Solving a Trilemma — The Way Forward for the NRC

This is a guest post by Alok Prasanna Kumar. He is the Co-Founder and Lead of Vidhi Karnataka. His areas of research include judicial reforms, constitutional law, urban development, and law and technology. He has also previously practised in the Supreme Court and the Delhi High Court.

The preparation of the National Register of Citizens (NRC) for the State of Assam, carried out under the supervision of the Supreme Court of India — between 2014 and 2019 — has been a source of much anguish. Not just for the tedious procedure it involved, but also the eventual consequences on those left out of the list. Out of Assam’s estimated population of 3.3 crores, 3.1 crore, or so, were included in the list; but approximately 19 lakh people were left out. There is no legal certainty for the residents of Assam who have been left out of the NRC.

Merely being excluded from the NRC does not amount to cancellation or loss of citizenship. That can only be done by the Union Government on the recommendation of the Foreigners’ Tribunal under the Foreigners Act 1946. The Foreigners’ Tribunal, set up under the Foreigners (Tribunals) Order, 1964   can, on the basis of evidence before it, render its opinion that someone is a “foreigner”, and, therefore, not a citizen.

Those left out from the NRC are in a state of limbo — being persons whose citizenship status is now in doubt. Section 9 of the Foreigners Act places the onus of proving citizenship on the person whose citizenship is in question. Failing to do so will render the person stateless unless they can show some connection to  another country (under Section 8 of the Act) – which might not be possible for most since there is little hard evidence to connect them with any country beyond. What the NRC has done is create a population of 19 lakh trishankus — the figure from Hindu mythology who was unwanted, both in heaven and on earth, and therefore suspended upside down between the two realms.

Following the publication of the NRC in August 2019, things have remained at an uneasy status quo. Neither the Union Government, the Assam State Government, nor the Supreme Court has charted a clear way forward. There have been attempts to “reverify” the NRC but they have come to nought. A recent effort was made to remove more names from the NRC but the same is under challenge in the Supreme Court.

As it stands, the only path that seems obvious is the one of inertia — as the law stands, simply being left out of the NRC does not cancel one’s citizenship. A Foreigners’ Tribunal has to adjudicate on the merits of each person’s case before arriving at that conclusion. Is the judicial route —  often the path of least resistance in India — an appropriate way to address the future of the 19 lakh persons left out of the NRC?

The task of addressing the citizenship claims of 19 lakh people before a Foreigners’ Tribunal is a gargantuan one. To give some perspective: the total number of cases referred to the Foreigners’ Tribunals between 1985 and 2019 (over 34 years) was 4,68,905. In 2018, the last year for which complete data was available, only 14,552 cases were disposed of by the Foreigners’ Tribunals in Assam. Needless to say, at the present capacity, FTs are woefully ill-equipped to handle 19 lakh cases, in any reasonable period.

Implicit in the discussion about the people left out of the NRC, so far, has been that:  a lot of genuine citizens have been left out of the list, for a variety of reasons. If we assume that approximately half the people on the list can prove, in some manner, that they are in fact citizens of India, that still leaves nearly 10 lakh people who are now rendered stateless.

But, they are not entirely without remedy —  they can still approach the Gauhati High Court, through a writ petition, and challenge the order finding them to be non-citizens. Even assuming that only half of the persons rendered stateless may have the resources or the capacity to approach a higher forum, this would mean, about, five lakh cases flooding the Gauhati High Court, over a period of time. For a Court that, as on date (according to the NJDG portal), has only about 52,000 pending cases, this is a veritable tsunami it will be unable to handle. Even if the cases are staggered over ten years, it would amount to more than double the annual number of cases filed in the High Court!

The judicial process is not going to provide any clarity, in any reasonable period of time, to those left out of the NRC. Rather, it is likely to compound their misery as the financial, emotional and psychological costs of litigation will take a severe toll on them. 

Should, then, the NRC be junked as a whole?

There is one school of thought that argues that the entire NRC exercise is entirely illegal and unconstitutional. One argument is that the NRC, sought to be done under the Registration of Citizens and Issue of National Identity Card Rules 2003, is contrary to the Citizenship Act 1955, and therefore ultra vires. There is also the argument that contends: creating a separate citizenship regime for residents of Assam would be unconstitutional. The latter question especially, in so far as Section 6A is concerned, is pending adjudication in the Supreme Court, before a Constitution Bench.

This certainly raises the question as to why the Supreme Court proceeded with overseeing the NRC exercise when fundamental questions about its legality and constitutionality were pending. The Supreme Court itself has clarified that the NRC updating exercise will be subject to the orders in the pending challenge to the constitutionality of Section 6A and other provisions relating to citizenship, applicable only to Assam.

If the SC upholds the validity of these provisions then the present (unsatisfactory) status quo, continues. If the Supreme Court does not — and the entire NRC is held to be unconstitutional — it will not necessarily address all the problems.

Leaving aside what it means for the institutional credibility of the Supreme Court or the sanctity of the Assam Accord —  there is also the fact that the NRC has provided a measure of security to those who were included in it, from accusations of being “outsiders”. The fact that those who were accused of being “outsiders”, solely by virtue of their religion or language, are more confident of their status has become the basis for dismissing the NRC as “flawed”! There is no guarantee that a fresh NRC will in any way provide a solution to the problems of those included and those left out without causing an increased burden to all the inhabitants of Assam, once again. The existing procedure was traumatic for the economically vulnerable, and inflicting it on them again would not serve any purpose; it will only recreate an unhappy status quo.

The NRC itself is not a recent judicial or legislative innovation. Demands for its updation precede the Assam Accord itself, and it was intended to address concerns of indigenous people and native Assamese about the large-scale influx of people from Bangladesh (mostly illegally), and what that might do to the cultural and demographic character of the State. It would not behove anyone (let alone a savarna mainland Indian such as myself) to simply dismiss such concerns as “ethno-fascism” or xenophobia.

The demand for an NRC has its origins in the immediate aftermath of India’s chaotic partition — in 1947 — when peoples left their homes in panic, unsure of whether they will end up in Muslim-majority Pakistan or Hindu-majority India. Assam, which has historically seen the movement of peoples from what is now West Bengal and Bangladesh, was faced with an influx of people — in a manner that threatened to completely change the demographic and indigenous character of the state. The worries of both the native Assamese and the Bengalis, who had come over from what would eventually become East Pakistan, are reflected in the representations sent to the Constituent Assembly and the then Central Government on the question of citizenship. At the same time, there were Bengalis who had been living in Assam for generations who did not wish to be caught in this conflict over identity and citizenship and also sought the protection of the Government. The solution proposed was the National Register of Citizens, which was first prepared in 1951.

When the Assam Accord was signed in 1986, the Indian government shifted the cut-off date to 1971, effectively putting to rest the citizenship status of those who had come to Assam before that. Even for those who had entered the country illegally — between 1966 and 1971 — a process was provided for them to become citizens, with a few limitations on exercising franchise. This was reflected in Section 6A of the Citizenship Act. A total scrapping of Section 6A might, therefore, jeopardize the rights of even those who have benefited from it, and unravel the Assam Accord.

Here then is the trilemma which presents itself —  how to chart a path forward, with respect to the NRC, that addresses the human rights of those left out of it, without unsettling the rights of those already on the list, or scrapping a key part of the Assam Accord, which embodies a key demand of native Assamese and indigenous people of the region?

One way out of this is to offer a path of full citizenship to the individuals left out of the NRC, without fundamentally altering the demographics of the State of Assam, or disturbing the rights of anyone already deemed a citizen under the NRC. This would be a one-time measure available to those who sought inclusion in the NRC and did not get it. It would not be available to those who entered India illegally after August 31, 2019. Such a measure is already on the books in Section 6A of the Citizenship Act.

However, this does not fully address the concerns of genuine citizens of India who have not been able to get enlisted in the NRC. For them, the appropriate solution would be to widen the set of proofs; and the manner in which they can show residency, parentage, et al in a manner that would conclusively show their citizenship. The present list of documents permitted, to show proof of citizenship, is in no way exhaustive of the ways in which one can prove one’s citizenship in accordance with the Citizenship Act, 1955. Further, it privileges documentary evidence (a significant barrier) over oral and other evidence which are just as valid in law and might be easier for people to produce. It has to be kept in mind that citizenship is a legal fiction that comes into effect after certain facts are established and establishing these facts should not become an ordeal.

This should be offered as an option. Those who are confident of being able to prove their citizenship should be allowed to do so. Those, however, who are not going to be able to, for whatever reason, should be offered a pathway to citizenship.

A caveat is necessary here — the NRC and its fallout is the result of social and political processes more than a hundred years in the making. From colonial administrations which saw Assam as no more than a place to grow tea and extract oil to Hindutva right-wing parties looking to divide the state on religious lines for political ends — Assam has seen much turmoil and disturbance over the issue of immigration and ethnicity. Even as the Constitution of India attempted to give clarity on issues of citizenship across the country, this question was left unresolved in the context of Assam. Yet, the Constitution lays down certain principles that can guide us out of this thorny thicket and find a way out to protect the future of those left out of the NRC.

Absence of Jurisdictional Fact of Application of Mind in the Reference

  1. The Referring Authority is required to show the application of mind to the facts and law before him, and then record his satisfaction based on the materials collected by the Investigating Officer before forwarding a reference to the Tribunal.
  • State of Assam v. Moslem Mandal reported in (2013) 3 GLR 402 at para 98 [Full Bench]

[97] The reference by the referral authority also cannot be mechanical. The referral authority has to apply his mind on the materials collected by the investigating officer during investigation and make the reference on being satisfied that there are grounds for making such reference. The referral authority, however, need not pass a detailed order recording his satisfaction. An order agreeing with the investigation would suffice. The referral authority also, while making the reference, shall produce all the materials collected during investigation before the Tribunal, as the Tribunal is required prima facie to satisfy itself about the existence of the main grounds before issuing the notice to the proceedee.”.

  1. Meaning of Application of Mind:
  • Application of mind is not defined in any case but has been applied in various contexts where an authority is given discretionary powers and it has been held that the power is to be exercised by application of mind to the facts and circumstances of the case in hand.
  • When discretion is conferred on an authority, it must personally exercise the same; it must apply its own mind to the facts and circumstances of each case and come to its own decision. If the authority acts without applying its mind to the case before it, then the action or decision taken by it will be without jurisdiction because it has not exercised its discretion in accordance with the law.
  • In accordance with State of Assam v. Moslem Mandal reported in (2013) 3 GLR 402 at para 98, along with the case file, the referring authority must forward their observations recording their satisfaction in such manner that demonstrates their application of mind to the facts and circumstances of the case. The absence of such reasons must be held to vitiate the entire proceeding before the Foreigners’ Tribunal.
  • The non-application of mind is even more relevant in ex parte cases where the opinion of the Foreigners’ Tribunal is based entirely on the main grounds along with the supporting materials forwarded with the reference.
  1. Facets to demonstrate the application of mind:
  • Material facts of the case should be taken into consideration:

In the case of Satpal v. State of Haryana (AIR 2000 SC 1702), in the context of the pardoning powers of the Governor under Article 161 of the Constitution, the Supreme Court held that the decision-making authority must be apprised of the materials facts in the case to demonstrate proper application of mind.

  • The authority should be personally satisfied:

The appropriate authority must be personally satisfied as to the grounds on the basis of which the decision is taken. For example, in the case of Jaganath v. State of Orissa (AIR 1966 SC 1140), an order of detention under rule 30(1) (b) of the Defence of India Rules was challenged on the ground that it was as not based upon the satisfaction of the Government. The Supreme Court observed that in the order of detention, six grounds were verbatim reproduced from the relevant empowering section, whereas the affidavit of the Minister who issued the order indicated that he was “personally satisfied” of only two out of the six grounds mentioned in the order. The Supreme Court ruled that the Minister had acted mechanically in passing the order and quashed the order of detention.

  • Application of mind must be apparent from the order itself:

In the context of the issuance of summons on a private criminal complaint, the Supreme Court in Pepsi Foods Ltd. and Another v. Special Judicial Magistrate and Others ((1998) 5 SCC 749), has held that application of mind has to be indicated by disclosure of mind on the satisfaction. The Magistrate is not to act as a post office in taking cognizance of the complaint. There must be sufficient indication in the order as to the application of mind. Similarly, in Birla Corporation Limited v. Adventz Investments and Holdings Ltd. & Another (AIR 2019 SC 2390), the Supreme Court has held that application of mind has to be indicated by disclosure of mind on satisfaction, through a reasoned order (though not elaborately reasoned). To give reasoned decisions is a requirement of natural justice and the order must show which particular circumstance received due consideration while arriving at the decision [State (Delhi Administration) vs Anil Puri And Ors. 28 (1985) DLT 474, para 10]

  • Application of mind must be prima facie through the reasons recorded:

As per Section 147 of the Income Tax Act, 1961, the Income Tax Department has the power to reassess an individual’s previously filed income tax returns by sending a notice under section 148 of the Income Tax Act, 1961 along with recording one’s satisfaction that the income has escaped assessment. In Joint Commissioner of Income-Tax v. George Williamson (Assam) Ltd. (2002 SCC OnLine Gau 351; (2002) 258 ITR 126; (2003) 181 CTR 69), a Division Bench of the Gauhati High Court held that in the absence of specific material before the assessing authority and any independent enquiry, there did not appear to be a link between the facts found and the satisfaction arrived at by the assessing authority. It was accordingly held that there was no application of mind to the facts alleged to have been found, and the action taken was quashed as being not maintainable in law. Similarly, in the case of Pr. CIT vs. G & G Pharma India Ltd. ((2016) 384 ITR 147 (Del.)), the Delhi High Court held that application of mind by the Assessing Officer to the material produced before issuing the notice for reassessment was a basic jurisdictional requirement for reassessment. Without analysing and forming a prima facie opinion on the basis of the material produced, it was not possible for the Assessing Officer to conclude that he had reason to believe that income had escaped assessment. For other High Courts, see Yuvraj v. Union of India ((2009) 315 ITR 84) [Bombay High Court Division Bench]; Kamala Properties v. Inspecting Assistant Commissioner of Income Tax, Special Range-IV Calcutta (1992 SCC OnLine Cal 124; (1992) 2 CHN 295) [Calcutta High Court Single Judge].

  • Non-application of mind is a jurisdictional error and would result in vitiation of the proceedings:

In Anirudhsinhji Karansinhji Jadeja v. State of Gujarat ((1995) 5 SCC 302), a three-judge bench of the Supreme Court quashed proceedings initiated under the TADA for the reason that the sanction granted by the State Government for the prosecution was without the proper application of mind. It observed that the State Government merely followed the advice of the Deputy Superintendent of Police without any independent application of mind to the facts and held as follows:

[14] The present was thus a clear case of exercise of power on the basis of external dictation. That the dictation came on the prayer of the DSP will not make any difference to the principle. The DSP did not exercise the jurisdiction vested in him by the statute and did not grant approval to the recording of the information under TADA in the exercise of his discretion.

[15] The aforesaid is however not all. Even if it be accepted that as an additional safeguard against the arbitrary exercise of the drastic provisions, the State Government had provided by administrative instructions an additional safeguard whereunder the DSP was required to obtain the sanction/consent of the State Government, we are of the view that in the present case the same was given by the State Government without proper application of mind. We have taken this view because the sanction/consent was given by the Government merely on the basis of the fax message dated 17-3-1995 of the DSP. The reason for our saying so is that though there is no record a fax message of Deputy Director General of Police also, which is dated 18-3-1995, the sanction/consent order has mentioned above the fax message of the DSP only. Now, no doubt the message of the DSP is quite exhaustive, as would appear from that message which has been quoted above in full, we are inclined to think that before agreeing to the use of harsh provisions of TADA against the appellants, the Government ought to have taken some steps to satisfy itself whether what had been stated by the DSP was borne out by the records, which apparently had not been called for in the present case, as the sanction/consent was given post-haste on 18-3-1995, i.e., the very next day of the message of the DSP… The State Government gave the sanction without even discussing the matter with the investigating officer and without assessing the situation independently. All these show lack of proper and due application of mind by the State Government while giving sanction/consent.

[16] For the aforesaid twin reasons, we state that the entire proceeding against the appellants under TADA is vitiated and the same is, therefore, quashed.”

Challenging Ex Parte Orders on the Ground of Improper Service of Notice

  1. Relevant Statutes/Rules/Orders:

Paragraph 3C of the Foreigners (Tribunals) Order, 1964 provides for applying before the FT for setting aside an ex parte order within thirty (30) days from the date of the said FT Opinion in the following words:

“3C. Procedure for setting aside ex parte order:

  1. Where the Foreigners’ Tribunal has passed an ex parte order for non-appearance of the proceedee and he or she has sufficient cause for not appearing before the Foreigners’ Tribunal, it may, on the application of the proceedee, if filed within thirty days of the said order, set aside its ex parte order and decide the case accordingly.
    • The Proceedee may file an application to the Foreigner Tribunal within thirty days to review the decision of the Foreigners’ Tribunal claiming that he/she is not a foreigner and the Foreigners’ Tribunal may review its decision within thirty days of the receipt of such application and decide the case on merits.
    • Subject to the provisions of this Order, the Foreigners Tribunal shall have the powers to regulate its own procedure for disposal of the cases expeditiously in a time bound manner.”

