Interview with Dr Rimple Mehta

Rimple Mehta is a Senior Lecturer at the School of Social Sciences, Western Sydney University. She has previously worked at the School of Social Work, Tata Institute for Social Sciences, Mumbai and School of Women’s Studies, Jadavpur University, Kolkata. Her research and field engagements broadly focus on women in prison, refugee women, and human trafficking. She engages with questions of borders, citizenship and criminology of mobility. Her paper titled “So Many Ways to Love You/Self: Negotiating Love in a Prison” won the 2013 Enloe Award and was published in the International Journal of Feminist Politics. Her monograph titled “Women, Mobility and Incarceration: Love and Recasting of Self across the Bangladesh-India Border” was published by Routledge in 2018. Her latest co-edited volume published by Orient BlackSwan is titled “Women, Incarcerated: Narratives from India”. She has worked with women in prisons/detention in Mumbai, Kolkata, Sydney and The Netherlands.

This interview was conducted over a video-call and has been edited for clarity.


Shreya UK: Good morning, Dr Mehta. Thank you so much for joining us for an interview with Parichay. I want to start with trying to understand how you ended up studying Bangladeshi women in Indian prisons. What led to this particular book – and scholarship – in the first place?

Rimple Mehta: Thanks, Shreya and thanks also to the Parichay Team for inviting me for this conversation.

Actually my work with Bangladeshi women in prison goes back a long way. I started as a social work student at Tata Institute of Social Sciences. As a part of my field placement, I was placed in an organisation called Prayas, which was working in prisons in Mumbai. I started as a student social worker and started looking at the various issues that confront women in prison – whether it was in terms of health issues, or connecting them to their family members or supporting  them in accessing Legal Aid. So there were a whole range of issues that I was working on.

In between all of this, the Bangladeshi women started coming and speaking with me because I knew Bengali. Initially, it was just in terms of conversation or just spending some time because it was difficult for me to do anything about most of the issues that they came up with, such as connecting them with their families in Bangladesh. They did have legal aid but their cases were slightly more complicated. So initially it was just about spending time and having conversations. And then the issues started emerging through those conversations. There were issues with regard to how they come to India; at what point they are arrested by the police? What happens with regard to their legal cases? How are they sent back to Bangladesh? Do some of them end up coming back to India? 

These questions remained with me, even after I finished my field placement. I went on to pursue them as a part of my PhD, because I just felt there was absolutely no information available, no knowledge around the experiences of these women. And so I decided to work on it. That’s how it started.

SUK: Tell us a bit about the point you mentioned earlier: how and why did these women cross the border in the first place? Secondly, how did their mobility emerge from gendered notions of freedom?

RM: There are a whole range of reasons why people from Bangladesh come to India. There are also a whole range of ways in which they come to India. Because my doctoral work was in prisons in Kolkata, the women I met with were largely women who were single – single in the sense that they travelled across the border alone. They did not come with their families. They were much younger, most of them   were between the ages of 20 to 25. They came for a variety of reasons. Some of them came looking for work. Some of them said that they had been trafficked. And some of them said they wanted to see what India looked like.

In fact, a number of women actually challenged my questions when I said in the conversation – did you come looking for work, for a better life? They said, ‘Rimple, if Bangladesh can feed me till the age of 16,17,18, then they can feed me even after that. We do have aspirations of different kinds. We do want to make a better life, and hence we’ve come here.’ 

But I’ve increasingly seen in the narratives of women who cross borders that gender based violence is really a key factor – a contributing factor to their mobility – which forces them out of their country – whether it’s violence in the natal family, in the marital family, or at the workplace. A number of these women were working in the garments factory in Bangladesh. There is also trafficking within the country, and so many of them would move away to find a more safe place to live in.

Gender based violence, thus, becomes a key factor in making that decision to move across the border. Apart from the fact that some of them said that they had aspirations to make a better life. But we need to see those aspirations in the context of marginalisation and violence that they experience.

SUK: Dr Mehta, you talk about gender based violence and how that often forces [Bangladeshi women] out. But once they cross the border and are eventually arrested, I’m sure they face a very different sort of violence. How do we understand the gendered aspects of immigration and incarceration? Do you think these two processes go hand in hand, especially in the borderlands but also beyond? I’m asking this question in context to something Uma Chakravarti says in the foreword [of Women, Mobility and Incarceration: Love and Recasting of Self Across the Bangladesh-India Border]. She talks about the prison gate as the border. It is in this context, I want to understand – does the border, or the immigration process produce incarceration? Or vice versa? And how do they, if it all, mutually reinforce one another? 

RM: I think most of these women’s lives were along the spectrum of gender based violence, which was furthered by the different institutions, whether it was the family, the state or the prison, and more broadly the criminal justice system. Because the nature of violence that they experienced was closely linked with their gender identity and the position within the gender hierarchy. Whether it was in terms of their expectations as a woman within the family. Whether it was in terms of their national identity, and what they were expected to do because they belonged to a particular nationality. 

I think that the intersection of borders and incarceration had a deep impact on their everyday lived experience. It completely worked as a nexus, which created what I call the ‘incarcerated immobility’ for their everyday life. It gives the notion, you know, that they’re moving, they’re moving across the border, they are crossing but that mobility is constantly juxtaposed or is confronted with different kinds of borders which continue to incarcerate them. So it’s almost like a mirage. It seems like it’s happening, the freedom is there. They keep moving towards this idea of freedom. But at each step there is a border which incarcerates them. 

SUK: How did you get into the field of border studies? Was that something you had in mind when you first started talking and working with Bangladeshi women? And since you do talk about these multiple borders – in your book, you make a distinction between political and social borders. Could you tell us a bit about how [these Bangladeshi women] distinguished them, what is the merit of understanding this distinction as well as the way they are interlinked? 

RM: Actually I had absolutely no inclination or even understanding of borders, or border studies, and that was not something that I thought of when I started working in the prison.

In fact, like I said, while working in the prison, I wasn’t really focused on ‘Bangladeshi women’, or foreign national prisoners. Once I started engaging with them and their narratives in prison, one of the things that I realised is that I will not be able to understand their lived experiences in prison unless I listen to and understand their experiences of the border,  their narratives and understanding of the border. So that’s how the border came into the discussion and that’s how it became a part of my conceptualisation of their experiences. 

When I started speaking with them, most of their narratives actually start with, ‘And when I crossed the border…’, because that was the key point in their life which actually changed the direction of what they were aspiring for and what they thought they were crossing the border for. It’s that moment which led them to being in prison. So unless I understood that moment and that experience of the border, it was not possible for me to understand what their life in prison meant. That’s how the border came into my research.

Not only did it come into the research but also their narratives really expanded my understanding of borders. It was borders at different steps. Just even crossing the border or the boundary of their home and then, crossing the political boundary or the border of the country – they could see the various levels that they had to cross before, what they saw as, aspired freedom. Only to then be incarcerated in another country. So that’s how the notion of social and political borders came up, especially when they were talking about the experiences of gender and gender based violence. These connections between the social and political borders became more pronounced.

