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

S. No.CASE NAME  FACTS  DECISION  
 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. 

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 https://www.huffingtonpost.in/2018/08/07/lakhs-of-the-most-marginalised-women-in-assam-s-river-islands-risk-becoming-stateless_a_23497234/

[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, https://www.india-seminar.com/2002/510/510%20subir%20bhaumik.htm, 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, https://eparlib.nic.in/bitstream/123456789/760070/1/cald_01_12-12-1947.pdf#search=null%201947

[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), https://archive.org/details/in.gazette.e.1948.41/page/n1/mode/2up/search/Influx+from+Pakistan+(Control+)+Ordinance?q=Influx+from+Pakistan+%28Control+%29+Ordinance. This was later superseded by the Ordinance XXXIV of 1948, with effect from 10th November 1948, https://archive.org/details/in.gazette.e.1948.148/mode/2up/search/%22Influx+from+Pakistan%22?q=%22Influx+from+Pakistan%22 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, https://archive.org/details/in.gazette.e.1948.84/mode/1up/search/Influx+from+Pakistan+(Control+)+Ordinance?q=Influx+from+Pakistan+%28Control+%29+Ordinance (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 https://indianexpress.com/article/opinion/assam-citizenship-amendment-bill-protests-national-register-of-citizens-citizenship-immigrants-sarbanand-sonowal-5236229/; 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,  https://peacemaker.un.org/sites/peacemaker.un.org/files/IN_850815_Assam%20Accord.pdf.

[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 https://bit.ly/3lPXPOl 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.

IV. RIGHTS OF CHILD DETAINEES

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.

Excerpt: Framework of Socio-Economic Rights for Non-Nationals

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 second in a three-part series of excerpts from the report. The previous excerpt on legal recognition of the status of statelessness can be found here. The next excerpt will cover ‘Rights of Child Detainees’. The entire Report will be published in the final week of November, and the schedule of events can be found here.

Socio-Economic Frameworks

B.1 International law obligations

As previously mentioned, this report acknowledges the fact that Indian citizens themselves are routinely deprived of these rights in practice. However, despite this unfortunate reality, a State has a legal and moral duty to provide access to fundamental entitlements to all individuals in its territory, regardless of their nationality. These fundamental entitlements refer to social and economic protection which includes access to healthcare, the right to housing and sanitation, the right to education and the right to work and employment, among others.

In international law, Article 25 of the UDHR covers a vast range of rights, including access to adequate water, food, clothing, housing, medical care and other social protections. This ‘minimum threshold’ for a standard of living is applicable to all persons and is certainly not conditional on citizenship. Based on the principles of equality and non-discrimination, the rights espoused in Article 25 of the UDHR provide the core grounding to the more specific articulations of socio-economic rights in the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’). The vast majority of human rights are applicable to everyone, regardless of nationality or immigration status (including stateless persons) as confirmed by General Comment No. 15 and 31. Specifically, in relation to socio-economic rights, the Committee for Economic, Social, and Cultural Rights (‘CESCR’) in 2009 clarified the interpretation and applicability of ICESCR, stating that the Covenant rights apply to ‘everyone including non-nationals, such as refugees, asylum-seekers, stateless persons, migrant workers and victims of international trafficking, regardless of legal status and documentation’. This unequivocally clarifies that socio-economic rights recognised in international law are positively enforceable or applicable to all persons, including non-citizens, stateless persons and precarious citizens, regardless of their citizenship status.

Article 25 of the UDHR Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.  

The 1954 Convention is the sole treaty framework that directly prescribes standards of treatment of stateless persons to be implemented by states. While India is not yet a signatory to this pertinent treaty, many of its provisions are now either customary international law, or at the very least offer important approaches relating to the protection of stateless persons that can serve as a useful model, as stated in the UNHCR Statelessness Handbook. The 1954 Convention provides a broad framework of civil, economic, social and cultural rights that must be granted to stateless persons. The broad categories include welfare rights to rationing, housing, public education, public relief, labour legislation, social security, access to identity documentation and gainful employment (wage earning, self-employment, access to liberal professions), among others.

B.2 Lessons from protection frameworks for non-nationals

India does not have a comprehensive policy governing refugees that have fled to India or for stateless persons and their protections. The Indian government’s approach towards different precarious citizens of other nationalities and stateless persons has been varied. The Tibetan community and those refugees recognised by (and registered with) the UNHCR serve as two distinct examples. Though the legal, social and political positions of these two communities are clearly distinguishable, their access to socio-economic rights present a blueprint of the rights that could and should be made available to stateless persons. Much like stateless persons, refugees find themselves at the risk of sliding further on the slippery slope of citizenship. Therefore, it is appropriate to refer to the Indian refugee framework and approaches to inform our recommendations for stateless persons and precarious citizens. The nexus between the two frameworks can also be observed from the fact that the 1954 Convention and the 1951 Refugee Convention have a shared drafting history where the former is largely modelled on the provisions of the latter.