  2. Full Bench Decision in State of Assam v. Moslem Mondal, 2013 (1) GLT 809:

Important Extracts on the Issue of Service:

[80] The procedure laid down in the Code of Civil Procedure as such is not applicable in a proceeding before the Tribunal, except in relation to the matter stipulated in clause 4 of the said Order.

[99] One of the most important stages is, apart from serving the main grounds on which the proceedee is alleged to be a foreigner, just and proper service of notice. The 1964 Order also envisage giving a reasonable opportunity to the proceedee to demonstrate that he is not a foreigner. Unless the Tribunal ensures just and proper service of notice, the requirement of giving reasonable opportunity would be defeated. The same would also then violate the basic principles of natural justice.

[100] Though the Tribunals under the 1964 Order, as amended by the 2012 Order, can regulate its own procedure for disposal of the reference proceeding, it is seen from various cases that no uniform procedure is adopted by the Tribunals in the matter of service of notice. Unless there is proper service of notice it cannot be said that the person against whom such notice is issued is treated fairly and he has been given a fair trial.

[101] The proceeding before the Tribunal being quasi-judicial and in the nature of civil proceeding, in our considered opinion, the procedure for service of notice has to be evolved in the light of the procedure laid down in the Code of Civil Procedure for service of summons on the defendants in a civil suit. The proper service of notice also assumes importance as the Tribunal has to render its opinion also in an ex-parte proceeding, on the question referred to it, even in the absence of any evidence on record and solely on the basis of materials initially submitted by the referral authority before the Tribunal and at the time of making the reference, as the referral authority is not required to adduce any evidence to substantiate that the proceedee is not a foreigner, which burden, in view of Section 9 of the 1946 Act, lies on the proceedee.

[102] The procedure laid down herein below shall apply to all the proceedings pending before the Tribunal where the notices are either yet to be issued or issued but not yet served:

  • The proceedee shall be served with the notice, together with the main grounds on which he is suspected to be a foreigner, as far as practicable, personally, whose signature/thumb impression, as proof of service, is to be obtained.
  • Such notice shall be issued in the address where the proceedee last resided or reportedly resides or works for gain. In case of change of place of residence, which has been duly intimated in writing to the investigating agency by the proceedee, the Tribunal shall issue a notice in such changed address.
  • The notice shall be issued by the Tribunal in the official language of the State also indicating that the burden is on the proceedee to prove that he is an Indian citizen and not a foreigner.
  • The service of notice on any adult member of the family of the proceedee, in case he is found to be not present at the time of service, shall constitute the service on the proceedee. In token of such service, the name and signature/thumb impression of such adult member shall be obtained. In case such adult member refuses to put the signature or thumb impression, a report in that regard shall be submitted.
  • If the proceedee or any available adult member of his family refuses to accept the notice, the process server has to give a report in that regard along with the name and address of a person of the locality, who was present at the time of making such an effort to get the notices served, provided such person is available and willing to be a witness to such service. The signature/thumb impression of such witness, if present and willing, must be obtained.
  • In case the proceedee has changed the place of residence or place of work, without intimation to the investigating agency, a report in that regard shall be submitted by the process server. A copy of the notice shall then be affixed in a conspicuous place where the proceedee last resided or reportedly resided or worked for gain, containing the name and address of a respectable person of the locality, if available and willing to be a witness for that purpose. The signature/thumb impression of such person, in that case, shall also be obtained in the said report.
  • Where the proceedee or any adult member of his family are not found in the residence, a copy of the notice shall be pasted in a conspicuous place of his residence, witnessed by 1(one) respectable person of the locality, subject to his availability and willingness to be a witness in that regard. In that case, the signature or thumb impression of that person shall also be obtained in proof of the manner in which such service is effected.
  • Where the proceedee resides outside the jurisdiction of the Tribunal, the notice has to be sent for service to the officer-in-charge of the police station within whose jurisdiction the proceedee resides or last resided or last known to have been resided or works for gain. The process server shall then cause the service of notice in the manner as provided hereinabove.
  • In case no person is available or willing to be the witness of service of notice, as mentioned above, or refused to put his signature or thumb impression, a signed certificate/verification is to be filed by the process server to that effect, which shall be sufficient proof of such non-availability, unwillingness and refusal.”

    3. Amendment to the Foreigners (Tribunals) Order 1964:

Pursuant to the guidelines in State of Assam v. Moslem Mondal (supra), paragraph 3(5) of Foreigners’ (Tribunals) Order, 1964, was amended by way of the Foreigners’ (Tribunals) Amendment Order, 2013, vide Order No. GSR 770(E) dated 10.12.2013 to include the said guidelines.

Table of Cases

 Abdul Barek vs Union of India WP(C) No. 2989 of 2018Upon being approached for receiving the notice, the petitioner refused to accept the same. Accordingly, notice put up on the wall of the house of the petitioner[5] Refusal of notice cannot be construed to be a service of the notice under Rule 3(5)(f) of the Foreigners (Tribunals) Order. 1964. [6] As the notice was not served on the petitioners, we, therefore, set aside the order. But at the same time, we also cannot be oblivious to the fact as per the report of the process server the petitioner had refused to accept the notice. Although in the course of the present proceeding, the petitioner seeks to justify the same by stating that her name was incorrectly written in the notice of the Tribunal but incorrect spelling of the name cannot be the basis for a proceedee to refuse to accept the notice. If there is any doubt on the mind of the proceedee that the notice may actually have been meant for some other person, it is for the proceedee to appear before the Tribunal and bring to its notice for verification as to whether the person appearing before the Tribunal was itself the person upon whom the notice was intended. [7] As the petitioners are declared to be foreigners without appropriate materials on record for adjudication on merit, we are of the view that the petitioners deserve another opportunity. But at the same time as the petitioners had refused to accept the notice, from that point of view, there cannot be any infirmity in the order dated 28.9.2016. (Costs imposed on the petitioners and case sent to FT for hearing)
 Abdus Salam vs Union of India   WP(C) 1357/2019Petitioner could not be traced out at   the   appropriate place; the signature of the house owner was taken as a witness. The Report also doesn’t indicate where the notice was kept hangingThe manner in which the notice was deemed to be served was in violation of the provision of Rule 3(5)(f) of the Foreigners (Tribunals) Order, 1964. (Order of FT set aside)
 Abul Hussain vs Union of India   WP(C) 44/2019Petitioner could not be traced, after taking signature in the main copy, the duplicate was hung. The report silent on whose signature was taken & where the notice was hung.The manner in which the notice was deemed to be served was in violation of the provision of Rule 3(5)(f) of the Foreigners (Tribunals) Order, 1964. (Order of FT set aside)
 Ahmed Darbesh vs Union of India   WP(C) 354/2019Petitioner not found in the given address; notice served on another person who according to the process server was the maternal uncle of the petitioner.We are of the view that in the manner, the notice was served as indicated by the process server, the same is not in conformity with the requirement of the provision of Rule 3(5)(f) of the Foreigners (Tribunals) Order, 1964. (Order of FT set aside)
 Atabur Rahman Vs Union of India   WP(C) 45/2019Petitioner not found in the address; notice was hanged on a tree in a public place.We are of the view that in the manner, the notice was served as indicated by the process server, the same is not in conformity with the requirement of the provision of Rule 3(5)(f) of the Foreigners (Tribunals) Order, 1964. (Order of FT set aside)
 Babul Hussain vs  Union of India   WP(C) 60/2019Petitioner couldn’t be located meaning thereby that the notice remained unserved.In view of the procedural aberration of Rule 3(5)(f) of the Foreigners (Tribunals) Order, 1964, we are of the view that the manner in which the notice was deemed to be served was in violation of the provision of Rule 3(5)(f) of the Foreigners (Tribunals) Order, 1964. (Order of FT set aside)
 Benu Bhowmick vs Union of India   WP(C) 4974/2018The notice in a substituted manner was served as the petitioner was not found at her address. The Tribunal relied upon the pronouncement by the Supreme Court in CIT vs. Daulat A. 1967 SC 1952 which was as follows: “Substitute service is a valid service even through no copy is affixed in the court. House, affixing in the last residence is sufficient.” The said pronouncement of the Supreme Court was in a proceeding under the Income Tax Act, 1961 which has its own prescribed procedure for service of notice.[7] We have perused the report of the process server which provides that as the petitioner was not found in the address given, therefore, a copy of the same was hung. But the report of the process server does not state as to where the notice was hung. [8] In view of the above, we are of the view that the manner in which the notice was served is at variance from the procedure prescribed under Rule 3(5)(F) of Foreigners (Tribunal) Order 1964. [9] In view of the procedural aberration of Rule 3(5)(f) of the Foreigners (Tribunals) Order, 1964, we are of the view that the manner in which the notice was deemed to be served was in violation of the provision of Rule 3(5)(f) of the Foreigners (Tribunals) Order, 1964. (Order of FT set aside)
 Farida Begam Vs Union of India   WA 333/2015Notices of the proceeding issued by the Tribunal were served thrice, on the first two occasions on her husband and on the third occasion on her brother.[11] The Foreigners’ (Tribunals) Order, 1964, as amended, makes it abundantly clear that in the absence of the proceedee, notice can be validly served on any adult member of the family. Therefore, a plea of the appellant regarding nonreceipt of notice is untenable and cannot be accepted. (Writ petition dismissed)
 Fazina Khatun vs Union of India   WP(C) 7454/2018Petitioner had changed her place of residence without intimation, a copy of the Notice affixed/pasted on the wall where the petitioner last resided. The fact of service of Notice in the substituted manner, as above, is also recorded by the Tribunal.[5] Having regard to the above, we find that there was due compliance of service of Notice in substituted manner, as required to be done under Clause 3(5)(f) of the Foreigners (Tribunals) Order, 1964. From the Service Report, it clearly transpires that copy of the Notice was affixed on the outer wall of the house in which the petitioner last resided. In this connection, we may also place on record that according to the petitioner she is still living in the same village. [6] Despite Service of Notice in substituted manner in accordance with law, the petitioner neglected to appear before the Tribunal and/or to file written statement. [7] grant of fair and reasonable opportunity cannot be enlarged to an endless exercise. A person who is not diligent and/or is unmindful in taking steps to safeguard his/her interest, he/she does so at his/her own risk and peril. In a situation where no evidence is adduced or the burden is not discharged, the only option left to the Tribunal would be to declare the proceedee to be a foreigner, based on the grounds of reference upon which appropriate proceeding was initiated, notice was duly issued and duly served upon the proceedee in accordance with law (Writ petition was dismissed)
 Malekjan Bibi vs Union of India   WP(C) 1142/2019Petitioner not found at her place of residence, notice hung at a conspicuous place of the village in presence of a witness and submitted report.”Hanging of the notice at a conspicuous place of the village in presence of witnesses is contrary to the requirement of Rule 3(5)(f) of the Foreigners Tribunal Order, 1964. It is taken note that the report of the process server does not even indicate as to where the notice of the petitioner was kept hanging. The manner in which the notice was deemed to be served was in violation of the provision of Rule 3(5)(f) of the Foreigners (Tribunals) Order, 1964. (Order of FT set aside)
 Monir Uddin vs Union of India W.P.(C) No. 219 of 2019Non-availability of the proceedees at their given address. The process server thus served notice by hanging. The order does not clearly show as to in what manner the hanging was made.In view of the procedural aberration of Rule 3(5)(f) of the Foreigners (Tribunals) Order, 1964, we are of the view that the manner in which the notice was deemed to be served was in violation of the provision of Rule 3(5)(f) of the Foreigners (Tribunals) Order, 1964. (Order of FT set aside)
 Muzibur Rahman vs Union of India   WP(C) 6404/2019As the petitioner could not be found, a copy of the notice was affixed on the notice board of the office of the Gaonburah.[6] Having regard to the manner of service, as above, we are of the considered view that substituted service of notice, as required to be done under 3(5)(g) of the Foreigners (Tribunals) Order, 1964, was not complied with. We are also of the view that the petitioner was denied the opportunity of hearing to contest the case on merits. It clearly appears that no notice was served on the petitioner by affixing a copy of the notice pasted in a conspicuous place of his residence, witnessed by one respectable person of the locality who has given his signature or thumb impression and has agreed to be available and stand as a witness with regard to such service of notice. (Order of FT set aside)
 Sahinur Islam vs Union of India WP(C) 7818/2019As the petitioner was not available in the given address, notice was returned unserved.[5] Having regard to the admitted fact that service of notice was not effected in any manner on the petitioner, as required to be done under Paragraph 3(5) of the Foreigners (Tribunals) Order, 1964, we are of the view that the petitioner was denied the opportunity of hearing to contest the case on merits. (Order of FT set aside)

The Indian Judiciary and Its Record on Statelessness

Anushri Uttarwar is a fourth-year B.BA. LL.B.(Hons.) student and Student Fellow at Centre for Public Interest Law, Jindal Global Law School. Arunima Nair is a second-year LL.B. student at Jindal Global Law School and an Editor of the Parichay Blog. Anushri and Arunima are among the authors of Securing Citizenship: India’s legal obligations towards precarious citizens and stateless persons, released in November 2020. 

Securing Citizenship highlights India’s legal obligations towards stateless persons and precarious citizens within its territory. It does so by expounding the applicable international human rights framework to the state, with every person’s right to nationality and every state’s duty to prevent statelessness as its two integral interwoven threads. Additionally, the report links the said international framework to the Indian state’s corresponding obligations under present domestic law. This article discusses one such aspect viz. the approach of Indian courts in cases involving persons of uncertain nationalities.  

The Indian state’s efforts to uphold every individual’s right to nationality and its duty to avoid and reduce statelessness have been minimal. It has not signed either of the two international conventions on statelessness and has not actively engaged in any global efforts to fight statelessness. As we have noted in our report, neither the Foreigners Act, nor the Citizenship Act, nor the Passport Act and their attendant rules, account for the legal lacunas that can create statelessness. The statutory terms ‘illegal migrant’, ‘foreigner’, and ‘citizen’ cannot be interchangeably applied to a stateless person. The present citizenship determination regime, which places the burden of proof upon the impugned individual and suffers from a well-documented lack of functional independence and procedural safeguards, has actively jeopardized the citizenship status of 1.9 million individuals in Assam in August 2019 (with subsequent deletions and an ongoing Government-led demand for 10-20% re-verification of the 2019 NRC).  

The Indian judiciary’s record on this front has been mixed. The Supreme Court’s judgments in the Sarbananda Sonowal cases (2005 and 2006) decisively laid down the roadmap governing citizenship determination in India. In these cases, the petitioners had impugned the Illegal Migrants (Determination by Tribunal) Act, 1983 (‘IMDT’) and the Foreigners (Tribunals for Assam) Order, 2006, both of which placed the onus upon the state to prove an individual’s foreigner status. The Court agreed and struck them down as unconstitutional. It anchored its reasoning in a broad interpretation of “external aggression” in Article 355 of the Constitution, stating that a “vast and incessant flow of millions” of illegal migrants from Bangladesh into Assam was akin to a “war”, posing a serious existential threat to the economic and social fabric of Assamese society. The Bench cast it as the Central Government’s “foremost duty” to protect its citizens from such aggression; statutes like the IMDT made it far too “cumbersome” to detect and deport foreigners and fulfill this duty, as opposed to the far more “effective” Foreigners Act. Sarbananda Sonowal is still good law; it is the underlying foundation for subsequent Supreme Court decisions, such as the one kick-starting the updation of the NRC and its eventual monitoring of the modalities of the entire NRC exercise

Nevertheless, the Indian Judiciary has occasionally taken cognizance of the tumultuous issue at hand. In each of those occasions where the courts decided to address the said issue, they have consistently observed the insufficiency of domestic laws addressing statelessness and the disastrous consequences of statelessness. These observations have aided them in interpreting the existing domestic statutes liberally so as to prevent the individual in question from being rendered stateless. Interestingly, in these cases, while the courts reasoned their judgments in line with international law on statelessness, they did not make concrete references to it. Four such cases have been outlined below. 

In Gangadhar Yeshwanth Bhandare, the respondent was found to have been a part of a secret Indian governmental mission. His participation in that mission had caused him delay in adhering to the guidelines that had to be followed by those in pre-liberation Portuguese territories who wanted to be considered Indian citizens. It was then alleged that he was not an Indian citizen. The Supreme Court held that the respondent was indeed an Indian citizen since he had renounced his Portuguese nationality already and to hold him to not be an Indian citizen at this stage would render him stateless. Such a consequence was unacceptable for the Court. 

Similarly, in Jan Balaz, the Gujarat High Court interpreted the Indian Citizenship Act, 1955 liberally to prevent the chances of the children born to an Indian surrogate from becoming stateless. The court observed that the children in question would not be able to claim citizenship by birth in Germany (due to the country not recognising surrogacy). It observed that they would have been rendered stateless if they were not accorded Indian citizenship, thereby affirming that they would be eligible for Indian citizenship by birth.  