But more than that, I think what was really intriguing for me is the way they conceptualised the political border and how they understood the relationship between India and Bangladesh. Some people might read their narratives and refer to them as being naive or say ‘Oh, they are not educated so they don’t understand.’ But actually if one reads through the narratives and the layers within that, what they are doing is challenging the heteronormative idea of the state itself. They’re doing that, not only by crossing its borders and aspiring to have a better life, but they’re also doing it through the way they conceptualise it; through the way they challenge the idea of neatly drawn [on the map] militarised  borders and the ways in which they build relationships across these borders. Thus, indicating to us that there is an idea of fluidity and fuzziness which can be adopted in our understanding of states and borders. When they keep referring to the relationship between India and Bangladesh over a period of time, they’re doing what we could also call, a sort of historical analysis.

So I do see a lot of theorisation within their narratives. They are doing it, both conceptually, as well as through their mobility – they challenge the idea of the state. I think we have a lot to learn and understand. It’s almost like they’re providing us a vision of what a state might look like

SUK: Can you tell us a bit about the legal framework, under which they are detained and how that governs their detention?

RM: Again, there are different states, different circumstances, under which they are arrested. If I were to just speak about the women in Kolkata who I met, most of them were arrested under the Foreigners Act. That was the only act under which they were arrested. But the women I had met in Mumbai often had different cases, along with the Foreigners Act or the Passports Act.

I think this also has to do with the histories of migration for particular groups. So for instance, in Mumbai, a lot of these women had been there with their families, over a period of time. Hence, their narratives were different from the women in Kolkata who, like I said, were much younger, they had moved across the border alone, not along with their families, and had not been in India for a very long period of time. That’s why it’s possible that since the women in Kolkata were arrested soon after their arrival, it was only the Foreigners Act which they were charged under. While the women in Mumbai, who had been there over a period of time with their families, had different charges attached to be names based on vulnerable contexts they might have found themselves in, and then hence became associated with some kinds of crime.

SUK: Can you tell me if this common Bengali identity somehow plays a role in how the experience of women in prisons in Kolkata might be different from those in Mumbai? I’m asking this because I remember reading a paper which analysed why Bengali immigrants in West Bengal are received differently as compared to Assam. I wonder if this Bengali identity somehow surpasses nationality and if so, what are the different ways it affects the experience of navigating these prison systems? 

RM: The experiences of women in prisons in Kolkata and Mumbai were definitely different. But I don’t think that in either of the spaces, even if they are Bangladeshi within West Bengal, that there is no hierarchy. I think we always find a way to create several layers of hierarchies. So even though, in terms of the Bengali identity and linguistic similarity, the women could communicate with the prison staff and other women within the prison, there was still the hierarchy in terms of the national identity. And that was very very clearly demarcated. The other women in prison, who were Indians by citizenship, always saw the Bangladeshi women as what they said ‘nogra’ or dirty. The prison staff would always refer to them as, again, dirty, or sexually very aggressive. They were assumed to be always creating trouble within the prison. So those hierarchies were deeply embedded within that context as well.

While in Mumbai, it was different in the sense that even if they were Bengali women, they would probably come together with the Bangladeshi women because they could speak the same language as opposed to other women in prisons in Mumbai because they’re either speaking in Marathi or Hindi or other languages which the Bengali women did not understand. Even the prison staff in Mumbai cannot speak in Bengali so then the language becomes a way in which the Bengali women and the Bangladeshi women come together. 

And in Mumbai or in other parts of the country, as we now know, the Bengali and the Bangladeshi – especially the Bengali Muslim and the Bangladeshi identity – is constantly converged as if they were one and the same. So that happens within the prison context as well. If one gets into the nuances and the layers of it, one understands the hierarchies that are deeply embedded, but also the points of solidarity which women find in a different context.

SUK: Yes, that’s very interesting. Going back to how we were talking about Bangladeshi women in Kolkata or in Mumbai and how they reimagine the state or the boundaries of the nation states. Can you tell us about how their experiential knowledge conflicts, or perhaps even conflates, with the legal knowledge – if it conflates at all? Secondly, what exactly are these re-imaginations and what do they offer to us when we are trying to understand or study nation state, how they work and how they define themselves? 

RM: In terms of how it’s different from the legal definitions, it’s this idea of fluidity of the border – the border not as this one straight line which one cannot cross. It is the fluidity and the fuzziness which they adopt, which is completely different from our idea of the state right? I won’t say our idea of the state but the legal idea of the state – the political idea of the state. Which is, the need for boundaries – which we also need to acknowledge and recognise goes back to our colonial past and the way colonial borders were drawn in our context. Which, as we know, was drawn on a piece of paper and a line was drawn across it. And so that’s one thing.

But the other ways in which they conceptualise, they really challenged the heteronormative idea of the state. One of the ways in which they do it is by building these relationships of love when they are in prison. And they build those relationships with both men and women who may be Indian by citizenship, knowing fully well that they may have to go back to Bangladesh, and these relationships may not continue. That they may not be able to continue to experience these relationships. They get into them with a certain kind of hope of continuity. I think that’s a really important idea for us because they create this, what I call in the book as, a ‘love nation’. Thereby, putting forth to us how we can look at borders in terms of relationships and affect with the hope of continuing them across what we create as borders – which they, on the other hand, conceptualise as fluid borders.

SUK: Can you tell us a bit about how these conceptions then blur the lines between what we comprehend as illegality or immortality, in context to your frameworks on ‘bhool’ and ‘aporadh’? How do they facilitate, allow or help these women navigate the prison system? 

RM: Like I said, they bring to us this idea of fluidity. The reason why it’s important for them to live with this idea of fluidity and this idea of a fuzzy border or the fuzzy nation state, is because their experiences just do not fit in the definitions of what we have created for sovereignty, for state borders or political borders.

So, the only way to live for them is to live by creating an idea of nation; conceptualising an idea of a nation state for themselves. One of the ways in which they do it is by looking at the spectrum of ‘bhool’ and ‘aporadh’. ‘I can understand that I made a mistake but how does it become a crime?’, they would say. Which again, I think, is questioning the larger idea of this illegality which is emerging all across the world. We see that we have more migrants, refugees and displaced people in the world right now than ever before because of all that is going on- wars, climate change, violence, human rights violations, unsustainable development projects etc. So the context of a lot of these mobilities, is really the context of marginalisation and  of different kinds of vulnerabilities. But when people move, it’s the idea of illegality that they’re confronted with. But in that context these women are  challenging the idea of the crime of moving across borders, given their realities. 

That provides us an important direction to understand that mobility, not just across the India-Bangladesh border, but in different contexts where mobility occurs due to different kinds of vulnerabilities. Different reasons for displacement are constantly addressed by the destination states in terms of illegality or legality – their definitions of legality and illegality.

SUK: So how does this idea of legality or illegality then affect morality – and not just for these women who are in prison but also the prison guards who are working there? How do they understand and navigate the moral grounds of such as immigration-incarceration, or say ‘crimmigration’?

RM: I think this goes back to the gendered idea of the state and the institutions such as the prison, and specifically with respect to the lived experiences of women. So one of the things that the women constantly heard from the prison staff was: why do you come to India? Do you not have food in your own country? Do you not have ‘maan-shonmaan’ (honour)? Why do you come here? And the assumption was that they come here for sex work. So, morality plays a very strong role, especially when you cross borders. That you’re probably just coming here [to India] for sex work. Or you clearly have very low morals and you cross the boundary of your nation. In terms of a gendered analysis for women, this added stigma and taboo with regard to crossing the social and political borders becomes deeply entrenched with the idea of legality and illegality.