An important caveat, however, is that the status of the Tibetan community is not a completely transposable model to stateless individuals, as Tibetans are specifically recognised and protected by the Indian Government. Depending on when they arrived in India (after the Dalai Lama’s ‘flight into exile’ in 1959) they possess stateless identity certificates, are considered ‘temporary refugees in India’, or fall into the category of ‘Long Term Stay’.  On the other hand, the refugees who are recognised and registered by the UNHCR, such as the Afghans, Somalians and certain Burmese groups, are ‘entitled to an assessment for a Refugee Certificate; a visa if granted a certificate, though often shorter-term; and the possibility of naturalisation, but this depends on irregular and opaque criteria’. Their access to socio-economic rights, therefore, is dependent on and varies according to their specific contexts and the kind of documentation they have. The UNHCR works with a number of implementing partners, such as Don Bosco and the Development and Justice Initiative (‘DAJI’) to facilitate support and access to these rights. Don Bosco particularly focuses on assisting vulnerable refugee children. It provides them with support in the form of ‘rescue operations, short-stay homes, home reparation, institutional rehabilitation, child protection mechanisms, advocacy, education skill trainings, accompaniment and foster care’. Nonetheless, despite the variations in the terminology and categorisation of the legal status of precarious citizens in India, the refugee framework illustrates the crucial socio-economic rights that have been made available to non-citizen communities, as outlined below.

RightMeasures by Government of India/UNHCR for TibetansMeasures by Government of India for Rohingya refugees
  HealthcareAccess to facilities in settlement colonies, administered by the Central Tibetal Administration.Access to Indian hospitals but ineligible for state healthcare subsidies available to citizens.In principle, they have equal access to Primary Health Centres. However, reports persist of Rohingyas being denied treatment due to lack of Indian documentation. Prescription medicines are expensive and inaccessible.Limited coverage by Anganwadis for maternal, neonatal, and early childhood care.
Food and Nutrition Access to PDS rations.Dependent upon rations supplied by UNHCR/local NGOs.Limited access to Anganwadis in certain states for infant nutritional requirements.
  Shelter, Housing, SanitationTibetan refugee settlements, established in the 1960s on Government land and administered through officers appointed by the Tibetan Government-in-Exile. Lease agreements signed with the Central Tibetan Relief Committee.The majority live in clusters of shanties, with shared toilets and water facilities. Wastewater from toilets flows out into open drains; some are forced to manually collect and dispose of faeces. Access to clean drinking water remains erratic, dependent upon sympathetic local residents.
  EducationTibetan secondary and high schools.Access to higher education in Indian colleges and universities. Eligible for Government scholarships.Children under age 14 technically have access to primary schools under the RTE Act, but implementation is erratic – admissions denied due to lack of documentation.When allowed to attend local schools, they are barred from the midday meal scheme.
  EmploymentNon-interference with employment. Seasonal sweater selling, agriculture, and small enterprises are their primary sources of income.Eligible for trade licenses in nursing, teaching, chartered accountancy, medicine, and engineering as per Tibetan Rehabilitation Policy, 2014.Not eligible for government jobs.Common sources of livelihood are rag-picking, construction work, sanitation work, and various kinds of unskilled labour in the informal sector. This work is precarious and makes for a very unstable source of income.

Excerpt: Legal Recognition of Status of Statelessness in India

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 first in a three-part series of excerpts from the report. The next two excerpts will cover ‘Rights of Child Detainees’, and ‘Socio-Economic Rights of Stateless Persons’. The entire Report will be published in the final week of November, and the schedule of events can be found here.

II. LEGAL RECOGNITION OF STATELESSNESS IN INDIA

A. Recognition of Status

Statelessness poses a moral and normative challenge to the legitimacy of the international state system. In simpler terms, since the world is comprehensively divided between nation states, then every person should be able to claim citizenship and its attendant rights somewhere. Yet, thousands of people around the world face barriers in claiming citizenship rights in any nation because of several aggravating factors.

There are several stateless groups in India who either arrived or were born in India as stateless persons, such as the Tibetans and the Rohingyas. This section pertains to these stateless persons in Indian territory whose citizenship was not deprived as a result of any action of the Indian state. They have no avenues of return to their country of nationality as a result of their statelessness i.e. their state does not accept them as nationals. Thus, they are prohibited from exercising their right to return. In this situation, they cannot be deported and continue to reside in India as subjects of a legal framework which does not formally recognise their status.

