The Indian Judiciary and Its Record on Statelessness

Anushri Uttarwar is a fourth-year B.BA. LL.B.(Hons.) student and Student Fellow at Centre for Public Interest Law, Jindal Global Law School. Arunima Nair is a second-year LL.B. student at Jindal Global Law School and an Editor of the Parichay Blog. Anushri and Arunima are among the authors of Securing Citizenship: India’s legal obligations towards precarious citizens and stateless persons, released in November 2020. 

Securing Citizenship highlights India’s legal obligations towards stateless persons and precarious citizens within its territory. It does so by expounding the applicable international human rights framework to the state, with every person’s right to nationality and every state’s duty to prevent statelessness as its two integral interwoven threads. Additionally, the report links the said international framework to the Indian state’s corresponding obligations under present domestic law. This article discusses one such aspect viz. the approach of Indian courts in cases involving persons of uncertain nationalities.  

The Indian state’s efforts to uphold every individual’s right to nationality and its duty to avoid and reduce statelessness have been minimal. It has not signed either of the two international conventions on statelessness and has not actively engaged in any global efforts to fight statelessness. As we have noted in our report, neither the Foreigners Act, nor the Citizenship Act, nor the Passport Act and their attendant rules, account for the legal lacunas that can create statelessness. The statutory terms ‘illegal migrant’, ‘foreigner’, and ‘citizen’ cannot be interchangeably applied to a stateless person. The present citizenship determination regime, which places the burden of proof upon the impugned individual and suffers from a well-documented lack of functional independence and procedural safeguards, has actively jeopardized the citizenship status of 1.9 million individuals in Assam in August 2019 (with subsequent deletions and an ongoing Government-led demand for 10-20% re-verification of the 2019 NRC).  

The Indian judiciary’s record on this front has been mixed. The Supreme Court’s judgments in the Sarbananda Sonowal cases (2005 and 2006) decisively laid down the roadmap governing citizenship determination in India. In these cases, the petitioners had impugned the Illegal Migrants (Determination by Tribunal) Act, 1983 (‘IMDT’) and the Foreigners (Tribunals for Assam) Order, 2006, both of which placed the onus upon the state to prove an individual’s foreigner status. The Court agreed and struck them down as unconstitutional. It anchored its reasoning in a broad interpretation of “external aggression” in Article 355 of the Constitution, stating that a “vast and incessant flow of millions” of illegal migrants from Bangladesh into Assam was akin to a “war”, posing a serious existential threat to the economic and social fabric of Assamese society. The Bench cast it as the Central Government’s “foremost duty” to protect its citizens from such aggression; statutes like the IMDT made it far too “cumbersome” to detect and deport foreigners and fulfill this duty, as opposed to the far more “effective” Foreigners Act. Sarbananda Sonowal is still good law; it is the underlying foundation for subsequent Supreme Court decisions, such as the one kick-starting the updation of the NRC and its eventual monitoring of the modalities of the entire NRC exercise

Nevertheless, the Indian Judiciary has occasionally taken cognizance of the tumultuous issue at hand. In each of those occasions where the courts decided to address the said issue, they have consistently observed the insufficiency of domestic laws addressing statelessness and the disastrous consequences of statelessness. These observations have aided them in interpreting the existing domestic statutes liberally so as to prevent the individual in question from being rendered stateless. Interestingly, in these cases, while the courts reasoned their judgments in line with international law on statelessness, they did not make concrete references to it. Four such cases have been outlined below. 

In Gangadhar Yeshwanth Bhandare, the respondent was found to have been a part of a secret Indian governmental mission. His participation in that mission had caused him delay in adhering to the guidelines that had to be followed by those in pre-liberation Portuguese territories who wanted to be considered Indian citizens. It was then alleged that he was not an Indian citizen. The Supreme Court held that the respondent was indeed an Indian citizen since he had renounced his Portuguese nationality already and to hold him to not be an Indian citizen at this stage would render him stateless. Such a consequence was unacceptable for the Court. 

Similarly, in Jan Balaz, the Gujarat High Court interpreted the Indian Citizenship Act, 1955 liberally to prevent the chances of the children born to an Indian surrogate from becoming stateless. The court observed that the children in question would not be able to claim citizenship by birth in Germany (due to the country not recognising surrogacy). It observed that they would have been rendered stateless if they were not accorded Indian citizenship, thereby affirming that they would be eligible for Indian citizenship by birth.  

In Prabhleen Kaur, the petitioner’s nationality was suspected, thereby causing her passport renewal application to be rejected by the relevant authority. The Delhi High Court held that rejecting her application on a mere doubt is manifestly unjust at that stage, as it could leave her stateless, indicating that she can only be ascribed an Indian nationality. 

Once again, in Ramesh Chennamaneni the Telangana High Court pioneeringly held that the power of the Indian government to deprive one’s citizenship under Section 10 of the Act is restricted by several constraints, including the duty of a state to avoid statelessness within its territory. Since in the situation before it, deprivation of citizenship would result in the petitioner being left stateless, the court set aside the committee decision that cancelled his citizenship. 

