HUMAN RIGHTS OF REFUGEES:

THE STATELESSNESS AND CITIZENSHIP

CRISIS OF MIGRANTS IN INDIA

Dissertation submitted in part fulfilment for the requirement of the

Degree of

LL.M.

Submitted by Supervised by
BEDAPRIYA LAHIRI DR. VINOD KUMAR

National Law University

Delhi (India)
2019
 DECLARATION BY THE CANDIDATE

I hereby declare that the dissertation entitled “Human Rights of Refugees: The
Statelessness and Citizenship Crisis of Migrants in India” submitted at National
Law University, Delhi is the outcome of my own work carried out under the
supervision of Dr. Vinod Kumar, Associate Professor (Law), National Law
University, Delhi.

I further declare that to the best of my knowledge, the dissertation does not contain
any part of my work, which has been submitted for the award of any degree either in
this University or in any other institution without proper citation.

Bedapriya Lahiri
28/ LLM /18
Place: New Delhi National Law University, Delhi
Date: 21.05.19

2
 CERTIFICATE OF SUPERVISOR

This is to certify that the work reported in the LL.M. dissertation titled “Human

Rights of Refugees: The Statelessness and Citizenship Crisis

of Migrants in India” submitted byBedapriya Lahiri at National Law

University, Delhiis a bona fide record of his original work carried out under my

supervision.

Dr. Vinod Kumar

Associate Professor (Law)
Place: New Delhi National Law University, Delhi
Date: 21.05.19

3
 ACKNOWLEDGEMENTS

First and foremost, I would like to thank my mentor Dr. Vinod Kumar for his
immense guidance and support during the research and writing of this dissertation. I
am extremely grateful for his patience, support, knowledge and insight in providing
me with the opportunities and encouragement to work on this topic. I am grateful to
NLU Delhi in general for providing me with the resources without which this
dissertation would not have been made possible.

I am thankful to my friends for their impeccable proofreading skills, without which

the dissertation would not have achieved the coherence that it has today. I am also
thankful to my family for their patience, support and faith that helped me to trudge
through the harder phases of this project. Lastly, I would like to thank my almighty,
Paramji in whose blessing I found my encouragement and motivation to finish this
project. You have my everlasting gratitude.

Bedapriya Lahiri

4
 LIST OF ABBREVIATIONS

% Percentage
& And
A.I.R All India Reporter
ALL Allahabad High Court
AP Andhra Pradesh
Art. Article
BLR Bengal Law Reports
CAR Criminal Appeal Reporter
ICERD The Convention on the Elimination of All Forms of
Racial Discrimination, 1969
Cr. L J. Criminal Law Journal
Ed. Edition
HL Himachal
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and
CulturalRights
ILR Indian Law Reporter
INDIA CONST. The Constitution of India, 1950
Mad. Madras
NGO Non-Governmental Organisation
NHRC National Human Rights Commission
NRC National Register of Citizens
PIL Public Interest Litigation
Rs. Rupees
SC Supreme Court
SCC Supreme Court Cases
Sept September
UDHR Universal Declaration of Human Rights, 1948
UNHCR United Nations High Commissioner of Refugees
v. Versus

5
 LIST OF CASES
 Sarbanada Sonowal v Union of India, (2005) 5 SCC 665 [2]

 K. Mohammad Ahmed v. State of Kerala and others 1983 SCC OnLine Ker

181: AIR1984 Ker 146;

 Abdus Samad v State of West Bengal (1973) 1 SCC 451;

 In Re Aga Begum (1971) 1 MLJ 18;

 Mohd. Raza Dabstani v. State of Bombay and Others (1966) 3 SCR 441;

 Habatullah Haji Fazale Hussain v. The State 1963 SCC OnLine Guj 7: AIR

1964 Guj 128;

 Mangal Sain v. Shanno Devi AIR 1959 P H 175

 In Assam Sanmilita Mahasangha v Union of India (2015) 3 SCC 1, A two-

judge

 Central Bank v Ram Narain, AIR 1955 SC 36 [11]

 Assam Public Works v Union of India 2018, (2018) 9 SCC 229

6
 TABLE OF CONTENTS

TITLE Page Number

DECLARATION BY THE CANDIDATE 2

CERTIFICATE OF SUPERVISOR 3

ACKNOWLEDGMENT 4

LIST OF ABBREVIATIONS 5

LIST OF CASES 6

TABLE OF CONTENTS 7-9

INTRODUCTION 10

1.1 GENERAL BACKGROUND 11

1.2 LITERATURE REVIEW 11

1.3 STATEMENT OF PROBLEM 15

1.4 OBJECTIVES 16

1.5 SCOPE OF STUDY 16

1.6 HYPOTHESIS 16

1.7 RESEARCH METHODOLOGY 16

1.8 CHAPTERIZATION 17

CHPATER 2- STATELESSNESS: THE 18

INTERNATIONAL HUMAN RIGHTS

ENIGMA

2.1 UNDERSTANDING STATELESSNESS 18

2.1.1 THE EXTENT OF 19

STATELESSNESS

7
 2.1.2 CONSEQUENCE OF 20

STATELESSNESS

2.1.3 DIFFERENCE BETWEEN A 21

STATELESS PERSON AND A

REFUGEE

2.2 THE INTERNATIONAL FRAMEWORK ON 22

STATELESSNESS

2.3 CHALLENGES IN ERADICATION OF 25

STATELSSNESS

2.4 RECOMMENDATIONS TO ERADICATE 26

STATELESSNESS

CHAPTER 3- CITIZENSHIP, NATIONALITY 29

AND HUMAN RIGHTS: INDIAN

PERSPECTIVE

3.1 NATIONALITY VIS-À-VIS CITIZENSHIP 31

3.2 HISTORICAL DEVELOPMENT OF INDIAN 32

CITIZENSHIP LAW

3.3 EXISTING LEGAL FRAMEWORK VIS-À- 35

VIS STATELESSNESS

3.4 JUDICIAL ROLE IN DEVELOPMENT OF 38

CITIZENSHIP JURISPRUDENCE

CHAPTER 4- NRC: INDIA’S CITIZENSHIP 41

CRISIS

4.1 THE HISTORY OF IMMIGRATION AND 42

POPULATION MOVEMENT IN ASSAM

8
4.2 NRC UPDATION IN THE PRESENT 47

SCENARIO

4.3 CHALLENGES AND CONCERNS OF NRC 50

UPDATE

CHAPTER 5- INDIA AND STATELESSNESS: 55

POTENTIAL CONSEQUENCES OF NRC

5.1 INDIA’S REFUGEE POLICY: NON 55

RECOGNITION OF STATELESSNESS

5.2 NRC AND CREATION OF POTENTIAL 57

STATELESSNESS

5.3 INDIA’S OBLIGATION UNDER 58

INTERNATIONAL LAW

5.4 THE WAY FORWARD 60

CONCLUSION 62

BIBLIOGRAPHY 68

9
 CHAPTER 1
INTRODUCTION
1.1 General Background

Every time we sit to watch a World Cup match, Olympics or see our country be
represented in a competitive sport, we are united by a connected sense of national
pride. This sense of pride comes from being a national or a citizen. But for millions
around the globe, this sense of pride is non-existent because they do not possess a
citizenship. They are stateless. Hannah Arendt says that it is not that they are unequal
in the eyes of law but that no law exists for them.1 Such is the plight of statelessness,
in which a person does not hold a citizenship of any nation and is thus precluded from
obtaining the protection for her rights. This is invariably linked to the political
conception of citizenship.

The issue of citizenship is at the core of the modern state system. Just as international
borders form the most critical geographical expression to delineate the physical limits
of a state, the notion of citizenship determines who the legitimate residents within that
defined space are. An average individual is not conscious of the fact as to how much
valuable this routine certification by the state is critical for him until he loses it or tries
to acquire another state's citizenship.2One of the key issues considered in the present
dissertation is whether the Indian legal framework granting citizenship is in line with
growing concerns of statelessness or not, and whether it incorporates steps to prevent
and reduce the same. It studies this in the context of the stateless people in the
northeast India, particularly created by the national register of citizens of Assam.

The national register of citizens is essentially a list containing names of all the legal
citizens in the State of Assam. It was first created in 1951 to check the illegal
migration in Assam, which is now in the process of updation. As on the date of
writing this dissertation, about 1 million people have been declared as illegal
migrants, whereas another 2.5 lakh people are facing fresh hearings at the Foreigners
Tribunals despite having their names in the first draft of legitimate citizens on various
grounds of error. What this work argues is that NRC is problematic on the levels of

1 David C. Baluarte, Life after Limbo: Stateless Persons in the United States and the Role of
International Protection in Achieving a Legal Solution, 29, GEO. IMMIGR. L. J. 351, 355 (2015)
2
Partha S Ghosh, The Citizenship Discourse in India, ECONOMIC AND POLITICAL
WEEKLY, Nov, (2011), 28-30, Accessed at http://www.jstor.org/stable/41151966.

10
conception, objective, procedural requirements and execution. It is not transparent and
can be misused in the grass root levels to harass the poor and the vulnerable religious
minority communities residing in Assam. Moreover, it is a product of the growing
religious undertones in India’s citizenship laws and also in its refugee policy. It argues
that the entire process is inherently exclusionary and discriminatory. Furthermore, as
it is being done under the supervision of the Supreme Court, all the recourses
available to persons unfairly treated are already closed as the apex body supports the
procedure. Thus there exist fallacies at multiple levels.

Another major issue raised here is what happens to the persons so declared illegal
migrants. As they are considered to have suspect nationalities and no citizenship, they
are effectively stateless. What will be the future of such persons? Will they be
protractedly rendered stateless, vulnerable and without rights or be deported,
particularly when Bangladesh refuses the existence of such migration. Can India do
so? Or does it have some responsibility towards such persons? At present, the current
framework of nationality laws reflects an inconclusive and ambiguous stand regarding
the meaning of citizens and stateless. The ambiguity gives scope to accept and reject
people based on communal grounds depending on the ruling party in the country. The
one million Bengali-Muslim immigrants have no citizenship as of today along with a
nation. Consequently, the NRC updation process simply created a new challenge of
statelessness rather than reduce it. A concrete policy is needed to ensure that the
fundamental values of non-discrimination on religious grounds are removed.
Irrespective of the existence of a clear policy India needs to strive to not add to the
existing problem of statelessness around the globe today.

1.2 Literature Review

BOOKS:

1.2.1 Human Rights or Citizenship? Paulina Tambakaki, Birbeck Law

Press (2011)

In this book the author holds that while human rights have been enjoying
unprecedented salience, the idea of the citizen has been altogether tested. Rising
moral concerns, the raising doubt about of state sway, and the solidification of the
human rights routine, have all added to a shift in focus: from an exclusionary, risky
citizenship to human rights. Human Rights or Citizenship? inspects this move and

11
explores its implications for democracy. In an open way, the book investigates the
contentions inside contemporary democratic theory that consider law and lawfully
systematized human rights over citizenship; addressing whether legalism alone could
lead us to a superior, increasingly fair legislative issues. Does the prioritization of law
and lawfully systematized human rights hazard depoliticisation? Do human rights
dependably challenge relations of intensity and subjection? Tending to these inquiries,
it opens a discussion about the function of citizenship and human rights in majority
rule government.

1.2.2 Retheorising Statelessness: A Background Theory of membership in

World Politics, Kelly Staples, Edinburgh University Press. (2012)

This book discusses the continuing existence and deprivation of statelessness

and demonstrates the importance of being a member. One therefore encounter the
paradox that ‘while international human rights law enshrines a right to nationality,
that right can only be provided by the existence of state sovereignty.’ This tension has
been significantly been explored through the length of the book. Part of the overall
finding is that human rights discourse is limited by its need to hold onto the fiction
that the importance of citizenship (or membership) has been eroded. The reliance of
the idea of human rights on this assumption on this assumption inevitably constraints
its ability to constructively theorize the value of membership. On the other hand,
assuming too much about the value of membership can significantly undermine the
scope of theorizing its individual implications. This apparent impasse is explored in
this book in detail.

1.2.3 Statelessness: The Enigma of an International Community, William E

Conklin, Hart Publishing. (2014)

This books seeks to understand the very ethos and character of two international
communities each embodied in chains of relations between signs and represented
rules in two international law discourses. The ethos of one international community is
constituted from an aggregate will of states. The other considers the international
community as a whole. It concludes that as long as the residuary power of granting
nationality will be subject to the will of the member states, the problem of
statelessness will persist. It will only dissolve when the necessary ethos of the
international community is independent of its state members.

12
 1.2.4. Citizenship and its Discontents: An Indian History, Niraja Jayal
Gopal, Permanent Black Publications (2013)

This book documents the evolution of the Indian idea of Citizen across the
twentieth century, primarily as relation between individual and state, but also in
relation between the citizens. It explores some of the myriad ways in which the
citizenship in India is understood, claimed and asserted, surrendered and abrogated,
abridged and violated. It traverses through some of the sites where it was enacted
from Constituent Assembly, to panchayats to refugee camps. It concludes that Indian
citizenship laws always had the tainted consideration of religion in their enactment.
The influx of migrants on the eastern and western borders of India has shifted the
manner of citizenship determination from jus soli to jus sanguinis giving way to
religious discrimination in awarding of citizenships.

ARTICLES:

1.2.5 Implication of NRC updation in Assam by Nilakshi Das, Pratidhwani

the Echo, Published by Dept. of Bengali, Karimganj College, Karimganj,
Assam, India

The author considers there is illegal infiltration and migration from Bangladesh
and that both the Central Government led by BJP and State Government led by
Congress have not taken the dangerous issue of illegal infiltration of foreign nationals
from Bangladesh into Assam seriously. Sheer betrayal of the Governments in this
respect has already vexed the minds of the indigenous people of Assam. Apart from
this, the author believes that it is a positive step that under the direct supervision of
the Supreme Court, the NRC 1951 is updated. It will not only help in the correction of
the Voter’s list on the basis of the updated NRC, but also deals with the detection and
deportation of illegal infiltrators.

1.2.6. Election Commission and the Assam Accord by Sujit Choudhury,

Published by Economic and Political Weekly, (1985)

It discusses the important questions that the Assam Settlement had raised with
respect to the functions of election commission. It shows from various circulars and
directives issued by it from time to time how the commission has been shorn of its
autonomy and independence and transformed into an agency of home ministry.

