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. 

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.

Interview with Oliullah Laskar

Mr Oliullah Laskar is an advocate who practices before the Gauhati High Court. He is part of the Barak Human Rights Protection Committee (BHRPC), a human rights organisation based in the Barak Valley in Assam. We speak to Mr Laskar about the difference between citizenship and immigration laws, the working of the Foreigner Tribunals, the problems with the NRC, and the tribulations of a lawyer who has fought cases before the FTs.

The interview has been edited for length and clarity.

Oliullah Laskar: Before I begin answering your questions, I would like to give you some context to the Foreigners Act, 1946 and its use as a legislation to determine citizenship. The Foreigners Act (Act) is not equipped to deal with the situation in Assam or across India, if the NRC is implemented across the country. Because the mischief that was sought to be addressed by the Foreigners Act is different from the situation at hand.

The earliest version of the extant Act was passed as an ordinance in 1942. It was amended to become the law that is presently in force —the Foreigners Act 1946.

The Statement of Object and Reasons of the Act calls it a war emergency legislation. During the World Wars, governments tended to be more stringent about their boundaries and had placed restrictions on the entry of foreigners and immigrants. So the context of the promulgation of the legislation was the World War. We have to examine the context and immediate use of the Act in order to understand its present ineffectiveness.

The Foreigners Act, 1946 was not meant to be a legislation to determine citizenship. There is a difference between citizenship and immigration laws. An immigrant is presumed to be a foreigner and on the basis of that presumption she is denied most rights that are otherwise available to a citizen. However, in a citizenship determination exercise, we are determining the rights of people who are presumed to be citizens and already being treated as such.. Therefore, there is a distinction between immigration laws and laws relating to determination of citizenship.

You will find this distinction being recognised in international law jurisprudence. Even agencies of the UN have affirmed that the burden of proof should lie on the State in citizenship determination procedures. But in procedures related to immigration, in most western countries, the burden of proof is on the alleged immigrant. This was discussed in the Sarbananda Sonowal case. But the Supreme Court failed to distinguish between the process related to identification of immigrants and that of citizenship determination exercises. The SC did not make a distinction between otherwise distinct phenomena and therefore it was ruled that the burden of proof in a citizenship determination exercise, like the NRC, should be on the person alleged to be the foreigner.

The categories of persons to whom the Act is applicable is directly related to the question of burden of proof. If we assume that any person can be tried under the Act, then we will find ourselves in an absurd situation — anyone can be accused of being a foreigner.

If anyone can be sent to the Foreigner Tribunals (FT) there will be no meaning of the voter list, casting your vote, forming the government.  If people who have elected the government are being sent to the FTs, what is the legitimacy of the government? At present, we are in this difficult situation because of our failure to distinguish between immigration laws and laws for determining citizenship.

Natasha Maheshwari: In 2019, the Office of the United Nations High Commissioner for Human Rights noted that in “nationality determination processes, the burden of proof should lie with the State and not with the individual”. Section 9 of the Foreigners Act, 1946 places the burden of proving citizenship on an individual. Do you think that the IMDT Act, which placed the burden of proof on the State, was more equipped to deal with the question of citizenship?

OL: Citizenship is a very important question. It is not only the question of a person’s rights but of his life as a member of civilised society. The life of his progeny also depends on his citizenship. So it is a very, very serious matter. In fact it is more significant than capital trials.

If we follow a standard of due process or abide by the rule of law rules then the procedure will be stringent. The procedure adopted should be as stringent as that of a criminal trial.

In cases where a person who already enjoys her rights as a citizen under a legal presumption, like having her name in a voter list, is alleged to be a foreigner, the burden of proof should lie on the person who questioned her citizenship status. But in cases where an alleged immigrant is asked to prove her citizenship, the burden of proof should lie on the immigrant herself.

Like the Foreigners Act, the IMDT Act also used a quasi-judicial procedure to determine citizenship. Citizenship should be determined through a trial conducted by a regular court of law, the burden of proof being on the shoulder of those who allege foreignness of the person who is otherwise legally presumed to be a citizen. The proof that is given should be beyond reasonable doubt. Quasi-judicial tribunals like FTs or IMDTs can deal with cases of people who have a legal presumption of being a foreigner like people overstaying the validity of their travel documents which are now being dealt with in criminal proceedings conducted by judicial magistrates. The tribunals, therefore, appear redundant.