In Prabhleen Kaur, the petitioner’s nationality was suspected, thereby causing her passport renewal application to be rejected by the relevant authority. The Delhi High Court held that rejecting her application on a mere doubt is manifestly unjust at that stage, as it could leave her stateless, indicating that she can only be ascribed an Indian nationality. 

Once again, in Ramesh Chennamaneni the Telangana High Court pioneeringly held that the power of the Indian government to deprive one’s citizenship under Section 10 of the Act is restricted by several constraints, including the duty of a state to avoid statelessness within its territory. Since in the situation before it, deprivation of citizenship would result in the petitioner being left stateless, the court set aside the committee decision that cancelled his citizenship. 

Apart from circumstances where a petitioner was at the risk of statelessness by virtue of the (in)actions of the Indian state, Indian courts have also acknowledged the need to legally recognize the status of stateless persons existent on Indian territory. By this we mean persons in India who have been rendered stateless by the actions of another state, not India. The Delhi High Court in Sheikh Abdul Aziz (W.P. (Crl.) 1426/2013) was confronted with a petitioner who had been languishing in immigration detention, far beyond his initial sentence under the Foreigners Act. The petitioner’s nationality determination had failed i.e. the Government could not confirm which nationality the man belonged to. The Court here pulled up the Government for its inaction in issuing a stateless certificate to the petitioner, and directed it to do so as the necessary first step towards the petitioner’s overdue release from detention. The stateless certificate, and the subsequent granting of a Long-Term Visa, were essential steps to ensure the petitioner did not become a phantom within the legal and civic community.  

Moreover, our report also argues that stateless certificates cannot and should not operate as obstacles to any application for citizenship. The Indian state has an obligation under international law to prevent and reduce statelessness, and to ensure that individuals can enjoy their right to nationality. Stateless individuals must not be stateless in perpetuity; their continuous residence and community ties in India should entitle them to be naturalised as citizens, per the procedures for naturalization. In the celebrated Chakma case, the Supreme Court created precedent by holding that stateless individuals like the Chakmas in Arunachal Pradesh had a statutory right to be considered for Indian citizenship under Section 5 of the Citizenship Act. Local administrative officials therefore had no grounds for stalling and refusing to forward Chakma individuals’ citizenship applications. The Delhi High Court, in a subsequent case dealing with a plea by a Tibetan individual who was born in India in 1986 to two Tibetan refugees, held that the petitioner’s stateless identity certificate did not bar her from being eligible for Indian citizenship by birth under Section 3(1)(a) of the Citizenship Act, and directed the MEA to process her application expeditiously. 

The pattern of the judiciary utilising international law standards on statelessness continues even in cases where the Court could not come to a decision immediately in favor of the petitioner, as the Patna High Court did recently in Kiran Gupta v State Election Commission. The appellant here was challenging an Election Commission decision that cancelled her Panchayat electoral victory, on the grounds that she was not an Indian citizen when elected. She was a Nepali citizen at birth, and had resided in India and raised her family for 17 years since her marriage to her Indian husband, along with possessing a Voter ID, a PAN card, and property in her name here. She had even terminated her Nepali citizenship in 2016. However, she admitted that she had failed to register for Indian citizenship under Section 5 of the Citizenship Act.  

The Court’s hands were tied: the conferral of Indian citizenship is clearly an Executive function, with the various procedures laid out in the statute. It held that it could not step into the shoes of the Executive and declare her an Indian citizen. Despite this, however, the Court demonstrated sensitivity towards the petitioner’s unusual situation. She was caught in a precarious situation where she possessed neither Indian nor Nepali documents of citizenship. In its final few pages, the Court crucially reiterates the duty upon the Indian state to prevent and reduce statelessness, in spite of signing neither statelessness convention. India has signed and ratified several other human rights treaties with provisions limiting nationality deprivation, such as the ICCPR, CEDAW, ICERD, and CRC. In its operative portion, the Court directed the Government to be mindful of the petitioner’s peculiar circumstances as and when she applies for citizenship. The Patna High Court demonstrates the capacity of courts to step in and affirm the internationally recognised and binding duties to prevent and reduce statelessness.  

At this juncture, it is imperative to note that the aforementioned cases present what we would consider ‘aspirational’ statelessness jurisprudence in the context of India. They are, unfortunately, exceptions rather than the norm: a litany of court decisions follow the overarching rationale of Sarbananda Sonowal and are either unaware of or wholly indifferent to individuals’ right against arbitrary deprivation of citizenship and the duty to prevent statelessness under international law. Foreigners Tribunals (‘FTs’) have consistently been passing orders that are arbitrary and ripe with procedural inadequacies, thereby designating an increasing number of individuals as foreigners. Adverse FT decisions are based on any and every minute clerical error or inconsistencies within their documents. Many such decisions have been upheld on appeal in the Gauhati High Court; as an indicative selection, in Nur Begum v Union of India and Sahera Khatun v Union of India, the burden of proof as per Section 9 of the Foreigners Act was interpreted stringently as one that rests absolutely upon the proceedee. In Jabeda Begum v Union of India, 15 official documents were found to be insufficient to discharge the said burden.  

To conclude, given the polar contrasts within the Indian statelessness jurisprudence, the judiciary’s role will remain incomplete unless accompanied by comprehensive legislative and policy changes. This would require India to not just formally accede to the 1954 and 1961 Conventions, but to also reform its current citizenship framework and explicitly allow for the expedited naturalisation of stateless persons. One hopes that the Executive catches up soon and fortifies its obligation. 

Mapping Developments: A follow-up to the Detention Chapter from the Securing Citizenship Report

Khush Aalam Singh is a third-year law student pursuing the B.A. (LL.B.) program at Jindal Global Law School. He is a Student Fellow at Centre for Public Interest Law, JGLS, where he is currently assisting research interventions on questions of citizenship and statelessness. Khush is one of the authors of  Securing Citizenship: India’s legal obligations to precarious citizens and stateless persons, released in November 2020.

The Securing Citizenship report is divided into three chapters – Status, Detention and Socio-Economic Rights. Each chapter addresses the international law obligations of India vis-à-vis precarious citizens and stateless persons. As authors of the Detention chapter, real-time developments posed a challenge for us. We had to be mindful of the news and the overall argument the report sought to advance. This article is an attempt to engage with major developments since September 2020 which did not make the final text. As such, it endeavours to expand the conversation around issues at the nexus of statelessness, precarious citizens, and detention pending deportation.

A development of significance is the Gauhati High Court’s order (dated 7th October) in the case of Santhanu Borthakur v. Union of India and Ors. (W.P. (Crl.)/2/2020). In this criminal writ petition, the court observed that persons declared as foreigners shall be kept in detention centres outside of prisons. The court also observed that earmarking a specific area in jail premises as a detention centre is not in accordance with Supreme Court guidelines. These guidelines stem from its judgement in the case of Bhim Singh v. Union of India (2012).

Furthermore, the Santhanu Borthakur order refers to communications by the Central Government specifying that detention centres need to be set up outside jail premises. These communications included a recommendation that the state consider hiring private buildings for the purpose of keeping detainees while the detention centres are under construction. While the order does not declare the detention of foreigners inside prisons as outrightly illegal, it directed the state authorities to place a status report showing measures taken to set up detention centres. This status report is likely to be placed before the court at the next hearing of the matter.

The Court’s observations relating to the detention of ‘foreigners’ inside prisons complement a key concern that we flag in the report. The nature of confinement for persons declared as foreigners is materially different from that of convicts or undertrials. As per the Assam Government White Paper of 2012, the detention of declared foreigners is ‘administrative’ in nature. In other words, the detention of such persons takes place for deporting them to their country of origin and is not necessarily a criminal penalty. However, the intent of deporting is illusory as low rates of deportation show that removing such persons to their purported country of origin is not an option. This is because Indian citizens in Assam whose citizenship status is precarious are detained under the guise of ‘foreigner’. Stateless persons may also be detained as ‘foreigners’ without a nationality. These persons are kept along with undertrials and convicts without any proper system of distinguishing between these categories. This has worrisome consequences such as discrimination by jail officials, overcrowding of prisons, physical and mental health concerns as well as shortage of rations.

Therefore, the Court’s observations are welcome to the extent that they are consonant with international law on administrative detention pending deportation. However, we are yet to see a judicial pronouncement that explicitly sets out the premise that stateless persons and precarious citizens cannot be detained. Such a pronouncement must be foregrounded in the language of rights and should leave no scope for ambiguity. The Supreme Court orders allowing the release of detainees are examples of this ambiguity, as has been mentioned in the report. This is because the Court employs a language bereft of any reference to rights. The overriding imperatives prompting the orders seem to be administrative convenience or public health. This becomes an issue as these orders do not recognize the rights of precarious citizens and stateless persons.

After the Supreme Court relaxed the conditions required for release of detainees earlier last year (W.P. (C) 1/2020 (Supreme Court)), the Gauhati High Court initiated a suo motu writ petition (W.P. (C) (Suo Motu) 1/2020) to oversee the process. The orders record the release status of detainees and the number of detainees released. According to the last order dated 17September 2020, 349 eligible detainees had been released from detention. The data provided in the order does not specify whether this figure is across all detention centres or from a specific detention centre. None of the orders have a breakdown of the numbers from each detention centre. Instead, there is a lumpsum figure as was submitted by the state counsel. This is yet another reflection of the ambiguity surrounding numbers from Assam, making it difficult to have a clear idea of the situation. Furthermore, the numbers do not mean that there are no persons in detention at present. As of those eligible, about 13 detainees have not yet been released due to non-fulfilment of bail conditions. It is unknown whether persons who have not yet completed two years in detention are still inside these detention centres. Additionally, no details have emerged about the conditions inside these detention centres – especially given the COVID-19 situation.

Outside of Assam, the Karnataka High Court also made observations about the detention of illegal migrants/foreigners. In Babul Khan and Anr. v. State of Karnataka and Anr., Justice Phaneendra observed that persons found to have violated the Foreigners Act, 1946 do not have the right to move around freely “as if they are the citizens of the country”. Furthermore, the court reiterated that persons declared as foreigners shall be detained pending deportation. The order does recognize some aspects that we have sought to highlight in the report. The court affirms that children in detention are particularly vulnerable, along with women, therefore their rights have to be protected. The court relied on the UN Declaration on the Rights of the Child (1959) as well as the Supreme Court guidelines in R.D. Upadhyaya v. State of AP. These guidelines enshrine the right of the child to education, food, recreation, medical care, etc. Further, the court cited the Juvenile Justice Act (2015) and the Rules to show that these rights have a firm grounding without reference to the nationality of a child.

While the observations with respect to children complement our arguments, there are many concerns when it comes to the nature of detention in such cases. As Securing Citizenship argues, stateless persons and precarious citizens cannot be detained for deportation. Such persons have a right to immediate release if they are presently detained. In the case of stateless persons, they cannot be removed to any country, since no country considers them as its citizens. Precarious citizens, on the other hand, are Indian citizens by virtue of their ‘genuine link’ to this country. When both stateless persons and precarious citizens are deemed ‘foreigners’ before the law, their confinement inside detention centres is arbitrary and violates domestic and international law. The lack of a periodic review mechanism by a judicial body further aggravates the issue. This is particularly disappointing as courts have recognized statelessness as a situation to be avoided. Yet, courts and policy-makers have paid inadequate attention to the nexus between statelessness, precarious citizenship and detention pending deportation.

There is a dire need for a well-drafted and well-thought out policy that addresses these issues substantively. Through our intervention, we have attempted to highlight areas of concern with the existing policies and how they neglect these categories of persons. The impact of detention without substantive and procedural safeguards continues to be disproportionate. As we argue in the report, principles of international law need to be kept in mind while addressing these issues, with an overarching emphasis on human rights. To ensure this, the fundamental rights contained in the Constitution can provide a strong basis. Furthermore, detention should be used as a measure of last resort. The state shall exhaust all possible lesser-restrictive options before deciding to detain someone. Our paramount concern remains the situation of stateless persons and precarious citizens in detention centres, particularly in Assam. We sincerely hope that our intervention finds consideration and concrete expression through policy reform.

‘History of Citizenship and Migration in South Asia’: A talk by Mr. Manav Kapur

Manav Kapur read law at NALSAR, Hyderabad and New York University, New York. He has previously taught law at NALSAR and Jindal Global Law School. He is presently pursuing his Ph.D. in legal history from Princeton University, New Jersey. This is a transcript of a lecture delivered as part of the lecture series at the Fall 2020 Citizenship and Statelessness Clinic, Jindal Global Law School. You can find the full recording of the lecture here.

In the course of today’s discussion I thought we’d talk about citizenship and Partition. It’s kind of interesting because many of these debates are similar to the debates that have come up over the last year or so, and what I’ve been thinking about in the past few weeks is while much has been made about how the CAA [Citizenship Amendment Act, 2019] marks a break with the liberal conception of citizenship in India and how its explicit privileging of Hindus, Sikhs, Buddhists, Jains, Christians, and Parsis from Afghanistan, Pakistan, and Bangladesh is seen as a break from the earlier regime, I don’t think that’s true. This is definitely not a defence of the CAA, but it’s interesting to see how even, and partly because of the Partition, these issues came up at the very outset of the setting of the terms of citizenship. 

I’m going to start off talking about two distinct questions: first, the ways in which Partition and citizenship were imbricated, both in the popular imagination and in the legal categories – and how did this become a South Asian problem? So what’s interesting also is that Indian debates and Pakistani debates are supposed to be different, but that really wasn’t what was happening. The second question is how did India’s citizenship provisions go from being relatively uncomplicated to ones that ‘received far more attention’ than any other provision (Nehru) by the time the debates end or ‘a headache’, in the words of Ambedkar? 

What had happened after independence was, and what we need to remember is that post-colonial South Asia had changed so much from what it was even six months before independence, that you couldn’t actually assume categories of citizenship qua populations, but that this was actually a produced category that was debated and given sanction, both from the top-up and bottom. So it was a long-term project aimed at turning subjects into citizens and both populations were active participants in this process. 

Now if we go to Seervai, which is one of the basic canonical texts of Indian constitutional law, he says that citizenship is a triangular relationship, it’s a personal bond between state and citizens, whereby citizens bear allegiance to the state and in turn are given full political and other rights. There were two models of citizenship: one is jus soli i.e. the right of anybody who is born in a particular territory to be a citizen of that territory, and the second one is jus sanguinis, which comes from the Latin for the ‘right of blood’ and is linked to questions of nationality and ethnicity, where ethnicity and parentage are key. Now, both [Niraja Gopal] Jayal and [Joya] Chatterji when they’re talking about citizenship in India say that the idea of citizenship in India actually starts off as a jus soli thing. If you look at the first draft of the citizenship provisions in the constitution, and interestingly the first draft was the fundamental rights section, they didn’t even think it was necessary to have a separate chapter on citizenship. This is on April 23 1947: within six months they’ll know that this is not going to be as simple as they think it is. ‘Every person born in the Union or naturalized according to its laws and is subject to the jurisdiction thereof’ (Clause 3, April 23, 1947) was supposed to be an Indian. So this is basically jus soli simpliciter. Of course when this was being talked about this was tempered with some elements of jus sanguinis, because there was this question of what happens to  people who are born in India but whose families don’t live in India, and the converse, what happens to people whose families live abroad but are actually domiciled in India. So then domicile came up, and what is now Article 5 of the Constitution at this time. Article 5 says: 

At the commencement of this Constitution every person who has his domicile in the territory of India and:

(a) who was born in the territory of India; or

(b) either of whose parents was born in the territory of India; or

(c) who has been ordinarily resident in the territory of India for not less than five years preceding such commencement, shall be a citizen of India.

When we look at this, this is pretty simple but this doesn’t really think about what the Partition is going to do to this entire question. 

A small note on domicile: domicile is basically defined as a place where the habitation of a person has been fixed, and from where there’s no intention of moving therefrom. The reason why I’m specifically mentioning domicile is because domicile becomes specifically relevant in the context of Partition, particularly in the context of women and their citizenship. As Joya Chatterji points out, this is also useful because given that the Constitution was being drafted contemporaneously with the Partition and independence, both India and Pakistan, according to her, thought of a jus soli basis of citizenship, which is primarily territorial – so where you’re born, you’re a citizen of that country and after Partition happens, the other country really has no role to play in deciding your rights or lack thereof. But of course, this was predicated on the assumption, which later turned out to be erroneous, that Partition would not result in large-scale migrations. And interestingly, this idea that Partition would not lead to large-scale migrations persists through June, July, and August 1947. In June 1947 for example there’s a story about how Jinnah met a set of prominent Muslim leaders from Delhi and said that well, if Delhi isn’t part of Pakistan – which also wasn’t clear at the time, because the Punjab was to be divided and Delhi was at the border with Punjab—then you’re Indian citizens, and that’s the end of it. 