13
 1.2.7. Report on NRC updation: Prospects and Challenges, by the Fact
Finding Team comprised of Centre for the Study of Society and
Secularism, Mumbai. (2015)

In order to study the whole process of the NRC updation, the Centre for the
Study of Society and Secularism, Mumbai had formed a fact finding team on the
process of present NRC updation of Assam. The team visited different places of
Guwahati, Barpeta, Bongaigaon, Dhuburi, Goalpara, Morigaon, Baksa, Nagaon and
Sivasagar districts from 22nd May to 26th May 2015. The team interacted with
different community people, NRC Co-ordinator Prateek Hazela, officials of NRC
Sewa Kendras, Gram Panchayat Presidents, BLOs (Booth Level Officers), notable
citizens like Social workers, College Principals, Professors, Teachers, leaders of
political parties, people living in shelter camps, etc. it held that NRC had many short
comings but despite that should continue to finish it and reduce the problem of
foreigners in the state.

1.2.8. Assam’s National Register of Citizenship: Background, Process and

Impact of the Final Draft by Amit Ranjan, ISAS Working Paper, Published
by National University of Singapore (Sept 2018)

The author holds that the release of the final draft of the National Register of
Citizenship for the Indian state of Assam has created anxiety among four million
people whose names are not in the final draft. It is not clear what will happen to those
whose names may not appear in the final list, which will follow this draft. Where will
they go? The Bangladeshi government has repeatedly maintained that there are no
“illegal” Bangladeshi citizens living in India. After the release of the final draft, to
allay the fears of those whose names are not in the draft list that they may be stripped
of Indian citizenship status, the Indian government and its institutions have
maintained that, for now, they are not going to take any such steps. But he contends
the entire process to be questionable for a democracy.

1.2.9. Written statement submitted by the Asian Legal Resource Centre, a

non-governmental organization in general consultative status by Human
Rights Council, Thirty-ninth session, Promotion and protection of all
human rights, civil, political, economic, social and cultural rights, including
the right to development at UNGA (10-28 September 2018)

14
 It asks the government of India to exercise extreme cautiousness in the
registration of the citizens and ensure that not a single genuine citizen of India is left
out because of clerical errors or a lack of documents missing because of reasons
beyond the control of applicants. It further asks the government of India to mobilise
all authorities in the state of Assam as well as other states like West Bengal, Bihar and
others from where many of the people excluded from the draft list come from to cross
check their claims and help them secure their documents.

1.2.10. The Political Demography of Assam's Anti-Immigrant Movement

by Myron Weiner, Population and Development Review Published by:
Population Council (1983)

In the early months of 1983 the Assamese and local tribals violently turned
against Bengali immigrants and descendants of immigrants. Four thousand people
were massacred, a quarter of a million were made homeless, and thousands fled the
state at Nellie. The political arrangement that had enabled Bengalis and Assamese to
live together had already fallen apart by 1979, and for the last three years Assam has
been the scene of a popular political movement against illegal immigration from
neighboring Bangladesh. How the political system had been held together for 30
years, from 1947 to the late 1970s, and what combination of political and
demographic events disrupted these arrangements and brought about the violence is
the theme of this report.

1.3 Statement of Problem

The key issue considered in the present work is whether the Indian legal framework
granting citizenship is in line with growing concerns of statelessness or not, and
whether it incorporates steps to prevent and reduce the same. This project seeks to
understand the same in the light of NRC and its updation. Is there a sectarian bias by
the current government on linguistic, religious and caste basis? Does NRC breach
India’s obligation under the various international conventions it has signed for
International Humanitarian Law. Most importantly, where will the non-citizens go?
Will Bangladesh so easily take back the citizens, considering it has not agreed to do
so until now? It creates a serious human rights issue where millions of people would
lose their rights as a consequence of being deprived of citizenship. This paper seeks to

15
identify, analyse and provide suggestions for, the problems of statelessness associated
with the NRC updation process in light of the citizenship laws of the country.

1.4 Objectives

 To understand the concept and challenges associated with the international

phenomenon of statelessness
 To analyse Indian citizenship laws to check its conformity in reducing such
statelessness in the Indian Context
 To study whether the current NRC issue in Assam potentially contributes to
the challenge of statelessness?
 If yes, then analyse the make suggestions to mitigate the same

1.5 Scope of Study

The scope of this study is limited to the international framework regarding

statelessness, the Indian laws of citizenship, both analyses in context of the NRC
updation process in Assam. It briefly touches upon the refugee framework of India as
well to conclude that it is progressively becoming communal, along with the
citizenship laws resulting in only a religious minority community being rendered
stateless.

1.6 Hypothesis

The NRC updation in Assam conducted along the citizenship norms of India, under
the guidance of Supreme Court would result in potential statelessness of about a
million people in India, which has no further mechanism in place to rehabilitate them.

1.7 Research Methodology

In accordance with the objectives of the present study, doctrinal research design has
been used. Numerous research papers, Supreme Court cases, commentaries, digests,
International conventions and national statutes were examined. Secondary sources
were used in the form of Case laws, reports, statutes and commentaries. They were all
summarized, collated, coded and then analysed.

16
1.8 Chapterization

Chapter II deals with the concept and challenges of the international phenomenon of
statelessness. Chapter III analyses the Indian Citizenship law framework vis-à-vis
statelessness. Chapter IV will deal with NRC, its evolution and the human rights
challenges it creates. Chapter V deals with India’s effort in reducing statlessness in
context of NRC. It will conclude will Chapter VI which will present the conclusions
for this project along with suggestions for improving this process of NRC updation to
reduce the potential statelessness problem.

17
 CHAPTER 2
STATELESSNESS: THE INTERNATIONAL HUMAN
RIGHTS ENIGMA
In a world of nation states, citizens rely on states for their protection. Stateless people,
being non-citizens therefore, fall between the cracks of the protection framework. The
lack of protection from any institution is the most defining characteristic of their
existence. In ancient times, it was commonly characterized as slavery in Roman
Empire. It became most evident after the two world wars that resulted in millions
losing their homes along with membership of their nations. Because it occurred after
the wars “it had often been believed to be a temporary nuisance, that given time and
some effort would eventually go away.”3 But the enigma of statelessness is too
complicated to go away on its own. In the post war nation building era, since States
could choose whom to offer their membership, there emerged a section of population
that no country chose. Thus began the problem of statelessness. It continues to exist
today, even in India (as is the focus of this paper), where the NRC of Assam could
potentially render millions stateless and add to the already excessive numbers present
in the world. To understand its potential consequences, it is imperative to understand
the phenomenon of statelessness.

2.1 Understanding Statelessness

By definition, a stateless person is a person who is not considered a national by any

nation under the operation of its national laws.4 She however, is not a refugee, who
would be governed by the Refugee Convention of 1951. Statelessness is generally
understood in two senses—de jure and de facto. Internationally, it generally means de
jure statelessness, which refers to persons who are outside the country of their
nationality and are unable or unwilling to avail themselves of the protection of that
country. By the term ‘unable to avail oneself of protection’, it implies circumstances

3
E SAID, ORIENTALISM, 49 (1979)
4
UNHCR. (2010), Expert Meeting - The Concept of Stateless Persons under International Law,
Retrieved from http://www.refworld.org/docid/4ca1ae002.html
This definition, according to the International Law Commission, is now part of customary international
law. The definition was deliberated upon in an expert meeting organized by UNHCR in Prato, Italy in
2010.

18
that are beyond the will/control of the person concerned.5 Such inability may be
caused either by the country of nationality refusing its protection, or by the country of
nationality being unable to provide such protection because, for example, it is in a
state of war and/or does not have diplomatic or consular relations with the host
country.

“De-facto citizenship is when a person possesses a legally meritorious claim for

citizenship but is precluded from asserting it due to practical considerations such as
cost, circumstances of civil disorder, or fear or persecution.”6In cases of de facto
statelessness, “the state is often in existence, but the individual lacks protection of the
laws by a mechanical failure of the state.”7 There are three categories of de facto
statelessness: (1) Persons who do not enjoy the rights attached to their nationality; (2)
Persons who are unable to establish their nationality, or who are of undetermined
nationality; (3) Persons who, in the context of State succession, are attributed the
nationality of a State other than the State of their habitual residence.8 No regimes exist
at the moment with regard to de facto stateless persons, who are, therefore, covered
under general international human rights law.9

2.1.1 The Extent of Statelessness

In 2011 for the UNHCR report, heavily populous countries such as India,
Indonesia, and Dominican Republic, who face the problem of statelessness, did not
submit their records. Stateless populations often are omitted from national registries,
creating difficulties in gathering credible data regarding their existence. 10 The
UNHCR estimates that there are more than 12 million stateless individuals, and that
they are found all around the globe: Asia, Africa, Europe, the Middle East, and the
Americas.11 This does not include the de-facto stateless that comprises of the

5
Claude Cahn, Minorities, Citizenship and Statelessness in Europe, 14 Eur. J. Migration & L. 297
(2012)
6
Jay Milbrandt, Stateless, 20 CARDOZO J. INT'L &CoMP. L. 75, 76(2011).
7
Id.
8
Id.
9
Final Act of the U.N. Conference on the Elimination or Reduction of Future Statelessness. U.N. Do.
C/CONF 9/14 rAue. 29. 196H.
10
UNHCR, A SPECIAL REPORT: ENDING STATELESSNESS WITHIN 10 YEARS 7, available at
http://unhcr.org/statelesscampaign2014/Stateless- Report eng final3.pdf
11
Equal Rights Trust (2010), Unraveling Anomaly: Detention, Discrimination and Protection Needs of
Stateless Persons, London: Equal Rights Trust.

19
refugees, people in refugee-like situations, warehoused people (refugees living in
camps for more than a decade) etc.

Palestinians are the largest stateless population in the world with around 11
million persons spread across West Bank, Gaza, Israel and East Jerusalem.12 Closer to
home in Myanmar, more than one million Rohingya Muslims living on the borders of
Myanmar and Bangladesh, are being denied nationality by each state. 13 Presently ‘at
home’ in the Northeastern state of Assam, where India conducted its NRC to weed
out the illegal migrants arriving from Bangladesh, another problem of statelessness is
set to arise by potentially adding another 1 million to the existing lot of 12 million. It
is generally accepted that statistics are more reliable for stateless persons who have
already crossed territorial borders of the states of their habitual residence. However,
like people of Assam, vast majority of people do not cross territorial borders. Their
voices are thus always at a risk of being silenced by the States whose nationality they
belong from and in whose internal jurisdiction they remain stateless. Therefore,
though the statistics present large numbers in official counts, the extent of
statelessness could possibly be even wider.

2.1.2 Consequences of Statelessness

Failure of clinics and other places of birth to enroll infants appropriately,

absence of budgetary capacity to take care of the expense of registration and birth
certificates, traditions and customs preventing birth registration, birth to stateless
guardians, political change and transfer of territory, which may modify the nationality
status of natives of the previous state(s), clashes of law between two nations, or
devastation of authority records, adjustment of nationality amid marriage etc. are
some of the reasons for statelessness.14 There are numerous ramifications and
problems that result from statelessness. It is linked to human rights abuses, including
a lack of access to identity documentation, education, healthcare, political

12
Haaretz, Palestinians to Outnumber Jewish Population by 2020, Says PA Report, HAARETZ(Jan. 1,
2013, 5:59 AM), http://www.haaretz.com/news/middle-east/palestinians-to-outnumber-jewish-
population-by-2020-says-pa-report-l.491122;
13
DEUTSCHE PRESSE AGENTUR, BANGLADESH ASKS FOR US HELP IN REPATRIATION OF ROHINGYA
REFUGEES, 30 (2011)
14
Jasmine Pope, The Stateless: Millions of People Forgotten and Left without Adequate Immigration
Assistance, Where Does the United States Fit into the Plight of the Stateless, 6 U. Balt. J. Int'l L. 112
(2018)

20
participation and freedom of movement.15 For example, stateless women are more
vulnerable to sex trafficking and prostitution. It creates a category of rightless
vulnerable people caught in a vicious cycle of deprivation with no forum to approach
to in case of injustice or necessity.

2.1.3 Difference between a stateless person and a refugee

Statelessness and refugee law both overlap and diverge. The stateless people
cannot claim the membership of any of the 190 states existing in the international
system. No state is obligated to protect them. Though this lack of protection is also a
characteristic of refugee status, but usually refugees tend to be citizens of a state.
They have valid passports and national identity of particular state but cannot rely or
are unwilling to rely on their own state for protection. They are on their own in and in
that sense could be called de-facto stateless. However, they are always eligible for a
surrogate protection by being awarded the ‘refugee status’ by the state or the
international community, which is clearly absent for the stateless people.16

The international framework to deal with refugees is contained in the 1951

Convention relating to the Status of Refugees (1951 Refugee Convention), which was
forged in the ashes of World War II.17According to this convention any person owing
to a well-founded fear of being persecuted for reasons of race, religion, nationality,
membership of a particular social group or political opinion, is outside the country of
his nationality and is unable or, owing to such fear is unwilling to avail himself of the
protection of that country shall be a refugee.18Though it does not directly address
statelessness or equate statelessness with persecution, it acknowledges the persecution
persons may face due to statelessness. Lack of nationality is important criteria for
providing refugee protection based on the abovementioned grounds. However, These
stateless individuals are eligible for refugee status so long as they are “outside the
country of their former habitual residence,” that is must have crossed an international
border to qualify for refugee protection.

15
Id
16
Maryellen Fullerton, Comparative Perspectives on Statelessness and Persecution, 36 Immigr. &
Nat'lity L. Rev. 853 (2015)
17
Convention relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 137
18
Art. 1(A)(2) Convention relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 137

21
 2.2 The International Framework on Statelessness

The cornerstone for combating statelessness in international law is two conventions

i.e. the Convention on Status of Stateless Persons, 1954 and the Convention on
Reduction of Statelessness, 1961. Till date about eighty States are party to the 1954
Convention, with number of accessions in the past three years prompted by UNHCR's
Statelessness Campaign.19 India has not acceded to either of the Conventions till date.
Along with the two conventions, there are many other international instruments,
which are of vital importance in removing the inequality and marginalization of the
stateless persons, some of which India has acceded to. The International human rights
law has played a pivotal role in creating a framework for the prevention of
Statelessness through various provisions in international instruments, which have
dealt with the right to nationality like UDHR, ICCPR, ICESCR etc., which are
discussed below.