A close reading of the Indian domestic law framework governing the status of non-citizens [the Constitution (Articles 5 – 11); the Citizenship Act, 1955 (Sections 2, 3, 6, 6A, 6B, 10); the Foreigners Act, 1946 (Sections 2, 3, 8, 9); and the Passports Act, 1967 (Section 4)] reveals that the definitional categories determining the legal status of an individual are inadequate for guaranteeing the rights of stateless persons. The use of the terms ‘illegal migrant’, ‘foreigner’, and ‘citizen’, as distinct and oppositional categories, operates on the implicit assumption that the person whose status is to be ascertained must be in possession of at least one nationality, even if that nationality is not Indian. None of these terms can be used interchangeably for a stateless person; the Acts simply do not define or acknowledge the phenomenon of statelessness.

International law on the right to nationality of every individual along with the obligation on the state to prevent and reduce statelessness commands states to naturalise all stateless persons in their territory. Hence, it is imperative that the Indian state recognise stateless persons formally and issue identity certificates to them, thereby ensuring recognition of their equal legal personhood for them to avail their rights. These certificates will ensure that their special situation would be addressed. The only pieces of legislation that recognise the status of stateless persons are the Passports Rules, 1980, framed under the Passports Act, 1967, which grant the MEA the power to issue certificates of identity. However, the duty of the state under international law, constitutional law and human rights law (as argued above) does not end with issuing certificates of identity. India must grant them nationality in accordance with international law obligations to ensure that they can enjoy their right to nationality.

As emphasised in previous sections, the lack of legal status is a direct infringement of an individual’s right to a dignified life under Article 21 of the Indian Constitution. In a juridical framework, a dignified existence can only be secured through recognition as an individual member of the civic community, which in turn forms the foundation for the free exercise of bodily integrity, autonomy, and self-determination. In Sheikh Abdul Aziz, the Delhi High Court recognised this urgency of determining the legal status of the petitioner. The Court excoriated the Central Government for its inaction in issuing a stateless certificate to the petitioner after nationality determination had failed, particularly after he had been confined in detention for an additional seven years, well beyond his initial sentence under Section 14 of the Foreigners Act. It understood that the issuance of a stateless certificate, under Rule 4 of the Passports Rules, 1980, and the subsequent granting of a Long-Term Visa (‘LTV’), were essential for the petitioner’s release from detention, and enabling his right to a dignified existence upon Indian soil. In National Human Rights Commission (Chakma case), the Supreme Court held that eligible stateless individuals, like the Chakmas in Arunachal Pradesh, have constitutional and statutory rights to be considered for Indian citizenship. Local administrative officers cannot refuse to act upon Chakma individuals’ applications under Section 5 of the Citizenship Act to the Central Government. The Court also held that the state is obliged to protect Chakmas from eviction and threats of assault even while their citizenship applications are pending. These cases indicate Indian courts’ proactive approach in reducing indeterminacy of status for individuals, assuring the terms of their membership in the civic community. 

For stateless persons in India, international law necessitates that the burden is always upon the Indian state to fairly and expeditiously determine legal status for such persons. As we have argued at length above, the state’s sovereign prerogative in citizenship matters is implicitly circumscribed by international law and human rights standards. Therefore, it is the state’s obligation to establish whether they are recognised nationals of any other country. If the state fails in establishing that, they must be naturalised i.e. granted Indian nationality.

It is also important to note that statelessness should not operate as an impediment to an eventual path to Indian citizenship. The naturalisation of stateless persons within the ambit of India’s existing citizenship laws has precedent: the Delhi High Court in Namgyal Dolkar ordered the MEA to issue an Indian passport to the petitioner who, despite holding a stateless identity certificate and being born to two Tibetan refugees, was eligible for Indian citizenship by birth under Section 3 (1)(a) of the Citizenship Act.

The significance of naturalising stateless persons residing in a State was recently followed by the ECtHR as well. In Sudita Keita, the applicant had arrived in Hungary in 2002. He was subsequently recognised as a stateless person after the local courts recognised that the burden on the applicant to prove lawful stay was contrary to Hungary’s international law obligations relating to statelessness. Furthermore, in the case at hand, the ECtHR held that the stateless applicant had been left in a vulnerable position for 15 years without access to an effective and accessible naturalisation procedure. With reference to international law on statelessness, the Court highlighted that his situation had resulted in grave difficulties in access to healthcare and employment and violated his right to private and family life.

This report further argues that the stateless persons should be automatically naturalised (i.e. grant of nationality) since any formal requirements in this regard would place an undue burden upon them. Such a process would fail to recognise the underlying discrimination and lack of access to documents. This is visible in the Sri Lankan experience with grant of nationality as elaborated in Section I.C.1 of this chapter in the full report.

Hence, it is only through naturalisation that stateless persons can access the full extent of their rights. Their exceptionally vulnerable situation and international law obligations demands that the state shall automatically recognise them as citizens.