In order to understand citizenship, I think we have to take the idea of what Vazira [Fazila Yacoobali-] Zamindar calls ‘the Long Partition’ somewhat seriously. The ‘Long Partition’ has been defined, according to her, as ‘the ways in which two postcolonial states’– namely India and Pakistan—‘comprehended, intervened, and “shaped” the colossal displacements of Partition, and in doing so, recalibrating the categories of citizen, state, nation and territory’. All these categories seemed clear in March 1947; all of this was changed in September 1947. All of this resulted in mass migrations that started in 1947 but continued until at least the 1960s on both flanks of the border: on the Eastern flank which is the Bengal, Assam, and the East Bengal border, and the Western flank which stretches all the way from Kashmir up to Gujarat and Sindh. There’s also a note of terminological caution I want to make over here because the terms that were used were ‘refugee’ and ‘migrant’, but the idea of a ‘refugee’ has to be distinguished from what we understand of a refugee now as a stateless person. At this point of time the term ‘refugee’ in India referred to those who moved to India from Pakistan, and a ‘migrant’ was seen as somebody who moved from India to Pakistan. Now importantly they were called refugees, but they weren’t refugees like stateless people, they definitely had a state allegiance and that allegiance was acknowledged by the state they were moving to, it was just that their domicile and the state that they wanted to be part of did not at that particular point intersect.  

Two dates are very significant: 1 March 1947 and 19 July 1948, and we will see this when we discuss Articles 6 and 7 of the Constitution. 1 March 1947 was a significant date because it was the cut-off date for Partition violence, or so the Indian government thought, because violence started in Rawalpindi on 3 March and continued in Punjab throughout this time. And because the Eastern border wasn’t considered – as we shall see throughout this discussion, the Eastern border was considered peripheral to questions of citizenship in the ways that were fundamental to the determination of citizenship law at the time when the Constitution was being drafted. So the violence of Direct Action Day on Noakhali and stuff did not feature. 

Article 6 is something that we should spend a little bit of time on, because it talks of the rights of citizenship of certain persons who have migrated to India from Pakistan. It has a non-obstante clause at the beginning: ‘notwithstanding anything contained in Article 5’ – which is basically a jus soli conception of citizenship, with a little bit of jus sanguinis, about parents, but this is a departure from that –‘a person who had migrated to the territory of India from the territory now included in Pakistan shall be deemed to be a citizen of India at the commencement of this Constitution if he and either of his parents or any of his grandparents was born in India as defined in the Government of India Act, 1935 (as originally enacted), and’—even his little bit about the Government of India Act is significant, because before the Government of India Act, India included Burma and Aden, so both of them were excised from the idea of India, and that was particularly significant because Burma had a huge population of Indians, and Joya Chatterji does talk about that in questions around Indian nationals vs. citizens – ‘In the case where such person has so migrated before 19 July 1948…has been registered as a citizen of India by an officer appointed in that behalf by the Government….’ The important thing to note here – this is about 11 months after Partition—the very fact the Government decided to use this date [19 July 1948] meant that the Government thought that Partition migration had more or less in the ordinary course of events ended; migration after the 19th of July 1948 was seen as exceptional, and this was only true for the Western frontier and only for the provinces of West Punjab and the North-West Frontier Province. Hindus from Sindh continued to move to India until the 50s, and also from Balochistan. 

We should talk about Article 7 as well, which is another exception to the jus soli conception. This is the most controversial clause: called obnoxious by its detractors and obligatory by those who supported it, and it’s interesting even though religion is not explicitly mentioned, debates around both Article 6 and Article 7 make it very clear who is contemplated under these provisions and who isn’t, and that is largely based on religion, and in that category you see Muslims as one category and non-Muslims as another. Article 7 reads, beginning with a notwithstanding clause:

a person who has after the first day of March, 1947, migrated from the territory of India to the territory now included in Pakistan shall not be deemed to be a citizen of India:

Provided that nothing in this article shall apply to a person who, after having so migrated to the territory now included in Pakistan, has returned to the territory of India under a permit for resettlement or permanent return issued by or under the authority of any law and every such person shall for the purposes of clause (b) of article 6 be deemed to have migrated to the territory of India after the nineteenth day of July, 1948.

So basically, the person should have a permit for resettlement or permanent return and then be registered as a citizen of India. At first, this doesn’t seem like a particularly problematic position. Of course, it says if you leave in March 1947 you lose Indian citizenship, but you have a way of getting back – just register etc. It seems clear, but it isn’t. 

Now let’s get to the meat of what the problem was with the way in which these three provisions were drafted. Three questions come up: one is India’s perceived sole responsibility for Pakistani Hindus and Sikhs—the assumption is (and this comes out very clearly in the Constituent Assembly debates across party lines) that Pakistani Hindus and Sikhs don’t have any other place in the world to go to but India. There is also a related suspicion of Muslim migration into India, both the return of people who had gone to Pakistan and the movement of other Muslims to India. And this is all undergirded by the hard economics of rehabilitation – or what I would call the ‘costs’ of citizenship. 

The question of Hindus and Sikhs as fundamentally Indian was a question that arose out of Partition, and out of the belief among many members of the Constituent Assembly Debates that the Partition was not a territorial division but also an excision of a part of the Motherland. Because of this, the idea was that any Hindus and Sikhs in Pakistan (which at the time included Bangladesh) were seen as the responsibility of India. P. R. Deshmukh actually very clearly and very strongly articulates this in 1949:

By the mere fact that he is a Hindu or a Sikh, he should get Indian citizenship because it is this one circumstance that makes him disliked by others. But we are a secular State and do not want to recognise the fact that every Hindu or Sikh in any part of the world should have a home of his own. We are not debarring others from getting citizenship here. We merely say that we have no other country to look for acquiring citizenship rights and therefore we the Hindus and the Sikhs, so long as we follow the respective religions, should have the right of citizenship in India and should be entitled to retain such citizenship so long as we acquire no other.

This is very similar to questions around the way in which the CAA is thought of presently, the idea of non-Muslims as being discriminated against in other parts of the subcontinent, and that Indian Muslims are not discriminated against. This idea of Pakistani Hindus and Sikhs as a lost limb comes up time and again in the Constitution. It’s something that Nehru himself mentions in his tryst with destiny speech, that we ‘feel for those who have been cut away from us in this unnatural division and we will always have a responsibility for them’.

But now what was happening, as Joya Chatterji points out, is that in the period 1947 to 1950 there was this very very complicated relationship that minorities had with the governments of the opposite dominion. When Partition happened by September 1947, the High Commissioners of the other dominion had taken charge of minority camps pending their movement, which again was ensured through military evacuations carried out by soldiers of the other dominion itself. One interesting aspect of this is that the first Pakistani High Commission in India was located in the barracks of the Sher Shah Suri mess, which is now the site of the Delhi High Court. Now of course it’s impossible for any Pakistani citizen to enter any cantonment zone, but because of the Partition, because of the responsibility both countries took over for its minorities, and because of the military escorts that they had to provide, the first Pakistani High Commission was located within an army mess in India. Also the Pakistani High Commission in Delhi and the Indian High Commission in Karachi were simultaneously organizing water, food, and medicines to camps – there are these long letters that go from the Indian government to the Pakistani High Commissioner in September 1947 about the fact that the Lal Quila camp only had two functional toilets for 40000 people. So there is that sense of responsibility for people just after Partition.

Now interestingly, what happened is that the moment you look at the idea of people moving to Pakistan, there’s this question of what the scope of migration was, or what the intent behind Partition migration was. So in the Constituent Assembly, and in a lot of writing around Partition in India, you see the idea of Muslims moving to Pakistan as part of a deliberate desire to move. So it is a conscious, well thought out decision to leave India. As Jaspat Roy Kapoor, Constituent Assembly member whose family had migrated from West Punjab to UP says: ‘Once a person has migrated to Pakistan and transferred his loyalty from India to Pakistan, his migration is complete. He has made up his mind at the time to kick this country and let it go to his own fate and to go to Pakistan and make it a prosperous country’. On the other hand, when the question comes about Hindus who continue to live in Pakistan till the winter of 1947, Justice Mahajan says something completely different. He says that: ‘In October or November 1947, men’s [sic] minds were in a state of flux. Nobody thought that when he was leaving Pakistan for India or vice-versa that he was forever abandoning the place of his ancestors’ (Mahajan J. in Central Bank v Ram Narain (1955)). Which obviously makes sense, because in 1947 there was no clarity on what these migrations meant, the only thing that happened was that in the Punjab both Governments had agreed to transfer populations pending a settlement of the situation. But the situation was never settled in any way other than the vast majority of people not being able to come back. But this distinction between the idea of Muslims going to Pakistan going with a form of malice or forethought versus people coming into India as refugees who had no other option, having lost everything, persisted through the course of these debates and is significant in the way Article 7 was both drafted and operated. 

Now the history behind Article 7 – we’ve seen that this led to a permit system for settlements or permanent return to come back to India. This seems pretty straightforward but isn’t –this is because in early 1948, after Gandhiji’s fast in Delhi and his subsequent death, and the Government’s crackdown on RSS [Rashtriya Swayamsevak Sangh] and anti-Muslim violence in much of North India, a set of people who’d gone to Pakistan started to come back. Now the numbers weren’t very huge – this table on CID Enumeration of Muslim Movements shows that the number of people who came back in  toto were about 12 to 15000. These numbers are not huge, but the way in which they were seen by the population in Delhi, by a lot of the Government, was as this one-way traffic that was coming from Pakistan of people trying to come back and take over their houses. This almost medical terminology of influx of people moving in, of this fear of contamination and infection, is what led to a permit system being put in place. Initially, from August 1947 to July 1948 there was no bar on Indians moving to Pakistan and vice-versa, in fact one of the conditions of Partition had been that there would be no restriction placed on people moving: to the extent that Nehru’s first visit to Pakistan was supposed to be 1949, but throughout the winter of 1947 Nehru was constantly going to Lahore for meetings with regard to people who were moving, and Liaquat and Jinnah were constantly coming to Delhi, and that wasn’t even considered foreign travel. 

Now a permit for permanent resettlement was one of the hardest ones to get. The permit system basically allowed permits to be given in three circumstances: for transiting, for visits and meeting divided families, and for permanent resettlement. This permit for resettlement was almost impossible to get, only 1200 got it in the first year of its installation. Again, to get the permit required a background check, a family check, and any link to the Muslim League before Partition meant that you wouldn’t get the permit. What’s interesting is not that you’d get the permit so sparingly, but the fears it aroused. The assumption was that when Muslims were coming back to India, people who had already left for Pakistan were coming back, they were coming back either as a fifth column that was attempting to destroy India from within, or coming back to take over their property. 

Now why would taking over the property be a problem? Because of the whole way in which the evacuee property regime had started to function. Now the evacuee property norms have in a lot of scholarship been described as ‘brutal’ laws, as ‘exceptional’ laws, as deeply complex laws. Their complexity comes because they were serving two contradictory purposes. In the weeks after Partition, in early 1947 as populations were on the move in Punjab, both governments came up with a set of norms by which they’d take over the property of those who’d left and hold it in trust for them until they came back. So the migrants, the people leaving were recognized as the sole owners of the property they’d left behind, but in order to protect this property, and to prevent it from being alienated in unauthorized ways, the Government would take it over and hold it in trust. But there were 2-3 things that happened at the same time. This was also harvest season, the Punjab was a very fertile land and food supplies in both countries were in a state of flux, and refugees needed to be resettled on these lands. So while refugees were resettled, the assumption was that migrants continued to be sole owners of this property but pending their coming back or the settlement of the question of compensation, refugees would be allowed to live on these lands. This was also happening because a lot of refugees, out of desperation on both sides of the border, were forcing their ways into these houses. So now evacuee property laws were serving two contradictory purposes: firstly they were safeguarding the property of those who had migrated until they returned or until an inter-governmental solution could be found (India was rooting for an inter-governmental solution; Pakistan, because the volume of property was more in Pakistan, was rooting for person-to-person exchange); and simultaneously all of this property had gone in a compensation pool to rehabilitate refugees who were living on this. 

Now especially in India, because the amount of property which Muslims had left was much lesser than property Hindus and Sikhs had left when they came to India, the whole question of Muslims coming back was seen as taking away what the already marginalized Hindus and Sikhs who came from Pakistan were going to get. So therefore it became almost impossible for the Government to actually be seen to be giving permits to people, only a few thousand were likely to return. When this was debated in the context of Article 7 of the Constitution, Nehru made a very strong point about how we can’t discriminate between Muslims who have chosen to leave in situations that were not of their volition. But he also says – and this was the way in which he tries to assuage the ‘costs’ of Muslims coming back – that only a few thousand are likely to return, and they’re ensuring  that the procedure for getting  the permit has been made extremely difficult. Now, because this was made so difficult—and not only was it made difficult, after 1951 and the Liaquat-Nehru pact the Government actually came up with a law which said that even if people are given permits for resettlement, this resettlement will not mean their property will no longer be evacuee property. So even if they come back, they are not going to get their property back. Their property is going to go into the compensation pool until an inter-governmental solution comes up; as it happens, an inter-governmental solution never came up, and the Government nationalized this property in 1957 and redistributed it. 

As we can see, what is actually happening in the period between 1947 and 1950 is that the Governments of both dominions are taking a very significant interest in the lives of minorities on both sides. The Liaquat-Nehru pact – and Amit Shah himself when he spoke of the CAA said that the Liaquat-Nehru pact is an example of this – but the Liaquat-Nehru pact is the point when this starts to break. Contrary to the discussions around CAA which state that the Liaquat-Nehru pact situated responsibility on the ‘other’ dominion, the pact actually did the opposite. A little bit of background – this pact comes in response to violence in Bengal. Throughout this time there has been very little sustained violence that happens in Bengal: in 1948 migration slowed down in Bengal, there were about 8 lakh people who moved across the border, as opposed to the Western border where 75 lakh people have moved, and this movement is continuing. In late 1949, however, there was rioting that started in East Bengal, across East Bengal, and spread to India as well. This leads to about a million and a half people moving, and the fears of a migration of the kind that happened in the West are what lead to both Nehru and Liaquat Ali Khan coming together and specifically saying that minority rights are the responsibility of their own governments: 

The Government of India and Pakistan solemnly agree that each share ensure to the minorities throughout their territory complete equality of citizenship irrespective of religion..full security in respect of life, culture, property and personal honour.

Both governments wish to emphasise that the allegiance and loyalty of the minorities is to the states to which they are citizens and that it is to the Governments of their own state that they should look for the redress of their grievances.

Now on the Eastern frontier the bulk of migration happens after the 1947-1948 cutoff dates. Migration here starts in 1946, there’s some in 1947, the situation stabilizes by late 1948, then in early 1950 all of this starts again. Economics was not as important here: since there was no exchange of populations, evacuee property norms in Bengal were very different from evacuee property norms in the rest of the country. Evacuee property in Bengal continued to be property held in trust by the state for migrants who were presumed to return, and this was not distributed to refugees. The Permit system did NOT apply in the East: the free movement of minorities was supposed to ensure a feeling of security, and as a result of that you could cross the border without a permit. The very nature of the border also, because it wasn’t properly demarcated, meant there was little policing of migrants. 

But even in Bengal, particularly in Assam, you see the refugee-migrant difference coming up in the Immigrants (Expulsion from Assam) Bill, 1950 which was enacted two months after the Constitution came into force – this was actually initially called the ‘Undesirable Immigrants (Expulsion from Assam) Bill’, the name was changed after a very complicated debate in the Provisional Parliament. Now we can see in this Bill that the Central Government has a lot of untrammelled power to order expulsion of certain immigrants:

If the Central Government is of opinion that any person or class of persons, having been ordinarily resident in any place outside India, has or have, whether before or after the commencement of this Act, come into Assam and that the stay of such person or class of persons in Assam is detrimental to the interests of the general public of India or of any section thereof or of any Scheduled Tribe in Assam, the Central Government may by order— 

(a) direct such person or class of persons to remove himself or themselves from India or Assam within such time and by such route as may be specified in the order; and 

(b) give such further directions in regard to his or their removal from India or Assam as it may consider necessary or expedient: 

Provided that nothing in this section shall apply to any person who on account of civil disturbances or the fear of such disturbances in any area now forming part of Pakistan has been displaced from or has left his place of residence in such area and who has been subsequently residing in Assam.’

This is to do with migrants, and the proviso very clearly says that this doesn’t apply to refugees. What we should think about is how similar this language and this provision is to the raison d’être of the CAA 2019. When this was discussed in the Provisional Parliament, the religious difference was very clear. It was very clear for everybody talking about the bill that reference to outside of India was only construed as Pakistan, and that too East Bengal. There were two lakh Nepali people working in tea gardens in Assam, but because they were told they were in language and religion akin to our people, this would not apply to them. That’s interesting because while Bengali and Assamese are undoubtedly different languages, Bengali, Assamese, and Nepali are also different languages. So it’s not a question of language but merely a question of religion. Now this had again emerged out of a similar fear as the return of migrants across the western border, and this will come out of this fear of Muslim migration in Assam that preceded the Partition of India, and the movement of lakhs of ‘undesirable immigrants’ (Sardar B. S. Mann, from West Punjab) who are likely to be a source of ‘separatism…with the old League mentality and outlook’ (Biswanath Das, Parliamentary Debates 08.02.1950). And these people, Muslim Bengalis, are viewed as coming with a ‘careful and calculated intent…to a country over which they have not the least claim after Partition’. Look at the language here – now ‘all those who emigrated on account of civil disturbances, are only to be construed as non-Muslims’, as ‘those who have no place in Pakistan and are thrown out mercilessly’, again this trope of the violent Pakistani populace against Hindus and Sikhs.