2.2.1 Convention on the Status of Stateless Persons

This Convention, which came into force in 1954, has developed the most
comprehensive framework for the international protection of stateless persons and to
ensure their rights at international level.20 It seeks to provide basic rights along with
freedom from discrimination to the stateless people. It is noteworthy that it does not
clearly establish a right for people to acquire nationality but only requires the state
parties to facilitate integration and naturalization of such persons as far as possible. It
is only at a general level that Universal Declaration of Human Rights recognizes the
right to nationality. By reading the two harmoniously, States therefore must strive to
avoid statelessness.21

It essentially stipulates certain minimum rights and treatments to the stateless such as:
Right to non-discrimination (Article 3), Right to religion (Article 4), Right to
acquisition of movable and immovable property (Article 13), Artistic rights (Article
14), Right of association with non-political and non-profit making organizations
(Article 15), Access to courts of the contracting state of which s/he is habitual

19
#IBelong Campaign by UNHCR to end statelessness by 2024
20
Mamdani Mahmood, African states, Citizenship and War: A case Study, International Affairs
Journal, 78:3 1493-506 (1998)
21
UNHCR. (2014), Introductory Note to the 1954 Convention relating to the Status of Stateless
Persons, Retrieved from
http://www.unhcr.org/3bbb25729.html (Accessed on 05/10/2019 at 11 P.M)

22
resident, including legal assistance, Right to have gainful employment (Articles 17,
18 and 19), and Freedom of movement, subject to any regulations that are applicable
to aliens generally. They are also entitled to certain welfare rights by the contracting
states on par with those enjoyed by nationals of that state, such as rations, housing,
public education, and public relief and assistance (Articles 20-23).

2.2.2 Convention on the Reduction of Statelessness, 1961

While the 1954 Convention sought to recognize stateless persons as a category

in themselves, it never created an obligation to prevent or reduce the phenomenon
internationally. This was done by the 1961 convention, which provided the nation-
states with a framework of common rules to be incorporated for the issuance of
citizenship within their domestic legislative framework in a manner that mitigates
statelessness.22 It functions as a yardstick for all those countries that have loopholes in
their domestic frameworks that may allow a person to become stateless. However, it
seeks to enforce the carefully detailed safeguards through state’s national law where it
does not elaborate the content except for a few basic safeguards. The states are free to
elaborate on the content of their legislation.23 Though not very stringent in their
approach, both the conventions of 1954 and 1961 abide by two basic principles,
which are at the heart of this problem:

1. Avoidance of Statelessness. Incorporating such provisions in the domestic

legislativeframeworks of nations that prevent a person from becoming
stateless.

2. Reduction of statelessness. Encouraging such changes in domestic legal

frameworks thatallow a person to embrace the nationality of a nation, if
otherwise the person would have been stateless.

The failure of these conventions to compel the reduction of statelessness can be

attributed to the inherent problems present in the theorization of the concept of
statelessness. It shall be dealt in the subsequent sections. The abovementioned though
vital are not applicable to India as it is not a signatory to the conventions. Apart from
the above fully dedicated conventions to statelessness, there are certain other

22
United Nations. (1961) International Convention on Reduction of Statelessness, Retrieved from
http://www.unhcr.org/3bbb286d8.html (Accessed on 05/10/2019 at 11 P.M)
23
UNHCR. (2014). Preventing and Reducing Statelessness, Retrieved from
http://unhcr.org/cgibin/texis/vtx/home/opendocPDFViewer.html?docid=519e210a9&query=pre
venting%20and%20reducing%20statelessness (Accessed on 05/10/2019 at 11 P.M.)

23
documents that deal with the problem of statelessness both expressly and impliedly.
These are significant towards understanding India's commitment to protecting and
promoting human rights, as well as its efforts so far in combating the issue of
statelessness, as India is a party to all of them.

2.2.3 Universal Declaration of Human Rights, 1948

UDHR still remains the cornerstone of International Human Rights Law. From
the perspective of statelessness, it is Article 15 that stands most relevant. It holds that

1. Everyone has the right to a nationality.

2. No one shall be arbitrarily deprived of his nationality nor denied the right to
change his nationality.

However, it does not categorically state that nations have a positive duty to grant
nationality. Nor does it specify upon whom the right to grant such nationality rests.
Read liberally, it does create a ‘negative duty on the state to not create statelessness’
so that any deprivation must be accompanied by strict rules of procedure and should
not result in statelessness.24

2.2.4 International Covenant on Economic, Social and Cultural Rights

(ICESCR), 1966

The objective of this convention was to lay down such conditions that
everyone might enjoy their economic, cultural and political rights along with their
civil and political ones.25 While this does not touch upon the right of nationality or
statelessness, it is important because if a person is denied nationality, such rights are
effectively denied as a consequence. This could lead a person to be excluded from the
loop of human rights itself which would be unacceptable in the present day human
rights framework. It impliedly stresses on reduction of statelessness. Though the
provisions of the ICESCR are not directly obligating India to address statelessness,
efforts on part of India to prevent and reduce statelessness will pave a way for
realization of India's commitment towards the Covenant.

24
Chan, J.M.M., Nationality as a Human Right, Human Rights Law Journal, 12 (1- 2), pp. 1-14, (1991).
25
United Nations (1966) International Covenant on Economic, Social and Cultural Rights
(Preamble). Retrieved from
http://www.ohchr.org/en/professionalinterest/pages/cescr.aspx(Accessed on 05/10/2019 at 11
P.M.)

24
 2.2.5 International Covenant on Civil and Political Rights (ICCPR),
1966

Lastly, ICCPR is one of the most important documents in ensuring the

reduction of statelessness. As citizenship is a political conception, the covenant by
ensuring the civil and political rights to which every person is entitled, particularly
obligates the state parties to legislate on the matters, which give effect to the rights
under the Covenant without any form of discrimination based on race, color, sex,
language, religion etc. It also highlights the commitment of the international
community to guaranteeing the right to nationality to every person. 26 As granting
nationality without discrimination is an integral part of the covenant, India by being a
signatory to the covenant is obligated to reduce statelessness as a consequence of its
commitments under it. It is obligated to not deprive people of nationality or crate such
mechanisms that result in such deprivation creating stateless individuals.

2.3 Challenges in Eradication of Statelessness

The 1954 Convention broadly contains well-delineated rights for the stateless,
including that to nationality, housing, elementary education, employment etc.
However, the promise to ensure the availability of such rights by these conventions
largely remains unfulfilled. Firstly, only very few states have acceded or ratified the
Convention.27 Secondly, most of the rights provided in the Convention are applicable
only to the stateless that are lawfully present within the territory of the country. 28
However, like the present problem of NRC in India, most of the states that have large
number of stateless persons claim that the residents are illegally present.29 Thus the
treaties do not serve much purpose, as despite being a party to it, states find respite in
loopholes.

26
Article 24 United Nations, (1966). International Covenant on Civil and Political Rights,
Retrieved from https://treaties.un.org/doc/Publication/UNTS/Volume%20999/volume-999-I-
14668- English.pdf(Accessed on 05/10/2019 at 11 P.M.)
27
As of September 2018, there are 73 states that are parties to it whereas about 145 parties have
acceded and ratified the Refugee Convention.
28
1954 Statelessness Convention at Art. 17(1): The Contracting States shall accord to stateless persons
lawfully staying in their territory treatment as favourable as possible and, in any event, not less
favourable than that accorded to aliens generally in the same circumstances, as regards the right to
engage in wage-eaming employment.
29
Todd Pitman, Myanmar Conflict Spurs Hatredfor Asia's Outcasts, AP THE BIG STORY (June 14,
2012, 5:54 AM), http:/ibigstory.ap.org/article/myanmar-conflict-spurs- hatred-asias-outcasts.

25
Furthermore, under the 1961 convention, the states cannot deprive a person of their
nationality if that would render him stateless.30 However, nationality and citizenship
have different meanings in different states, and often not used synonymously. For
example, in India an overseas citizen could be of Indian nationality but still be a
citizen of another country. In such circumstances, it is ambiguous whether deprivation
of citizenship would amount to deprivation of nationality. A person deprived of
citizenship would be stateless despite having an Indian Nationality and thus be outside
the protection purview of 1961 convention.

Another enigma that permeates is the international community itself on which such
covenants apply. Human rights generally claim universality in the sense that they seek
to protect every individual or natural person present on the earth by the virtue of being
human. However, the primary membership in the international community is of States
who are the legal members of the community to whom the natural persons belong.
This means that any natural person lacking a state is excluded from the protection of
the international community.31 It is the prerogative of the States to choose its
members.32 No external legal or political authority-neither another state, or
international organization can take away such a sovereign right to enact and
administer laws regarding nationality.33 The legal consequence of this has been that if
a member State refuses to provide nationality to a person or takes away such
nationality; the person or her community may find herself in what is known as a legal
vacuum, black hole or anomaly.

2.4 Recommendations to Eradicate Statelessness

Codification of norms to protect the rights of the stateless people has often been
optimistically citied as the best solution to the problem; or more conservatively, at
least a good starting point. However, to this effect the abovementioned Conventions
have not been very successful because the right to award such citizenship still remains
the prerogative of the state. Attempts therefore must be made to codify laws that
would prevent states from denaturalizing its citizens. This has so far remained a

30
Art 8, United Nations. (1961) International Convention on Reduction of Statelessness, Retrieved from
http://www.unhcr.org/3bbb286d8.html (Accessed on 05/10/2019 at 11 P.M)
31
WILLIAM CONKLIN, STATELESSNESS: THE ENIGMA OF AN INTERNATIONAL COMMUNITY 12 (2014)
32
For example, A. 15(8) of Legaue of Nations Covenant and A 2(7) of the UN Charter gives the states
to decided upon the residuary matters within their domestic jurisdictions.
33
GL Newman, Anomalous Zones, 1996 48 Stanford Law Review (1997).

26
practical impossibility as it stands in conflict with the principle of state sovereignty in
international law. However, if made possible it would ensure that the crisis created by
activities such as NRC would be mitigated. There should also be an international
tribunal possessing a legal authority to investigate and enforce existing codified
standards, which could further act as a forum for the stateless to present their
grievances.34

Furthermore, statelessness is majorly a consequence of ethnic nationalism, whereby

the States provide citizenship based on ethnic considerations. Jus sanguinis, is one
such method of determination of citizenship, where children are provided citizenship
based on the bloodline of their parents.35The children of stateless individuals,
therefore, automatically become stateless. Furthermore, it encourages officials or the
state machinery to withhold citizenship or nationality of individuals not belonging to
the dominant ethnicity of the nation state. India, as it will be discussed in the next
chapter, has increasingly inched towards this jus sanguinis method of citizenship
determination. Jayal argues that this has been done impliedly to exclude the Muslim
minority population in the country.36 The NRC at various levels too is the
manifestation of the same. To combat this, Arendt advocated for a civic state as
opposed to ethnic state.37 Economic globalization and migration give further cause to
have impartial judges, independent executive arm of the state, which would represent
the rational, and self-interested, will of the civic state.38 As there would be no place
for discrimination based on ethnicity, there would be lesser cause for consequent
statelessness.

Therefore, statelessness is an international problem, the eradication of which is being

endeavored by the international community in a fairly proactive manner. There are
some inherent difficulties and challenges in achieving the same but nothing is
impossible if the international community co-operates as a whole. The flipside to
statelessness is the possession of nationality or citizenship, which every stateless
person desires to achieve. The importance of nationality in protection of human rights
and the Indian citizenship law in granting the same therefore will be the basis of the

34
L VAN WAAS, NATIONALITY MATTERS: STATELESSNESS UNDER INTERNATIONAL LAW 24 (2008)
35
WILLIAM CONKLIN, STATELESSNESS: THE ENIGMA OF AN INTERNATIONAL COMMUNITY 13 (2014)
36
NIRAJA GOPAL JAYAL, CITIZENSHIP AND ITS DISCONTENTS: AN INDIAN HISTORY 2 (2013)
37
HANNAH ARENDT, THE ORIGINS OF TOTALITARIANISM 289-90 (1979)
38
CATHERENE DAUVERGNE, MAKING PEOPLE ILLEGAL: WHAT GLOBALISATION MEANS FOR
MIGRATION AND LAW, 182-85 (2008)

27
next chapter which would provide the background in understanding the crisis created
by the NRC by potentially increasing stateless people in the country and the world.

28
 CHAPTER 3
CITIZENSHIP, NATIONALITY & HUMAN RIGHTS:
INDIAN PERSPECTIVE

“Remove [citizenship] and there remains a stateless person, disgraced

and degraded in the eyes of his countrymen. He has no lawful claim to
protection from any nation, and no nation may assert rights on his
behalf.”39

Citizenship refers not only to the legal status of a membership to a particular country
but also to the normative ideal that the ruled are full and equal participants in the
political process. It is a distinctively democratic ideal as people under monarchy are
not citizens but subjects.40 Theories of citizenship focus on the attributes of individual
citizens. They have certain rights and duties that vary from one country to another.
For example, in ancient Athens citizenship was correlated to duties whereas in the
modern republican notions it is also classified with rights. The concept reaches back
to time when men first began to group themselves together in societies for common
life and government more comprehensive than a village and more concentrated and
developed than a life of a horde of tribe.41 With time and with development of
political societies, the theories and practices of citizenship witnessed significant
changes ranging from classical to republican and even to modern day conception of
global citizenship.

According to Kymlicka and Norman, the scope of theorizing citizenship is limitless as

almost every problem in political philosophy involves relations among citizens or
between citizen and state.42 For Marshall, the fullest expression of citizenship requires
a liberal, democratic and welfare state. He conceptualizes citizenship-as-rights, which
ensures civil, political and social rights to be given to every member of the society by

39
Perez, 356 U.S. at 64 (Warren, J., dissenting)
40
For example, the Indian citizenship during colonial times belonging to the commonwealth was that
of monarch and subject.
41
Matheson, P. E. "Citizenship." International Journal of Ethics 8, no. 1 (1897): 22-40.
http://www.jstor.org/stable/2375346.
40
W. Kymlicka and W. Norman, Return of the Citizen: A Survey of Recent work on the Citizenship
Theory, Ethics, Vol. 104, No. 2, pp. 352-381 (1994)

29
which they will be able to participate in and enjoy the common life of society. 43 Then
emerges the concept of global citizen, where the cosmopolitan consciousness is
superior to nationalism, a belonging to transcendental solidarity, unfettered by
national ties. This is a condition of higher democratic order projecting humanity
beyond the confines of territorial boundaries.44Thus, various questions as to who can
be citizen, how we exercise citizenship, the rights and duties of citizenship and the
practices we use them in and the nature of political community to which a citizen
belongs etc arise.45 These developments have shaped the way citizenship is both
practiced and analyzed. ‘Nowadays, mapping neat citizenship models onto distinct
nation‐states and evaluating these in relation to formal equality is no longer an
adequate approach. Comparative citizenship analyses are now considered in relation
to multiple inequalities and their intersections, and to multilevel governance focusing
on the new spaces in which struggles for equal citizenship occur along with the new
dynamics and interactions between them.46 One such arena of study is in the lack of
such citizenship and the status of the members who are denied it forcing them into
consequential statelessness discussed in the last chapter.