SUK: There’s a part in your book where you use the word ‘emotional lives’ of these women. I wanted to understand how different this ‘emotional life’ is from the other aspects of their life, and is there a need to understand this emotional life independently? What is distinct or particular about this emotional life and how does it add to our conceptualisations of not just women in prison but also specifically Bangladeshi women who already exist within a very politicised context?

RM: The reason to highlight emotional lives or embodied experiences is to show people and their narratives from a different positionality, one which is different from this idea of legality and illegality. 

This is because most of the discussions, especially around people moving from Bangladesh to India, centre around whether it’s legal or illegal. Or whether they are taking our jobs. Or how do they impact the security or sovereignty of the Indian nation-state? So what I really want to do is shift our focus and see from the standpoint of pain, the standpoint of emotional experiences of these women, and then does it look different for us? Does the idea of the nation state then look different? Do these people then look different? 

We know the narratives that are created around Bangladeshis in India, right? The word that is largely used for them is ‘infiltrators’. There is a certain narrative that they steal our jobs. That they are terrorists. If it is specifically about women then these women are believed to come in here for sex work or they are only seen as victims who are trafficked. So what I’m trying to do is shift that narrative and see from a different place. What happens if we look at the embodied experiences of these women? What happens when we look at the emotional lives of these women? Do we look at them differently? That’s the idea I’m trying to put forth.

And I think that idea not only enables us to look at these women differently. It also enables us to look at our relationship with our neighbouring countries. It also helps us to look at our idea of sovereignty, and even largely the South Asian identity. What does it mean for that? 

SUK: Do you think these women see themselves the same way? Do they make a distinction between their emotional life versus other things? How do emotions fit into their everyday life in prison as well as before they were imprisoned? How would these women answer this question? 

RM: I’m not sure if they make that clear distinction. It’s more in terms of the way I’m reading and interpreting the narratives.

But the emotional aspect is clearly highlighted in each aspect of their life, whether it’s in terms of what they experienced when they were faced with violence; whether it was in Bangladesh or whether it was in India. Or the context which necessitated this mobility. All of this is being expressed in terms of a lived experience – of an emotional experience. I think reading and understanding and listening to those emotional experiences is extremely important for us.

Like I said, one of the experiences that they highlight the most is the idea of love. How they navigate the idea of love, within the prison, but through the different stages in their life, and make meaning of their experiences of violence through the understanding of love and their experience of love.

SUK: Yes, do tell me a bit more about these conceptions of love. How do they play out? What does this love look like in everyday practices amongst the women? And how does this then go back to your larger theory on the ‘love nation’?

RM: Again love was not one of the things that I was going to look at, or even had anywhere in my realm of conceptualization or understanding when I started working in the prisons. It was the women who challenged me to think and write about it.

One instance that I will never forget and was a really important learning moment for me was when one of the women came back from the Court and told me about this man who’s been professing his love for her in the few times when they met at the meeting area in the court. But that particular day, he apparently tried to hurt himself and banged his head against the wall because she just would not respond to his professions of love for her. By then I was really familiar with them and there was a good rapport between us. So I said, ‘But it’s fine, you don’t have to worry or feel guilty about it because you’re going to go back to Bangladesh, and he will not come after you there.’ There was another woman who was there, sitting around. She turned around and she looked at me. She stared into my eyes and said, ‘Do you really think love stories in prison end in prison?’ 

That was a learning moment because that’s when I realised that actually a whole lot of their narratives were evolving around love, which I hadn’t paid attention to. So when I went back to the recordings, I observed. That’s when I noticed that each time I asked them a question on violence, they would stop me or they would try to divert the conversation and be like, ‘Why do you want to hear those experiences? Let me tell you about my love story. Let me tell you who I love or what I’m doing to attract someone’s attention.’ That was the point when I started thinking about love. And, even listening. I think it’s also important for us as researchers to constantly be tuned into what’s coming up. This also relates to your previous question on why highlight their emotional lives. 

I think it really came from them. As if they were saying, ‘Just don’t keep talking about our experiences of violence. Just don’t represent us as victims. We are here, trying to make meaning of our life. We are engaging in relationships of love, which we believe can continue across the border. Which we don’t think will end once we leave the prison.’ 

That ties to the idea of the ‘love nation’ that I was talking about. That the realities they are in, they are constantly viewed only through the lens of legality and illegality, or the straight lines the borders are assumed to be. They, on the other hand, are creating a conceptualisation of a nation state which is based on the idea of love which continues across the border. I think that’s very important for us to listen to and again, look at from a very different standpoint.

SUK: Considering how a lot of women also left behind their families when they were crossing the border, owing to some form of gendered violence, do you think their narratives somehow blur the binary between violence and love? Do you think there’s a sort of fluidity in which they understand their relationships with their families and people they live with in the prison system? How do they navigate this particular relationship between violence and love? What do they make of it when the two somehow permeate the same space, that is, finding love in the prison system or experiencing violence within the family?

RM: I don’t think that there can be any blurring between their experiences of violence and love. I emphasise on this as well in my writings. Whenever we read resistance – and in this case one of the ways in which we read their experiences of love is resistance to the heteronormative idea of the state, the monotonous life of the prison and a completely asexualized life of the prison – we have to see all of this resistance in the context of their experiences of violence and marginalization. It cannot be seen in a vacuum or understood without this context.

So, I would say that apart from their expressions of love, everything else that they do to resist the idea of the nation state, the normative practices within the prison – all of this resistance has a context of violence. They are resisting but also making meaning of their life where there is very little  to hold on to in terms of any kind of external support.

One of the things that I also talk about is the continuum of violence that they experience. The perpetrators change at different points and stages in their lives. Like I said, it can be the family, the state, within the prison or more broadly the criminal justice system. The perpetrators change but the continuum of violence is what constitutes their experience. It’s in that context that they’re resisting, and it’s their resistance which shows us not only the cracks within our understandings of the nation state, family, the criminal justice system, but it is also showing us different possibilities. It’s showing us where we can move, and what kind of alternative imaginations we may have. 

SUK: Can you tell me about what the scholarship was like in the field of border policing, detention, immigration when you were setting out to do research? When these ideas of love and affect came up, what sort of vacuum were you trying to fill, or if there was a vacuum at all? 

RM: There is, first of all, very, very little engagement within the prison in the Indian context. Very little. There is only a few works available for us to engage with. It was a vacuum. Mahuya Bandyopadhyay’s book, Everyday Life in a Prison was something that was available. It was a starting point for me to think that something like this is even possible. That some work has been done. And of course, Prayas’ work really helped me to contextualise my understanding. 

There was very little research available. And it was, again, only from the understanding of the prison. Since I started working with Bangladeshi women, I had to engage with the idea of the border. I had to look at migration as well as what’s happening in terms of ‘foreign nationals’ and how we are looking at them. There was a complete vacuum. That was one of the reasons why I decided to do this work because there was so little known about it at that point in time. This is when I did my fieldwork as a student of social work in 2008. At that point, we were not discussing the issue of Bangladeshis in India the way we are discussing it now.