In conclusion, I’m going to summarize what the main argument of both the pieces we discussed were. The first, by Niraja Jayal, is that the initial definition of citizenship has been understood to be predicated on jus soli with ‘domicile and descent complementing rather than undermining citizenship based on birth in BOTH India and Pakistan, but that has changed over time to take more elements of jus sanguinis. Joya Chatterji takes a broader picture, looks at the Indian diaspora, and argues that not only did India and Pakistan move away from jus soli, they also moved away from conventional jus sanguinis, to prevent undesirables who formed part of the diaspora from returning to India. What I actually think is significant over here is the idea that there hasn’t been a movement towards jus sanguinis as such but there’s always been this underlying current. I wanted to think about what this means in the context of citizenship in India, and what this means in the context of constitutional guarantees of equal citizenship and secularism.

Interview with Ravi Hemadri

Ravi Hemadri is Founder and Head of Development and Justice Initiative (‘DAJI’), a public charitable trust working on issues of justice, human rights, and dignity for marginalized communities, with a particular focus on urban migrant workers, refugees, internally displaced people, stateless persons, and Indigenous peoples. He has over two decades of experience in research and advocacy on the rights of Adivasis, Dalits, women, migrants, and refugees. He was also one of the advisors on the Securing Citizenship report.

The following questions were formulated with the help of Devashri Mishra and Aashish Yadav. This interview was conducted over an audio call and has been edited for length and clarity. 

Arunima Nair: What is the situation of the Rohingya refugees in India, and the socio-economic deprivations that they are faced with? How have they been affected due to the Covid-19 pandemic?

Ravi Hemadri: My organization DAJI has worked with the Rohingya since 2012, and has conducted mapping exercises with the UN High Commissioner for Refugees (‘UNHCR’) including on child protection issues etc. We’ve also conducted research with other agencies such as the Danish Refugee Council and the Asia-Pacific Refugee Rights Network. As part of this network and the Statelessness Network Asia Pacific (‘SNAP’), we’re also aware of situation of the Rohingya in Myanmar, Malaysia, Bangladesh etc.

In India, the Rohingya are the worst off among all other refugee groups. They are under UNHCR protection and care, unlike the Sri Lankans and Tibetans who are given refugee cards directly by the Home Ministry. Typically all other categories of refugees—like the Afghans and all the Myanmar refugees—fall under the ambit of the UNHCR. These categories of refugees have a precarious legal status, because UNHCR cards have uncertain legal validity. These cards are accepted by the law enforcement agencies as a customary practice. The UNHCR card gives some protection against detention since it’s a UN issued card. However, in the context of the 2017 campaign launched against the Rohingya in Jammu and other places, a junior Minister in the MHA stated on the record that UNHCR cards are not valid. That puts the Rohingya and other refugees under the mandate of UNHCR in a very precarious situation. Initially, when the whole Aadhaar scheme was launched, it was for all residents including foreigners (i.e. any foreigner who had continuously stayed in India for 180 days) which was a good start – several refugees did get Aadhaar cards, but then the Police took away the Aadhaar cards that many refugees had in 2017. The Government also has the Long Term Visa (‘LTV’) facility – anyone who has stayed in the country for a long time can get an LTV, and several Rohingya had also got LTVs in Hyderabad, Delhi, Jaipur etc., but a huge issue was created in Parliament along with the 2017 campaign against them in Jammu etc., and then the Government stopped issuing LTVs to Rohingyas.

AN: Is this lack of legal validity of UNHCR cards common across South Asia – presumably stemming from the fact that no country in South Asia has signed any refugee or statelessness conventions?

RH: The Rohingya are also the least skilled of all refugee groups who’ve come into India. The Afghans, for example, are comparatively better-educated and better skilled, with many engineers, doctors etc. among them. The Rohingya as the least educated and least skilled need the most support, but they have the least support from the Government. The UNHCR operates in India under a wider mandate between the Government of India and the United Nations Development Program (‘UNDP’). The only formal collaboration the UNHCR has with the Government is with respect to the repatriation of Sri Lankan refugees to Sri Lanka. UNHCR India facilitates the repatriation of refugees to Sri Lanka.

The term refugee is undefined in Indian law – they are treated as any foreigner, they’re also subject to detention when they enter India ‘illegally’ in West Bengal, Assam, Manipur etc. At least 300 Rohingya are in detention, including 70 children in these border states.

AN: Are the children separated from their families?

RH: As far as I know, till the age of 6, they’re allowed to be with their mothers, after that the boys are separated and sent to children’s homes and the girls are allowed to remain with their mothers up till 10 years. So a lot of children are separated—when they migrate across the border, many times those who are able to cross into India and those who are detained are fragmented families. Once they reach Delhi and get the refugee card, they are relatively safe from detention, but if caught in these border states, particularly without valid UNHCR cards, they are detained.

Since Rohingya are traditionally farmers, cultivators fisherman etc. in Myanmar, they don’t have any urban skills, and so most of them go to professions requiring the least skill, which is picking up recyclable waste in cities – 70% of Rohingyas in India are involved in rag picking. Because of that their income levels are very low. In Jammu, several used to work in cinema theatres, hotels, pharmacies etc. – but since the misinformation campaign started, these establishments started asking for Aadhaar cards etc., so they lost this kind of semi-formal employment. So definitely, the precarious legal status of all refugees, coupled with xenophobia particularly in the case of the Rohingya, have a deep impact on their socio-economic condition.

In COVID-19, they have been severely impacted in a similar way to other migrant workers – in the sense that they lost their jobs due to the strict imposition of lockdown, with no way of finding alternate employment, and in general as has happened with all workers, the employers have taken this opportunity to cut down salaries. In the Tablighi Jamaat incident in April, some Rohingya refugees from Mewat were part of the congregation. Some four of them were arrested and put in isolation for a month.

The Rohingya community in Myanmar has dispersed all across Asia and South-East Asia. You are right when you say that in South Asia and South-East Asia, except for Afghanistan, none have signed the refugee conventions.

India’s policy has always been ad-hoc: it has changed based on the diplomatic relations between the country of origin and India. When the whole student uprising started in Myanmar against the military in 1988, India gave the International Award to Aung San Suu Kyi. 1988 was when the Burmese activists started coming to India and taking refuge, there were camps set up to receive them in Mizoram etc. That slowly faded as relations between India and Myanmar grew, both economic and military. Even with the Rohingya, initially they gained visibility since 2012, when they put up a demonstration, because prior to that they were only being given asylum seeker cards and not refugee cards. Questions were raised in Parliament over why, since India has had refugees from Myanmar since 1988, Buddhists and Christians and so on were all given refugee cards, but Muslim refugees were not. After that they started recognizing getting refugee cards. There was absolutely no problem even in Jammu, but suddenly in 2017 political issues were raised at the local level. In 2017 the then Chief Minister of J&K gave a written reply in Parliament that there is no radicalization threat from the Rohingya settled in Jammu and Kashmir. Since 2017, we’ve only seen more xenophobia against the Rohingya.

AN: The Securing Citizenship report recommends that the Indian state must recognise stateless persons formally and issue identity certificates. These certificates will guarantee them legal personhood and the full gamut of rights until they are granted citizenship. The Ministry of External Affairs is empowered to grant identity certificates under the Passports Act, 1967 and the Passport Rules, 1980. Do you believe that this recommendation, as an interim measure, can combat discriminatory treatment in part?

RH: In the context of cases like Sheikh Abdul Aziz case (W.P. (Crl.) 1426/2013, Delhi High Court), where the person first said he in Bangladeshi, and Bangladesh refused, then he said Saudi Arabia, and Saudi also refused, in cases like this where he was very clearly a foreigner, this measure may work. Similarly with refugees, who are clearly foreigners from another country.

I don’t think the time is ripe for any solution of this kind in Assam specifically. When the NRC was finalized in August last year and there was a lot of international outcry there is a statement by the Government on the PIB website stating that there will be options available to persons excluded from the NRC and they will have to appeal their exclusion before the Foreigners Tribunals (‘FTs’). So that remains the official position, and this process has still not started even over a year since the NRC was published, despite appointing members to over 200 new FTs which have been established. Now they’re talking about re-verification in certain districts. It doesn’t seem that the Government is seeking any solutions at this stage. Our concern should be with the FTs, whether they’re appropriate platforms for the excluded to seek justice and inclusion in the NRC. I find it problematic to imply that the MEA will grant stateless certificates to such persons; the people will not accept it. Many Bengali Hindus I know are not happy with the CAA. Look at the irony – a person has been in Assam for decades, even if they came in 1971 they have been here for 50 years, yet to secure citizenship through the CAA, the Bengali Hindus, Buddhists etc. who have been excluded from the NRC will first have to admit that they entered India illegally! So it’s very ironic and insulting for someone who has been in the country for 60 years, even those whose lineages have been in Assam for 200 years, to call themselves ‘illegal migrants’ first. And we know how the smallest spelling mistakes or discrepancies have excluded people from the NRC.

No refugee is asking for Indian citizenship, except for the Sikhs and Hindus who have arrived from Afghanistan. Unfortunately the CAA is a political project – because the naturalization avenue has always been available, yet lots of Sikh and Hindu refugee families from Afghanistan, who came to India in the 1980s and they still haven’t got Indian citizenship! Recent news featured stories of Hindu refugees who came from Pakistan to Rajasthan, a lot of them have gone back! 11 refugees committed mass suicide. The problem in giving citizenship to these refugees from Afghanistan/Pakistan is more of a procedural problem as the law had always existed. The CAA doesn’t solve issues of refugees, even if we go by these three countries and these six particular communities that the Government has identified, they are not getting citizenship. It is extremely difficult and lengthy process that involves a lot of scrutiny. There’s a lot of corruption – every application of Pakistani and Afghanistani Hindus and Sikhs goes to all kinds of agencies – the Intelligence Bureau (‘IB’), Research & Analysis Wing (‘RAW’) etc. – each of which has to approve. There has been one case from a Bheel family who came 2-3 years ago whose application was rejected, they appealed to the Rajasthan High Court, which passed an order stating that their application should be considered, but by the time the order was passed they’d reached the Wagah border, and a woman of the family had died!

In the case of Assam, we are talking about resident populations, who have inter-generational relationship to Assam. It’s completely unjust, unfair, and completely violative of all international commitments to deem them illegal migrants. I see the problem more as an underlying ethnic tension between two communities, which manifests in the form of anti-foreigner movement. The Government has to admit that what is happening is wrong, only then can we move on to solutions.

AN: The report further recommends a path to citizenship for all stateless individuals in India keeping in mind India’s duty to prevent and reduce statelessness and to operationalise the right to nationality of such individuals. Do you think this recommendation can prove effective and model a path forward?

RH: One of the latest developments re: the Rohingya is that Myanmar has offered to take back people BORN in Myanmar. But then what will happen to children born in India, Bangladesh, Malaysia, Indonesia etc.? It becomes a very protracted situation. Myanmar has consistently refused to take back the Rohingya, even from Bangladesh. It is something that is going to be around for many years to come. There will have to be an international effort to come up with a solution to this. Otherwise, as we have seen, the Rohingya have become a floating population, risking lives, traveling on mechanized boats. The men keep moving across borders all the time; women and children are trafficked. This undocumented movement is then a threat to regional security. Therefore, populations like the Rohingya will have to be documented, they will have to be given some status in whichever country they are in, and they will have to be resettled internationally. This requires an international solution to the Rohingya issue. The Rohingya are stateless persons; since they are stateless, it is the responsibility of the India or whichever other country they are in to take them, give them residence, give them documents etc.

AN: You have worked with individuals who have been excluded from the National Register of Citizens (‘NRC’) in Assam, in an effort to legally empower them. Can you tell us about the ground realities of the current proposal of re-verification of the NRC? What role should civil society play to assist those facing uncertainty regarding their citizenship status in Assam?

RH: What happened in 2019, almost 2 million were excluded, and 120,000 declared foreigners by FTs so the situation was already bad. This re-verification exercise is going from bad to worse. Many Assamese parties, CSOs, and student bodies want numbers of exclusions to increase; as per media reports in Assam, the percentage of exclusions in Bangladesh-bordering districts is low. What will happen is that those who have been excluded from NRC and declared foreigners will be excluded from other rights and services.

We have recently done research of COVID exclusions in Assam, which will come out at the end of this month. We have noticed that already there is some exclusion from PDS, ration cards have been cancelled of some of those who have been declared foreigners, we have evidence from one district of a letter asking cards to be cancelled. A lot of people in Guwahati city people who were looking like they were from the border districts were not given the food rations. Another is land registration law, where there seems to be some new developments . What we thus fear is that there will be more and more marginalization and exclusion from rights and services. Such persons may lose freedom to travel freely in the country: we have seen how vigilante groups in states bordering Assam put up barricades on borders asking for NRC inclusion papers. So formally or informally they will be excluded and denied a lot of rights and services and freedoms.

 So civil society has two roles to play: first in highlighting citizenship by legally empowering communities to support them in fighting their cases before FTs, and the second is supporting them in securing access to services, and participation in local government. What may happen is that 2-5 years down the line the Assam Government may say that you require NRC inclusion to fight Panchayat elections. Unless a stop is put to this madness, the madness will go on advancing. If at all this crisis gets resolved, it’ll take many years; if it doesn’t get resolved, it will be very unfortunate and will become another Rohingya-like situation – the population will go footloose, there could be mass violence, and it will be a threat to regional stability and peace. It’s easy to target persons who aren’t considered citizens: even attacks on Rohingyas are because the attackers know they can get away with it with no repercussions.

AN: The Securing Citizenship report calls such persons precarious citizens since they are facing the threat of arbitrary deprivation of their Indian nationality. The Securing Citizenship report recommends that India must affirm the citizenship of precarious citizens in Assam who have been rendered vulnerable from the operation of the NRC and the Foreigners Tribunals (‘FTs’). Drawing on your previous work, do you think this recommendation is viable? What could be the possible challenges in its implementation?

RH: Absolutely, they should be treated as Indian citizens. One of the problems with FTs and the entire process is that the benefit of the doubt is not given to the applicant. So the smallest discrepancies in names, dates, locations etc. are treated as enough grounds to exclude someone or declare them as foreigners. One of the things about Assam is that it’s an ecologically sensitive region: lots of flooding, lots of shifting river basins and islands coming up and disappearing, so people shift a lot. So people have shifted a lot, according to one report 140 villages have disappeared in Assam in last 20 years. I have with me FT orders where for reason of shifting locations, people have been considered to be migrants from Bangladesh and declared foreigners. The exclusion is a political project – the members are required to declare a certain number as foreigners, they’ve been given a quota.

On the one hand, if someone says they’re stateless, people will argue that you can’t say that as they all have the option of going to the High Court. The question is how many can even go to the HC? Secondly, if there is still an option open for appeal, why detain people? Not only should they be considered citizens, they should not be detained. Even if FTs have to exist, there has to be a complete overhaul of the system, there are too many procedural problems, there is too much political interference in terms of appointment of members etc. There has been controversy over this: there is a case of some members who went to the Gauhati High Court over their non-continuation as FT members, there he has clearly alleged that his appointment was discontinued because of low level of declaring people foreigners (Sri Kartik Chandra Roy & Ors. v State of Assam W.P. (C) No. 4868/2017).

AN: The Securing Citizenship report recommends that the National Human Rights Commission (NHRC) and State Human Rights Commissions (SHRCs) must be further empowered to function akin to an Ombudsman to tackle discrimination faced by vulnerable groups such as stateless persons. Do you agree with this recommendation?

RH: SHRC is in disarray in Assam, it is not functional at all as far as I know. The last time I went there the office was closed for no reason. One of the issues however is that FT decisions are often upheld by the High Court, the High Court is in a way validating the arbitrariness. HRCs should look at procedures and appointment of members, which is a responsibility that the HC has.

AN: But with HRCs as they currently exist, there is little they can do to have their recommendations enforced, right? The most they can do is serve show cause notices to the government or release a set of recommendations, which the government can very easily choose not to comply with.

RH: Yes, that’s correct. The High Courts have the responsibility to look at procedures because of this lack of enforcement on the part of the HRCs. There’s just too much arbitrariness in the process.  

AN: In your opinion, how can awareness and research around statelessness be foregrounded in human rights discourse by civil society and academia? Accordingly, how can we effectively use the Report in such advocacy efforts in India?