NM:  In your opinion, what are some of the problems with the NRC?

OL: There are criticisms from both sides  i.e. advocates for the NRC and those who are against it. The advocates of the NRC say that many people who should not be in the NRC have been included in the list.

Though the NRC intended to detect illegal immigrants, the process was not limited to them. Every citizen of India living in Assam had to file an application giving proof of their citizenship. The burden of proof was on them.

How is the government examining the capacity to vote of the very people who elected them? This is the main problem with the NRC. The other problem is that Clause 3(3) of the Act states that certain persons can register as original inhabitants (OI) if the registering authority is satisfied that they are OIs. But there is no definition of the term OI or procedure for determining who they are. In practice, this clause is applied on the basis of linguistic and ethnic identity.

Another problem is the virtual exclusion of certain types of oral and documentary evidence from the NRC process. As per Section 3 of the Citizenship Act, 1955, people who are born in India before 1987 are citizens by birth.

However, in the NRC application form, there was no provision to claim citizenship by birth by producing a birth certificate. Several countries have restricted the right to claim citizenship, but the basic democratic principle is that a person born in a country has a right to claim citizenship.

However, there is another distinction —  if it is applied to immigrants whose country of origin is known and admitted then it is a different question. If a couple has immigrated from another country with their child and are now living in India with valid travel documents then maybe the country of origin can grant citizenship to their child. But if neither India nor the country of origin recognises the citizenship of the child, then the child will be rendered stateless.

With respect to the right of a person to stay in a country, the European Court of Human Rights, in the case of Hoti v. Croatia,  has ruled that a person who has lived in a country for a very long time cannot be thrown out. 

While India hasn’t ratified the two international conventions on statelessness, Article 21 can be read in a manner such that a person cannot be rendered stateless, because without citizenship one will not have any dignity. Statelessness is the absence of rights. Hannah Arendt has called it civil death. Therefore, Article 21 will prevent a person from being made stateless.

NM: The objective of the National Register of Citizens in Assam was to identify illegal migrants, a long-standing demand of the Assam movement, which found expression in Clause 5 of the Assam Accord and Section 6A of the Citizenship Act, 1955.  Do you think that the NRC has been successful in fulfilling this objective?

OL: I don’t know whether the NRC has failed in its objective but the rhetoric of illegal immigrants is questionable. There are no authoritative findings which prove that there are a large number of immigrants in Assam. The Supreme Court has relied on Governor S.K. Sinha’s report. However, what is the authority of a Governor to make such a report? He is a Governor not the Government.

He did it in his personal capacity and not as the head of the State of Assam. As a Governor does he have this authority? What was the methodology by which he arrived at these numbers?

The works based on census reports does not reveal a significant amount of illegal immigration from our neighbouring countries. There may be illegal immigration but not as much as has been made out to be by the S.K. Sinha report.

An independent enquiry on the question of illegal immigrants should be made and if the committee concludes that there are a large number of illegal migrants they should be deported to their country. But which country do you deport them to? If it is Bangladesh then you cannot do so unless the Bangladeshi government accepts them as their citizens.

In its judgment in Assam Sanmilita Mahasangha, the Supreme Court directed the Indian government to speak with their Bangladeshi counterpart to discuss deportation. However, this was not implemented. The acceptance of the Bangladesh government may depend on the process that India uses to detect illegal immigrants. If the process is agreed upon by both countries then if someone is found to be a Bangladeshi immigrant, the government will take them back.

There are many instances of people extending their travel visas and continuing their stay. Article 36 of the Vienna Convention on Consular Access requires the government to inform consular authorities about an arrest. If the Bangladesh authorities find that a person who has been arrested for overstaying their visa is a Bangladeshi citizen then they will take them back. The Kulbhushan Jadhav case, which was fought before the ICJ, dealt with the issue of giving consular access to a foreign national. And if consular access is not given, civil society organisations intervene and contact the government of the country from which the person originates.