Indian citizenship laws are a product of the historical circumstances in which they
were created. The looming shadow of partition, created a lasting imprint on the
citizenship laws of this country. They at times expressly and impliedly, reflected the
primary fault lines of religious difference in India, which has always been skewed
against the Muslim minority community in the country. There simply exist too many
case laws replete with questions regarding the loyalty of Muslims, their intent in
staying in this country along with the validity of their documents to buttress their
claims of citizenship in Indian Constitutional jurisprudence to argue otherwise. The
creation of Bangladesh and the continuing movement of people across the eastern and
western borders of India saw the sedimentation of legal discourse of citizenship in an
exceedingly exclusionary direction. The product of such a trend was the National
Register of Citizens devised to exclude Bengali migrants that are usually Muslims by
faith. To understand the potential contribution of the citizenship norms in the country

41
. T.H. MARSHALL, CITIZENSHIP AND SOCIAL CLASS (1950).
42
A. ROY, MAPPING CITIZENSHIP IN INDIA 3 (2010)
45
RICHARD BELLAMY AND MADELINE KENNDEY MCFOY, CITIZENSHIP, (2014)
46
Birte Siim & Judith Squires (2007) Contesting Citizenship: Comparative Analyses, Critical Review
of International Social and Political Philosophy, 10:4, 403-416, DOI: 10.1080/13698230701660147

30
towards statelessness one needs to trace the development of the ethno-centric trend of
citizenship in the country.

3.1. Nationality vis-à-vis Citizenship

Nationality while ensuring a bond between individual and the State creates a sense of
identity for the people along with ensuring a set of rights for them. Its importance lies
in the fact that without it people are excluded from the political process. In that
manner, the lack of nationality prevents people from fulfilling their potential and may
have a severe knock-on effect for social cohesion and stability; it may even lead to
communal tension and displacement.47For example, the one million who have been
declared as illegal migrants and consequently stateless in India will have no right to
vote or take part in the political process. However, in India, nationality and citizenship
often do not mean the same thing.

In India, the constitutional makers while drafting the constitution were unwilling to
divest the concept of citizenship and nationality. This meant that taking citizenship of
a foreign state would tantamount to giving up of Indian nationality. There was a
strong plea to allow ‘dual nationality’ whereby even a person of Indian origin was
born abroad but had not acquired the citizenship of a foreign state, she would be
allowed to acquire Indian citizenship based on her nationality. 48 As it was never based
on ethno-cultural identities, nationality was not accepted in India as a basis to acquire
Indian Citizenship. This was done so despite the fact that there were claims that the
criterion of permanent abode or domicile (the territoriality principle of jus soli)
created effective statelessness. Moreover, the Indian government encouraged the
Indian nationals settled abroad to reserve their loyalty for their country of adoption
rather than origin. Thus at the commencement of the constitution, territorial existence
in the country was more important than nationality for acquiring citizenship.
However, this conception in the citizenship laws has changed progressively over time.

47
Preventing and Reducing Statelessness, Retrieved from http://unhcr.org/cgi-
bin/texis/vtx/home/opendocPDFViewer.html?docid=519e210a9&query=preventing%20and%20reduci
ng%20statelessn ess of%20stateless%20persons (Accessed on 05/10/2019 at 11 P.M.)
48
B. Shiva Rao, Framing of India’s Constitution: select Document, 4:522, Indian Institute of Public
administration 1962-68

31
3.2 Historical Development of the Indian Citizenship Law

The chapter on citizenship in the Indian Constitution has two distinctive qualities of
immediacy and impermanence.49 This was dictated by the particular circumstances of
partition the echoes of which are felt in the citizenship laws of even today. The
Citizenship Act was enacted by the Parliament in 1955 to legislate the law of
citizenship in a manner such that the legacy of partition was not reflected in it. But it
nevertheless crept in with the influx of immigrants in the western and eastern borders
of India. It made the amendments to the citizenship laws to inflict the principles of jus
sanguinis into jus soli in India. This created a situation; that institutionally and
systemically has perpetrated the social exclusion of Muslim Minorities in the name of
citizenship in India. Both the Courts as well as Legislations have aided the same.

3.2.1 Citizenship for Ordinary and Extraordinary Times

When the Constituent Assembly began its discussion on citizenship of the

country, Partition had already intervened. To the drafters this particular section had
given them a headache like none other.50 Article 5 at the commencement of the
constitution granted citizenship to every person who had his domicile in India and (a)
was born in the territory of India; (b) either of whose parents were born in the territory
of India; or (c) who had ordinarily been a resident in the territory of India for not less
than five years immediately preceding such commencement. It was based on the jus
soli conception of citizenship, which was deemed to be more enlightened and
civilized compared to the racist conception of jus sanguinis principle of citizenship.51
Unlike Article 5, which granted citizenship for ordinary times, Articles 6 and 7
envisaged the citizenship for the extraordinary situation of partition on communal
lines. Article 6 was primarily for the Hindu migrants who had fled Pakistan due to the
partition violence but Article 7 was for the Muslims who had fled to Pakistan but later
returned to reclaim their lives and property back into India. This was the most heavily
debated article in the Debates as many disfavored such return. They were called
‘migrants’ though it may be noted that the terms refugee or migrants are not defined
or used in the Constitution of India.

49
NIRAJA GOPAL JAYAL, OXFORD HANDBOOK ON INDIAN CONSTITUTION 258 (1ST EDITION, 2016)
50
Constituent Assembly Debates, Vol 9 (Lok Sabha Secretariat 1968) 347.
51
Id.

32
 3.2.2 The Citizenship Laws, Rules and Amendments

The citizenship Act of 1955 was enacted to provide citizenship by five ways:
birth, descent, registration, naturalization and incorporation of territory. The most
significant amendments have been to the provisions relating to citizenship by birth (S.
3) and naturalization (S. 6) to curb illegal immigration from Bangladesh. A new
exception to Section 3 was added to exclude all such persons from being given
citizenship either of whose parents were ‘illegal migrants,’ after 2003. Section 6A was
introduced to make special provisions of citizenship for those covered by Assam
Accord. Therefore, the Act applied a constraint to the jus soli principle of granting
citizenship by preventing individuals from acquiring Indian citizenship if their parents
were illegal migrants. This repeated reference to illegal migrants is thinly veiled to
cover Muslim migrants.

In 1983 the Congress government at centre responded to the unrest in Assam by

passing the Illegal Migrants (Determination by Tribunals) Act, which provided for
tribunals exclusively intended to detect and expel foreigners. An Assam specific Law
was made to exclude Muslims in the name of illegal migrants as an exception to the
Indian Law on foreigners.52 The Supreme Court struck down the legislation as
unconstitutional in 2005 and transferred al pending matters of the tribunals under
IMDT to tribunals under the Foreigners Act.

Then came the demotion of Babri Masjid. Mirroring the insecurities of Muslims in
India, some 17000 Hindus migrated to India who came and simply stayed back once
the tension abated. The Citizenship Rules were in contrast very welcomingly amended
to accommodate the migrants on the western borders of Gujarat and Rajasthan.53 This
amendment gave the District Collectors in limited areas and for a limited time to hold
citizenship camps to process the citizenship applications of the migrants from
Pakistan. The most interesting feature of this phenomenon is that for the first time it
allowed for open declaration of the religious identity of the migrants as the basis of
granting citizenship to the migrants. Previously, whenever Muslim minorities were
denied citizenship it was always covertly indicated but never explicitly mentioned it
in case of Hindu migrants all such pretext was left aside. In fact, rule 8A (2)(ii)
mentioned:

52
Sarbanada Sonowal v Union of India, (2005) 5 SCC 665 [2]
53
NIRAJA GOPAL JAYAL, CITIZENSHIP AND ITS DISCONTENTS: AN INDIAN HISTORY 3 (2013)

33
 (ii) in respect of minority Hindus with Pakistan citizenship who have migrated to
India more than five years back with the intention of permanently settling down
in India and have applied for Indian citizenship, the authority to register a
person as a citizen of India…shall be the concerned Collector of the district
where the applicant is normally resident."

Therefore, while Article 7 was intended to cover the Muslims returning from
Pakistan the religious identity of the migrating groups was never mentioned but the
four decades later, the rules quite freely allowed the religious identity to be the
reason to allow migration into India. Whenever Muslims were to be excluded or
denied, whether in 1950 or in 2003, the amendments kept the intentions thinly
veiled but not so for other communities. This reflects most clearly in the proposed
amendment of 2019.

3.2.3 The Citizenship Amendment Bill of 2019

Even before its introduction in Parliament, the central government had started
taking small and discreet steps towards its working. In September 2015, the
government, through an executive order, exempted non-Muslim illegal migrants from
the three countries from the operation of the Foreigners Act, 194654 and provided
immunity to this class of migrants from any adverse action by the state due to illegal
entry and stay. The bill extended this policy that was already in place since 2016. The
Citizenship Amendment Bill, which provides for the grant of Indian citizenship to
non-Muslims of Pakistan, Afghanistan and Bangladesh is among the most contentious
legislations in India’s recent history. Pushed fiercely by the ruling Bharatiya Janata
Party (BJP), it was passed in the Lok Sabha though it has lapsed for the time being in
Rajya Sabha.55By prioritizing people from certain religions - primarily Hindus - and
explicitly excluding one particular community - Muslims - the amendment appears to

54
The Passport (Entry into India) Amendment Rules, 2015; (The Passport (Entry into India)
Amendment Rules, 2016 http://egazette.nic.in/WriteRe- adData/2016/170822.pdf. (last Modified 18
July 2016),
55
The Wire Staff, Citizenship Bill Lapses in Parliament, Here's What Happens Next,THE WIRE,
https://thewire.in/government/citizenship-bill-lapses-in-rajya-sabha-what-happens-next (Last Modified
15 April 2019, 11 P.M.)

34
legitimize the idea that India is fundamentally a Hindu State.56 The Bill proposes
following changes,

(i) Persons belonging to minority communities, that is, Hindus, Jains, Sikhs,
Buddhists, Parsis, and Christians from Afghanistan, Bangladesh, and
Pakistan shall not be treated as illegal immigrants.
(ii) The third schedule of the 1955 Act is to be amended to decrease the
residence requirement from 11 years to six years.
(iii) OCI cardholders are susceptible to lose their status if they violate any laws
of the country.

It has been argued that this is simply a cover for remaking the notion of Indian
citizenship from a secular to a religious conception.57If the union government were
genuine about sheltering vulnerable minorities (it has, after all, included Sikhs, Parsis,
Jains and Buddhists within the ambit of the law), it would have included Baha’is,
Shias, and Ahmadiyyas, among others, who face persecution in Sunni-Muslim-
majority countries for being insufficiently or improperly Islamic. The Bill therefore,
like majority of the Amendment Acts preceding it, has aligned the grant of citizenship
on religious lines. It is unique and unprecedented in the sense that it delineates the
geographical limitations of granting citizenship along with clearly including Hindus
and impliedly excluding Muslims from its fold, which was never done with such vigor
before. Thus, India has moved towards being an ethnic state as opposed to a civic one,
which could, as Arendt warns, be the potential cause of the statelessness problem,
faced by it today.

3.3 Existing Legal Framework of Citizenship vis-à-vis Statelessness

As mentioned above, India chose the jus soli method of citizenship determination
over the jus sanguinis norm not only because that was the Colonial British tradition,
but because it would have been very implausible to apply the latter on a multi ethnic
society such as India. This shift has been at a statutory level as on the constitutional
level we still follow the jus soli norm. This resonates with a distinction proposed by
Baxi between the constitutional state and the political state, where the former lays

56
The NDA must pull back on the citizenship amendment bill, Hindustan
Times,https://www.hindustantimes.com/editorials/the-nda-must-pull-back-on-the-citizenship-
amendment-bill/story-dSH0KEFhrfASDYvtCTWZOK.html (Feb 3, 2019)
57
Gauba, Kanika and Anshuman Singh, Voter, Citizen, Enemy,”52 No 23 Economic & Political
Weekly, pp 12–14 (2017).

35
down the normative and aspirational framework enunciating the desired social order
whereas the latter is a framework of competition for political power or the struggle to
capture a constitutional state.58 As far as statelessness in India is concerned, the
constitution does not envisage the scenario and the political state would potentially
multiply the problem manifold as will be observed in the next chapter.

3.3.1. The Legal Indian Citizen

The grundnorm of our country, the Constitution of India 1950 lays down the
qualification to be a citizen of India. It provides that any such person, who was or
either of whose parents was, born in the territory of India, or who has been ordinarily
resident in India for at least five years before the commencement of the Constitution,
shall be deemed to be a citizen of India only if he had domicile in the territory of
India at such commencement.59 The constitution however does not define the term
domicile, and the same has been left to the domain of Supreme Court which has
interpreted it to mean “the place which a person has fixed as a habitation of himself
and his family not for a mere special and temporary purpose, but with a present
intention of making it his permanent home.”60 Arguably this could be applicable for
all such stateless persons who have been domiciled in India subject to other
provisions of various legislations governing such acquisition.