RH: There are certainly increasingly internationally many people being excluded from citizenship. Lots of Governments are using this to exclude minorities from citizenship. People also need to understand the link between rights and citizenship – we’ve seen in this country how communities have been deprived of rights, resources. Their land has been taken away, their water and air have been polluted. Resources are being taken away, we have a history of the state denying resources to people. I see citizenship deprivation as a continuation of the same policy of depriving people of natural resources. Other rights groups like farmers, women, Dalits etc. need to understand that this is one way through which the Government is trying to control the population.

AN: How would you respond to the counters that the issue in Assam, and the necessity of the NRC exercise, flaws and all, are in order to protect indigenous Assamese lands and cultures from historical encroachment and movement of non-indigenous persons, and that Assam has borne the brunt in terms of shrinking resources due to the waves of illegal migration by virtue of being a border state?

RH: This is certainly an issue to be considered: the protection of indigenous populations. However, Assam is no Tripura: the Assamese elite are not the same as Tripura’s indigenous people. In Tripura in the course of 70 years, the tribals were 70% in 1950 or so, now they’re 30%, the proportions between indigenous and non-indigenous populations has completely reversed. This is what happened in Tripura, which is highly problematic. This isn’t the case in Assam. In Government jobs, trade, industry etc., while trade has more Marwaris, in Government jobs you’ll hardly find any Bengalis. Even this spectre of large-scale illegal economic migration is suspect. Bangladesh’s economic situation is much better than in Assam, and the fishing and leather industries are thriving, so why should there be economic migration in Assam? There are some refugee flows of Buddhists happening, but not large-scale migration. While I agree that land should be protected as in Meghalaya and Himachal Pradesh, the bogey of illegal migration and targeting minorities as ‘illegal foreigners’ is not the solution. Depriving people of citizenship will be counterproductive to India’s objectives of peace, development and justice.

Citizenship and the Eastern Partition

This is a guest post by Malavika Prasad. She is an advocate and doctoral fellow at the NALSAR University of Law. She has served as an advocate in the Supreme Court of India and other courts. Presently, she is also a senior editor at Law and Other Things.

 “For most people who live alongside it, the border between India and Bangladesh is a chimera.”

– Urvashi Butalia[*]

On the day the Indian republic came into being, one could be an Indian citizen in two key ways. Those with domicile in free India were eligible for citizenship if born in free India, or to Indian parents, or if ordinarily resident in territory that was now Indian in the past five years.[1]  Those without domicile in free India, being ordinarily resident outside British India and the princely states,[2] could be citizens if they had a connection to India by birth.[3]

However, Partition had created a third category of people: those who lacked Indian domicile despite being linked to British India by birth and residence because their permanent homes were now in Pakistan. For them, the Constitution made an exception from the general rule. If they came to India before 19 July 1948, they had to have resided in India since their arrival to establish an intention to be an Indian citizen. If they came to India after 19 July 1948, or had gone to Pakistan and sought to return to India on permits for resettlement or permanent return, registration as a citizen after a minimum of six months’ stay in India was necessary.[4]

These provisions betray no consideration of the unique circumstances of Partition on the East. This piece is a brief exploration of how this came to be. Closely reading these debates reveals that the citizenship crisis of the East is a crisis that was incipient and looming even when the Constitution was framed.

Histories of Eastern Migration

The Boundary Commission drew the border between India and Pakistan over just a few weeks, both in the West and the East.  Helmed by an Englishman, Sir Cyril Radcliffe (whose ignorance of the soon-to-be borderlands was taken to be a guarantee of impartiality), the top-down partition of India was unmindful of the social histories of migration in Eastern India.

After the British annexed Assam in 1826, they acquired land on a large scale by displacing locals to run tea, jute, oil and other enterprises.[5] Tea workers were recruited from Jharkhand, Chhattisgarh and other regions[6] and settled in Assam.[7] These labourers were deliberately isolated from the locals at the behest of the tea industry management.[8] Likewise, the low-lying floodplains of the Brahmaputra were used for cultivation of jute, for which the settlement of East Bengali peasants was encouraged.[9] The peasants moved upstream along the Brahmaputra and eastwards into Assam from eastern Bengal in such large numbers that they outnumbered the locals.[10] As social networks in the region grew, (largely Muslim) migrant labourers started coming on their own[11] and did not face resistance till the last two decades of colonial rule.[12]

With the evolution of transportation technology towards achieving “imperatives of the empire” such as “security, profit, and cheap but safe governance”, movement of labour became easier.[13] Much of the highly localized migration was ecologically determined by the Ganga and Brahmaputra rivers flooding fields or swallowing up islands[14] as they cut new courses to the sea[15] — a phenomenon that continues to determine micro-migration to the present day.[16] The economic depression and the Second World War only heightened the desperation of these labourers as well as the need for labour.[17]Of course, white-collar migration for administrative and clerical jobs serving the Raj also commenced over time, with large numbers of Hindu Bengalis heading to Orissa, Bihar, Bombay, United Provinces, the Punjab, and Assam.[18]

To give you a sense of the numbers, by 1931, scholars note that“…6 million persons had moved within and from the greater Bengal region, a number already twice as large as the entire Indian diaspora worldwide  in 1947 and almost twice the size of the Chinese diaspora in the USA in 2010.[19] By 1931, the Bengali-speaking population in Assam was double the number of Assamese-speaking persons.[20] In Tripura alone, scholars have noted that the indigenous tribes had stopped being a “decisive majority” on the eve of partition due to Bengali migration.[21] Given their huge socioeconomic and cultural consequences,[22] these migrations cannot be overlooked merely because international borders were not crossed.[23] Moreover, this internal migration with a five decade history was suddenly transformed into an international one when the eastern border was drawn.[24]

Impact of the Eastern Partition  

Dominant narratives of the eastern partition focus only on linguistic and religious identities of migrants and refugees. However, even wherethe border did indeed separateBengali majority areas from others(such as in Tripura and Assam)“…it was often a case of Bengalis (both Muslims and Hindus) on one side and non-Bengali Christians or Buddhists on the other…[25]

Further examination also reveals the caste, class, and gendered impacts of the eastern Partition. For instance, in West Bengal, the first to arrive were upper caste and upper and middle class Hindus of East Bengal. Dalit refugees came only after the riots of 1949 and 1950.[26]

The landed and middle class were motivated by the fear of violence, the loss of social status, and the feeling that they may be better off in a land of ‘their own people’. On the other hand, the peasant class only moved when faced with “extreme violence or …intolerable hardship”, such as in the communal violence in 1949 and 1950.[27] While peasants were three quarters of the Hindu population of East Bengal, they were only forty percent of the Hindu refugees in West Bengal.[28] 

Among upper caste refugees, women occupied a position of “power and powerlessness in a national context.”[29] In public imagery, they were depicted in the public sphere,[30] which led to a narrative of agency. However, many such women were actually thrust into land grabbing for squatting, and later, into (sometimes violent) political agitations against eviction.[31]

In literature, the squalor in the Sealdah station – as refugees awaited allocation to a government refugee camp – forms the turning point for upper caste women getting into politics. However, Sealdah is barely a footnote in the ‘legacies of vulnerability’ inherited by the Dalit women refugee.[32] While upper caste women could rebuild their lives and look back upon the trauma of refugeehood, Dalit women refugees were consigned to a refugeehood that continues to the present day.[33] While upper caste women entering the labour market was seen as a “feminist triumph”,[34] Dalit women – having always been involved in wage labour – continued to do so post Partition, only without the family as a support system in their second full shift of domestic labour.[35]

Rehabilitation schemes entailing land and loans was implicitly designed for the able-bodied male refugee. For “unattached” women, rehabilitation came only in the form of training for (gendered and often low-paying) vocations, with the aim of keeping them occupied.[36] By 1957, when a comprehensive rehabilitation policy was introduced, women stood marginalized – along with families that lacked able-bodied men.[37] They were seen as economically non-productive, perennially dependent, and unworthy of rehabilitation but in need of relief.[38] Thus, the right to a social identity was taken away from women refugees who were not “attached” to a heteropatriarchal family of some type.

Outside of Bengal, the binaries of religion (which were particularly nationalistic) and language (which privileged the border between East and West Bengal where “non-Muslim” did indeed overwhelmingly mean “Hindus”) gave way to a deeper complexity along ethnic lines.[39] For instance, the border sliced through Garo[40] and Rakhaing communities and their trade and solidarity networks. Yet, the terms on which Partition was executed, flattened the vocabulary for these gender, ethnic, caste, and class contexts into the simplistic and reductive categories of linguistic and religious identity. This oversimplification of the communities of the Eastern border continues in popular discourse to the present day.

The Resulting Citizenship Question

When citizenship was debated in the Constituent Assembly, the eastern border and its communities as well as the many histories of migration prior to Partition, barely came up. In fact, the migration in the West almost exclusively fed the concept of citizenship that was encoded into the Constitution.[41] The reason the Assembly was so preoccupied with the refugee crisis on the Western border was that it was seen as intractable, unlike that on the East.

The consensus between the two dominions at the time had been to refrain from exchanging their minority populations, except in Punjab.[42] They had arranged instead to maintain reciprocity[43] — in that each nation would treat its religious minority in the same way as the other would treat its minority, while the borders would remain porous.[44] However, the commitment to reciprocity started breaking down as the Indian government decided to aid the evacuation of Sikhs and Hindus from Sind in the wake of the January 1948 Karachi riots.[45] Soon after, the border came to be regulated through the permit system, to tackle what was perceived to be a “one way traffic” to India – of Muslims.[46]The heavy handed enforcement of the permit system[47] was seen as necessary because of the economic consideration of how to rehabilitate returning Muslims who had once fled India; their homes had already been allotted, under evacuee property laws, to Hindu and Sikh refugees who came in from Pakistan.[48]

In comparison, no permit policy was introduced to regulate the Eastern migration. Since there were significant economic interests at stake for West Bengal in permitting continued migration,[49] it was hoped that the reciprocity arrangements would persuade “migrants to stay in place.”[50] When refugees continued to pour in nevertheless, the political leadership viewed the influx as fundamentally reversible.[51] Thus, the Eastern migration fell by the wayside of the Constituent Assembly’s attention.[52]

The limited context in which the Eastern migration was considered in the Assembly was at the behest of R K Chaudhury, for two classes of people. First were the migrants from East Bengal who had come to West Bengal or Assam “out of fear of disturbance in the future or from a sense of insecurity”.[53] The second were those who belonged to Sylhet[54] when it was a part of Assam, and thus continued to reside in Assam even after Sylhet was partitioned and restored to East Bengal. The partition of Sylhet caused mass migrations of Sylhet’s Bengali Hindus[55] – who probably feared violence or unsettled livelihoods – to the Barak valley[56] and the princely state of Tripura.[57] Those who remained in Assam, Chaudhary pointed out, could not now be expected to return to East Bengal, even if their reasons for being in Assam to begin with were business or government employment.[58]

Sylheti workers, no doubt, were being cut off from Assam’s tea gardens as well as Calcutta’s merchant marine as they were viewed as “Pakistani” after Partition.[59] However, Chaudhury’s centering of Sylhet reveals a concern for only a particular demographic, of the many whose lives were upended by Partition. To put it plainly, he had no interest in enfranchising recent Muslim migrants to Assam.[60] In his view, at least some Muslims were being settled there by the Muslim League to shore up the state’s Muslim population (perhaps with the aim of having the entirety of Assam be assigned to East Bengal in partition[61]). Despite his advocacy, the framers of the Constitution were committed to the secular and universally framed citizenship provisions[62] even if they opened the door for a free-for-all migration to Assam.

The Looming Citizenship Crisis

The Constitution’s citizenship provisions came into effect on 26 November 1949. The eastern border came to be regulated by the passport system only in 1952.[63]

Migration, which was otherwise unremarkable in the Bengal delta, had become galvanised by Partition into a continuous process; displacement was now “an inescapable part of [their] reality”.[64]  In West Bengal alone, about 20-30 lakh refugees from East Bengal had settled there per the 1951 and 1961 census.[65] By July 1958, the state government decided it would house no more refugees in the state,[66] and forcibly movedthem – an overwhelming number of whom were Dalit – to camps in (non arable, non irrigated) lands outside the state.[67] Tripura saw about 5 lakh partition-refugees from East Bengal between 1947-1958; after suffering significant impacts on its local cultivation, land use and demographic patterns, the registration of refugees was stopped.[68] In Assam, members in the Lok Sabha contended that “that as many as 4 ½ lakhs of Muslims … [had] crossed the border … after the attainment of Independence.”[69] To allay old concerns about the exploitation of Assam, Parliament passed the Immigrants (Expulsion from Assam) Act  in 1950.[70]

When Parliament was considering the Citizenship Bill in 1955, the long-drawn migration induced by partition was yet to unfold. Once again, there were proposals to treat Hindu and Muslim refugees differentially in the citizenship law;[71] once again, the framers of the Act declined to do so. All refugees from Partition were eligible to be Indian citizens through a single secular, and neutrally applicable provision. They would have to register themselves as citizens under Section 5 of the Act. Tellingly, the law permitted citizenship by descent only through the male line – in keeping with the State’s apathy towards unattached women.

By the 1970s, the numbers of refugees in West Bengal had doubled to about 60 lakhs.[72] The mass movement of refugees into India[73] triggered by the Bangladesh liberation war in 1971 only aggravated the migration crisis.[74] Tripura’s tribals turned into a minority.[75] In Assam, a new crisis was brewing.

It was claimed that the influx of refugees had resulted in about 31 to 34% of the State’s population (about 50 lakh persons per the 1971 Census) being “foreigners”, and that a substantial number of them were even on the electoral rolls.[76] Championing this claim was the All Assam Students Union. Their agitation culminated in 1985 in the signing of the Assam Accord[77] – a political rapprochement between the central government and the Union stipulating that “a) all those who had migrated before 1966 would be treated as citizens; (b) those who had migrated between 1966 and 1971 could stay provided they put themselves through an official process of registration as foreigners; and (c) all those who migrated thereafter were simply illegal immigrants.”[78] Thus was born the 1985 amendment to the Citizenship Act by which the Indian citizen was defined in opposition to a “foreigner”.[79]

The Incipient and Looming Citizenship Crisis

A “foreigner” under the Foreigners Act, 1946 is “a person who is not a citizen of India”.[80] For this definition to be meaningful, the citizen needs to have a fixed meaning – with citizenship being tethered to the fact of birth or domicile. Only then can its photo-negative be the foreigner.

However, the top-down imposition of the Eastern border onto the many histories of migration in the region, at once transformed those who were once Indian into “foreigners”. Moreover, the many caste, gender, class, and ethnic impacts of Partition were papered over by the dominant political narratives on religious and linguistic lines. Ultimately, it was those who were rendered foreigners – by the creation of the Indian state and its dominant political narratives – that were sought to be kept out by the 1985 amendment.

This raises a question that ought to cause alarm. With the 1985 amendment, the existence of the foreigner constitutes and informs the definition of the citizen.[81] It appears then that the citizen in India, far from being a fixed and pre-defined entity, can be reified only in relation to the foreigner. If the citizen can be only understood informed by the foreigner, and the foreigner is inherently politically contingent, who really is an Indian citizen?


[*] Urvashi Butalia, The Nowhere People, Seminar 2003.

[1] Article 5 of the Constitution.

[2] Articles 6 and 7, as well as Article 8, use as their reference point, “India as defined in the Government of India Act, 1935 (as originally enacted)…”, which includes both British India as well as the princely states. See Section 311(1) of the Government of India Act, 1935: ““India” means British India together with all territories of any Indian Ruler under the suzerainty of His Majesty, all territories under the suzerainty of such an Indian Ruler, the tribal areas, and any other territories which His Majesty in Council may, from time to time, after ascertaining the views of the Federal Government and the Federal Legislature, declare to be part of India.”

[3] That is, they had to be born in British India or the princely states (or to parents or grandparents who were born there) and register themselves in the Indian consulate, signaling their intention to be Indian. See Article 8 of the Constitution..

[4] Articles 6 and 7 of the Constitution of India.

[5] Walter Fernandes, IMDT Act and Immigration in North-Eastern India, The Economic and Political Weekly, Vol. 40(30) 3237-3240, 3239. Fernandes notes that tribal lands inherently were “community owned according to tribal customary law” while mainstream Indian laws recognized land as a private property right. Thus, the “disjunction between the systems” made the land susceptible to easy encroachment by immigrants whose only transferable skill was cultivation. Immigration, in Fernandes’ thesis, must be understood for the deeply economic issue it is, rather than being flattened into an ethnic or linguistic issue. Of the colonial project of dispossessing the indigenous communities of their land, Sanjib Baruah writes“…There were frequent attacks on the plantations by “tribesmen” protesting their dispossession during the early years of tea in Assam. Colonial writings portrayed them as marauding barbarians. The Inner Line… was an attempt to fence off the plantations and cordon off areas of clear, cemented colonial rule.” Sanjib Baruah, In the Name of the Nation: India and its Northeast (Stanford University Press, 2020), 31;

[6] The tea industry was “built on indentured labour from Jharkhand, Chhattisgarh and other regions where the Permanent Settlement 1793 and the zamindari system had displaced people on a large scale”, writes Fernandes. Walter Fernandes, 3239.