In the paragraphs above, I am referring to cases in which immigrants are involved. But the NRC is not directly related to such immigrants; the NRC is a process to deprive people who have been living in Assam for generations together of their rights as a citizen.

Even the Prime Minister of India has assured Bangladesh that the NRC is an internal matter. This means there is no question of deportation — the NRC is simply an exercise to make people stateless.

Amnesty International India’s report titled Designed to Exclude shows that the FT members are pressured to declare people as foreigners. There is a process of assessment of the performance of the FT members.  Declaring more people as foreigners is considered an assessment of excellence. Comparatively, the members who declare less people as foreigners are considered to have performed poorly.

Most of the FT members are on contract and they are under tremendous pressure to declare as many people as foreigners as possible. Apart from this, the Gauhati High Court (HC) has generated a sort of jurisprudence on the foreigner tribunals. There are mainly two rules made by the HC (there is no legislative basis for them):

1. In proceedings before the FT oral evidence has no significance.

2. If a document bears an unauthorised impression of a national emblem then it is not admissible.

For establishing linkage, often, women produce a certificate issued by the elected local government (Panchayat president). Panchayat presidents function under Assam’s Panchayat Act. Under the Prevention of Misuse of National Emblem Act 2005, and the Rules made in 2007 there is a schedule enumerating the authorities who can use the national emblem. Panchayat presidents are not allowed to use the national emblem. But they continue to do so.

So when the certificate is produced by the Panchayat president saying that he knows of this person and that they are the son/daughter of so and so whose name appears in the 1971 voter list, this certificate of proof of relationship is not admitted. This is because it uses the national emblem. However, no Panchayat president is ever prosecuted for wrongful usage.

In India the only thing which is considered to determine admissibility of evidence is relevance. If it is relevant it is admissible (the latest judgment on the matter is the verdict of the 3 judge bench in the Rafale review case). If a document is obtained through  criminal or illegal means it is still admissible if it is relevant. But the HC ignores this rule when it comes to trials under the Foreigners Act, 1946

So the first rule excludes oral evidence and the second rule excludes the documents that are available to many people.

These rules make it easier for the FTs to declare people as foreigners.

In most cases people fail to establish relationships with their parents. Section 50 of the Evidence Act, which lays down the evidence that can be used to prove a relationship, is also ignored.

In some cases oral evidence is recorded but not discussed in the decision by the FT or HC. According to the HC oral evidence has no significance before the FT. By excluding oral evidence, the HC has also disregarded the Supreme Court’s decision in the case of  Lal Babu Hussein v. Electoral Registration Officer. While the judgment does not directly deal with the admissibility of oral evidence, it assumes the admissibility of all types of evidence before the court in citizenship matters. 

NM: Recently, at a lecture at the National University of Juridical Sciences (NUJS), you said that the NRC process is exclusionary and discriminatory towards women in general and women from marginalised communities in particular. Can you elaborate?

OL: In 2016, I was sitting in a courtroom in the Gauhati HC. The bench was dealing with challenges filed against FT orders. The Presiding Judge, who is now the CJI of Sikkim HC, Justice A.K. Goswami asked why most of the challenges to FT orders were filed by women.

It is simple — more women are declared as foreigners by the FT which is why more women come to the High Court. It was a general observation made by the Court so the lawyer arguing did not answer Justice Goswami. But the question remains.

Most people who are declared as foreigners belong to the poorest section of the society. These people are uneducated and don’t have a board exam certificate or a birth certificate which can be used to prove relationship with their parents which in turn proves their citizenship. Additionally, the registration of marriage, particularly in the Muslim community, was not compulsory. It was made compulsory by an SC judgment pronounced much later.  However, even after it was made compulsory, a marriage that is not registered is still valid. As a result, many women do not have marriage certificates. Lastly, though the law gives women the right to inherit property, in practice this does not happen in most cases. As a result, often, women are unable to produce documentary proof to establish a relationship, particularly with their fathers.

In the case of men, some of them study up to matriculation and have board certificates. Those who do not have board certificates have land documents on which they mutate their name in the place of parents. They can use this document to show their relationship with their father. Men also put their father’s name on the voter list.

