrants usually displaced due to economic, political, or environmental reasons, among others, or immigrants looking for better living conditions or educational and employment prospects in the state they move to. It is a process promising not only recognition of their socio-economic contributions but also improved socio-economic opportunities. Historically, the word ‘naturalisation’ is derived from Middle French ‘naturaliser’ which means “to admit (an alien) to rights of a citizen”.

Jus soli was the guiding principle of the eighteenth century feudal European citizenship until the French Revolution reintroduced the Roman jus sanguinis principle. Both proved inadequate when the two World Wars left numerous migrants, refugees, and stateless persons in foreign lands without protection under the laws of that state. Naturalisation provided an opportunity to people, who were neither born within a State nor had ancestral ties to it, to become citizens solely by virtue of their personal connection formed with the State. Such connections could be established through residence, intention to settle, or a lack of ties to other countries. However, most states hold elaborate and intrusive tests to scrutinise this connection. For instance, Denmark has prescribed housing, residence, employment, language, and lifestyle requirements.

In India, naturalisation is one of the five ways in which one may become an Indian citizen, governed by section 6 of the Citizenship Act of 1955. To be eligible for naturalisation, one must be of good character, reside in India for a period of eleven years, and speak any of the official Indian languages. Upon being granted Indian citizenship, one must renounce any prevailing citizenship, take an oath of allegiance, and reside in or serve India. Initially, one had to renounce one’s existing citizenship upon applying for naturalisation. This had the potential to render one temporarily or permanently stateless depending on the approval or rejection of the application, respectively. Hence, the change is appreciable. However, in a lower-middle income country like India, an application fee of Rs. 1500 and requirement of language proficiency create invisible barriers for poor and illiterate migrants. Contrarily, the privileged who have a symbiotic relationship with the state are overindulged. The state may waive any or all naturalisation requirements for “distinguished” persons. Proficiency in a local language can propel social and economic integration. However, in their home state, persecuted persons are often systematically denied education and employment. In the host state, they are put in isolated squalid detention camps without basic facilities as has been seen in the case of Rohingyas. Even when free to live in the community, they are compelled to settle in the peripheries, like the Afghans in Delhi. For such people, it is nearly impossible to fulfil the naturalisation requirements.

Naturalisation tests ensure not only a low number of naturalised persons but also fewer applicants out of fear of failure, which perhaps is the primary aim of the tests. Between 2011 and 2020, merely 1380 foreigners were granted Indian citizenship through naturalisation. Moreover, the Act, through the 2003 amendment, made “illegal migrants” completely ineligible for Indian citizenship through registration or naturalisation. The unwillingness of the State to incorporate migrants leaves them in a limbo. Most of them cannot be deported due to the principle of non-refoulement. They remain in India for the rest of their lives, but as non-citizens.

Section 6, however, is not applicable to the state of Assam, which is governed by section 6A of the Act. Unlike Section 6, which applies to all persons regardless of their origin, Sections 6A and 6B create special pathways to citizenship for persons migrating from Bangladesh. It ‘regularizes’ i.e. grants immediate citizenship to those who entered Assam from Bangladesh before 1966. Persons who entered between 1966 and 1971 are conferred all qualities of a citizen except the right to vote until ten years from the day of their detection as a “foreigner.” After ten years, they too are regularised. Those who were expelled but managed to re-enter illegally before 1971 or those who entered after 1971 are to be deported. This special provision created two artificial distinctions by:

  1. Granting regularisation to Bangladeshi migrants who entered Assam before 1971 but not to those who entered other bordering states,
  2. Allowing “illegal migrants” who entered India before 2003 to naturalise under Section 6 but not those who entered Assam after 1971.

Additionally, the Citizenship (Amendment) Act of 2019, excludes non-Muslims who entered India from Afghanistan, Pakistan, and Bangladesh before 2015 from the category of “illegal migrants.” It eases their residency requirement from eleven years to five years. The ease is a welcome move. However, the country and religion based classifications are non-secular, arbitrary, and unreasonable.  Many have argued that they violate the Indian Constitution which guarantees certain fundamental rights to all persons irrespective of their citizenship status.

A state cannot be compelled to grant citizenship. However, the Universal Declaration of Human Rights, 1948 includes in Article 15, “Everyone has the right to a nationality”. The UDHR has become customary international law binding on all states. Granting nationality through naturalisation is an important step in eliminating statelessness. Since India has an obligation towards reducing statelessness under customary international law and other international treaties, India must facilitate naturalisation of stateless persons. A provision obstructing “illegal migrants” from naturalisation is in tension with international law. Articles 31 and 34 of the 1951 Refugee Convention and Article 32 of the 1954 Convention relating to the Status of Stateless Persons instruct easing the naturalisation process for refugees and stateless persons. Ireland has reduced residency requirements for refugees and waived naturalisation certificate fee for refugees and stateless persons.