[7] Sanjib Baruah(2020), 50 (footnotes omitted).

[8] Walter Fernandes, 3239.

[9] Sanjib Baruah (2020), 50.

[10] Claire Alexander, Joya Chatterji, Annu Jalais, The Bengal Diaspora Rethinking Muslim Migration, 39-40 (Routledge 2015). See also Mohammed Mahbubar Rahman and Willem van Schendel, I am Not a Refugee, Rethinking Partition Migration, Modern Asian Studies 37(3), 551-584, 582 fn71.

[11] Amalendu Guha records that in the first half of the 20th century, 85% of the landless immigrants from East Bengal to Assam alone were Muslim, despite the “line system” implemented to regulate the in-bound migrant communities, which changed the face of Assamese politics significantly. See generally Amalendu Guha, East Bengal Immigrants and Maulana Abdul Hamid Khan Bhasani in Assam Politics, 1928-47, The Indian Economic & Social History Review13(4), 419–452. These Muslims of the Brahmaputra valley went on to adopt Assamese as their first language. Sanjib Baruah (2020) 53-54.

[12] Sanjib Baruah (2020) 50-51.

[13] Alexander, Chatterji and Jalais 26.

[14] See Alexander, Chatterji and Jalais, The Bengal Diaspora, 64-66, on mobile agriculturists from Malda and Chapai who routinely ‘lost their land to the river’, lived in bamboo huts that can be assembled and disassembled with ease, and capitalized on their years of acquired “mobility capital” to migrate after partition being “remarkably free of any ideological baggage committing them particularly to a nation, whether Pakistan, India, or Bangladesh.”

[15] Ibid.

[16] Rohini Mohan, Lakhs Of The Most Marginalised Women In Assam’s River Islands Risk Becoming Stateless, Huffington Post, 7 August 2018

[17] Alexander, Chatterji and Jalais, 39-40.

[18] Alexander, Chatterji and Jalais, 32; Sanjib Baruah (2020), 51; Thongkholal Haokip, Inter Ethnic Relations in Meghalaya, Asian Ethnicity 15(3) (2014): 302-316, 305.

[19] Alexander, Chatterji and Jalais, 28 (footnotes omitted).

[20] Navine Murshid, Assam and the Foreigner Within, Asian Survey 56(3) 581-604, 599.

[21] Subir Bhaumik, Disaster in Tripura, Seminar 2002,, citing H.L. Chatterji, ‘Glimpses of Tripura’s History’, Tripura Review, 15 August 1972.

[22] See Madhumita Sengupta, Historiography of the Formation of Assamese Identity A Review, Peace and Democracy in South Asia, Volume 2, 121-34 for a review of the literature on the consequences in Assam; Udayon Misra, Immigration and Identity Transformation in Assam, Economic and Political Weekly, Vol. 34(21) (May 22-28, 1999), pp. 1264-1271.

[23] See generally, chapter 1 “Prehistories of mobility and immobility: The Bengal delta and the ‘eastern zone’ 1857-1947” in Alexander, Chatterji and Jalais.

[24] Willem van Schendel, The Bengal Borderland 192 (Anthem Press 2004) 210-211.

[25] Willem van Schendel, 47.

[26] “…Yet this was also when the refugee crisis assumed such “desperate proportions that Government officials were at a loss to find accommodation for their rehabilitation.” Dwaipayan Sen, The Decline of the Caste Question 219 (Cambridge University Press 2018); See also Sarbani Bannerjee, Different Identity Formations in Bengal Partition Narratives by Dalit Refugees, Interventions (2017), 2.

[27] See Joya Chatterji, The Spoils of Partition: Bengal and India 1947-67, 111-118 (CUP 2007). See also Uditi Sen, Spinster Prostitute or Pioneer? Images of Refugee Women in Post- Partition Calcutta 3-6(European University Institute Working Papers 2011/34).

[28] Chatterji (2007) 118.

[29] Paulomi Chakraborty, The Refugee Woman Partition of Bengal, Gender and the Political 19 (OUP 2018).

[30] Uditi Sen, 7.

[31] Uditi Sen, 10-12.

[32] Ekata Bakshi, Marginal Women A Study of Partition-induced (1947) Forced Migration through the Lens of Caste and Labour in Vijaya Rao et al. (eds.), Displacement and Citizenship: Histories and Memories of Exclusion 138 (Tulika Books 2020).

[33] Ibid, 141.

[34] Uditi Sen, Citizen Refugees Forging the Indian Nation After Partition 238-39 (CUP 2018).

[35] Ekata Bakshi, 143 – 145.

[36] See Uditi Sen, 2018, Chapter 5.

[37] Uditi Sen, 8.

[38] Uditi Sen, 2018, 210 -218.

[39] Willem van Schendel, 47-48.

[40] S K Chaube points to the Garo areas of Mymensingh and Rangpur which went to East Bengal (and border present day Meghalaya), the Khasi regions of Sylhet, and the Kuki-chin areas of the Chittagong Hill tract. See S K Chaube, Hill Politics in North-east India 85-86 (Orient Blackswan 1999).Haokip, ibid.

[41] See Abhinav Chandrachud, Secularism and the Citizenship Amendment Act, Indian Law Review, 4(2) (2020) 138-162.

[42] Vazira Fazila-Yacoobali Zamindar, The Long Partition and the Making of Modern South Asia, 39-41(Columbia University Press, 2007).

[43] The Inter Dominion Agreement, 1948 stating that both India and Pakistan “are determined to take every possible step to discourage such exodus and to create such conditions as would check mass exodus in either direction, and would encourage and facilitate as far as possible the return of evacuees to their ancestral homes.” See Pallavi Raghavan, Animosity at Bay, 60 (Harper Collins 2020). Likewise, in 1950, the Nehru-Liaqat Pact was enacted. Pallavi Raghavan finds that “this was a remarkable agreement, making the governments, for the first time, formally accountable to one another for the welfare of their minorities.” Pallavi Raghavan, The Making of South Asia’s Minorities, EPW LI(21) May 2016, 45.

[44] Zamindar 71-72; See Sardar Vallabhbhai Patel, Statement on Partition Issues Between India and Pakistan, 12 December 1947, The Constituent Assembly of India (Legislative) Debates, Official Report, Vol III, 1810,

[45] Zamindar, 53.

[46] Zamindar, 94. Through this system, those who sought to permanently relocate to India needed a permit for permanent return or a permit for resettlement. See Section 3, Influx from West Pakistan (Control) Ordinance, 1948, (Ordinance XVII of 1948), This was later superseded by the Ordinance XXXIV of 1948, with effect from 10th November 1948, which went on to be superseded by the Influx from Pakistan (Control) Act, 1949, Act no. XXIII of 1949, with effect from April 22, 1949. The Influx Ordinances did not state that there would be different kinds of permits depending on the duration of stay or the intention of the migrant – a detail that was announced through the Rules. See Rules Regarding Permit System Introduced Between West Pakistan and India, dated 7th September 1948 issued under the Influx from West Pakistan (Control) Ordinance, 1948, (last accessed on 28 April 2020).

[47] The Indian High Commission in Karachi was instructed not to issue permits to those Muslims who had initially intended to permanently migrate to Pakistan, and now sought to return. Joya Chatterji, South Asian Histories of Citizenship 1946-1970, The Historical Journal (2012) 55(4), 1049-1071, 1063.

[48] See for instance Speech of Gopalaswami Ayyangar, Constituent Assembly Debates 12 August 1949, Vol. 9.117.116-123. Hindu and Sikh refugees crossing the western border were sought to be rehabilitated, temporarily, in the homes of Muslim who fled in the wake of the September 1947 Delhi riots.What actually happened was that incoming refugees who had forcibly occupied the homes of fleeing Muslims, were allowed to keep them, thus leaving the owners of the homes unable to return to them after the riots ended. Zamindar, 28-9. Several of those who fled the riots moved to the refugee camp in Purana Qila and even boarded trains to Pakistan. Zamindar, 26-31, Zamindar writes of the camp at Purana Qila, which was taken over by the Indian Government in September 1947: “The camp at Purana Qila emerged as some 12,000 government employees who had “opted” to work for Pakistan and their families (who had initially congregated at the Transfer Office of the Pakistan government) were moved there by the Pakistani High Commission, until travel arrangements could be made for their departure to Pakistan. As word spread, other Muslims seeking refuge, with or without intentions to go to Pakistan, also came to Purana Qila, and within days over 50,000 Muslims of Delhi had taken refuge there… However, from the start it was suggested that “those in Purana Qila be separated into two lots,” those wanting to go to Pakistan and “those who wished to stay.” … the “general feeling” in the Emergency Committee was that there was “reason to believe that 90 percent wish to go out” or “would want to go to Pakistan.” Given that in fact most of the Muslims in Purana Qila did leave for Pakistan, it would seem that the estimates of the Emergency Committee were accurate. However, one report to the Emergency Committee noted that “[e]xact figures for the latter two categories [go to Pakistan or back to city] are extremely difficult—as large numbers have not as yet finally made up their minds.” See p. 34-37.

[49] Speech of Gopalaswami Ayyangar, Constituent Assembly Debates 12th August 1949, Volume 9.117.114. He went on to express a fear that any permit system may be administered in a discriminatory manner by overzealous officials: “It is said, for instance, that Assam wanted a permit system to be applied as between East Bengal and Assam. The Assam Government and the Government of India have discussed the matter between themselves. They have held more than one conference for the purpose of arriving at a solution of this trouble. And I shall not be revealing a secret if I say that at the last conference we had on this, subject, the general consensus of opinion amongst both representatives of the Government of India and the representatives of Assam was that it was not wise to introduce anything like a permit system between East Bengal and Assam on the same lines a obtain between West Pakistan and India. There are complications which perhaps it is unnecessary for me to go into in detail. One very big complication is the repercussion it will have as regards the movement of persons between East and West Bengal. Now, by permitting the extension of the, Permit system as it works between West Pakistan and India to the area between East Bengal and Assam, we shall be inviting Pakistan to introduce such a system as between East and West Bengal and I only mention this to people who are acquainted with both West Bengal and Assam for them to realize all the enormous complications, on the economy of West Bengal which it will entail. The last conference merely came to the conclusion that we should seek and apply other methods for preventing or mitigating the influx of a large number of Muslims from East Bengal to Assam …”  Raghavan writes “…[d] elegates at the Calcutta conference acknowledged that the economic viability of the region as a whole rested partly on the traditional networks of commerce and migration”. Pallavi Raghavan, The Making of South Asia’s Minorities, EPW, 45.

[50] In October 1948, some leaders met to discuss the possibility of a complete exchange of minority populations, to prevent such mass migrations from East Bengal. With alternatives like redrawing the Radcliffe line being out of question, reciprocal arrangements of accountability were the only way out.  Thus came into being the Inter Dominion Agreement, 1948 and the Nehru-Liaqat Pact, 1950. Pallavi Raghavan, EPW, 47-49.

[51] Chatterji notes the views of Prime Minister Nehru on influx of refugees on the east as,“…the product of largely imaginary fears and baseless rumours, not the consequence of palpable threats to Hindu life, limb and property.” In her words, “Long after the exodus from the east had begun, Nehru continued to delude himself that it could be halted, even reversed, provided government in Dacca could somehow be persuaded to deploy ‘psychological measures’ and restore confidence among the Hindu minorities who were leaving in droves.” Joya Chatterji (2007) 129. See also, Niraja Gopal Jayal, Citizenship and its Discontents 63 (Harvard University Press 2013).

[52] Niraja Gopal Jayal 62-68.

[53] RK Chaudhury, Constituent Assembly Debates 12 August 1949, Vol 9.117.97.

[54] Sylhet in the Surma valley was a largely Muslim, Bengali district that was contiguous to East Bengal. After being incorporated into Assam in 1874 for “colonial administrative reasons”, Sylheti Hindus desired to be reunited with the more advanced Bengal while Sylheti Muslims preferred to remain in Assam where they had “a more powerful political voice than they would have had if they returned to a Muslim majority East Bengal.” Assamese locals, who were fearful of the possible hegemony Sylhetis would wield over their own people “with their earlier access to English education”, also supported its restoration to Bengal. Sanjib Baruah (2015), ibid; Madhumita Sengupta, Historiography of the Formation of Assamese Identity A Review, Peace and Democracy in South Asia, Volume 2, 122; Anindita Dasgupta, Remembering Sylhet: A Forgotten Story of India’s 1947 Partition, Economic and Political Weekly 43(31) 2008, 18-22, 19.

[55] Dasgupta, ibid. Sanjib Baruah is of the view Sylhet’s partition’s effects are seen to the present day, in the way politicians engage with the public in the Brahmaputra and Barak valleys. Baruah opines: “In election campaigns in the Brahmaputra Valley in Assam, ruling party politicians including Prime Minister Narendra Modi speak incessantly about expelling “Bangladeshis”. Then they opportunistically change their rhetoric in the Barak Valley where a fundamentally different set of memories of the Partition prevails because a large number of people displaced by the Partition live there.” Baruah explains that the rhetoric of expelling Bangladeshis/Bengalis would not be reassuring to those in the Barak Valley, who “have long been supporters of the BJP precisely because it has historically sided with Partition refugees” (by offering to put them on citizenship track) who were largely Hindu in that region. See Sanjib Baruah, Citizens, non-citizens, minorities, The Indian Express, 28 June 2018; Baruah, 2020, 69-70.

[56] The Barak valley is an extension of the Surma Valley of present day Bangladesh comprising Sylhet district’s Karimganj, Cachar, and Hailakandi. In Assam, Partition was experienced differently in the largely Bengali speaking Barak valley in southern Assam and the largely Assamese speaking Brahmaputra valley, further north. Sanjib Baruah, Partition and Politics of Citizenship in Assam, in Urvashi Butalia (ed.), Partition The Long Shadow (Zubaan 2015).

[57] Baruah (2015).

[58] Speech of RK Chaudhury, Constituent Assembly Debates 12 August 1949, Vol 9.117.95-103.

[59] Claire Alexander, 73.

[60] They had “… not long ago set up the struggle for Pakistan, they had not long before taken an active part in compelling the politicians of India to agree for partition”, and were only here to“exploit”Assam, he declared. Speech of R K Chaudhury, Constituent Assembly Debates 12 August 1949, 9.117.98-104. On the scapegoating of Bengali Muslims, see van Schendel, 211-212.

[61] See Udayon Misra, Burden of History Assam and the Partition- Unresolved Issues 63-85 (OUP Kindle Edition 2017).

[62] For instance, Ambedkar, without explicitly addressing the concerns of traditionally migrant labour communities, affirmed the secular ideal of Article 6 with the following speech: “…the criticism has mainly come from the representatives of Assam particularly as voiced by my friend Mr. Rohini Kumar Chaudhuri. If I understood him correctly his contention was that these articles relating to immigrants from Pakistan to India have left the gates open both for Bengalis as well as Muslims coming form East Bengal into Assam and either disturbing their economy or disturbing the balance of communal proportions in that province. I think, Sir he has entirely misunderstood the purport of the articles which deal with immigrants from Pakistan to India. If he will read the provisions again, he will find that it is only with regard to those who have entered Assam before 19th July 1948, that they have been declared, automatically so to say, citizens of Assam if they have resided within the territory of India. But with regard to those who, have entered Assam, whether they are Hindu Bengalees or whether they are Muslims, after the 19th July 1948, he will find that citizenship is not an automatic business at all. There are three conditions laid down for persons who have entered Assam after the 19th July 1948. …there is a very severe condition, namely that he must be registered by, an officer appointed by the Government of the Dominion of India. I would like to state very categorically that this registration power is a plenary power. The mere fact that a man has made an application, the mere fact that he has resided for six months in Assam, would not involve any responsibility or duty or obligation on registering officer to register him. Notwithstanding  that there is an application, notwithstanding that he has resided for six months, the officer will still have enough discretion left in him to decide whether he should be registered or he should not be registered. In other words, the officer would be entitled to examine, on such material as he may have before him, the purport for which he has come, such as whether he has come with a bona fide motive of becoming a permanent citizen of India or whether he has come with any other purpose. Now, it seems to me that having regard to these three limiting conditions which are made applicable to persons who enter Assam after 19th July 1948, any fear such as the one which has been expressed by my Friend Mr. Rohini Kumar Chaudhuri that the flood-gates will be opened to swamp the Assamese people either by Bengalees or by Muslims, seems to me to be utterly unfounded. If he has any objection to those who have entered Bengal before 19th July 1948- in this case on a showing that the man has resided in India, citizenship becomes automatic-no doubt that matter will be dealt with by Parliament under any law that may be made under article 6. If my friends from Assam will be able to convince Parliament that those who have entered Assam before 19th July 1948 should, for any reason that they may have in mind or they may like to put before Parliament, be disqualified, I have no doubt that Parliament will take that matter into consideration. Therefore, so far as the criticism of these articles relating to immigrants from Pakistan to Assam is concerned, I submit it is entirely unfounded.”. See Speech of Ambedkar, 12 August 1949, 9,117.138-9.