Women are frequently married before the age of 18 (even after the Child Marriage Act was enacted in 2006). So a young woman who marries before attaining majority  cannot enrol herself in the voter’s list of her paternal home; thereby proving that she is daughter of her father. So she enrols her name after she attains majority. Since she is already married, she uses her husband’s name in the voter list and not her father’s. So, the voter list does not help her to prove her relationship with her father.

There are several other reasons why women are excluded from the NRC, most of them deeply rooted in patriarchy. I have also heard of cases where a woman, who has left her husband’s house because of a domestic dispute, gets a notice at her matrimonial home. Because of the domestic dispute, the husband does not communicate the receipt of the notice. As a result, an ex parte order is passed against her. 

The reasons I have mentioned are not exhaustive. If fieldwork is conducted there are many other reasons that will come up. For example, if a family receives a notice from an FT in the name of a woman then too much importance will not be given to it. This is because a woman is not thought of as a very important member of the family. Even if the family appoints a lawyer, they will look for a cheap lawyer and won’t make too much of an effort to collect the documents that are required.

NM: Persons excluded from the NRC were supposed to receive rejection orders by March. Thereafter, the appeals process would begin. Now, because of COVID-19 and the catastrophic floods, the rejection process has been paused. How do you expect the appeals process to proceed? And how has the pandemic affected the lives of the people whose citizenship is in limbo?

OL: I am not sure. I saw a statement attributed to the new state coordinator of the NRC or an official from his office saying that they were in the process of preparing the rejection orders. However, due to technical problems in the database of the information preservation system, the data needed to be re-entered. This process of re-entry of data will take a few months.

But this pandemic has devastated the lives of people;  people have lost their jobs and there is scarcity of means to attain a livelihood. So even if the appeals process starts after the pandemic ends, it will be very difficult for these people because they will still be struggling to sustain themselves.

NM: As someone associated with the Barak Human Rights Protection Committee, what do you think is the role of broader civil society in resolving the question of citizenship and migration in Assam?

OL: A few years back I tried to speak with people who were working with human rights groups to make a position on this issue. If by civil society, you mean the human rights community, I think these people should come together and take a clear position on these issues.

The other part of the civil society, that is, bar associations, employees associations, the leadership of whom are members of the dominant communities, are not bothered about what is happening to the people excluded from the NRC.

 Even the people who profess to work from a human rights perspective are divided on the issue on ethnic lines. But some groups — for example, some women’s right organisations have taken a stand on one or two issues. However, even they haven’t taken a collective position and dealt with the NRC issue as a whole.  If an initiative is taken to get these human rights organisations to work together it will be much better. 

NM: Several FT lawyers have spoken of harassment and stigmatisation that they face due to the nature of their work. To add to that, a 2017 performance appraisal report of the members of the Foreigner Tribunals evinced that members who had declared a greater number of foreigners were more likely to be retained of their services in contrast to those who had declared fewer foreigners.

As an FT lawyer who has contended with threats and is arguing before a tribunal that is potentially prejudiced, what has been your experience? What motivates you to continue taking up citizenship law matters?

OL: I don’t appear before the FT very often because my practice is primarily before the HC. So personally, I haven’t faced one which is remotely uncomfortable. But I have heard about this from other lawyers. The newspapers had also reported a case of a scuffle within the courtroom.

But there were two cases that I recently dealt with — an interlocutory application was filed in both the cases but the application was not taken on record. So the lawyer in the case contacted me. I advised him to approach the local bar association. A delegation of the bar association spoke to the tribunal member but the application was still not taken on record.  Our request was only for the member to take it on record, if he felt that it was not sustainable the tribunal could reject it by passing an order. Then, I filed a writ petition before the HC, which directed the tribunal to accept the application

This shows that some of the tribunals are hostile towards the lawyers and they don’t even follow the minimum rule of procedures.

Natasha Maheshwari is a 5th year student at Maharashtra National Law University Mumbai. She is a core team member at Parichay.