As a good practice, one may refer to Prabhleen Kaur v. Union Of India. The only country the petitioner had any real connection to under Section 8 of the Foreigners Act, 1946 was India. Denying her Indian citizenship was held a violation of Article 15 of the UDHR. The court stated that her good character evidenced in her school and college certificates, her knowledge of the nation and her being a part of a community entitle her to be naturalised under Section 6(1) of the Act and she cannot be denied citizenship.These are the factors generally looked at while granting Indian citizenship.

With the refugee crisis and statelessness becoming global phenomena, naturalisation is becoming increasingly important as a means for non-citizens to find a safe space and a community in a strange land. Ironically, the process does exactly the opposite of what it promises, acting as a constant reminder of the ‘otherness’ that one must shed for a mere chance at approval and acceptance. India must remove the restriction on “illegal migrants” and ease the naturalisation requirements for refugees and stateless persons, irrespective of religion and country. This would only be a small step towards ensuring equity and fairness.

Suggested readings:

  1. Katherine Tonkiss, ‘What’s So Bad about Citizenship Testing?’ (E-International Relations, 28 November 2014) https://www.e-ir.info/2014/11/28/whats-so-bad-about-citizenship-testing/ accessed 24 November.
  1. Oded Löwenheim & Orit Gazit, ‘Power and Examination: A Critique of Citizenship Tests’ (2009) 40(2) Security Dialogue.
  1. Albert Kraler, Migration and Citizenship: Legal Status, Rights and Political Participation (Amsterdam University Press 2006) ch 2.
  1. Pritam Baruah, ‘Not Just Equality, the CAA Betrays Constitutional Values of Dignity, Integrity’ The Wire (27 December 2019) https://thewire.in/rights/caa-constitution-equality accessed 24 November 2020.
  1. Vatsal Raj, ‘Statelessness in India – Seeking Solutions in International Law’ (Cambridge International Law Journal, 11 February 2020) http://cilj.co.uk/2020/02/11/statelessness-in-india-seeking-solutions-in-international-law/#:~:text=Migration%20is%20a%20phenomenon%20of%20human%20civilisation.&text=The%20solution%20lies%20in%20the,dictate%20the%20laws%20of%20citizenship accessed 24 November 2020.
  1. Asha Bangar, ‘Statelessness in India’ (2017) Statelessness Working Paper Series No. 2017/02 https://files.institutesi.org/WP2017_02.pdf accessed 24 November 2020.
  1. Oxford Handbook of Citizenship (Oxford University Press 2017) ch 16.
  1. Graziella Bertocchi and Chiara Strozzi, ‘The Evolution of Citizenship: Economic and Institutional Determinants’ (2006) IZA Discussion Paper No. 2510 http://ftp.iza.org/dp2510.pdf accessed 24 November 2020.
  1. Ministry of Home Affairs, ‘Procedure For Applying Online For Indian Citizenship’ https://indiancitizenshiponline.nic.in/Ic_GeneralInstruction.pdf accessed 24 November 2020.

Stateless Persons

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The Centre for Public Interest Law, Jindal Global Law School is currently offering the year-long Clinic on Citizenship and Statelessness, where students are developing research outputs on citizenship issues in India and assessing the citizenship determination framework under international law. This research note, prepared by Niharika Jain, is part of the clinic’s outcomes.

A person is considered to be stateless if they are not recognised as nationals or citizens of any country. As per the UNHCR, at present there exist over 10 million stateless persons in the world, however only 3.9 million of them are accounted for. Civil society organisations have pointed out that this number can be as high as 15 million. In India, over 1.9 million people are facing the risk of statelessness after being excluded from the National Register of Citizens (NRC) implemented in Assam in 2019.

Statelessness is often a result of conflicting nationality laws, where one allows for nationality to be acquired at birth and the other through descent if one’s parent is also a national. It can also be a result of discrimination in nationality laws based on factors such as religion, ethnicity, gender, along with instances where the State arbitrarily deprives persons of their nationality, as in the case of Assam. Earlier the mandate of UNHCR on statelessness extended only to stateless persons who were refugees. However, it is now known that even though some stateless persons are refugees, many stateless persons never cross an international border. Statelessness affects the basic rights, including the right to nationality, that every citizen enjoys, which includes fundamental rights, civil and political rights, and economic rights.

The 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness address various issues related to statelessness in the world. Article 1 of the 1954 Convention defines a ‘stateless person’ as one who is not considered a national by any State under the operation of its law. The 1961 Convention provides that a person may acquire nationality of a contracting state or not be deprived of it if they would otherwise be stateless. Part II of the Indian Constitution stipulates who is a citizen of India, but is silent on stateless persons. It is pertinent to note that India has not ratified either of the two conventions. However as per Article 51 (c) of the Constitution, the Government needs to foster respect for international law which includes treaty obligations that India is party to and customary international law. This includes the Universal Declaration of Human Rights, 1948 (UDHR), as well as the International Covenant on Civil and Political Rights (ICCPR), Convention on the Rights of the Child (CRC) and other treaty provisions that safeguard the right against arbitrary deprivation of nationality.