So there was support available from the Tata Institute of Social Sciences, within which was Prayas and then Mahuya’s work. That is how I started. What I kept as my focus was the narratives of the women and just taking the lead from there. But the other space which really helped me is the Border Criminologies Network, which was also coming up around that time. It came about around 2013 because next year it’s going to be 10 years. I  got associated with the network almost from its inception. And that’s where it opened up the world for me to look at the interconnections between the prison and the border and the space of criminology of mobility. 

That’s where it started but again, at that point, I almost felt like, within India, I was just speaking to myself. There wasn’t a community that I could really speak to. But in the international space that discussion had started. Now I see that even within the Indian context we are using words like ‘crimmigration’, which has been there for a while, within the network and all the work that the network does. There are a lot of people who have started working in this area in India. When they get in touch with me to know a little bit more or to get a little more context, it’s absolutely fascinating because we really need more work in this area.

But one thing which I really think about and I think it has a lot to say about us as researchers or people who work in the field is: when do we start looking at a particular issue? Is it only when it takes on political attention? Only when it becomes absolutely necessary because legal provisions are being put in place or mechanisms are being put in place or institutions are coming up. Is that when we start looking at marginalised lives?

At different points and different political parties have dealt with the issue of Bangladeshis very differently. None of them have actually been forthcoming about it. This particular group has been used by different political parties for their purposes. But, when did we start looking at it? And why do we always need to wait for that political discussion to erupt and then to start focusing on these issues? If I started this in 2008, I know that this issue existed even before that. It’s just for us to sort of keep looking at spaces of marginalisation, whether they are in political discussion, or not. Whether they are part of election debates or not. Just looking at the amount of work that has come up now makes me wonder how, when and why we focus our attention on particular issues at particular points. And I think it’s really important that we do it beyond the political debates. Of course we need to respond. We need and we should be in that reactionary mode. We also need to be a little more forward thinking in our work, I think. 

SUK: Definitely. That is actually a really interesting point. But that also makes me wonder when we talk about marginality, how can we study or address the concept, as researchers, without necessarily only focusing on those who are being marginalised? And once we ask this question, one realises that power does not really exist in a binary between those who are marginalised and those who are marginalising. So, in a sense, we are always in a hierarchy of marginalisation.

How did you work through this hierarchy when you were studying the prison system? You were not only dealing with the women who were in prison but also the prison guards, people who worked in as well as enabled the prison. How did you navigate this space? How did they interact among themselves? How did they make sense of this fluctuating dynamic between the marginalised and the marginalising? 

RM: I think that there are two questions there. One is how do we understand marginalisation and marginal identities considering that there is a hierarchy within that. But for that I would say that we really look at reality from different standpoints. It’s very important for us to engage with people who are at the receiving end of institutions and power, to say it very broadly. We have to see how it impacts different groups of people. With respect to the Bangladeshi women, through their narratives, we are actually able to see the cracks that exist within our understanding of families, state and institutions within the criminal justice system. So when you look at institutions and structures from a different positionality, it gives a very, very different picture of reality. So I think that’s why it’s important for us, as researchers, to keep looking from different spaces because, again, it goes back to the importance of lived experience. This is what lived experience tells us, that no matter where we look from – anywhere else we look from – it will not be the same. So the first thing is, the importance of lived experience. 

The second part of your question is how do we navigate that when we go in as researchers? I think for the prison space in particular, there is a lot that we need to navigate when we enter that space. That is because you are also under surveillance as a researcher – constantly. And you also have issues around access. You wonder if you will even be able to go and speak to the people because there is so much opacity around these institutions. Access, therefore, becomes a big issue for us. So you navigate that. On top of it, you are also trying to work that out with the women that you’re speaking with. In my case, definitely my identity as an Indian citizen was constantly also coming up in the narratives of these women. It was not only my identity as an Indian citizen but more importantly, my identity as a non prisoner – a person who can keep going out. The women would often say, ‘We’re telling you all this but you can go out of the prison, I can’t. But since you can go out of the prison – you do this for me. You tell me what’s happening in the outside world. You tell me what people are discussing about us.’ In prison work, especially, where there is this binary of a prisoner and a non-prisoner and the non-prisoner researcher can go out of that space at the end of the interview, you can consciously work towards mitigating this hierarchy. But that binary remains at that point in time.

But I think one of the things that you said is really important. Even if this binary exists and we are trying to understand the lived experiences from different positions of marginality, one thing that we really need to be careful about – and do this in a conscious way – is not assume that power impacts only those marginal identities. The idea of the nation-state, the idea of sovereignty, the idea of legality and illegality impacts not only people who are not citizens. It also impacts all of us. It impacts the idea of security. We see that even within the citizens that hierarchy can be created because of this certain idea of state security. So, as long as we understand that we are all actually impacted by this, and not just isolate that one particular person with the idea of saving that particular person. If we move beyond that idea of benevolence and look at the structures and the way power is implicated in these structures, it will help us work through the hierarchies, and not just again victimise certain people in our narratives but try to address it from a structural position.

SUK: How did you address your own positionality as a researcher? I am asking this question in context to the ways you were received in the prison. What did the prison guards think of you coming in and going out? Did they ever ask you questions? How were your interactions with them? How did that make you understand or contextualise how power works within the prison system? Is it really concentrated in one particular group, identity, or rule?

RM: I’ll answer this in the context of the work that I’m doing now in prisons in Sydney, because that’s when I realised that as a researcher your positionality keeps shifting based on where you are working. In prisons in Mumbai, I was still seen as a student social worker, but in Kolkata I was seen as someone who’s pursuing higher education, who’s probably more ‘enlightened’ and hence needs to be respected. So the prison staff did extend that kind of treatment to me. But one of the things that constantly kept confusing them is why someone like me would want to spend so much time in prison. This was a question which came up very often. They would say, ‘You’re from a good family. You can do so many things with your life. Why are you here for almost a year coming every other day to spend so much time in a prison? 

There was that and but I think after a point you also become invisible. You become a part of that space, and then there isn’t that much attention that is given to you. You come and you go. That was my experience in the Indian context. But the moment I started working in a prison in Sydney, I realised that just my positionality as a person of a particular colour makes a whole lot of difference. 

That’s one level. But with the women, again, it’s the context. In the Indian context, the Bangladeshi women were still able to build some solidarity with me but they always saw me as an Indian citizen. But in this context, in Sydney now, the women from the Global South look at me in a particular way, and draw that kind of solidarity. 

For me, as a researcher who knows the privilege that I come with, I think it’s very important to constantly be aware and reflective of what I am doing in the field. How does it impact the women that I’m working with? Where do I sit with them? What time do I go to meet them? Because in an institution, all of this, ultimately impacts them because they continue to live in that space. Do I do it at a time when they’re supposed to be locked in? Will that help them come out at a particular time or will that mean that they will have to be locked in for longer? So, I have to make such calculations around time and space in a way that it doesn’t actually add to their experience of marginalization and discrimination. In that space, that struggle is really constant – even for me, as a researcher – to live with the reality that you are going to be walking out of that space. Then what do you do? 

The other dilemma which all of us as researchers are confronted with is – is this going to provide an immediate resolution or solution to some of the issues that women are facing in the present, right now? Or is it a work in progress that will have broader policy implications, which will then trickle down? These are these challenges that you’re constantly working with. But one thing which constantly helps me navigate the hierarchy between me and the women I work with is to be reflective, and to centre their experiences and their narratives within whatever decisions I’m taking or whatever I’m doing.