A Fact-Sheet on Detention Centres in India

This is the second in a three-part series of guest posts by Paresh Hate. Paresh Hate is a PhD candidate at Centre for Comparative Politics and Political Theory, Jawaharlal Nehru University, New Delhi. Their work revolves around critically engaging with the discourse of ‘Bangladeshi infiltrator’ in Indian politics by looking at immigration detention and immigration law as sites of its cultivation, deployment and legitimization. Paresh is the digital editor for Migrant Solidarity Network – India and is a founding member of Hasratein: a queer collective, LGBTQIA+ resource group and political organisation based in New Delhi, India.

As argued in the first part of this series, immigration detention is neither a recent development nor limited to Assam. It has been part of the punitive mechanism set up by immigration law, particularly Section 3(2)(e) of the Foreigners Act, 1946 and para 11(2) of The Foreigners Order, 1948, since its inception.

Recent detention centres are mandated under Amit Shah’s Model Detention Manual 2019, which was released on 9 January 2019, according to which one detention camp should exist in one the city or district where a major immigration check post is located and every member of a family should be housed in the same detention centre.

However, immigration detention has a long history in India, and such sites of detention are to be found all over the country. The immigrant foreigner population in detention centres in India is convicted under one or more of the four acts pertaining to immigration law, i.e. 1) The Foreigners Act, 1946; 2) the Registration of Foreigners Act, 1939; 3) the Passport Act, 1967; and 4) the Passport (Entry into India) Act, 1920.

While the case of Assam detention centres clearly shows that there are plenty of Indian citizens, particularly Bengali-speaking individuals, who end up in detention centres, the state maintains these sites for unauthorized immigrants. I use the term ‘unauthorized’ for two reasons: first, to problematize ascribing legality onto humans on the move and to attempt to destigmatize the ideological connotations associated with illegality; second, to point out that many who are stuck in the detention regime possess documents of some kind but are insufficient by state’s evidentiary standards to prove their “undetainability”. In this sense, ‘unauthorized’ refers to individuals without official permission to enter a nation-state, because they are marked racially, religiously, gender-wise, class-wise, or due to the bureaucratic and administrative protocols which disallow them to be seen as legitimate candidates for permission to enter or claim citizenship.

Until early 2000s, the population that was accused and convicted in immigration matters was kept in prisons that operated as makeshift spaces for detaining “illegal immigrants” who violated the clauses of the immigration law and may have additionally committed a crime under India’s penal laws. This practice continues even today in most parts of the country.

According to the Prison Statistics India 2019 Manual of National Crime Records Bureau, as of 31st December 2019, there are total 5608 foreign prisoners in India, out of which around 2171 are convicts, 2979 are undertrials, 40 are detenues (mostly in Jammu and Kashmir and Delhi), and 418 are held as other kind of prisoners. Out of these, the highest number is that of Bangladeshis who constitute around 2513 of these prisoners. Estimates of foreigners and non-citizens omit child detainees in juvenile homes and those held at other quasi-correctional state institutions such as the Reception Centres outside the prison system. Bengali-speaking population is also the most precarious group facing penalties under immigration law and are under threat due to the National Register of Citizens.

As of now, there are different detention centres across the country which function for punitive and non-punitive purposes managed by state government correctional homes, shelter homes, Border Security Force camps, and sites of Foreigners Regional Registration Office.

Assam:

The first de facto detention centres were built in the state of Assam under High Court’s orders of 2008 for detaining declared foreigners. In July 2009, the Revenue Minister Bhumidhar Barman of Assam had informed the state assembly that two detention camps would be set up to hold illegal immigrants at Mancachar and Mahisashan. By 2010, three such detention camps had begun at Goalpara, Silchar and Kokrajhar. In the next few years, three more detention camps had started functioning at Tezpur, Jorhat and Dibrugarh.

Currently, under the Model Detention Manual 2019, the current biggest detention centre meant for illegal immigrants is being built in Goalpara district’s Matia which shall house at least 3000 inmates.

New Delhi:

In Delhi, there are three publicly known locations where immigrants are detained. Two of them are managed by the Department of Social Welfare of Government of Delhi. One of them is located at Nirmal Chaaya in West Delhi which holds immigrant women and another is at Lampur Complex in North Delhi which holds immigrant men. This population includes trafficked women, irregular economic migrants, and refugees. The third one is at Shahzada Bagh and is managed by Foreigners Regional Registration Office in West Delhi and exclusively holds Bangladeshi unauthorized immigrants.