[63] Haimanti Roy, Partitioned Lives: Migrants, Refugees, Citizens in India and Pakistan, 1947-65 History Faculty Publications (2012) Paper 21; Haimanti Roy, Paper Rights: The Emergence of Documentary Identities in Post-Colonial India, 1950-67, South Asia: Journal of South Asian Studies, 39(2), 329-349.

[64] Jasodhara Bagchi and Subhoranjan Dasgupta, The Problem, Seminar 2002.

[65] Joya Chatterji (2007) 119.

[66] This has prompted scholars to note that refugees largely were left to their own devices to settle and rehabilitate themselves, by grabbing and squatting on available, unoccupied lands, educating themselves and earning livelihoods. Joya Chatterji (2007)141-148. By 1973, 15% of West Bengal was comprised of refugees.

[67] They were settled in the Andaman and Nicobar islands, and the Dandakaranya region, comprising 80,000 square miles spanning the “Bastar district of Madhya Pradesh, the Koraput and Kalahandi districts of Orissa, and the Agency Tracts of Andhra Pradesh.” Sen, 211-9. See also Sarbani Bannerjee, 3, citing Basu Guha-Choudhury, 2009, 66-67.This posed the additional cost of impacting the settled lives of the local adivasi communities. Joya Chatterji (2007) 135-140.

[68] Nilanjan De, Partition of India and its Immediate Effect on Jhum Cultivation of Tripura, International Journal of Social Science & Interdisciplinary Research 1(8), August 2012, 185-190.

[69] Speech of Buragohian, Lok Sabha Debates 8 Feb 1950, 321.

[70] The Act permitted the ejection of classes of persons who had come into Assam although “ordinarily resident… outside India”, so long as they were not fleeing civil disturbances. See Section 2, Immigrants (Expulsion from Assam) Act, 1950..

[71] Pandit Thakur Das Bhargava, Lok Sabha Debates 8 August 1955, 9614-16: ““I know there are people who are evil-minded and who want to see trouble created in India, who would go to Kashmir and do all sorts of things, who would go to Assam and do all sorts of things. I am therefore clear in my mind that so far as citizenship is concerned, so far as Pakistan nationals are concerned, citizenship should be circumscribed with conditions and restrictions, so that the security of our State is not adversely affected. I am perfectly clear in my mind that this can be done very easily. In the exodus, lakhs and lakhs of people, are coming. They are coming at the rate of 30,000 a month. They are Hindus as well as Muslims. Now, the question arises: in our secular State, can we distinguish between Hindus and Muslims, can we make different laws? I would submit there is no such impractical difficulty. …After all, Government have discretion in the matter; Government can deprive a person of his citizenship if he becomes a citizen. Government are rehabilitating certain people, giving them some help. Some people are coming to this country and they treat this country as their home, but others come for other purposes. As between the two, Government can very easily make a distinction, and they can have a law by which only those who come to this country for the purpose of real asylum and who are our brethren in every meaning of the word, should be allowed to become citizens and not others.” He went on to suggest, after the Bill was scrutinized by the Joint Parliamentary Committee: “We could say that those persons who have come from East Bengal before the 1st January, 1955 should ipso facto be regarded to have become the citizens of India without any registration, etc. … These persons of Indian origin have lost their citizenship of undivided India because you agreed to the partition of India. Those Hindus living in East Bengal are the potential citizens of this country. I know that our Government is unable to stem the tide of those who are coming from there into India… Registration is only for those who are not the real citizens of India, nor are rooted in the land of India, nor have a domicile in this country, not wanting to return to any other country.” Pandit Thakur Das Bhargava, Lok Sabha Debates, 3 December 1955, 1175-1177.

[72] Joya Chatterji (2007)120.

[73] Zaglul Haider, A Revisit to the Indian Role in the Bangladesh Liberation War, Journal of Asian and African Studies 2009, 44(5), 537, 541-542’ Antara Datta, Refugees and Borders in South Asia:The Great Exodus of 1971 (Routledge 2012).

[74] Subir Bhaumik, supra. The percentage of tribals was 63% in 1874, but only 28.44% in 1981.

[75] Zaglul Haider, 542. “According to an authoritative source, by the end of May 1971, nine million refugees had arrived in small hilly state of Tripura while the indigenous population of that state was only 1.5 million.”

[76] Sanjib Baruah (2015) 88.

[77] Memorandum of Settlement dt. 15 August 1985, signed between the AASU and All Assam Gana Sangram Parishad, the Government of India and Government of Assam,

[78] Niraja Gopal Jayal, 64.

[79] Statement of Objects and Reasons Amending Act 65 of 1985: The amendment’s objects read: “ 1. The core of the Memorandum of Settlement (Assam Accord) relates to the foreigners’ issue, since the agitation launched by the A.A.S.U arise out of their apprehensions regarding the continuing influx of foreign nationals into Assam and the fear about adverse effects upon the political, social, cultural and economic life of the State. 2. Assam Accord being a political settlement, legislation is required to give effect to the relevant clauses of the Assam Accord relating to the foreigners’ issue. 3. …”

[80] Section 2(a), Foreigners Act, 1946.

[81] Anupama Roy, Mapping Citizenship in India, 11-12 (OUP 2010). Ashna Ashesh and Arun K Thiruvengadam, Report on Citizenship Law: India 16 (European University Institute 2017).

Announcing the Release of Securing Citizenship

Following the excerpts of the reports published on the blog over the course of November, the Centre for Public Interest Law, JGLS, has published Securing Citizenship, which can be found here. The report identifies the critical legal issues surrounding precarious citizens and stateless persons in India. It recommends strengthening the existing legal framework in three interrelated chapters: Status, Detention, and Socio-Economic Rights. The report’s recommendations draw on international law, Indian law, and best practices across jurisdictions, situating their implementation in India’s complex and unique landscape.

This report is the outcome of a research partnership between the Centre for Public Interest Law (CPIL) at Jindal Global Law School, Sonipat (JGLS) and the Faculty of Law, Université Catholique de Lille. The authors convey their gratitude to the advisors – Amal de Chickera, Ioannis Panoussis, Niraja Gopal Jayal and Ravi Hemadri – for their important insights on the initial drafts of the report and guidance in navigating the law concerning statelessness. The authors are equally thankful to the commentators – Andrea Marilyn Pragashini Immanuel, Angshuman Choudhury, Ashna Ashesh, Carly A. Krakow, Darshana Mitra, Jessica Field, Sagnik Das, Suraj Girijashanker and Thibault Weigelt – for reviewing the report and sharing their detailed analyses.

The authors owe their thanks to Mohsin Alam Bhat, as Research Director, for lending his support and legal expertise to conduct this study. As research supervisor, Aashish Yadav coordinated and supervised the drafting of the report, guided the team at every stage, and structured their findings. The authors are very grateful for his passionate engagement and contribution to this report.

The team is grateful to Prof. E. Tendayi Achiume, Dr. Bronwen Manby, Prof. Michelle Foster, Amal de Chickera and Prof. Joshua Castellino for their respective endorsements of this report. The report carries a generous foreword by Prof. B.S. Chimni.

The team holds enormous appreciation for AbhilashRadhaKrishnan for designing the report and making it an enjoyable read. They are extremely grateful to Raki Nikahetiya for graciously allowing the use of his photograph as the cover image of this report.

The student authors of this report are:

Anushri Uttarwar, Arunima Nair, Khush Aalam Singh, Veda Singh, Vrinda Aggarwal, and Yamini Mookherjee from Jindal Global Law School.

Amandine Desmont, Claire Jacquot, Flora Turrado, Hélène Jolly, and Theo Antunes from Université Catholique de Lille.

We welcome responses to the report from our readers as submissions to the blog. The report authors encourage readers to write to them with thoughts and comments.

To foster engagement with the report, we invite you to attend the Securing Citizenship Webinar, organised in collaboration with Centre for Public Interest Law, JGLS. Our panelists include Amal de Chickera (Co-Founder & Co-Director, Institute on Statelessness & Inclusion), Sujata Ramachandran (Research Associate, Balsille School of International Affairs, Waterloo) and Oliullah Laskar (Advocate, Gauhati HC). Our moderator will be Mohsin Alam Bhat (Executive Director, CPIL). Please register at to receive the link and password for the webinar.

Excerpt: Rights of Child Detainees

The following post is an excerpt from the upcoming report Securing Citizenship’ on India’s legal obligations towards precarious citizens and stateless persons authored by the Centre for Public Interest Law, JGLS and Faculty of Law, Université Catholique de Lille. The Report reviews and comments on the key contemporary legal issues pertaining to citizenship and statelessness in India. Divided into three chapters – Citizenship StatusDetention and Socio-Economic Rights – the Report presents recommendations to strengthen the existing legal framework. This excerpt is the last in a three-part series of excerpts from the report. The previous excerpts on legal recognition of the status of statelessness and the framework of socio-economic rights of non-nationals can be found here and here. The entire Report will be published in the final week of November, and the schedule of events can be found here.


All the rights and prohibitions against detention established and elaborated above apply in the case of children. However, given their special and vulnerable condition, children enjoy additional standards of protection. This section begins with an argument against detaining children on the premise that such detention violates international law pertaining to child rights. Moreover, the state can deploy less intrusive measures in dealing with children. However, given that children may be under detention at present, this section details the rights of such child detainees to be ensured by the state.

The situation of children detained in Assam is worrisome. There is a lack of clarity about the number of children that are currently in detention; however, their presence in detention centres is a confirmed fact. A recent affirmation is found in the application filed before the Supreme Court seeking the release of declared foreigners in the detention centres in light of the COVID-19 outbreak. The application mentions the increased vulnerability of the detainees, which includes elderly people and children living in crowded conditions. There were 31 children in detention centres as per available information. The conditions of these detention centres pose debilitating effects on mental health, without adequate treatment and opportunities for education and recreation. The impact of this situation on children is exponentially greater and liable to pose severe harm to their health.

  1. Detention of children should not take place in principle

As per international law and Indian statutes, detention of children should not take place. The Central Government’s submission before the Supreme Court in the ongoing case of Assam Public Works is a welcome development, stating that children of parents declared as citizens in the NRC shall not be sent to detention centres and shall not be separated from their parents. The absolute prohibition of detention also applies to ‘foundlings’ as a particularly vulnerable category of children. It is argued that children should qualify for protection under the Juvenile Justice Act, 2015 (‘JJ Act’) as ‘Children in Need of Care and Protection’ (‘CNCP’). This section addresses the categories of children who are vulnerable and need protection. This section also seeks to establish safeguards that necessitate compliance when dealing with children in detention.

A.1 Principle of ‘Best Interests of the Child’

Detention of children for the purpose of deportation is a flagrant and unjustified breach of the fundamental principle of best interests of the child protected by Article 3 of the CRC. India is a party to the convention and has incorporated the principle in Chapter II of the JJ Act. As stated by the CRC Committee, the best interests principle is satisfied by the strong prohibition of detention of children since such deprivations of liberty have an extraordinarily adverse impact on the child’s well-being and development. This prohibition particularly must be enforced if the child is detained on the sole basis of their or her parent’s migration status.

While the lack of data is deplorable with regard to the age of the children currently detained in Assam, it is extremely likely that all categories of children and more specifically the most vulnerable ones, such as unaccompanied and young children, are in detention. In light of these elements, India is obligated to cease its current practice of detaining children in detention centres. All the children currently in detention must be immediately released as per international law and Indian law on the issue.

A.2 Detained children as ‘Children in Need of Care and Protection’ under the JJ Act

The Juvenile Justice (Care And Protection Of Children) Act, 2015   1 (4) Notwithstanding anything contained in any other law for the time being in force, the provisions of this Act shall apply to all matters concerning children in need of care and protection and children in conflict with law, including — (i) apprehension, detention, prosecution, penalty or imprisonment, rehabilitation and social re-integration of children in conflict with law; (ii) procedures and decisions or orders relating to rehabilitation, adoption, re-integration, and restoration of children in need of care and protection.   2 (14) “child in need of care and protection” means a child — (i) who is found without any home or settled place of abode and without any ostensible means of subsistence; or (vii) who is missing or run away child, or whose parents cannot be found after making reasonable inquiry in such manner as may be prescribed;  

The Object of the Act includes the making of comprehensive provisions for all children in consonance with the standards prescribed in the CRC. Therefore, the JJ Act can be used to operationalise India’s international obligations to address the vulnerabilities of both stateless children and children at risk of statelessness.

The scope of the term CNCP encompasses the broad categories of children who are at the risk of detention and its consequent negative impact. Section 2(14)(i) of the JJ Act refers to a child who is found without any home or settled place of abode and without any ostensible means of subsistence. This can cover children whose parents are in detention, who are stateless or are suspected of being foreign nationals. Such children would qualify for protection under the JJ Act. Further, Section 2(14)(vii) extends the scope of CNCP to foundlings i.e. children ‘whose parents cannot be found after making reasonable inquiry in such manner as may be prescribed’. [A foundling is a child of unknown parentage found abandoned within the territory of a state.] This argument is further corroborated by the view taken by Justice Lokur on the scope of the definition of CNCP, stating that the term must be given a broad interpretation. This means stateless children as well as children at the risk of statelessness qualify for protection under the JJ Act.

A.3 Conclusion and recommendations

The CRC and the JJ Act extend a large set of protections to these vulnerable children. The state must conform with best interests of children as mentioned in the JJ Act, keeping in line with international law. Detention of children for removal shall never take place, irrespective of the citizenship status of their parents.

  • Release all children in detention in Assam as well as stateless children in detention in India as per international law and Indian law. NGOs shall be allowed unimpeded access to detention centres in Assam to ensure that no children remain in detention.
  • Children at the risk of statelessness and currently in detention should be presented before the district Child Welfare Committee for drawing up protection plans on a case-by-case basis, bearing in mind the best interests of the child.
  • Develop alternatives to detention for stateless children and their families. Non-custodial, community-based alternatives shall be prioritised.
  • Rights of children in detention

As argued above, despite the prohibition of arbitrary detention of children, there is evidence indicating that children remain in detention in Assam due to their precarious citizenship. This section responds to rights of children in detention until they are released as per international law and Indian law on the issue.

RightIndian contextEuropean contextRecommendations
Right to family unity (if parents are also being detained)Children below 6 years of age are kept alongside their mothers in the detention centre. There is no clarity on circumstances of children over 6 years of age.Families in detention must be provided with separate accommodation to ensure their privacy.   Best practice: In Belgium, children accompanied by their parents are, in principle, not detained but transferred to return houses or to an open reception centre which are adequate, child-friendly alternatives to detention.Conduct an assessment on the compliance of the detention measure with the best interest of the child as per the family unity principle. Develop more alternatives to detention for stateless children to avoid the disruption of family unity, such as reception centres.
Right to education at an off-site facilityThe Supreme Court hasheld that India is obligated to provide free and compulsory education to all children between 6 and 14 years. The court has clarified the vast scope of Article 21A of the Constitution, referring to India’s participation in the drafting of the UDHR as well as the ratification of the CRC.   Issue: lack of data regarding any educational opportunity for children in detention in Assam.EU member states must provide minors, whose removal has been postponed, with access to a basic education system, depending on the length of their stay.   Best practice: Czech Republic allows migrant children to attend schools at the local elementary school outside the detention facilities. The ECtHR also requires the classes to be free as a bar against discrimination on the immigration and nationality status.Children must have access to an education system where they are taught by qualified teachers through programmes integrated in India’s education system, regardless of the length of their stay in detention facilities.They must benefit from free classes to avoid any discrimination.Education should be provided outside of detention facilities in line with the best interests of the child.
Right to recreation and playArticle 31, CRC + Best Interests of the Child. Issue: lack of data concerning children’s access to leisure activities in detention in Assam.This right is protected in Europe but suffers from poor and uneven implementation in the region. Best practice: In Lithuania, children may participate in recreational activities in one of the country’s detention centres.Ensure recreational activities in which children facing statelessness can meet local children and young people through NGOs or social workers.Sensitise the public with information on the significance of this right for children.Guarantee access without discrimination on the child’s legal status.
Right to medical treatmentThere is an obligation to provide access to health care services to all children. The state must ensure satisfactory health conditions and health-related education. Issue: lack of information on the health conditions of children.Necessary healthcare must be provided, at least with regards to emergency care and to essential treatment of illness and serious mental disorders. First challenge: the consent of unaccompanied children to medical treatment (rigorous assessment of the age and maturity of the child by Finland, the Netherlands, Slovenia and Spain). Second challenge: lack of paediatricians and mental health specialists Best practice: In Poland, children benefit from regular visits from paediatricians in the centre. In Portugal, children may benefit from psychological services to help them deal with anxiety, stress, depression, etc. and can also be referred to the hospital or psychiatric services if necessary.Ensure that the consultations are conducted in a child-friendly manner and are respectful of the child’s right to confidentiality.Organise regular visits by medical professionals from outside the facilities.Provide children information about available mental health services. Conduct medical screenings of newly arrived stateless children identifying potential issues, both physical and mental, that need care.Ensure a rigorous assessment of the child’s free and deliberate consent to medical treatment.