The constitution also empowers the Parliament to make laws for the acquisition and
termination of citizenship. Pursuant to this the Citizenship Act of 1955 was enacted
with the objective to “provide for the acquisition and determination of citizenship of
India”. As per the provisions of the Citizenship Act a person may be granted
citizenship by means of registration if s/he fulfils any of the requirements under the
Act. It must be noted here that the Section 5 of Citizenship Act allows an application
for registration to be made only by a person who is ‘not an illegal migrant’.61 This
creates an encumbrance on those persons who are illegal migrants and who make a

58
Baxi, Upendra, Caste Census and Constitutional Justice, Economic and Political Weekly 45(37): 25-
29 (2010)
59
Article 5 of the Constitution of India is titled as 'Citizenship at the Commencement of Constitution of
India'. Although the Constitution does not define 'citizenship', Articles 5 of the Constitution lays down
an overarching provision for deciding who is a citizen of India.
60
K. Mohammad Ahmed v. State of Kerala and others 1983 SCC OnLine Ker 181 : AIR1984 Ker 146;
Abdus Samad v State of West Bengal (1973) 1 SCC 451; In Re Aga Begum (1971) 1 MLJ 18; Mohd.
Raza Dabstani v. State of Bombay and Others (1966) 3 SCR 441; Habatullah Haji Fazale Hussain v.
The State 1963 SCC OnLine Guj 7: AIR 1964 Guj 128; Mangal Sain v. Shanno Devi AIR 1959 P H
175
61
Citizenship Amendment Act 2003

36
citizenship application via this method. Such persons remain stateless. This precisely
is the intention of the Indian government by the NRC updation in Assam.

Acquisition of nationality by a stateless person can pave the way for reducing
statelessness. In addition to gaining nationality at the time of birth or by descent,
nationality may also be acquired by way of registration or by naturalization. This
section will evaluate other such legislations that govern the bestowal of citizenship on
a person, thereby providing an insight into whether these provisions assimilate
stateless persons or do not state their position at all. In addition to the Citizenship Act,
identification of stateless persons in India may be discussed by looking at the
following vantage points and their concerned domestic laws.

3.3.2 Presence as a foreigner

The entry, presence and departure of foreigners from India is regulated by the
Foreigners Act of 1946. According to it, a foreigner is a person who is not a citizen of
India.62 It is unclear whether this includes the stateless. According to this definition a
person who has the nationality of another nation but is presenting India is as much a
foreigner as the person who has no proof of identity to prove his nationality. The
Foreigners Act lays out the procedure for determination of nationality of a foreigner,
in case a foreigner is recognized as a national of more than one foreign country, or
his/her nationality is uncertain.63 The provision is silent about categorizing such a
foreigner as stateless, even if s/he appears to be having no nationality after the
determination process is over.

3.3.3 Regulations for provision of passports

The Indian Passports Act 1967 and the rules under it are the only laws that recognize
a category of persons termed as ‘stateless’ for the issuance of certificate of identity. It
essentially governs the issuance and withdrawal of passports to citizens and other
persons.64 Though no proper definition of ‘other persons’ exists, it could be
understood to include stateless persons as well. Further, under the Passports Rules,
1980, a ‘Certificate of Identity’ may be issued to a stateless person residing in India,
or a foreigner whose country is not represented in India, or a person whose national
status is in doubt. This is the only Act, which caters to an extent, to the needs of the

62
S 2(3a) The Foreigners Act, 1946
63
S. 8(1) The Foreigners Act, 1946
64
The Preamble, The Passports Act, 1967, Retrieved from
http://passportindia.gov.in/AppOnlineProject/pdf/passports_act.pdf(Accessed on 05/10/2019 at
11 P.M.)

37
stateless person to have a record of their identity. Although India is not a signatory to
the 1954 Convention, Article 28 is reflected in the Passports Act in the form of
issuance of identity certificates.

Therefore, neither the Citizenship Act nor the supplementing Citizenship

Rules lay down any procedure or provision for ensuring that such a person does not
become stateless on deprivation of his/her Indian nationality. With respect to a person
deprived of his/her nationality, the gap in Indian law poses a significant risk for the
creation of statelessness and needs framework changes and amendments.

3.4 Judicial Role in Development of Citizenship Jurisprudence

It is generally considered to be within Parliament’s power to decide what should be

the criteria of citizenship. This criterion has evolved over the years by Amendments to
the Citizenship Act of 1955. The Supreme Court has to a large extent not involved
itself which the questions of legitimacy of such criterion. Perhaps, the first time it will
categorically do so is when the Supreme Court’s constitutional bench will hear a
challenge to the separate citizenship regime for Assam under Section 6A of the
Citizenship Act.65

In its jurisprudence after Independence, the Supreme Court took a very inclusive view
of citizenship. It held that the Muslim migrants who had left India at the time of
Partition should not be treated with suspicion and contempt, as there was no historical
precedent to decide how people should behave during such a tumultuous times.66
However, the same court, a few decades later, did a complete about turn on its
opinions when came the time to decide on the fate of Bangladeshi migrants, who were
predominantly Muslims. While striking down the IMDT Act, the Court quoted
extensively from the 1998 Report of the Governor of Assam stating that the illegal
migrants coming from Bangladesh were ‘almost exclusively Muslims.’ The
xenophobic sentiments that the report raised of swamping, fear and terror were seen to
be endorsed by Supreme Court. It echoed the petitioner’s concern that the presence of
such Muslim migrants represented a threat of external aggression and internal
disturbance and held:

65
In Assam Sanmilita Mahasangha v Union of India (2015) 3 SCC 1, A two-judge bench consisting of
Justices Gogoi and Nariman requested the then Chief Justice of India to refer the constitutionality of
Section 6A to a constitution bench.
66
Central Bank v Ram Narain, AIR 1955 SC 36 [11]

38
 ‘The influx of these illegal migrants is turning these districts into a Muslim
majority region. It will then only be a matter of time when a demand for
merger with Bangladesh be made. The rapid growth of Islamic
fundamentalism may provide for the driving force of this demand.’

It is quite disheartening to have such verdicts delivered by the same apex court that
has also enshrined secularism as one of the basic tenets of the law of the land. In a
diverse country like India, Muslim majority districts can exist and are neither
illegitimate nor illegal. Muslims like any other religious group have the complete
freedom to settle anywhere in the country as long as they are legal. To attribute
fundamentalism to Muslim migration implies that Supreme Court has a very anti-
minority and anti-Muslim view with regards to citizenship.

Furthermore, for better or for worse, the Supreme Court has decided that it will
judicially oversee the process of updating the National Register of Citizens (NRC).67
Many troubling questions have arisen regarding the process of implementation of
NRC including the ambiguity of the process, lack of transparency and even
allegations of bias against the presiding judge, Justice Ranjan Gogoi, who hails from
Assam.68 Most importantly it raises important legal dilemmas; by giving its approval
to the NRC process, it forecloses any chance of judicial remedy to those who may
have been wrongly removed from it such as the Bengali Muslims who are
systematically discriminated in Assam. The updation system is neither foolproof nor
transparent to assume that there shall be no malafide in such updation. Also, who
would take responsibility for the resultant communal tensions that may arise due to a
flawed process, if any? These is an instance of judicial over-reach where the judiciary
disregarded procedure and forayed into the work of the executive, thereby pre-
emptively closing its gates against any possible redressal that could be claimed by the
wronged parties.69 The court too therefore, is not completely neutral or unbiased in its
approach on citizenship questions.

Thus among the principles that form the part of modern day democratic political
discourse, citizenship and human rights are the most talked about and the

67
Assam Public Works v Union of India 2018, (2018) 9 SCC 229
68
Donthi, Praveen, How Assam’s Supreme Court-mandated NRC Project Is Targeting and Detaining
Bengali Muslims, Breaking Families,CARAVAN MAGAZINE, (July 2 2017)
69
BHUWANIA, ANUJ COURTING THE PEOPLE: PUBLIC INTEREST LITIGATION IN POST-EMERGENCY INDIA
3 (2017)

39
indispensible ones. There has hardly been a political victory, which in retrospect has
not been celebrated as the victory of citizen and their rights. They are a continuous
subject of debate, philosophical interpretation, democratic contention and
transformation. In the ashes of World Ward II, nation states were confronted with
stateless people who had lost everything of value except their humanity. As Arendt
says, such human beings were reduced to non-entities, as the rights they so claimed
were largely unenforceable.70 The security offered by the human rights was hollow
and inadequate as only a membership of a political community would grants them
such rights, which they could never have. Therefore, citizenship, which in itself is a
human right, is important to access the other human rights to live a life with dignity.
Statelessness crates a vacuum and absence of such rights. The NRC of Assam could
potentially create such a vacuum, the background of which shall be discussed in the
next chapter.

70
HANNAH ARENDT, THE ORIGINS OF TOTALITARIANISM 299 (1979)

40
 CHAPTER 4

NATIONAL REGISTER OF CITIZENS: INDIA’S

CITIZENSHIP CRISIS
The state of Assam is famous world over for its tea, jaded mountains, singing
waterfalls, the majestic river Brahmaputra and its ever-smiling people.71 It is as rich in
natural resources as it is in its diversity of population. However, in recent years it has
stood volatile and rife with controversies when deciding upon certain matters such as
the question of the citizenship of its residents. The main source of strife is the alleged
illegal immigration and the consequent changing demography of the state.

To put simply, the National Register of Citizens (NRC) is a register that maintains the
name of Assamese citizens, its updation being a periodical process. The objective of
updation of NRC at regular intervals is to document the existence of legal citizens and
prevent illegal migration. It was originally prepared based on data collected in the
195172 census and serious political considerations have prevented its revision after
that. The stalemate in the NRC issue was due to the barriers created by the Assam
movement, the language movement and other ethnic identity movements. Supreme
Court finally intervened in 2015 and the draft has now been released.

The NRC updation process had been initiated along the lines of the Citizenship Act of
1955 and the Citizenship (Registration of Citizens and Issue of National Identity
cards) Rules of 2003 (as amended in 2009 and 2010).73 The main apprehension with
NRC was that it could possibly be unfair to Hindu Bengalis and Muslim Minorities
resulting in their non-inclusion in the draft. Consequently, a whopping four million

71
CHANDRA BHUSHAN, ASSAM-ITS HERITAGE AND CULTURE, 7 (2005)
72
After the conduct of the Census of 1951, a National Register of Citizens (NRC) was prepared in
respect of each village showing the houses or holdings in a serial order and indicating against each
house or holding the number and names of persons staying therein, and in respect of each individual,
the father’s name/mother’s name or husband’s name, nationality, sex, age, marital status, educational
qualification, means of livelihood or occupation and visible identification mark. This was done by
copying out in registers the particulars recorded during the Census done in 1951. This NRC was
prepared under a directive from the Ministry of Home affairs (MHA). These registers covered each and
every person enumerated during the Census of 1951 and were kept in the offices of Deputy
Commissioners and Sub Divisional Officers according to instructions issued by the Government of
India in 1951. Later these registers were transferred to the Police in the early 1960s.
73
In an order dated 27 March 2018, the Supreme Court directed the Office of the State Coordinator of
National Registration to complete the verification process by 31 May 2018 and to publish the complete
draft of the updated NRC by 30 June 2018.

41
people were left anxious, as their names were not included in the final draft. The
Foreigners Tribunals entertained objections of those whose names were excluded and
the number of people was reduced to one million. These people presently, at the time
of writing of this dissertation are illegal immigrants declared by India with no state or
national identity and a uncertain future. It is unclear as to where the people, whose
names have not been included in the final draft, go. The Bangladesh government is
quite adamant that there are no illegal migrants living in India from their country and
has disagreed regarding any repatriation. This creates a vacuum regarding the status
and future of such persons and thus forms a part of our current discussion.

Following the publication of the complete draft NRC, to allay the fears of those
excluded the Indian Government has maintained that it wont take any hasty decision
for their exclusion or removal. Individuals who are not listed have to appear before
the Foreigner’s tribunal, which shall then decide their fate. However, it does not
secure their future or alleviate the fears of those excluded. In this chapter the
discussion will center around the origin of this controversy, its history, its challenges,
the social and political implications it presents and how India should deal with it vis-
à-vis its international obligations.

4.1 The History of Immigration and Population Movement in Assam

The official status given to migrants in Assam has been changing constantly in the
course of its history. Therefore, the terms immigrants, migrants and refugees are used
interchangeably here.74At the local level, these people are called bohiragoto
(outsiders), bideshi (foreigners), invaders, Bengali peasantry and land grabbers,
among others.75Historically, the earliest evidence of large-scale migration from
Bangladesh can be traced back to 1820s and 1830s when tea plants were being set up
in Assam.76 The industry expanded and required a large number of workers by 1850.
The colonial government too to facilitate the process of bringing workers to work in

74
A. DATTA , REFUGEES AND BORDERS IN SOUTH ASIA: THE GREAT EXODUS OF 1971 (2013)
75
SHAMSHAD, RIZWANA, BANGLADESHI MIGRANTS IN INDIA: FOREIGNERS, REFUGEES, OR
INFILTRATORS? (2017)
76
Tea plantation in Assam was introduced by Scottish, Robert Bruce. He started company, which
expanded trade of Assam tea to the other parts of the world. When Bruce landed in Assam, he
discovered tea plants ‘growing wild in the upper Brahmaputra valley’. (“History of Indian Tea” Indian
Tea Association. https://www.indiatea.org/history_of_indian_tea. Accessed on 3 December 2018).

42
the tea plantation sector, made a series of legislations from 1863 to 1901.77A couple
of years after the tea plantation area was created, oil was discovered in Assam. This
sector further pulled in numerous workers from different pieces of India, including
Bengal. In the colonial era, the Muhammed Saadulla government in Assam was
blamed for settling an extensive number of Muslims from Bengal in Assam. In
specific quarters, the 'Develop More Food' motto ended up being, as reported by
numerous then authorities as, 'Develop More Muslims'.78 Socially, the migration of
the two classes changed the demographic structure of Assam and it began to influence
the local culture. To incorporate with the neighborhood populace, various settlers, the
vast majority of them from the average working class, took in the Assamese language
and attempted to adjust into the Assamese culture. 79

4.1.1 the ascent of Anti-outsiders' Movement

In 1947, India was divided and a segment of the Muslim populace from Assam
received Pakistan as its new home due to the partition of territory or because of its
religious affiliations. Notwithstanding, 1961 onwards, an uncertainty began
developing in the psyches of the local Assamese individuals that Assam was under the
animosity of migration. It was trusted that individuals were coming wrongfully from
East Pakistan and taking settlement in Assam.

In 1972 a noteworthy political development occurred in mainland Asia, as it birthed

another sovereign state by creating of Bangladesh. Because of the atrocities by the
Pakistani armed force against the nation's Bengali-speaking population somewhere
close to 7.5 and 8.5 million moved to India. After the finish of the war and the
freedom of Bangladesh in 1971, a procedure to repatriate the refugees started. Be that
as it may, in 1972, by an agreement between India's Prime Minister Indira Gandhi and
the President of Bangladesh, Sheik Mujibur Rahman, the two nations chose that the
80
individuals who crossed the border before 1971 were not Bangladeshi residents.
The process of migration though reduced, nevertheless continued allegedly from
Bangladesh. Eventually this ‘migration issue’ turned into ‘foreigners’ issue’ in
Assam.