SUK: When you set out on this endeavour, what did you think was the utility of this scholarship? Given the ongoing debates on citizenship and immigration, do you think the initial purpose or the concerns you had going into this project has changed or shifted? Is there any difference as compared to when you were starting out? 

RM: Like I said, it’s not a new issue. We have just decided to foreground this in all our work now. But it’s been an ongoing issue. Some of the lived experiences in terms of how they are sent to Bangladesh or the uncertainties of their life within India, have been an ongoing issue for a long period of time. 

I can only imagine that now with all our attention, it’s probably just going to get harder for some of these women. This is because of the discussions around the issue of trafficking, legality and illegality, the citizen, and the foreigner. So these binaries are only getting deeper. It’s really crucial for us to then ask ourselves: where are we looking from? Whose voices are we highlighting? It’s very important that we don’t – again – just speak to the broader narratives and the discussions but that we really centre the lived experiences. 

The voices of people are going to be impacted by these changes that have taken place in the recent past. I definitely think that the uncertainties and the fear of survival is heightened, at this point, because of all the changes that have taken place.

SUK: Have you gone back to the correction homes in Kolkata or the prisons in Bombay after your research was published? You talked about how those women would say, ‘Oh, what do they talk about us?’ Have you told them the sort of things you write? Have they engaged with your work? What have their opinions been on how you write about them and how that work is then received? 

RM: Back when I was still doing fieldwork and I had started analysing and writing, I did take some of the writings back to ask the women, ‘What do you think? I’m writing this,’ and share my ideas. So I was able to do that. But, as you know, it’s really difficult to access the space so it has been difficult, particularly after the release of a film by the BBC, one that included an interview from a person within the prison. After that, a lot of guidelines were put in place for prison researchers as well. 

That’s the other issue that we have in terms of access. When people from outside the context come and research, it has all kinds of implications for our work and the way we can foreground the realities of people. So, access has been difficult but it’s in progress.

SUK: What did they say when you came back with your initial writings? How would they respond? What did they feel about it? Did they feel happy that their stories were being heard? Did that impact your relationship with them or what you represented to them?

RM: The part of the work at that point that I was able to take back to them was again their narratives of love. So when I shared with them that I’m writing this and this is what I’m thinking about, some of them wrote another couplet or they told me the starting sentences of a love letter. They added to it and sometimes they dictated to me, saying, ‘You write this.’

One of the women also said, ‘Oh you’re writing about love, then you also tell them that there are a lot of young Bangladeshi women in prison and winters are approaching. We need a lot of comfort, if you know what I am saying.’ It was the turning point in terms of understanding the emotional lives and central to which was their experiences of love that really shifted our relationship as well. But the tension that ‘you are going to go out and I’m still going to be here’ constantly stays. This tension is also fundamental to our relationship – no matter how much they trust me and no matter how much I try to be aware of the power hierarchies and work through them.

SUK: You also mentioned working within prisons in Sydney. Somewhere in the book, you also talk about studying detention centres in the Netherlands. I was wondering what it was like studying these different places. I wanted to know if you found any similarities or dissimilarities between how crimmigration works in ‘Global North’ versus the ‘Global South’? 

RM: Yeah, this is something that I’ve been thinking about a lot – especially after I’ve just finished the fieldwork for a project I am working on –  that is, just how similar the narratives of women are. I spoke about the challenges that I have as a researcher and how my positionality changes. The positionality of women also changes and different countries have different laws and we can put in different theoretical lenses to understand them. But the core issue of women’s mobility – especially visible mobility that is actually constantly bordered and incarcerated – seems to resonate across these different places that I have worked. That for me is very sad actually at one level. That gender based violence still is one of the major issues because of which women are moving across borders. And as a consequence of that they find themselves in different kinds of vulnerable contexts. Then that paves the pathways to the prison. So, this similarity really tells us a lot about gender and the nation state, and also family.

So much so that when I was making a presentation, based on my previous work [with Bangladeshi women in India], people in the audience actually thought I was talking about my work in Sydney. That for me was really striking because there is so much similarity. That’s why I feel that the strong, powerful voices of the Bangladeshi women really reaffirmed for me that that voice has a lot to offer. Not only for an understanding of the India-Bangladesh border, but for our understanding of border controls, the idea of the nation state, and how we look at mobility across borders. I think it has insights for a much broader context than just the India-Bangladesh border.

SUK: Is there any merit in comparing crimmigration across the ‘Global North’ and the ‘Global South’ – without necessarily assuming them as strict binaries? Secondly, how do we understand this new focus on ‘b/ordering’ in South Asia when its practices have been almost innate to these countries since 1947? 

RM: I definitely think there’s merit in trying to draw from and understand different concepts and theoretical frameworks that have come up, say in the Global North. Like crimmigration. We are borrowing that idea from there. And I myself have done that. Like I said, when I started this work there was a complete vacuum. This field of criminology of mobility opened up for me a really different area to explore, to understand and to engage with discussions. There is merit and value in that. 

But I don’t think we need to keep falling back to that concept. We really need to understand how it applies in our present context, specially because we are actually just on the way to formalising a lot of these processes. That formal link between migration policies and looking at the criminal justice system is still being established. We are seeing that detention centres are coming up. So we are at that stage. So we should start from where we are to understand the directions that we need to take. For which, we need to listen, to borrow ideas, read more, engage with ideas that are coming up in different places – but not just limit ourselves to that or keep only quoting that or falling back on that. I think we have a lot of space to contribute to those ideas and we should utilise that by looking at it from different standpoints.

SUK: I think your research actually does prove that because the women you speak to have such a perceptive idea of India’s border politics, of the way it impacts citizenship as well as the criminal justice system. At one point, one of the women you interviewed asked a question, ‘Why can’t they just send us back? Why are they continuing to feed us and keep us here? If we have done something wrong, why can’t they send us back?’ 

I wanted to understand how these women, first of all, critique or perceive the social, political and economic infrastructure of the prison system? What do their perceptions reveal about the infrastructure? How does it actually work? What sustains it? Why does the government keep them? Why does it not send them back?

RM: I think they are challenging that idea. They are really questioning this state and asking – what is it that you get out of doing this to us? Considering that we committed no other crime – we have not harmed another person – what is your moral ground to keep us here? That is the question they ask. 

But the way I interpret it is that the state is creating the Other. Creating someone as a threat to the idea of the nation state helps you secure your identity as a citizen. To secure your identity as a citizen, you constantly need the ‘Other’. So I think that’s the moral ground on which all nation states actually create the image of the Other. That’s what we’re seeing whether it’s in terms of the representation or discussions around refugees, people seeking asylum, people who were referred to as illegal migrants. All of these discourses, and the way that are represented – even in the media, if you see the words that are used to represent different groups of people who are migrating for different reasons – is creating them as a threat to the idea of the nation state. 

So, when you create the Other as the threat, you put mechanisms in place to constantly feel secure. This actually is also going to impact the citizen. The systems of surveillance and the idea of security, justified by the nation state, are impacting and creating hierarchies within the idea of citizenship as well. It sustains itself by creating the idea of the Other. 

