Why is the Indian state shockingly blind to the problem of statelessness?

Last year in March, during a public discussion in New Delhi, Himanta Biswa Sarma, the lead man for the ruling Bharatiya Janata Party in the North East, casually dropped in the word “stateless” while considering the future of the people identified as “foreigners” in the final draft of Assam’s National Register of Citizens.

The register aims to separate genuine Indian citizens from undocumented immigrants in Assam. Anyone unable to prove that they or their ancestors had entered the state before midnight on March 24, 1971, will be declared a foreigner. When the final register was published a few weeks ago, close to 19 lakh people had been left out, effectively rendering them stateless – depriving them of the right to have rights.

The BJP has declared that it wants to institute a similar exercise across the rest of India.

Sarma’s nonchalant statement on such a problem as grave and far-reaching as statelessness is not an aberration. In fact, it is an apt reflection of the longstanding passivity of the Indian state towards statelessness. There is little political or bureaucratic will to even understand the phenomenon, leave aside formulating comprehensive policy measures to prevent it across the board.

Denationalised individuals

This is exactly why the National Register of Citizens, in its aftermath is going to create a large set of denationalised individuals with no legal safeguards – something that the United Nations has warned about.

Besides the lacuna in the national legal domain, India has an embarrassing record within the international legal framework on preventing statelessness. It is yet to sign or ratify the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness, the two central pillars of statelessness prevention within the United Nations treaty system.

As a consequence, the Indian state is not remotely obligated to incorporate these norms within its own workings. This also allows the political class to ignore the problem.

The absence of a national refugee policy has further deepened the institutional passivity. Since there is no single legislation on how to treat asylum seekers or refugees, there is no targeted enumeration of stateless persons as well, including those who are internally displaced. The understanding, then, of “stateless persons” is left to the complete discretion of the state.

Rohingya case

This has often landed stateless persons in a soup, as according to Indian law, individuals without citizenship papers of any country are de facto “illegal immigrants” who can be legitimately deported without safeguards, contingent on how the higher courts understand each situation of displacement.

Take the example of the forcible return of seven Rohingya men by the Indian government from Assam to Myanmar in October last year. When faced with a petition to stop the deportation, a senior bench at the Supreme Court led by the Chief Justice of India, refused to interfere in the government’s decision on the grounds that Myanmar “had accepted them as citizens” – a faulty assumption.

The Rohingya community, till this date, remains denationalised by law in Myanmar. The Myanmarese government had only issued temporary travel permits to the deportees, not full citizenship documents. Yet, the Indian Supreme Court showed scant understanding of this unique situation, completely skirting the core question of statelessness, besides the violent conditions that Rohingya returnees face in Myanmar’s Rakhine State. I have earlier argued how the Indian government’s move was illegal and violated the peremptory norm of non-refoulement – the practice of not forcing refugees to return to a country in which they are liable to be subjected to persecution.

Falling through the gaps

Within the national legislative context, the primary drivers of India’s perennial statelessness crisis are the myriad gaps in its restrictive nationality laws. Individuals often become stateless by falling into these gaps, thanks to minute provisions within the principal nationality law, the Citizenship Act of 1955, that operate on strict or ambiguous definitions of citizenship and non-citizenship. Besides proactively creating stateless individuals within the national borders, these provisions make life harder for stateless asylum seekers.

For instance, an amendment to the Act in 2003 laid down the definition of “illegal immigrant” as someone who enters India without valid travel documents or overstays with expired travel documents. This is a death knell for stateless asylum seekers, such as the Rohingya fleeing persecution in Myanmar, who do not possess citizenship papers or valid passports because of Myanmar’s discriminatory citizenship law.

In a similar vein, another such provision, inserted by the same amendment, attaches “citizenship by birth” (jus soli) to the precondition that none of the parent should be an “illegal immigrant”. This can push children of parents with mixed status into a limbo. There is also no clarity on the legal status of an individual with one stateless parent. In addition, Rule No. 10 of the Citizenship Rules 2009 states that “adequate knowledge” of one of the Constitutionally-recognised languages is a prerequisite for acquiring Indian citizenship. For asylum seekers and long-term economic migrants, this is all but a discriminatory barrier.

Mass statelessness

But, one particular provision – Section 6A of the Citizenship Act – is particularly problematic. Inserted after the six-year long anti-immigrant Assam Movement that started in 1979, it leaves the fate of those who entered Assam from erstwhile East Pakistan (today, Bangladesh) on or after March 24, 1971, the day Bangladesh declared independence, in limbo. This gap is precisely what the current National Register of Citizens updation process is instrumentalising to politically disenfranchise millions of long-term migrants from Bangladesh. The natural outcome of such a process is mass statelessness, but the Indian government and courts seem to care little.

It is not that Indian courts have not tackled the statelessness issue. From time to time, it has done so and appreciably so. For example, the Punjab and Haryana High Court mentioned the word “stateless” as far back as in 1958 while adjudicating a case on a Punjabi refugee from Pakistan living in India.

Then, in a landmark case in 1996, the Supreme Court took it a notch higher and established the categorical right of citizenship for Chakma refugees from erstwhile East Pakistan living in Arunachal Pradesh, despite mass opposition from local civil society groups in the North East Indian state.

But, the higher judiciary needs to be much more proactive in preventing statelessness and compensate for the lack of legislative and administrative will to do so. It also needs to offset India’s non-participation in the international treaty regime on statelessness prevention and reduction through judicial activism and specific case-based precedents. The higher courts are fairly well-placed in this context to facilitate a gradual normative change in how Indian state institutions understand and respond to the phenomenon of statelessness.

This becomes an even more urgent prerogative in today’s date with over a million people staring at a precarious situation of political disenfranchisement, not very far from Myanmar’s Rakhine State where the Rohingya community offers a living example of the grave dangers of mass statelessness.

Furthermore, with the BJP proposing, with all conviction, to reframe Indian citizenship along hard-set religious identities through the Citizenship Amendment Bill, India’s statelessness crisis could take a new, devious turn. If the Bill is reintroduced and passed in the upcoming winter session of the Parliament, Muslim migrants from Bangladesh, Pakistan and Afghanistan would find themselves selectively denationalised over Hindus, Buddhists, Jains, Sikhs, Parsis and Christians. It would only be a historical travesty if the higher courts fail to intervene in this undoing of India’s constitutionally-marked secular credentials.

No individual deserves to live in limbo when it comes to civil, political, social and economic rights, not least by virtue of the religion they are born into. In a situation otherwise, it becomes the ultimate subversion of the modern social contract as we know it.

Angshuman Choudhury is a Senior Researcher at the Institute of Peace and Conflict Studies, New Delhi, and currently a Visiting Fellow at the German Institute for International and Security Affairs, Berlin.