India’s legal obligations towards precarious citizens and stateless persons

Centre for Public Interest Law, Jindal Global Law School. This is the summary of the first report on citizenship and statelessness published by the Centre. To facilitate critical public engagement with the report, CPIL is hosting a webinar on 5 December 2020 from 1:30 to 3:30 PM (CET).

Citizenship is fundamental to realise the full extent of human rights. Stateless persons suffer from a lack of access to their rights since they are not citizens of any state. Precarious  citizens – whose nationality status is in a limbo – stand at the risk of statelessness and erosion of rights. This report aims to comment on and review existing law and policy on statelessness in India. It is divided into three chapters – Status, Detention and SocioEconomic Rights. Each chapter provides a framework of law and policy by examining Indian law, international law and global best practices that India should follow to fulfil its obligations towards precarious citizens in Assam and stateless persons in Indian territory. Each chapter concludes with recommendations to strengthen the existing law and policy.

The first chapter of this report employs international and Indian jurisprudence to discuss the legal status of precarious citizens in Assam and stateless individuals in India. It is divided into three sections. The first two sections address the issue of the legal status of the two groups, respectively, while the third section summarises the arguments and the key recommendations made throughout the chapter. The first section argues that there exists a right to nationality for every individual and that an individual who has a ‘genuine link’ to India must have Indian nationality. This obligation upon the Indian state has been qualified by elaborating upon the right of an individual not to be arbitrarily deprived of their Indian nationality. This section further develops another ancillary obligation upon the Indian state to prevent statelessness within its territory. It argues that precarious citizens in Assam are Indian citizens facing arbitrary deprivation of nationality and their Indian citizenship must be automatically affirmed. The section ends with a special focus on the right to nationality of children. The second section stresses the need for the recognition of a legal status for stateless persons in India. The section concludes by elucidating the core obligation on the Indian state to grant nationality to stateless individuals within its territory using the arguments made in the first section itself. Among other key recommendations made throughout this chapter, it is argued that India should first sign and ratify the two statelessness conventions and the CRMW.

The second chapter concerns the protection of civil and political liberties of individuals who have been deprived of their citizenship. The rampant reliance on detention for deportation in India poses a grave threat to the life and liberty of individuals. In view of the same, it extends a four-pronged argument. Firstly, the chapter argues that arbitrary detention of precarious citizens and stateless persons is prohibited since deportation does not serve as a legitimate purpose for them and is disproportionate. Despite this prohibition, there is evidence to show that precarious citizens in Assam are being indefinitely detained. This section further argues for the prohibition of indefinite detention as it is inherently arbitrary. Secondly, there are numerous alternatives to detention available in situations requiring determination of nationality of precarious persons where the state often argues that detention is warranted. These principles must be cautiously resorted to while ensuring that they never become alternative forms of detention. They are endorsed by international law, various national best practices and by the jurisprudence of the Supreme Court of India, and are in line with the principle of minimum intervention. Thirdly, detention for deportation cannot be devoid of procedural and substantive rights which are generally available to all incarcerated persons. These rights involve, among others, the right to legal aid, the right to review, the right to information and notice, and the right to release. Lastly, children constitute a vulnerable group among existing detainees. India is not only a signatory to international human right treaties which protect children from incarceration but also has a statutory framework in place to promote the best interests of a child. Therefore, India is under an obligation to recognise their special needs and impose a blanket ban on the detention of children.

The third chapter focuses on the undeniable effect of precarious citizenship and statelessness on socio-economic rights. Given the precarious position of the individuals who have been left off the NRC and that of stateless persons, both international and domestic legal frameworks provide stipulations for how these communities should be protected. India must ensure that minimum core obligations are met despite the reality of citizens themselves facing numerous obstacles in accessing these rights. Indians courts have historically affirmed the same despite arguments of the state’s financial restraints. Despite India’s lack of comprehensive refugee and statelessness policy, its practice with analogous communities like the Tibetans and UNHCR-registered refugees sheds light on the range of basic socio-economic rights that the state can and must extend to all vulnerable communities, irrespective of their citizenship status. These rights include access to documentation, healthcare, food and nutrition, shelter, housing and sanitation, education and employment, and a particular obligation to protect children as per robust international and Indian law.  

In light of these aforementioned obligations, this report makes numerous recommendations including compliance with international legal instruments, strengthening of state apparatuses, and the direct involvement of civil society actors. These measures shall address the prevention and reduction of statelessness as the ultimate and necessary law and policy goal. In the immediate context, the framework of each chapter and the recommendations shall contribute to the cause of terminating the everyday erosion of rights of precarious citizens in Assam and stateless persons in Indian territory.

The featured picture of this post belongs to Raki Nikahetiya.