SUK: That’s an excellent point. Going back to something you said in the very beginning of the interview – do these women come back? If they do, how and why? I ask this in context to a particular incident I came across in a book – which also featured in the newspapers years ago – about this one Bangladeshi woman who had been detained in Delhi and sent back to the border. Yet she came back some six-seven times. I wanted to know if you encountered similar stories and what was the reasoning that you were provided? 


RM: So actually one of the reasons why I ended up taking this up for my doctoral studies is a woman that I met again in the prison in Mumbai. It was the same woman I met after a few months of her being sent back. She was back in the prison. That’s when I understood that they are deported, then some of them again find their way across the border and they come into India. It is in pursuit of an idea of freedom.  It’s really looking for a better life, whether it’s in terms of their social life, their economic life, or even their emotional lives. It’s that search for freedom and that idea of freedom that they constantly look for which gets them back to India. And this is, of course, specific to some women but there are instances where women are trafficked across the border as well. Their circumstances are different.

SUK: Have you noticed the use of technology in border practices in the areas you’re working? Have you encountered it during your research or after? And what do you speculate will be the impact of increasing use of technology in crimmigration processes in South Asia? 

RM: One of the research projects that I worked on was looking at child marriages across the India-Bangladesh border. I did a few interviews along the border areas on the Indian side. That is when I observed the use of technology. A number of women when they came here and they were married – they had a child marriage –  were not always aware of the implications of this mobility due to marriage. They did not know the implications of their marriage on their citizenship. That they would not be able to go back to meet the natal family. One of the ways in which they kept connections with their family was through the use of WhatsApp, through internet and social media platforms. I think that helped them sustain the wider kin relationships as well.

So definitely there is a use of technology across the border. Some of the work that I have also been doing is near the Rajasthan-Pakistan border. There too, I have seen the use of technology, just to create that understanding of continued relationships. Even though we know that the context of that border is completely different and it’s much harder for communities on that side to remain connected with each other. India-Bangladesh border is still open in many parts but it’s not the same for the Rajasthan-Pakistan side. 

I was with one community in Barmer speaking about Partition and how their families were separated by the border. Just then someone got a call and they said, ‘Look, he’s my kin and he’s in Pakistan and we are still connected.’ So I think technology has still made that possible. But at the same time, like you said, technology is also being used for surveillance of communities and building evidence for certain communities against certain communities. I think that’s only going to increase, and we again have to be mindful of how it impacts different people. Like I keep emphasising, we need to keep looking from different positionalities to see its implications.

SUK: Dr Mehta we have come to the end of the interview. Is there anything you would want to add or ask?

RM: I think the questions were really really interesting and it helped me think through some of the issues. The only thing I would say is that, as researchers it’s really important for us to be transparent with our methodology and constantly explain and be open about why we do what we do. Where are we looking from? We have to be mindful of the kind of analysis and interpretation that we make, being aware of where our voice comes in, and where there are representations. So, that for me is key in terms of our ethical practice towards research but also the communities that we work with.

SUK: Definitely! Thank you so much for your time. 

Nepal’s Citizenship Amendment Act: A Long-Awaited Yet Short-Sighted Achievement

Deirdre Brennan is PhD candidate at the Peter McMullin Centre on Statelessness, at the University of Melbourne, where she also co-coordinates the Critical Statelessness Studies Project. Her doctoral thesis is concerned with the ‘ethics of care’ in activism against Nepal’s gender discriminatory nationality laws: how do the pervasive, yet unseen, social functions of care, relationships, and emotions, such as joy and rage, shape campaigns to “end statelessness”.


In Nepal, the governance of formal qualifications for citizenship has a relatively short history. Since 1962 (2019 B.S.), the acquisition and distribution of citizenship has been governed by the country’s constitution alongside a complementary citizenship act.One of the most important acts in this short history is the Citizenship Act of Nepal 1964 (2020 B.S.) . The 1964 act formed the basis of all future provisions on the acquisition of citizenship, including enshrining gender discriminatory nationality laws and increasing the residency requirement for naturalised citizenship from 5 to 15 years. And while the 1964 Act would go on to be amended several times, it was not repealed until 2006 when the Nepal Citizenship Act 2006 (2063 B.S.) came into effect. Importantly, now, the 2006 act became outdated as a consequence of the promulgation the the Constitution of Nepal 2015 (2072 B.S.). This has meant that for the majority of the past seven years, the country has lacked functioning legislation governing citizenship acquisition and distribution. The recent news that the bill to amend the Citizenship Act 2006 had finally been endorsed, by the House of Representatives, should thus be a cause for celebration. Passing of the amendment bill has been delayed for years by political dramas that would rival a soap opera, including numerous dissolutions of parliament, attempted power grabs, a cartographic war with India, and not to mention the repercussions of a global pandemic[1]. And yet, one glance of Nepali Twitter shows exactly why those who have been fighting for years for women’s citizenship rights, are extremely disappointed with this legislative milestone[2]. In this blog, I outline some of the major changes introduced by the bill, arguing that while the consequences of a non-functioning citizenship act for Nepali youth will be remedied in some cases, this celebration is tainted by the longer-term consequences for women’s rights, and the inevitable implications on Nepal’s ethnic, gender and sexual minorities

In the newly amended Act, a Nepali woman’s ability to pass on her citizenship to her children remains conditional: as it was when the Act was first passed in 2006 and as it is in the present Constitution of Nepal 2015. At first glance, however, the Act and the Constitution appear gender neutral, stating that any person born to a Nepali mother or father shall be deemed a citizen of Nepal by descent. It is upon reading further provisions, in both the newly amended Act and the Constitution, that the restrictive and regressive nature of the laws (and inevitably the attitude of politicians) is revealed. Drawing on interviews conducted as part of my PhD research[3], I will first demonstrate the consequences of these gender discriminatory laws, and why, despite the hope of last week’s* amendments to the Act, little may change for some of Nepal’s young people. Later, I will highlight what little good can be taken from news of the newly amended Act.

Suraj is the son of a Nepali woman and an Indian father, he’s thirty years old and has lived in Nepal his entire life. Suraj first tried to get citizenship at sixteen years old (as is customary in Nepal), but his application was refused on the basis that his father is Indian. In our interview he noted how, ‘my mother, sometimes she cries and says “Why I gave birth to you people? I did crime by marrying a foreign man.”’ Of course that isn’t true, yet the laws prohibiting her from passing on her citizenship, in her own right and irrespective of who she married, have made her feel like a criminal. Suraj himself sees the contradictions in these laws, noting ‘sometimes [my mother] thinks “because I married a foreign man you can’t get citizenship” but I don’t think like that. It is because of the law: if you are a man and had married an Indian woman you could have got [us our citizenship] easily.’ The crux of the issue here is that women are expected to follow the father of their children, in name, in marriage and in citizenship – an ideology with its roots in France’s Napoleon era. However, the reality, especially nowadays, is that people live multifaceted lives which do not always match the state’s vision for a (nuclear and male-headed) family. This vision is also driven by the state’s longstanding desire to homogenize many aspects of Nepal, especially its cultural and linguistic diversity[4]. Women, and especially those residing at the Indian border in the Madhes region (where cross-border marriage is commonplace), thus bear the brunt of protecting the state from further ‘dilution’ or an ‘Indianization’ of Nepal by having their right to pass on their nationality restricted.