77
GAIT, EDWARD, A HISTORY OF ASSAM. CALCUTTA AND SIMLA (1926).
78
NAG, SAJAL ROOTS OF ETHNIC CONFLICT: NATIONALITY QUESTION IN NORTH -EAST INDIA (1990).
79
HUSSAIN, MONIRUL, THE ASSAM MOVEMENT: CLASS, IDEOLOGY AND IDENTITY (1993)
80
UNHCR Report (1972), A Story of Anguish and Action: The United Nations Focal Point for
Assistance to Refugees from East Bengal to India. UNHCR: Geneva. (Accessed on 05/10/2019 at 11
P.M.)

43
 4.1.2 The Assam Movement and The Assam Accord

Now, outsiders' issue turned into the prime plan of the 'Assam Movement'
(1979-1985) started by the 'All Assam Students Union (AASU) and 'All Assam Gana
Sangram Parishad (AAGSP)'.81.They demanded the extradition of foreign nationals
from the state. During the time of the Movement, without making any statistical data
the political pioneers misrepresented the quantity of the foreign nationals in the
state.82 The All Assam Students' Union in one of their publications printed the number
of infiltrators at more than 45 lakhs, of whom more than 15 lakhs had entered their
names in the electoral roles. On the off chance that one acknowledged such fantastical
figures, the level of refugees would go between 10 to 50 percent of the total
population of the state.

A series of dialogues occurred with the Movement Leaders and the State Government
bringing no solution, which prompted direct clashes. They were determined to stop
the general decision of 1983 using any and all means and thus created an incredibly
explosive situation.83 In February 1983 a huge number of individuals, mostly, women
and children belonging to the erstwhile East Bengal Muslim community were
severely executed at Nagabandha and Neilli of Nagaon District and other different
84
regions of the state. They were assaulted by the local tribes, which consisted of the
Tiwas, the Karbis, the Mishings, the Rabhas and the Kochas.85

The immediate purpose behind the assault was the participation of huge quantities of
Muslims in the 1983 polls, which the AASU and others needed to be boycotted. After
the Nellie slaughter, a section of the Muslim individuals from the AASU left the
association in light of its developing anti of Muslim tone. Furthermore, during that
time, the Indian government ordered the Illegal Migrant (Determination by Tribunal)

81
Malini Sur, The Story of Atabor the Bandit, or How the NRC Reinforces Divisive Narratives,THE
WIRE, 2 August 2018. https://thewire.in/rights/assam-nrc-bangladesh-border. (Accessed on 3
December 2018, 12 P.M.)
82
According to Jogen Hazarika, the Chief Minister, the number of foreign nationals in Assam was two
lakhs. Two regional parties of Assam- ‘Assam Jatiyatabadi Dal(AJD)’ and the ‘Purbanchaliya Loka
Parishad (PLP)’ estimated the number of the foreign nationals in the state at 40 lakhs and 13 lakhs
respectively. Another exponent of the movement named Bisweshwar Hazarika, counted the number of
foreign nationals in the state at 77 lakhs.
83
Myron Weiner, The Political Demography of Assam's Anti-Immigrant Movement, Population and
Development Review, Vol. 9, No. 2 (Jun., 1983), pp. 279-292, Population Council Stable URL:
https://www.jstor.org/stable/1973053
84
Kimura, Makiko, The Nelie Massacre of 1983: Agency of Rioters (2013)
85
In Assam, the tribals and the immigrants have tensions over land; U Mishra, Bodoland: The Burden
of History,ECONOMIC AND POLITICAL WEEKLY, Vol 36, 2012 at 36-42. (13 August 2012
(Accessed on 12 December 2018).

44
Act 1983 to be enacted.86 Later, the Assam Accord was signed in 1985 and it ended
the movement.

After a strong controversy and debate, a Memorandum of Understanding, famously

known, as ‘Assam Accord’ was marked between AASU, AAGSP, Central and State
Governments in the capital ‘New Delhi’ in the early hours of Fifteenth August 1985
within the sight of Rajiv Gandhi. The Accord declared the following:
(i) 1st January 1966 as the cut-off date with the end goal of determination and
cancellation of foreigners citizenship.

(ii)allowed for citizenship for all people coming to Assam from "Specified
Territory" before the cut-off date

(iii) all people who came to Assam preceding first January 1966 (Inclusive) and up
to 24th March 1971 (midnight) will be distinguished as per the arrangements
of the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1939.

(iv) Names of outsiders so distinguished will be erased from the Electoral Rolls in
force. Such people will be required to enroll themselves before the
Registration Officers according to law.

(v) On the expiry of the time of 10 years following the date of detection, the
names of every single such individual who have been erased from the
appointive rolls will be re-established.

(vi) Foreigners who came to Assam on or after 25th March 1971 will be detected,
deleted and expelled in accordance with the law.

AASU pioneers considered the Assam Accord as their extraordinary accomplishment.

They formed a new political party 'Assam Gana Parishad' (AGP) and were part of the
electoral race of 1985. AGP in its first race ended up triumphant with an absolute
majority. The new Government gave its best shot in locating and expelling the foreign
nationals from the state. Be that as it may, it couldn't distinguish and oust even one
thousand outsiders from the state. For instance, as of late, 5,234 ‘illegal migrants’
were ousted to Bangladesh in 2013 and 1,822 of the Bangladeshi government

86
See http://www.india-eu-migration.eu/media/legalmodule/ Illegal%20
Migrants%20Act%201983.pdf. (Accessed on 12 December 2018).

45
somewhere between 2014 and 2017 acknowledged such extradition.87As per Hiranya
Kumar Bhattacharyya, former Deputy Inspector General of Assam Border Police, 'the
Accord was chalked out not to tackle the issue but rather to defuse it. And that is
where the student leaders of the agitation were taken up the garden path by cunning
bureaucrats with the blessings of then Prime Minister Rajiv Gandhi’88

The Assam Movement (1979-1985), Assam Accord (fifteenth August 1985) and the
disappointment of the Assam Gana Parishad to distinguish foreign nationals in the
state still couldn't convey any political answer for the outsiders' issue. Bengal origin
illiterate poor Muslims and a segment of Hindu Bengalis were the suspected as
unlawful occupants of the state.89A significant number of their essential rights
alongside their voting rights were grabbed away by the administration based on
dubious citizenship.

4.1.3. The ‘D’ Voters Issue (1997)

In 1997 the election commission of India recognized a segment of Muslims

living in the Char Chapari zones of Assam, the linguistic Hindu minorities and the
Rajbongshi (royal) people of the state as 'D'voters or doubtful voters. 90 The procedure
of identification of 'D' voters was extraordinary. It was alleged that the lower
authorities of Election Commission were approached to mark at least 10 to 20
individuals in every town of the state as 'D' residents.91 Along these lines in numerous
families’ spouses or husbands ended up dubious residents keeping rest of the
individuals Indians. Again in certain families, children and girls were recognized as

87
BJP Plays Politics on ‘Ousting Infiltrators’, Deportation Data Tells Different Story, THE WIRE, 3
August 2018. https://www.thewire.in/politics/amit-shah-bjp-nrc-assam-upa. (Accessed on 4 November
2018 at 12 P.M.).
88
Sangeeta Barooah Pisharoty, Assam Has Already Missed the Bus, Deportation of Immigrants No
Longer an Option,THE WIRE, 4 July 2018. https://thewire.in/rights/assam-illegal-immigrants-
interview-hiranya-kuma r -bhattacharya. (Accessed on 4 November 2018 at 1 P.M.)
89
Poor peasants of riverine areas and internally displaced persons for livelihood go to cities and other
places of upper Assam in search of works. These labour class people are often insulted on suspicion as
Bangladeshis and ‘Miyas’. Though miya means respectable, here in Assam it is used as a derogatory
word. The poor do not carry any documents while going out in search of works. They are also not
issued any documents by the government. Many of the labours do not have the idea of the importance
of documents of citizenship. If they are asked for such documents, it becomes problematic for them.
90
P.S. Reddi, Electoral Rolls with Special Reference to Assam, The Indian Journal of Political Science,
Vol. 42, No. 1 (January-March 1981), pp. 27-37
91
Sujit Choudhury, Election Commission and the Assam Accord,ECONOMIC AND POLITICAL
WEEKLY, Vol. 20, No. 49 (Dec. 7, 1985), pp. 2146-2147

46
dubious residents, where, their parents remained Indians. Therefore, the authorities
from the Election Commission did not pursue any concrete criteria in recognizing
doubtful residents but rather all things considered in the process, precluded a
noteworthy chunk of people from claiming Assamese populace along with their civil
and political rights.

4.1.4 NRC Updation and the Barpeta Riots

In 2005 the Indian government consented to a refresh the rundown of Indian

residents in Assam. On observing anomalies in the NRC updation process, the 'All
Assam Minority Students Union' (AAMSU) agitated in front of the Deputy
Commissioner's Office, Barpeta, on 21st July 2010 requesting prompt deferment of
the pilot task of the existing updation of the NRC. The association additionally
requested the settlement of the D voters' concern before beginning the procedure of
NRC updation.92This led to violence erupting at Barpeta and state government
announced the postponement of the NRC updation process in the state.

Despite the fact that the Pilot Project fizzled, the procedure of NRC updation couldn't
be ceased. The Barpeta episode deferred and altered the procedure of NRC updation.
A significant number of the peculiarities of the Pilot Project were amended and the
procedure of NRC updation works under the direct supervision of the Supreme Court
had begun in 2015. The Government of India has made the following system for the
NRC updation works.

4.2 NRC Updation in the Present Scenario

On 30 July 2018, the final draft of National Register of Citizens (NRC) was revealed
in Guwahati in the Indian territory of Assam. It announced more than 28.9 million out
of about 32.9 million candidates from Assam as 'qualified for Indian citizenship'. The
final draft excluded the names of more than four million applicants from various
communities. After the protests have been considered, the re-verification has boiled it
down to roughly one million. Of the nine Muslim-dominant part areas of Assam
(Dhubri, Barpeta, Darrang, Hailakhandi, Goalpara, Karimganj, Nagaon, Morigaon

92
Samudra Gupta Kashyap, Assam NRC: All happy with first part draft, but what happens next?,THE
INDIAN EXPRESS, (3 January 2018) http://indianexpress.com/article/beyond-the-news/assam-
national-register-of-citize ns-nrc-all-happy-with-first-part-draft-but-what-happens-next-5009742/
(Accessed on 5 December 2018 at 3 P.M.).

47
and Bongaigaon), just five are in the main 16 locales where the greatest quantities of
dismissals have been made.93 The remainder of the 11 locales has a Hindu-majority
populace.94 Strikingly, districts like Morigaon, Karimganj, Goalpara, Barpeta, and
Cachar, which have been viewed as being ruled by illicit migrants, or refugees from
Bangladesh have generally a lesser number of barred candidates. 95

4.2.1 How has the NRC been updated?

Based on the Assam Accord 198596the NRC was updated according to the
provisions of The Citizenship Act, 1955 and The Citizenship (Registration of Citizens
and Issue of National Identity Cards) Rules, 2003. According to the two laws, the
citizenship status was ascertained on the basis of NRC, 1951, Electoral Rolls up to the
midnight of 24th March 1971 and in their absence the list of acceptable documents97
of Pre-1971 period. Other documents98 are required if a name, in any of the above-
given records, isn’t of the candidate but that of his/her precursors, to be specific,
father, grandfather or grandmother or great grandfather or great grandmother etc. In
such cases, the candidate needs to submit documents to demonstrate the association
with such precursors whose name shows up in the archives mentioned above.99

93
This list was prepared by senior journalist Mrinal Talukdar who said that this list may have a margin
of errors between 5 to 10 per cent; Sangeeta Barooah Pisharoty, Both the BJP and the Trinamool
Congress Are Stirring the Communal Pot in Assam, THE WIRE, 5 August 2018.
https://thewire.in/politics/bjp-tmc-nrc- assam-communalism. (Accessed on 5 December 2018 4 P.M.).
94
For example,the highest number of rejections is in the Muslim majority district of Darrang where
about 31.95 per cent of the applicants did not find their names in the final draft list. Hojai, a Hindu-
majority district, where about 30.30 percent of the applicants have been excluded from the draft list,
follows this.
95
Udayon Misra, National Register of Citizens: Beginnings and endings, THE INDIAN EXPRESS, (7
August 2018). https://indianexpress.com/article/opinion/columns/nrc-assam-aasu-bangladesh-
assamese-bengali-1971-national-register-of-citizens-beginnings-and-endings-5294784/. (Accessed on 7
December 2018, 9 P.M.)
96
Rastriya Nagarikpanjir Adyabadhikaran: Assam Gana Parishad Dalor Dristibhangi aaru Daybadhata,
Assam Ganaparishad, Guwahati, 2015, P-1.
97
Following are the list of admissible documents- 1951 NRC Electoral Roll(s) up to 24th March 1971
(midnight), Land & Tenancy Records, Citizenship Certificate, Permanent Residential Certificate,
Refugee Registration Certificate, Passport, Life Insurance Certificate (LIC), Any Government issued
License/Certificate, Government. Service/ Employment Certificate, Bank/Post Office Accounts, Birth
Certificate, Board/University Educational Certificate, Court Records/Processes
98
These documents include: Birth Certificate, Land document, Board/University Certificate,
Bank/LIC/Post Office records, Circle Officer/GP Secretary Certificate in case of married women,
Electoral Roll, Ration Card, Any other legally acceptable document
99
Ibid.

48
Although the cut-off date is the midnight of 24 March 1971, there are people, whose
names are not in the last draft list, who guarantee that their predecessors came to
Assam during the 1800s.100There are additionally numerous whose names are not in
the draft list but rather their predecessors' names are there in the 1951 NRC.101There
are then a number of women whose names are missing from the list who are from the
Indian states of West Bengal and Bihar, and had been married in Assam. The
technical reason for their non-inclusion is due to the Assam government’s failure to
get their legacy data from the two respective states.102There have been reports of
people form religious and linguistic minority communities, especially Muslims, being
harassed in the name of NRC. Members of certain organisations have been reported to
be taking signatures on blank forms to file objections in the names of such minorities
to prevent their inclusion in NRC despite having legitimate claims.103“NRC has
become a tool for harassment of religious and linguistic minorities with people from
one end of Assam being forced to travel to another end because of dubious objections
raised by unknown people. Invariably, the objector does not turn up at the hearing but
NRC officials make the poor, illiterate people sign an undertaking in English saying
they do not possess citizenship documents.”104 There are also possibilities of further
excluding formerly included names in NRC who have later been found ineligible for
various reasons.