According to the data of Global Detention Project, a Geneva-based human rights organisation, the union territory of Delhi has had five other detention centres which are not publicly known. These are 1) Human Resources Department Cell at Hauz Khas which was in use at least till 2005 housing adult unauthorized immigrant men; 2) a detention site at Daryaganj which was in use at least till 2005, housing adult unauthorized immigrant men; 3) Alipur Road detention house managed by Foreigners Regional Registration Office which was in use at least till 2008; 4) Daya Basti Ren Basera which was in use at least till 2005 housing adult unauthorized immigrant men; and 5) Old Delhi Seva Kutir which was in use at least till 2005 housing adult unauthorized immigrant men. The current status of these five sites is unknown.

Punjab:

Punjab currently houses unauthorized immigrants at Central Jail, Amritsar. These are individuals who are declared foreigners.

Rajasthan:

Rajasthan holds unauthorized immigrants on jail premises in Alwar. These are individuals who are declared foreigners.

Gujarat:

One detention centre in Gujarat is located at Bhuj. Another one which was at least in use till 2009 was located at a Special Operations Group (SOG) Office which was a criminal police station in Ahmedabad that housed both immigrant men, women and accompanied minors.

Goa:

Goa has had a detention centre since early 2019 where it houses convicted immigrants who are declared foreigners. It is located at Mapusa sub-jail in North Goa.

Tamil Nadu:

In Tamil Nadu, an intermediate camp has been made that used to earlier be a women’s prison in the city of Trichy. At present, it houses around 60 foreigners, most of whom are Sri Lankans. The site is guarded by Tamil Nadu Special Police commandos and is handled by the state revenue department. Because it is the revenue department that manages this site, the nature of the site also differs. In the case of Tamil Nadu, it means that the location is maintained to supervise offenders who are neither under the usual restrictions of probation nor fully incarcerated because all the detenues are undertrials and are allowed to meet family members. Many of these detenues also await deportation.

West Bengal:

West Bengal maintains its own correctional homes at different locations segregated on the basis of gender. There has also been a Border Security Force camp which was last documented to be in use in 2005. Earlier, the West Bengal government had also agreed to build new detention centres at New Town and Bongaon but these plans have been halted recently.

Bihar:

Bihar has a military camp, which according to the sources of Global Detention Project, that houses unauthorized immigrants. It was at least in use until 2005.

Karnataka:

Under the Model Detention Manual 2019, Karnataka has opened its first detention centre at Nelamangala Taluk, Banglore which will be administered by the state Social Welfare Department.

Maharashtra:

Under the Model Detention Manual 2019, Maharashtra was to set up its first detention centre in Nerul, Navi Mumbai which was an erstwhile women’s shelter home run by the local police station. But since the change of the state government and the clash between Shiv Sena and Bharatiya Janata Party, the plans have been put on halt.

Uttar Pradesh:

Uttar Pradesh was supposed to have its first detention centre in Ghaziabad’s Nandgram at an erstwhile SC/ST hostel whose plans were cancelled after protests. Since the state government is ruled by the same party in power in the central government, it is very likely that another location will be soon selected for starting a detention centre in the state.

Usually, when one files an RTI application with the Ministry of Home Affairs (Foreigners Division) to find out details about these detention centres in the country, the Central Public Information Officer responds that this information is not centrally maintained. In many cases of RTI application, a copy of the RTI application is transferred to the Central Public Information Officer of the Bureau of Immigration for providing any details they have. However, the Bureau of Immigration responds and has a precedent of responding that they are exempted from the Second Schedule of the RTI Act, 2005 as a body from providing information that has the importance of national security. There is hardly any legal provision available to know more about these detention centres since the central government has the power to regulate access to the places in India where internees or persons on parole are detained or restricted under Section 4(4) of the Foreigners Act, 1946. This was confirmed by a personal RTI that I had made and keeping a track of the results of other similar RTIs.