In an attempt to follow the laws and expectations of the state – which stipulated that Suraj and his siblings could acquire naturalised Nepali citizenship if they provided proof that they had not acquired the citizenship of their father – Suraj’s mother and sister travelled to India. They attempted to achieve the impossible: prove a negative. Suraj recalled how the Indian officials laughed at his mother and sister, and said ‘you are married to our man, he died in your country, he has lived in your country, and you have not come to India so we cannot give you any proof that you are not an Indian… how can we give you proof that you are not an Indian?’. In one breath, the Indian officials proved how out-of-touch Nepal’s citizenship laws really are.

Unsurprisingly, for many years, Suraj and others like him held hope that when the citizenship bill amendment would finally pass, such discriminatory provisions relating to a foreign father would be removed. Milan for example, in his late twenties, is studying hotel management but is unable to travel abroad to complete the required internship, because he doesn’t have citizenship. His father is Indian, and he has faced the same difficulties as Suraj in acquiring citizenship through his mother. Milan was, in fact, promised by his local administration office that he would get citizenship ‘after the citizenship act is passed’. Unfortunately, that promise has not come to light because the old provisions – the necessity to prove one has not acquired the foreign citizenship of one’s father – have been upheld. So long as people shoulder this burden of proof, as Suraj demonstrated is nearly impossible (even when the logistics to acquire evidence, like travelling across the open border with India, are relatively easy compared with those whose fathers are from countries much further afield) there is little to celebrate in the long-awaited passing of the bill. Furthermore, and as before, the power to distribute naturalised citizenship lies solely with the Ministry of Home Affairs. This means naturalised citizenship for the children of Nepali mothers and foreign fathers (which to-date has infamously low distribution rates)[5] is only handed out in discretionary circumstances and where people have access to, and knowledge of, legal and bureaucratic systems. Not to mention that even if Milan and Suraj are able to meet the requirements for citizenship, the very idea that they should only be entitled to ‘naturalised citizenship’[6] adds insult to injury. Known colloquially as ‘second-class citizenship’ because of the inherent restrictions of naturalised citizenship, it is discriminatory – to both Nepali women and their children (who have in all likelihood lived in Nepal their whole lives) – to refuse them ‘citizenship by descent’.

One of the other key elements, in terms of women’s rights, that casts a shadow over the much-anticipated passing of this bill, is that the atmosphere toward a woman’s independent right to transmit her nationality has not changed. Much of the debate around a single mother’s right to pass on her citizenship was driven by patriarchal ideologies and laden with misogynistic slurs. For example, in 2019, Jhapat Rawal of the then-ruling Nepal Communist Party stated:

“If a child born out of rape doesn’t have to identify their father, then rape cases will increase…Children will lose their right to know their father’s identity, and this will also lead to women indulging in immoral acts.”[7]

And so, with the House of Representatives endorsement of the bill last week, so too, came their endorsement of the notion of “untrustworthy” women. In the newly amended Act, a provision has been included which threatens punishment for a woman should she apply to confer citizenship on her child irrespective of who the father is. In cases where the father is unknown or untraceable, a woman may pass citizenship by descent to her child, if the child has resided in Nepal, and, once the mother provides a self-declaration stating the ‘father cannot be identified’. If the father is found to be a foreign citizen, the child’s citizenship is converted to naturalised citizenship, or ‘second class citizenship’. And, should the self-declaration be shown as being false – that is, the father is in fact identifiable – the mother is faced with punitive action.

Finally, as mentioned at the beginning of this essay, it is important to take stock of what good that can be drawn from the passing of the amendment bill. The children of ‘citizens by birth’ have struggled to acquire citizenship since the promulgation of the constitution in 2015. ‘Citizens by birth’ are those who acquired nationality in 2007 during a one-time distribution for people born in Nepal before 1990[8]. This was especially important for people residing in the Madhes where there is a long history of Indian immigration into the region and, as such, a history of contested citizenship and loyalty[9]. Owing to the lack of a functioning citizenship act over the past seven years, the children of those ‘citizens by birth’ lacked a functioning pathway to acquire nationality through their parents. This problem will now be remedied with news of the recently amended citizenship act. Vivek, for example, is a nineteen-year-old from Nepal’s Madhesi community, whose father is a Nepali ‘citizen by birth’ and despite his mother being a Nepali ‘citizen by descent’ could not acquire citizenship since he first tried at sixteen. He was studying journalism when we spoke, and looked to his future ominously: 

“I have not been able to apply for better jobs, I don’t own a bank account. I use a bank account, but it is in the name of my mother. I don’t have a voter ID card, I can’t vote. While studying a masters or postgraduate, it is necessary to have citizenship. Then maybe if this issue is not solved then I might face a problem pursuing further studies. I feel terrible, I sometimes feel like I’m born in the wrong country, to be honest.”

The passing of the bill, which addressed Vivek’s issue, will now pave the way for him and tens of thousands like him to acquire citizenship by descent. Certainly, a cause for celebration but tainted nonetheless so long as others, like Suraj, are forced to continue looking ominously into their future. Ultimately, the problem lies with the enshrinement of gender discriminatory nationality laws into the constitution in 2015. The citizenship act was only ever going to compliment the discrimination already laid down in that document. While there are immediate forms of relief for many of Nepal’s stateless youth, the battle to repeal gender discrimination in the constitution’s citizenship provisions is the next great feat for Nepal’s citizenship-equality activists.

*This essay was first drafted on 1 August 2022. Since then, the fate of the amendment bill once again became unclear. Despite endorsement by the House of Representatives, President Bidya Devi Bhandari sent the bill back to the parliament to be reviewed. The bill will only become law once it has been authenticated by the president and this process remains pending.


[1] A more detailed timeline and overview of the cause for these delays is available in: Brennan, Deirdre ‘Struggles Towards Nepal’s New Citizenship Act: Living in the Shadows of the Citizenship Amendment Bill 2018 AD/2075 BS’ in Aziz Ismatov, Susan Kneebone, Kaoru Obata, and Dai Yokomizo (eds.) Nationality Struggles in the 21 Century and its Social Costs in Asia, forthcoming.

[2] The Nepali Sanskrit thread is here and the ‘retweets’ expand on the disappoint with the provisions: https://twitter.com/subinmulmi/status/1551135434910027777

[3] The interviews in this blog were conducted before the passing of the amendment bill and pseudonyms were used in some cases throughout this blog.

[4] Pradhan, Rajendra, and Ava Shrestha. “Ethnic and caste diversity: Implications for development.” Asia Development Bank 4 (2005), p. 7.

[5] As of 2017, Only 13 people had obtained naturalized citizenship certificates in similar circumstances, see, Mulmi, Subin “Feminist Analysis of the Citizenship Law of Nepal”, Nepal Law Review, Year 42, Volume 29, Number 1 and 2, 2020 – 2021, p.439.

[6] Naturalised citizens cannot hold the posts of President, Vice-President, Prime Minister, Head of the Federal Legislature and Head of the Federal Judiciary, Head of Security Forces, Head or Deputy Head of Federal State.

[7] Tsering D Gurung, ‘Debate over Nepali women’s right to pass on citizenship to children reignites as House Committee holds discussions on controversial provisions’ The Kathmandu Post (online, 7 March 2019) <https://perma.cc/J6ZS-6BJ8&gt;

[8] Dannah Dennis and Abha Lal. ‘Controlling National Borders by Controlling Reproduction.’ In Nadine T. Fernandez and Katie Nelson (eds) Gendered Lives: Global Issues (SUNY Press, 2022).