100
Tora Agarwala, Assam citizenship list: Names missing in NRC final draft, 40 lakh ask what next,
THE INDIAN EXPRESS, (30 July 2018.) https://indianexpress.com/article/north-east-
india/assam/assam-citizenship- list-names-missing-in-nrc-final-draft-40-lakh-ask-what-next-5283663/.
(Accessed on 30 December 2018).
101
Rahul Karmakar, NRC update: Relatives of former President Fakhruddin Ali Ahmed, Sepoy Mutiny
fighter excluded in final draft, THE HINDU, 1 August 2018.
https://www.thehindu.com/news/national/other- states/nrc-update-relatives-of-former-president-
fakhruddin-ali-ahamed-sepoy-mutiny-fighter-excluded-in-fin al-draft/article24566329.ece. (Accessed
on 2 December 2018).
102
“Former President Fakhruddin Ali Ahmed’s Nephew Not Included in Assam’s NRC”, THE WIRE,
(1 August 2018). https://thewire.in/rights/former-president-fakhruddin-ali-ahmeds-nrc-newphew-
assam.
103
Assam Minority Body alleges false NRC, THE HINDU, (05/05/2019)
https://www.thehindu.com/news/national/assam-minority-body-alleges-false-nrc-
objections/article27039095.ece
104
Rahul Karmakar, NRC Centres Victimising Minorities facing dubious charges,THE HINDU,
(15.05.2019) https://www.thehindu.com/news/national/other-states/nrc-centres-victimising-minorities-
facing-dubious-objections-ngo/article27131715.ece (Accessed on 2 December 2018).

49
4.3 Challenges and Concerns of the NRC Update

The NRC has far reaching consequences not only for the country but also for South
Asia as a region and the world too. It is full of problems ranging from personal
tragedies like that of a single family member left out of hundred plus members of an
extended joint families to at places whole communities are being left out. Those
excluded include even persons like family members of a former president of India,
veterans of Indian security forces, policemen, kith and kin of legislators to the poor
who have no papers to show.105 Many of those excluded complain of reasons behind
their exclusion being subjective biases and the inherent flaws in the NRC of 1951 and
the electoral rolls of 1961 and 1971 that make up the core of the ‘legacy data’. There
are many cases in which the direct descendants of those figuring in the NRC of 1951
having been left out from the final draft. This is discussed below.

4.3.1 Limitations of NRC 1951

Based on the Census of 1951 the National Register of Citizens was first
prepared. This NRC of 1951 was inadequate, as the enumerators couldn't reach
numerous riverine islands, chars and remote zones. Besides, Assam furthermore saw
mutual communal violence when the procedure of NRC was started. Statistics tell that
53000 Muslim families fled to the then East Pakistan somewhere in the range of 1948
and 1950 because of mutual violence in western Assam..106 Later the Nehru-Liyaqat
agreement of eighth August 1950 gave them a window of two years to come back to
India. However, the middle of this period the NRC procedure was already concluded
Assam. Sadly the administration did not try to update the NRC of 1951, which was
expected of them.

Thus a big number of Muslims were dropped out in the total figure of 1951 NRC and
the census. But when in the next Census of 1961 those dropped out citizens’ names
were enlisted the growth rate of Muslims in Assam was seen very high creating an

105
Debashri Das, Claim that updating NRC mandated by Assam Accord false: In this circus, poor and
Marginalised are being fed to lions,THE FIRST POST, 2 August 2018.
https://www.firstpost.com/india/claim-that- updating-nrc-mandated-by-assam-accord-false-in-this-
circus-poor-and-marginalised-are-being-fed-to-lions-4 876881.html. (Accessed on 4 November 2018)
106
Report on NRC Updation in Assam: Prospects and Challenges, Centre for the Study of Society and
Secularism, Mumbai by Advocate Irfan Engineer, Director CSSS, Mumbai, Prof. Monirul Hussain,
Gauhati University, Professor Dilip Borah, Gauhati University and Convener AISF Assam State, Dr.
Shahiuz Zaman Ahmed, Assistant Professor, SPP College, Sivasagar, Dr. Hafiz Ahmed, President Char
Chapori Sahitya Parishad,Assam, and Susanda Madhab Baruah, Guwahati (2018)

50
image of high Muslim influx possibly from East Pakistan whereas they were the
original citizens of India to begin with. As a result, a large number of descendants,
though legitimate have been excluded. The primary reasons behind this include
clerical errors resulting in mis-spelt names right from the parents to those of the
claimants now, mismatched relationships and so on. Most of the people being very
poor and living in areas routinely affected by floods have also lost their documents.

4.3.2 Foreigners’ Tribunals with their Incapacities and Bias

The expanding number of people pronounced to be outsiders by Foreigners'

Tribunals has likewise elevated worries about the execution of the NRC update. 107 In
this context, it is reported that members of Foreigners' Tribunals in Assam experience
expanding weight from State authorities to pronounce more people as outsiders. On
21st June 2017, 19 individuals from the Foreigners' Tribunals in Assam were
dismissed on the ground of their under-execution and performance in the course of the
last two years. More than 15 additional Tribunal members were issued with a strict
warning to increase their productivity.108 Taking into account that Tribunal Members
serve on a legally binding contract only for two years at a time, which might be
extended on performance, these activities were seen to be a not so subtle provocation
to other Tribunal members to act accordingly.

4.3.3 Bangladesh and its Refusal

Further complicating the situation is the fact of Bangladesh’s stern refusal of

having anything to do with those left out. Besides the internal row on the NRC, there
is dread that the activity in Assam will influence India's association with Bangladesh.
Weeks before its publication that started a political debate, India had discreetly
informed Bangladesh on the draft National Register of Citizens (NRC) in Assam. It
has been reported that it had guaranteed them that there was no discussion of

107
Out of a total of 468,934 referals to the Tribunals between 1985 and 2016, 80,194 people were
declared foreigners. This figure increased drastically in 2017, reaching 13,434 in just eleven months.
108
Mandates of the Special Rapporteur on minority issues; the Special Rapporteur on contemporary
forms of racism, racial discrimination, xenophobia and related intolerance; the Special Rapporteur on
the promotion and protection of the right to freedom of opinion and expression; and the Special
Rapporteur on freedom of religion or belief, REFERENCE: OL IND 13/2018, pursuant to Human
Rights Council resolutions 34/6, 34/35, 34/18 and 31/16.

51
'extradition' to influence a slide in bilateral ties.109 Notwithstanding that, the experts in
Bangladesh have anyway considered this issue an ‘internal matter of India with ethnic
undertones.110This effectively turns those finally left out as stateless people with
nowhere to go adding almost one more million to already huge number of 10 million
people currently estimated to be stateless. It is entirely possible that Bangladesh may
not accept the people so declared as immigrants without clear cogent proof in that
they are Bangladeshi citizens. The inability to furnish documents may take away
Indian Citizenship but it doesn’t confer Bangladeshi Citizenship either. That gives rise
to the fear of large internment camps for those excluded from the final NRC list,
violation of their human rights and another humanitarian crisis for the world.111

4.3.4 Sectarian and Systemic Bias against Dalits and Bengali Muslims

There are also large-scale complaints of the sectarian biases based on

linguistic identity having played against even genuine claims of many of those left
out. There is a systemic bias against Muslims, a religious minority community in
India and Dalits, erstwhile victims of untouchability now protected by the constitution
and listed as Scheduled Castes. Matua Mahasangha, a backwards caste organization
consisting principally of Namashudra Dalits with origins in Bangladesh, gives
credence to this argument and claimed most of those affected are members of the
community.112 They felt that they couldn’t remain silent, as the citizenship of
members of their community was snatched overnight and resorted to protest and rail
blockade. While it is recognized that the updation procedure is commonly dedicated
to retaining Indian natives by the NRC, concerns have been brought that local
authorities in Assam, which are considered to be especially hostile towards Muslims

109
Quietly, Delhi kept Dhaka in NRC loop: No deportation talk, THE INDIAN EXPRESS, 4 August
2018. https://i ndianexpress.com/article/india/quietly-delhi-kept-dhaka-in-nrc-loop-no-deportation-talk-
5291048/. (Accessed on 4 December 2018.)
110
No worries over Assam NRC draft, THE DAILY STAR, (2 August 2018).
https://www.thedailystar.net/back page/nothing-worry-about-over-assam-nrc-draft-1614724. (Accessed
on December 2018.)
111
Written statement* submitted by the Asian Legal Resource Centre, a non-governmental
Organization in general consultative status, Human Rights Council Thirty-ninth session,10-28
September 2018, Promotion and protection of all human rights, civil, political, economic, social and
cultural rights, including the right to development, United Nations General Assembly
112
Rail blockade by backward classes outfit: Four lakh names left out of NRC, THE INDIAN
EXPRESS, (2 August 2018). https://indianexpress.com/article/cities/kolkata/rail-blockade-by-
backward-classes-outfit-four-lakh-names-left-out-of-nrc-5287517/.( 4 December 2018). Of the 40 lakh
(four million) people that have been excluded in the final draft of National Register for Citizens in
Assam, about 4 lakh (400,000) people belong to this community.

52
and Dalits of Bengali descent, may manipulate the framework trying to bar numerous
veritable Indian residents from the updated NRC.

The potential unfair impact of the updated NRC ought to be observed in light of the
historical backdrop of segregation and violence faced by Muslims of Bengali origin
because of their status as ethnic, religious and linguistic minority and their apparent
perceived foreignness.113 Despite the fact that the Bengali origin Muslims in Assam
descend from labourers brought from the former Bengal and East Bengal beginning in
the nineteenth century under colonial rule, they have for some time been depicted as
unpredictable and irregular transient migrants. As a result of this rhetoric, Bengali
Muslims have generally been the object of various human rights infringement,
including constrained removal, discretionary ejections, and killings. Also, since 1997,
the recognizable proof by EC of a substantial number of Bengali Muslims as alleged
'dubious or contested voters', has resulted in their further disenfranchisement and the
loss of entitlements to social protection as Indian citizens. It successfully denied them
the privilege of political participation and representation. This segregation is
anticipated to heighten because of the NRC. The manner in which this update has
been led conceivably influences an extraordinary number of Muslims and people of
Bengali descent who might be unfairly rejected from the updated NRC on account of
their historical and continuing treatment as outsiders and illicit foreigners in Assam.
On the off chance that these charges are established, the updated register represents a
desperate hazard to a huge number of Indian residents, who may improperly be
proclaimed as "outsiders" and therefore be rendered stateless.

4.3.5 The Citizenship (Amendment) Bill of 2019

All the more as of late, the Citizenship (Amendment) Bill 2019 was presented
with the objective of making individuals from certain minority networks qualified for
Indian citizenship, taking note of that they will not be treated as illicit migrants.114
Enactment of the Bill will complicate the issue of determination of citizenship in
Assam. It will make two classes of Indian Citizens-one with their Names refreshed in

113
Claim that updating NRC mandated by Assam Accord false: In this circus, poor and marginalised
are being fed to lions” Debarshi Das, The First Post, 2 August 2018.
https://www.firstpost.com/india/claim-that- updating-nrc-mandated-by-assam-accord-false-in-this-
circus-poor-and-marginalised-are-being-fed-to-lions-4 876881.html. Accessed on 4 December2018.
114
The Citizenship (Amendment) Bill, 2016 accessed at http://prsindia.org/billtrack/the-citizenship-
amendment-bill-2016-4348 on Accessed on 4 December2018.

53
the NRC and one without. The second class would comprise of those belonging to
Hindu and five other non-Muslim religious groups who came to Assam from
Bangladesh between March 25 1971 to December 31 2014. This could possibly be to
entice about eight lakh Bengali Hindu voters for the 2019 elections by the ruling
government, who would have otherwise been excluded by the NRC process. This did
not sit well with the signatories of the Assam Accord, as it wanted all illegal migrants
be excluded, irrespective of their religion to promote Assamese indigenous
communities. This has become a subsequent addition to the already exclusionary
exercise of the NRC in Assam creating a new founded layer of vulnerability to the
existing stateless people in the country. The implications of this exercise in
exacerbating the international problem of statelessness along with India’s role and
policies for the same is the discussion for the next chapter.

54
 CHAPTER 5

INDIA AND STATELESSNESS: POTENTIAL

CONSEQUENCES OF NATIONAL REGISTER OF
CITIZENS

India’s obligation to protect refugees, non-citizens or migrants, including non-return,

non-expulsion or non-extradition along with the minimum standards of treatment can
be traced back to the International Conventions and customary laws of which India
forms a part. As India has not acceded to the 1951 Refugee Convention and for
Statelessness are the 1954 and the 1961 Conventions her obligation to protect the
stateless emanates from the customary laws. However, there still exists a debate
whether statelessness has become a part of customary international law leaving scope
for India to not to follow it even so.115 India’s lack of refugee policy already keeps the
vulnerable class of persons unsure about their future, which could turn at the change
of government events. It has been compounded in recent times by the NRC problem
that is potentially creating more such vulnerable people predominantly on ethnic lines.

5.1 India’s Refugee Policy: Non-recognition of Statelessness

In 2013, the erstwhile United Nations High Commissioner for Refugees, Antonio
Guterres said that India’s refugee policy is an example for the rest of the world to
follow. According to him, “India with its history, culture, traditions, is today an
example of generosity in the way it has opened its borders to all people who have
come looking for safety and sanctuary. There are Tibetans, Afghans, Myanmarese in
India and it has maintained an open door policy for all. India has a generous approach
in relationship to all people and a proof of that is the granting of long-term visas and
work permits to refugees. We consider India a more reliable partner in the world to
guarantee that people who need help will find a place. And more importantly at a time
when there are so many closed borders in the world, and many people have been

115
CHRISTIAN F. ROSTBØLL, STATELESSNESS, DOMINATION, AND UNFREEDOM. ARENDT AND PETTIT IN
DIALOGUE, TO BE UNFREE (2014) at https://www.jstor.org/stable/j.ctv1fxkng.4 (Accessed on 10 May
2019)

55
refused protection, India has been generous.”116 India had a good track record of
refugee protection despite not having an official refugee policy or having acceded to
any of the Refugee Conventions.However, in the six years that has passed since this
statement, India’s approach towards its refugee problem has undergone some serious
change, all of which has the potential to cause statelessness.

