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.

Excerpt: Legal Recognition of Status of Statelessness in India

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

II. LEGAL RECOGNITION OF STATELESSNESS IN INDIA

A. Recognition of Status

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

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

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

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

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

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

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

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

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

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

Announcing the Release Schedule for ‘Securing Citizenship: report on India’s legal obligations towards precarious citizens and stateless persons’

This month, the Centre for Public Interest Law will release its Securing Citizenship report on India’s legal obligations towards precarious citizens and stateless persons. 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. It focuses on the deplorable conditions of precarious citizens in Assam and stateless persons in India to propose methods of prevention and reduction of statelessness itself. In providing current and immediately relevant legal tools to restore the security previously accorded to citizenship status, the Report aims to bolster advocacy efforts on statelessness in India.

To foster engagement with the report, CPIL is hosting a series of events and symposia in collaboration with Parichay – The Blog . The flagship event will be a webinar on the key themes of the report, taking place on 5th December. Below is the full schedule:

  • 18th November: Excerpts from ‘Securing Citizenship’ will be released on Parichay – The Blog. These excerpts are on the themes of legal recognition of statelessness, the rights of child detainees, and the socio-economic framework of rights for stateless persons. We invite you to reflect on these themes reflected in the excerpts before the release of the Report in its entirety.
  • Final week of November: The Report will be published on the Centre for Public Interest Law (JGU) website. Fellow academics, faculties, and students are invited to read, engage and discuss the Report. We strongly encourage responses to the Report which can be submitted to the Blog.
  • November through December: The blog will feature a series of posts by authors of the report, reflecting on contemporary legal developments relevant to the report. These posts will be accompanied by interviews with scholars with an academic background in studying statelessness in law and practice.
  • 5th December: CPIL and Parichay – The Blog will host a webinar on ‘Securing Citizenship’ with distinguished panelists to discuss the highlights of the report and their reflections on the issue of statelessness. In this flagship event, we hope to introduce the Report to a varied audience and invite anyone interested in the study of citizenship to attend. Please register at https://bit.ly/3lPXPOl to receive the link and password for the webinar.
  • January: Contributions by academics and students, including any submission of responses to the Report, will be published. The call for these contributions is open to all readers!

We look forward to your participation in the release of this report!