[9] Krishna Prasad Pandey. “Ethnic Politics, Madheshi Uprisings and the Question of Citizenship in Nepal.” Millennial Asia (2021) 60, 65.

CAA Revisited: A Conversation on Citizenship, Refugee Protection and Migration along India’s Western Borders

On the 27th of August, Parichay organized a panel discussion on the May 2021 order of the Ministry of Home Affairs, which significantly relaxes the citizenship process for minority communities from Bangladesh, Afghanistan and Pakistan. The panel focused on migration across India’s Western border and the making of the identities of the refugee and citizen, exploring the legal and social journeys of recognition and assimilation, the structural impediments in the legal regime and the possibility of an alternative system. The speakers were Dr. Farhana Ibrahim, Prof. Natasha Raheja and Ms. Darshana Mitra and the panel was moderated by Prof. Mohsin Alam Bhat.

The themes that emerged out of the panel are as follows:

The need to historicize citizenship and migration along the Western border

Dr. Farhana Ibrahim pointed out that there have been several MHA executive orders that have relaxed immigration and long-term visa requirements for Pakistani Hindus and other religious minorities from Pakistan like the 2003 amendment. These changes have happened continuously after 1947. Prof. Natasha Raheja spoke about her research in Rajasthan, and how people have shared histories and connections, and their mobility predates the existence of borders. Speaking about her research in Rajasthan, she pointed out, “our assumptions about people making these journeys are fixed within the logic of the contemporary India- Pakistan border. Until the more recent border fencing in Rajasthan and Sindh in Punjab in the 1990s, there wasn’t the same sense of partition the way we understood it in other parts of South Asia.” The research conducted by the panelists also revealed other reasons why people choose to migrate. Prof. Raheja indicated that in addition to experiences of religious persecution, caste also played a role in the decision to migrate.  Dr. Ibrahim gave the example of migration by the Sodha community to India from the Tharparkar region in Pakistan after 1971, as they were the only remaining upper caste community in Pakistan and endogamous marriage alliances were increasingly difficult.

Legal inclusion and social inclusion

The speakers also spoke about processes of legal inclusion and social inclusion. They emphasized that even when a statute guarantees visas and subsequently citizenship to a category of refugees, the process itself still takes a very long time. Applicants must undergo immigration inquiries and interviews that can be difficult and humiliating. Within these spaces, the position of lower caste applicants is especially precarious. This painful process of interacting with the citizenship regime is what Prof. Raheja calls a selective welcome. She highlights that, “on one hand, there is a welcoming of Hindu migrants from Pakistan but the reality on the ground is that they undergo the undignifying experience of documentation. Some of the statements that I hear from people is that “In Pakistan we may die because of religion but here we die by paperwork.” 

She highlights how Hindu migrants spoke of the “undignifying experience of documentation.” 

Dr. Ibrahim mentioned that legal inclusion is not always followed by social inclusion. She noted that migrants struggle to be accepted into the Hindu community, even if they had caste privilege, and had to struggle for resources and livelihood. Also, they were still identified socially as “pakistan-wallahs”, keeping intact the stigma of migration and forcing them to establish their Hinduness for acceptance. One can only imagine how much more difficult social assimilation is for people belonging to marginalized communities. 

Darshana Mitra then proceeded to emphasize on the existing legal regime for citizenship applicants and discussed possible alternatives and suggestions that could be borrowed from other jurisdictions. 

Legal impediments to citizenship seekers

Darshana Mitra spoke of how Indian law does not recognize or grant refugees a separate legal status, and most refugees fall into the category of illegal migrants under the Citizenship Act 1955. This becomes a significant barrier as illegal migrants are prevented from applying for citizenship and renders them vulnerable to prosecution for immigration offences under the Passports Entry into India Act or the Foreigners Act. This ‘illegal migrant’ tag does not allow people to avail various government schemes, send their kids to school or even avail proper housing. 

Once they have fallen into the criminal justice system as a criminal or an accused, the pathway to citizenship is effectively closed for them because and then if they are convicted under any of these legislations then the state’s response after conviction is detention and deportation. Granting citizenship to a person who has been convicted under an immigration offense is not an option that is exercised by the state.

The state’s response has been the selective easing of processes for certain communities. The May 2021 order is an example of a significantly truncated process for citizenship registration and naturalization procedure for minorities from Afghanistan, Pakistan and Bangladesh. The order creates a single tier process for registration and naturalization current process, which non-Muslim minorities can avail, while Muslim applicants must go through the existing three-tier process. This means that at the very point of entry, Muslim claims of persecution are rejected, and their pathways to citizenship made significantly harder. A proposed alternative was the rigorous scrutiny of all refugee claims, but after a refugee is admitted, they have the same pathway to citizenship as everyone else, determined by a case-by-case assessment. This would be similar to the system of refugee status determination and subsequent pathways to citizenship implemented in the United States. 

The discussion ended with questions on the way forward, and a consensus that the current legal regime, even with amendments and orders that presumably help migrants and refugees obtain citizenship, is discriminatory and arbitrary, and that there is a need to reimagine a legal system that recognizes why and how migrations take place along India’s borders, and one that can adequately respond to people’s lived realities.

Further references:

  1. Farhana Ibrahim, “Re-Making a Region: Ritual Inversions and Border Transgressions in Kutch” 34.3 Journal of South Asian Studies 439 (2011) https://www.tandfonline.com/doi/abs/10.1080/00856401.2011.620555
  1. Farhana Ibrahim, “Cross-Border Intimacies: Marriage, migration, and citizenship in western India” 52.5 Modern Asian Studies 1664 (2018) https://www.cambridge.org/core/journals/modern-asian-studies/article/crossborder-intimacies-marriage-migration-and-citizenship-in-western-india/72B0E16730FD62F0A18768FF8D919727
  1. Farhana Ibrahim, “Defining a Border: Harijan Migrants and the State in Kachchh” 40.16 Economic and Political Weekly 1623 (2005) https://www.jstor.org/stable/4416504?casa_token=6xdhQ_jmPgcAAAAA%3ABlqAjrS7BTDaCMTwOeLVBTGTUrFL8tpM1eaNaIV71MnBGn-4LpOR_M9zD7Fsxz9P341Yxim_MlcNovOo0c51hxiGuy0sobNv9OKXhmYy7Vv8ZdoF6A&seq=1#metadata_info_tab_contents
  1. Natasha Raheja, “Neither Here nor There: Pakistani Hindu Refugee Claims at the Interface of the International and South Asian Refugee Regimes” 31.3 Journal of Refugee Studies 334 (2018) https://academic.oup.com/jrs/article-abstract/31/3/334/4922733
  1. You can find Parichay’s note on the May 28, 2021 order here.

Deprivation of Citizenship

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

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

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

Deprivation of Citizenship in Domestic and International Law

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

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

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

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

The Right against Arbitrary Deprivation of Nationality

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

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

Suggested Readings:


Naturalisation

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

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

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

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

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

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

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

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

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

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

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

Suggested readings:

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

Stateless Persons

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

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

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

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

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

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

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

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

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

Suggested Readings:

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

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. 

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.