5.1.1 Difference between Migrant and Refugee

There is no all inclusive, legitimate meaning of a migrant. As per the mandate

of the United Nations High Commissioner for Human Rights, to advance and ensure
the human privileges all things considered, a migrant is “any individual who is outside
a State of which they are a resident or national, or, on account of a stateless
individual, their condition of birth or constant living arrangement". ‘Migrant along
these lines is utilized as an impartial term to portray a gathering of individuals who
share for all intents and purpose an absence of citizenship connection to their host
nation. It is without partiality to the security routines that exist under global law for
explicit legitimate classes of individuals, for example, displaced people, stateless
people etc. On the other hand a refugee is an individual who is escaping oppression
or strife in her or his nation of conflict. They are entitled to the full protection of
refugee law, including protection from expulsion or return to situations of persecution
where their life and freedom are at risk. Furthermore, there are migrants in vulnerable
situations that don't qualify as refugees, yet who are in any case in need of explicit
insurance intercessions. Such transients are not inalienably defenseless, yet they can
end up in powerless circumstances emerging from the purposes behind leaving their
nation of beginning, the conditions wherein they travel or the conditions they face on
entry, or as a result of individual conditions, for example, their age, incapacity or
wellbeing status. The source of concern in NRC is the ‘migrants’ and not the
‘refugees.’ Refugees have certain rights based on their status, whereas migrants, due
to their voluntary movement are not afforded the same consideration. Therefore, the
NRC does not result in creation of refugees but stateless migrants, who create the
least amount of obligation for protection under the domestic laws.

116
Refugees in Media, The Media Center, UNHCR, (10 May 2019)
(https://unhcr.org.in/index.php?option=com_news&view=detail&id=35&Itemid=117

56
As India never had a clear policy for granting refugee status, it generally deals with
the question of admission of refugees and their stay until they are officially accorded
refugee status (the stateless) under the legislation that deals with foreigners, that is,
akin to those who leave their homes voluntarily under normal circumstances. This is
problematic as the circumstances for a voluntary foreigner and a forced migrant
refugee would be decidedly different. Moreover, if one is a refugee the constitution
guarantees certain fundamental rights to people irrespective of being citizen whereas
if one is stateless he has no rights, even that of a refugee. Such people are at the
mercy of ruling government, which decides the rights it intends to provide or curtail.
They are the most vulnerable as they are devoid of any rights. No rights which
amounts to no remedy, as there is nothing to assert by them.

5.2 NRC and Creation of Potential Statelessness

There is no official strategy sketching out the suggestions for the individuals who are
rejected from the final NRC. It is reported that they will be treated as outsiders and
that their citizenship rights might be renounced without a preliminary hearing. They
may further be approached to demonstrate their citizenship at the Foreigners’
Tribunals. In December 2017, a local government legislator in Assam was cited as
expressing that“the NRC is being done to identify illegal Bangladeshis residing in
Assam” and that “all those whose names do not figure in the NRC will have to be
117
deported.” These worries have been increased by the confusion created by a High
Court judgment118 where the Court guided the Assam Border Police to open inquiries
concerning the relatives of people pronounced as outsiders and to consequently refer
them to the Foreigners' Tribunals. In view of this judgment, the State Coordinator of
the NRC issued two orders,119, which require the border police authorities to refer
family members of “declared foreigners” to the Foreigners’ Tribunals. The obligation
to conduct a prior inquiry isn't referenced in the orders. When the necessary NRC
authorities have been informed about the referral of a case, the concerned relative will
consequently be rejected from the NRC. Their status will be recorded as "pending"
until a Foreigners’ Tribunal has decided their citizenship. Moreover, the orders negate
117
Ram Madhav, NRC limited to Assam, but all Rohingya will be deported,THE INDIAN EXPRESS, 2
August 2018. https://indianexpress.com/article/india/ram-madhav-nrc-limited-to-assam-but-all-
rohingya-will-be-deported-5287307/. (Accessed on 2 December 2018.)
118
Gauhati High Court, WP(C) 360/2017, Case of 2 May 2017
119
Memo No. SPMU/NRC/HF-FT/537/2018/15-A dated 2 May 2018 and Memo no. SPMU/NRC/HC-
FT/537/2018/23 dated 25 May 2018.

57
another earlier High Court judgment,120 which stipulates that automatic referrals to
Foreigners’ Tribunals are not permissible as a reasonable and legitimate examination
is required before the referral of a case. It is therefore stated that these orders may
lead to the wrongful exclusion of close to one million names from the NRC, without a
prior investigation and trial.

5.3 India’s obligations under International Law

Under the International Humanitarian Law, all States have to take effective measures
to prevent and eliminate discrimination on the grounds of religion or belief in the
recognition, exercise and enjoyment of human rights and fundamental freedoms in all
fields of civil, economic, political, social and cultural life.121 It is the obligation of
States to protect the existence and the identity of minorities within their territories and
to adopt measures to that end (Article 1), as well as to adopt the required measures to
ensure that persons belonging to minorities can exercise their human rights without
discrimination (Article 4).122 The persons belonging to minorities have the right to
enjoy their own culture, to profess and practice their own religion, and to use their
own language, in private and in public, freely, without any interference or any form of
discrimination. States are also required to take measures, to ensure that persons
belonging to minorities may exercise fully and effectively all their human rights and
fundamental freedoms without any discrimination and in full equality before the
law”.123

With regards to the potential discriminatory impact of the NRC update, India has an
obligation from the abovementioned conventions as well as under the International
Convention on the Elimination of All Forms of Racial Discrimination (ICERD).124
Racial Discrimination is basically any distinction, exclusion, restriction or preference
based on race, colour, descent, or national or ethnic origin which has the purpose or
effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal
120
State of Assam vs. Moslem Mondal and Others, 3 January 2013, Guwahati High Court,The orders
may also contravene section 3 (1) (a) of the Citizenship Act 1955, which grants citizenship at birth to
anyone born in India on/after 26 January 1950, but prior to 1 July 1987.
121
UN General Assembly’s Declaration on the Elimination of All Forms of Intolerance and of
Discrimination based on Religion and Belief of 1981, its Articles 2(1), 3 and 4(1).
122
Article 27 of the International Covenant on Civil and Political Rights, ratified by India on 10 April
1979, and the United Nations 1992 Declaration on the Rights of Persons Belonging to National or
Ethnic, Religious and Linguistic Minorities (Declaration on Minorities)
123
A 4.1 International Covenant on Civil and Political Rights, ratified by India on 10 April 1979.
124
International Convention on the Elimination of All Forms of Racial Discrimination (ICERD),
Ratified by India on 3 Dec 1968.

58
footing, of human rights and fundamental freedoms in the political, economic, social,
cultural or any other field of public life”.125 The Committee on the Elimination of
Racial Discrimination has frequently reiterated that discrimination based on religious
grounds is covered by ICERD in cases where it intersects with other forms of
discrimination prohibited under Article 1(1). It obliges States Parties to prohibit and
eliminate any act or practice of racial discrimination against persons and/or groups.
To this end, States must ensure that public authorities and institutions on the national
and local level act in compliance with this obligation.126 India does not only have to
ensure the effective protection against racial discrimination of everyone within its
jurisdiction, but also provide access to remedies and adequate reparation to victims of
racial discrimination.127

Furthermore, the right to nationality as enshrined in various international legal

instruments has been ratified by India. The right to nationality entails the right of each
individual to acquire, change and retain a nationality.128 In this connection, the
deprivation of citizenship on the basis of race, colour, descent or national or ethnic
origin violates States parties’ obligations to ensure non-discriminatory enjoyment of
the right to nationality.129 With respect to the potential disenfranchisement of those
excluded from the updated NRC, India has to ensure non-discrimination and equality
before the law in the enjoyment of political rights. This includes the right to
participate in elections, to take part in Government and public affairs, and to have
equal access to public services.130

Thus India needs to protect its minorities and not render them stateless. NRC is
fraught with problems at various levels internally. Along with that, it is drawing the
ire of the international community, which perceives the entire exercise as racist and
discriminatory. It needs to combat this problem according to the international

125
Article 1 (1), International Convention on the Elimination of All Forms of Racial Discrimination
(ICERD).
126
Article 2 (1) of International Convention on the Elimination of All Forms of Racial Discrimination
(ICERD).
127
Article 6, International Convention on the Elimination of All Forms of Racial Discrimination
(ICERD).
128
Article 5 (d) (iii) of ICERD is particularly relevant as it explicitly obliges States parties to guarantee
the right of everyone to equality before the law, including in the enjoyment of the right to nationality,
without discrimination on any prohibited grounds.
129
General Recommendations No. 30, para. 14
130
Article 5(c) of International Convention on the Elimination of All Forms of Racial Discrimination
(ICERD).

59
standards that it has voluntarily accepted to follow by ratification. This has to be done
soon otherwise it will be another burning issue vilifying India internationally after
Kashmir.

5.4 The Way Forward

In the contemporary context of sovereignty-dynamics in the international political

arena, the right to nationality is an indispensable human right that facilitates the
actualization of all other basic rights. One’s nationality is separate from one's ethnic
origin, and must be so distinguished when ascertaining one's citizenship.
Statelessness, as a phenomenon, has a percolating effect in that it can be passed down
through generations. While the causes of statelessness may last for only a certain
amount of time, its effects on the nationality of particular people during that same
time period can carry forward, onto the next generation and beyond. In light of the
international legal framework, India can take specific steps addressing the following
concerns:

1. Identifying the stateless persons;

2. Protection of their rights against human rights violations;

3. Adopting such changes in the domestic legal framework aimed at reducing

statelessness, and most importantly, prevent further instances of statelessness;
and

4. Collaborating with neighbouring states to understand this phenomenon as an

international crisis, and deal with it accordingly.

Upholding human rights has been an essential facet of India’s commitment to

international law. However, this analysis of the Indian legislative regime has shown
that India needs a legal framework directed at protection of the human rights of
stateless persons. The positive steps that have been taken in this respect, however,
may lack direction, as India is yet to accede to the 1954 and 1961 Conventions on
statelessness. To ameliorate the conditions of stateless persons, the Indian legislative
framework has to adopt changes that assist the assimilation of stateless persons into
the mainstream community, and has to take specific steps directed at reducing
statelessness. In addition, specific legislative amendments need to be introduced that
aim at preventing further situations of statelessness from arising. It must be reiterated

60
that India's accession to the two conventions would be greatly beneficial to the cause,
as it would create positive obligations on India's part under the international rights
framework.

61
 CONCLUSION

The NRC is proving to be a boiling pot for India, which if not allowed letting off
steam soon will blow up in its face with severe consequences. In recent times the
refugee policy of India has taken and anti Muslim, anti Dalit and anti minority tone.
NRC serves as a useful example by targeting majorly Bengali Muslims and Dalit
Namasudras in exclusion. Furthermore, irrespective of its communal tone it is fraught
with technical difficulties and methodologies that are risking many genuine citizens to
become stateless. This sectarian bias could lead to potential violence and conflict in
Assam. It is also urging other states to ask for such a divisive mechanism of census so
as to weed out ‘foreigners’.131 This is against the basic constitutional principle of
tolerance and inclusivity and ends up only dividing the people. The biggest losers in
this political tug of war are the poor and the marginalized, who lack the voice or the
means to demand for their rights, in this case being the legitimacy by citizenship.

India needs to guarantee that the substance and execution of the NRC update comply
with India's commitments under universal human rights law and standards.
Specifically, it should find a way to guarantee that the NRC update does not result in
statelessness or human rights infringement, including discretionary hardship of
citizenship, mass ejections, and self-assertive confinement. It ought to give shields
guaranteeing that individuals from ethnic, religious and semantic minorities are not
oppressed in the system of the NRC update and the assurance of their citizenship
status. It ought to guarantee access to effective remedies for people prohibited from
the NRC.

It moreover, in a transparent manner, ought to give disaggregated information on the

race, ethnicity, and religion of people who have been barred from the draft NRC just
as people who have been proclaimed as outsiders by Foreigners' Tribunals for the
open survey. It should clarify on the implications for those individuals who will be

131
West Bengal: VHP to campaign for NRC exercise, THE INDIAN EXPRESS, 2 December 2018.
https://indianexpress.com/article/cities/kolkata/west-bengal-vhp-to-campaign-for-nrc-exercise-
5287508/. Accessed on 2 December 2018.
Manoj Tiwari, raised the issue of illegal immigration of Bangladeshis and Rohingya. He made a
request to the Union Home Minister, Rajnath Singh, for similar campaign in Delhi to deport them. In
Mumbai, joining the chorus was several members of the BJP and Maharashtra Navnirman Sena. They
demanded setting of the NRC on the lines of Assam to identify and deport the immigrants living
illegally in cities like Mumbai. (Maharashtra parties join chorus to ‘deport Bangladeshis”, Shiv Kumar,
THE TRIBUNE, (2 December 2018.), https://www.tribuneindia.com/news/nation/maharashtra-parties-
join-chorus-to-deport-bangladeshis/630948. html.)

62
excluded from the final NRC. Specifically, it should expound whether they will face
confinement or extradition, particularly at this stage, where, considering Bangladesh
wants nothing to do with them.

It ought to give data on measures embraced to remove any biased treatment of

minorities, including the Bengali Muslim minority, with respect to the right to
nationality and to guarantee that no individual having a place with ethnic, religious or
linguistic minority is self-assertively denied of her or his nationality. In conclusion, it
ought to guarantee satisfactory training of individuals from Foreigners' Tribunals,
police and NRC experts on pertinent human rights standards and measures, especially
those identifying with non-segregation and to people having a place with ethnic,
religious and etymological minorities.

Overall, India should accede to the Refugee and the Statelessness Conventions to
better protect the rights of such persons created out of NRC. It should constitutionally
place a framework in place for their protection such that no ruling government could
over turn such protections at their whim or on a matter of policy, If such a framework
or rights protection exists, then activities like NRC could be conducted without
infringing the rights of the marginalized. It would result in a balanced situation for
citizenship regime of India as a whole ensuring better rights protection.

63
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