Under UNHCR guidelines, detention cannot be used arbitrarily, and any decision to detain must be based on an assessment of the individual’s particular circumstances. This is hardly followed by authorities in India and routine flouting of due process is commonplace. Secondly, according to UNHCR guideline 4.3, detention can be used to protect public order, public health, and national security. However, as is clear from Indian state’s official narrative premised on securitization, almost all unauthorized and undocumented immigration constitutes “infiltration” and the polititicians consistently have called it a threat to India’s national security which can be used to justify indefinite detention for foreigners, particularly for those coming from Bengali or Bangladeshi backgrounds.

All of this proves the absolute lack of transparency in the matter of immigration detention centres in India. While harrowing tales are common in case of American immigration system or European Union’s gated community with regards to immigrants, there is little knowledge of countries in the Global South, including India. Such lack of transparency only adds to this effect where the public due to its lack of information fails to make a significant intervention in the question of justice and due process when it pertains to immigrants.

The Rise of the Indian Detention Regime

This is the first in a three-part series of guest posts by Paresh Hate. Paresh Hate is a PhD candidate at Centre for Comparative Politics and Political Theory, Jawaharlal Nehru University, New Delhi. Their work revolves around critically engaging with the discourse of ‘Bangladeshi infiltrator’ in Indian politics by looking at immigration detention and immigration law as sites of its cultivation, deployment and legitimization. Paresh is the digital editor for Migrant Solidarity Network – India and is a founding member of Hasratein: a queer collective, LGBTQIA+ resource group and political organisation based in New Delhi, India.

After the news of the National Register of Citizens (NRC) in Assam was published in 2019 and the proposal for an all-India National Register of Citizens by the Home Minister of India was announced, detention centres had finally become a part of the resistant imaginary of civil society groups and activist circles. Until then, this sensitization and recognition was limited to groups in Assam fighting for the civil liberties of people languishing in the detention centres for prolonged periods and some organisations in other metropolitan areas trying to produce data on it. With the passing of Citizenship (Amendment) Act, 2019 and the promise of NRC, there were widespread protests across India that foregrounded the demand that detention centres must go.

While the ruling party and the opposition have continued their debates about the who and when of detention centres, much misinformation has been spread. There is now substantial information in the public domain with regard to the six detention centres in Assam. This is because of the report on the National Human Rights Commission Mission to Assam’s Detention Centres, carried out by Harsh Mander and others, which was subsequently also submitted as a petition in the Supreme Court to ameliorate the conditions of detention centres there. However, neither is immigration detention exclusive to the current fascist government employing it in some extra-judicial realm, nor are the detention centres only operational in Assam. Detention, as a strategy to govern unauthorized migrants, goes to the heart of our immigration law system and has been in place for decades.

Notwithstanding the fact that the first de facto detention centres were built in the state of Assam under High Court’s orders of 2008 for detaining declared foreigners, many confinement centres for immigrants preceded this time period. Some or the other form of such confinement centres for unauthorized migrants has been in place since at least mid-2000s and have been employed for both punitive and non-punitive purposes.

In countries of the Global South such as India, the criminalisation of irregular migration as a measure, like its other politico-legal institutions, is undoubtedly and obviously enmeshed in a history of colonialism and power that goes beyond a simplistic framing of rule of law. There are two distinct points about the trajectory of immigration control that demonstrate its relation with modern colonial history. The first is that the techniques of law that India currently employs have been cultivated during British colonialism in India itself. This is true for three of the four major acts that constitute immigration law in India. These are the Passport (Entry into India) Act (1920), the Registration of Foreigners Act (1939), and the Foreigners Act (1946). All three of them have been argued as “acts of Empire” whose original function was to regulate the migration of colonised subjects across the various colonies and Dominions and thereby restrict their ability to migrate into privileged geographies of the colonising powers.