The Citizenship Act of India, 1955 was initially envisaged based on jus soli practice, wherein citizenship was granted by virtue of the person’s birth on state territory. This was followed by the Citizenship (Amendment) Act, 1986 that introduced restrictions based on jus sanguinis, wherein a person’s citizenship became dependent on citizenship of their parents. Section 3(1)(b) of the Act states that a person born on or after 1 July, 1987 but before the 2003 amendment shall be a citizen if either of their parents were citizens at the time of birth. However, this has the potential of creating a situation of statelessness where both parents are non-citizens or possess no nationality but the child is born in India.

The Citizenship (Amendment) Act, 2003 has the serious potential of aggravating the problem of statelessness in India as it excludes ‘illegal migrants’ and their descendents from citizenship. An ‘illegal migrant’ is defined as “a foreigner entering India without valid documents”. Section 3(1)(c) confers citizenship by birth only when at least one parent is an Indian citizen and the other is not an illegal migrant. Further, section 5 and section 6 of the Act explicitly disqualifies illegal migrants and their children from registration and naturalization respectively, and in any case as the registration of minors requires a valid foreign passport, which they do not possess due to statelessness. This poses a threat of statelessness as they are unable to acquire citizenship from any of the provisions of the Citizenship Act, despite residing in India for a long time, having family ties and attachment to India.

The identification of stateless persons within a jurisdiction is an important step in ensuring they are accounted for in legal documents and can benefit from various human rights commitments. In India, the Foreigners Act, 1946, which has been put in place to regulate the entry, presence and departure of foreigners in India, fails to distinguish between the different categories of non-citizens. The Act defines a foreigner as “a person who is not a citizen of India” and bundles both stateless persons and persons with another nationality together without differentiation. Section 8 of the Act on the determination of nationality does not account for the risk of statelessness where, after the completion of the determination procedure, a foreigner appears to have no nationality. There is no mention of ways in which the issue of statelessness can be resolved, or of the fate of such persons on identification.

The Passports Act, 1967 is the only Indian legislation that mentions the category of stateless persons and caters to their need to have a record of their identity. Section 4 of the Act provides for issuance of passport, travel document and certificate of identity. Schedule II part II of the Passport Rules, 1980 states that a Certificate of Identity can be issued for stateless persons residing in India, for foreigners whose country is either not represented in India or whose nationality is in doubt. However, the form for the certificate makes it mandatory to submit a ‘residential permit’ along with information regarding the ‘last permanent address abroad’. This is based on the assumption that the applicant is a migrant from abroad and fails to account for a person who may not have left the country. This was addressed in the case of Sheikh Abdul Aziz v. State NCT of Delhi, where the HC recognised the urgency of determining the legal status of the petitioner as he had been detained for seven years in addition to his sentence under Section 14 of the Foreigners Act. The Court directed the Government and the Passport authorities to issue a stateless certificate under Rule 4 and grant him a Long-Term Visa (LTV) after the failure of nationality determination. This enabled his right to a dignified existence upon Indian soil.

More recently, the National Register of Citizens implemented in India has left many on the verge of statelessness. The final NRC list, published on August 31st 2019, excluded about 1.9 million people, leaving them at the risk of statelessness. As per scholars, this coupled with the Citizenship (Amendment) Act, 2019 is discriminatory in nature as it only allows non-Muslims, who are religiously persecuted minorities in Pakistan, Bangladesh and Afghanistan, to be granted citizenship. Section 14A added by the 2003 Amendment to the Citizenship Act, 1955 authorized the Government to compulsorily register every Indian citizen in a National Register of Indian Citizens and issue National Identity Cards. The purpose of this is to identify and deport illegal immigrants. The first National Register of Citizen was prepared for Assam, after the 1951 census of India, to identify illegal immigrants, but it was not maintained. This was again taken up following the SC order in 2013 whereby the Government was directed to update the NRC for Assam. As per several high-ranking government ministers, NRC is proposed to be implemented across India. There are concerns that it may result in putting more people across India at the risk of statelessness if they are unable to show documents that prove their ancestors were citizens of India.

Suggested Readings:

  1. “Securing Citizenship India’s legal obligation towards precarious citizens and stateless persons”, Centre for Public Interest Law, Jindal Global Law School, September 2020.
  2. Bikash Singh, ‘Citizenship Amendment Bill: Why Assam is protesting?’ Economic Times (17 December, 2017)
  3. India and the Challenge of statelessness: A review of the legal framework relating to nationality, National Law University, Delhi, 2012.
  4. The Institute on Statelessness and Inclusion, The Worlds Stateless: Deprivation of Nationality, March 2020, Microsoft Word – FINAL PART I.docx (institutesi.org).
  5. United Nations Human Rights Office of the High Commissioner, Institutional Discrimination and Statelessness in India, Special Rapporteur on Freedom of Religion or Belief, Mr. Ahmed Shaheed, June 1st 2020, Microsoft Word – Statelessness in India.docx (ohchr.org).