The second point about regulation of migration is tied to post-World War 2 period and subsequent globalization, where cultures of penalty such as immigration detention travelled like other things across the world. What is now clear is that the inception of detention took place primarily during the late 19th century in the United States. Contemporary scholars are today certain that the creation of modern immigration detention begins with the normalization of regulated borders in America and the United Kingdom. Prior to this, the routine method to deal with foreigners were preventive exclusions through often racist laws that disallowed people from certain racialized communities and nations to enter the country. In cases where such foreigners were found to be residing in the nation without adequate documents, they would be expelled through measures such as deportation or push-back. The establishment of the border as a site of political control grew alongside both centralization and monopolization of power over mobility. In the late 19th century, immigrant detention was used for the first time as a legal exception treated as a temporary administrative check-point until the final decision regarding the fate of the immigrant foreigner was made. Over time, with the growing number of immigrants in the United States, detention started acting as an administrative strategy deployed for longer periods, often against racialized migrants until it became a common response during World War 1 to treat foreigners fleeing their country and foreigner soldiers. This later conflation was much more prevalent in the United Kingdom where anti-alien sentiment demanded substantive politico-legal moves to create some system to permanently control foreigners. Until then, immigration detention used was neither seen as penal nor as any form of imprisonment. Since World War 2, however, immigration detention across most countries has become a legislative policy and a permanent bureaucratic enterprise.

This period where immigration control and defining citizenship became of paramount importance was the period in which many erstwhile colonies were transitioning into sovereign nation-states. Both in Asian and African countries, but also in erstwhile colonizing metropoles which were becoming proper nation-states now, the question of the self and the other of the political community was essential and urgent. Yet, the political logic that was inherent to many of these decolonizing movements prioritized autochthony, which is to say that the original inhabitants of the land who were the natives of that region had the right to self-determine its own political future. This kind of political context necessitated, as it still does, differentiating between a foreigner and a citizen.

In Global South countries such as India, because of the political and economic conditions, this has meant the focus is on the informal movement of low-wage migrants across spatially contiguous states and within the region which is particularly vigilant–due to the suspicion generated by the history of partition–of Muslims from the neighbouring countries (particularly erstwhile East Pakistan and now Bangladesh), who are treated as “infiltrators” as far as popular psyche, dominant nationalist political ideologies, and state institutions are concerned.

One year before the independence, laws were put in place to decide the conditions under which a movement is legitimate. After the independence, the connotations of British rule were dropped while keeping the entire law as it is. With the Foreigners Act, 1946 enacted, there were provisions for punitive measures to employ in case of transgressors to this law and this penalty included detention also. The politico-legal powers of the state that legitimized detention centres are authorized under the Foreigners Act, 1946, and the Foreigners Order, 1948. Section 3(2)(e) of the Foreigners Act, 1946 states that the foreigner:

“[S]hall comply with such conditions as may be prescribed or specified— (i) requiring him to reside in a particular place; (ii) imposing any restrictions on his movements;”

In addition to this, para 11(2) of The Foreigners Order, 1948 allows the civil authority to impose restrictions on the foreigners’ movement.

While until the early 21st century, detention centres have meant makeshift spaces which are otherwise typical prisons, there has been a rise of many sites since early 2000s which are used as functional detention centres, managed by Border Security Force stations, shelter homes looked after by state governments, Foreigners Regional Registration Office sites, etc. What the criminalisation of irregular migration and use of detention as a punitive strategy since the inception of immigration law shows is that nowhere in the last hundred years at least have the detention centres been used simply as temporary administrative check-points, but instead have been an integral part of the criminal immigration (or crimmigration) system. Here, detention centres are spaces that thwart mobility and control the perceived “excessive mobility” of the unauthorized migrants by responding with total confinement and putting a stop to their movement itself.

Today as well, migrants who have been detained for immigration-related transgressions face severe legal adversities and their troubles have only increased after the NRC has been announced. With the regime in power attempting to build more detention centres qua detention centres across the country for “illegal infiltrators”, and with a relative absence of proper repatriation treaties with  neighbouring countries, the Indian immigration system is perhaps most likely to deal with migrant foreigners, among others, with detention as one of the preferred modes of penalty. While detention centres began in India as instruments peripheral to immigration control, they have now, under the current regime, transformed into a bureaucratic enterprise that is central to the state apparatus’ program of governance over Bengali-speaking, Muslim and migrant populations, and will give rise to a new detention regime that will be initiated now with the project of NRC.