Apart from circumstances where a petitioner was at the risk of statelessness by virtue of the (in)actions of the Indian state, Indian courts have also acknowledged the need to legally recognize the status of stateless persons existent on Indian territory. By this we mean persons in India who have been rendered stateless by the actions of another state, not India. The Delhi High Court in Sheikh Abdul Aziz (W.P. (Crl.) 1426/2013) was confronted with a petitioner who had been languishing in immigration detention, far beyond his initial sentence under the Foreigners Act. The petitioner’s nationality determination had failed i.e. the Government could not confirm which nationality the man belonged to. The Court here pulled up the Government for its inaction in issuing a stateless certificate to the petitioner, and directed it to do so as the necessary first step towards the petitioner’s overdue release from detention. The stateless certificate, and the subsequent granting of a Long-Term Visa, were essential steps to ensure the petitioner did not become a phantom within the legal and civic community.  

Moreover, our report also argues that stateless certificates cannot and should not operate as obstacles to any application for citizenship. The Indian state has an obligation under international law to prevent and reduce statelessness, and to ensure that individuals can enjoy their right to nationality. Stateless individuals must not be stateless in perpetuity; their continuous residence and community ties in India should entitle them to be naturalised as citizens, per the procedures for naturalization. In the celebrated Chakma case, the Supreme Court created precedent by holding that stateless individuals like the Chakmas in Arunachal Pradesh had a statutory right to be considered for Indian citizenship under Section 5 of the Citizenship Act. Local administrative officials therefore had no grounds for stalling and refusing to forward Chakma individuals’ citizenship applications. The Delhi High Court, in a subsequent case dealing with a plea by a Tibetan individual who was born in India in 1986 to two Tibetan refugees, held that the petitioner’s stateless identity certificate did not bar her from being eligible for Indian citizenship by birth under Section 3(1)(a) of the Citizenship Act, and directed the MEA to process her application expeditiously. 

The pattern of the judiciary utilising international law standards on statelessness continues even in cases where the Court could not come to a decision immediately in favor of the petitioner, as the Patna High Court did recently in Kiran Gupta v State Election Commission. The appellant here was challenging an Election Commission decision that cancelled her Panchayat electoral victory, on the grounds that she was not an Indian citizen when elected. She was a Nepali citizen at birth, and had resided in India and raised her family for 17 years since her marriage to her Indian husband, along with possessing a Voter ID, a PAN card, and property in her name here. She had even terminated her Nepali citizenship in 2016. However, she admitted that she had failed to register for Indian citizenship under Section 5 of the Citizenship Act.  

The Court’s hands were tied: the conferral of Indian citizenship is clearly an Executive function, with the various procedures laid out in the statute. It held that it could not step into the shoes of the Executive and declare her an Indian citizen. Despite this, however, the Court demonstrated sensitivity towards the petitioner’s unusual situation. She was caught in a precarious situation where she possessed neither Indian nor Nepali documents of citizenship. In its final few pages, the Court crucially reiterates the duty upon the Indian state to prevent and reduce statelessness, in spite of signing neither statelessness convention. India has signed and ratified several other human rights treaties with provisions limiting nationality deprivation, such as the ICCPR, CEDAW, ICERD, and CRC. In its operative portion, the Court directed the Government to be mindful of the petitioner’s peculiar circumstances as and when she applies for citizenship. The Patna High Court demonstrates the capacity of courts to step in and affirm the internationally recognised and binding duties to prevent and reduce statelessness.  

At this juncture, it is imperative to note that the aforementioned cases present what we would consider ‘aspirational’ statelessness jurisprudence in the context of India. They are, unfortunately, exceptions rather than the norm: a litany of court decisions follow the overarching rationale of Sarbananda Sonowal and are either unaware of or wholly indifferent to individuals’ right against arbitrary deprivation of citizenship and the duty to prevent statelessness under international law. Foreigners Tribunals (‘FTs’) have consistently been passing orders that are arbitrary and ripe with procedural inadequacies, thereby designating an increasing number of individuals as foreigners. Adverse FT decisions are based on any and every minute clerical error or inconsistencies within their documents. Many such decisions have been upheld on appeal in the Gauhati High Court; as an indicative selection, in Nur Begum v Union of India and Sahera Khatun v Union of India, the burden of proof as per Section 9 of the Foreigners Act was interpreted stringently as one that rests absolutely upon the proceedee. In Jabeda Begum v Union of India, 15 official documents were found to be insufficient to discharge the said burden.  

To conclude, given the polar contrasts within the Indian statelessness jurisprudence, the judiciary’s role will remain incomplete unless accompanied by comprehensive legislative and policy changes. This would require India to not just formally accede to the 1954 and 1961 Conventions, but to also reform its current citizenship framework and explicitly allow for the expedited naturalisation of stateless persons. One hopes that the Executive catches up soon and fortifies its obligation. 

Mapping Developments: A follow-up to the Detention Chapter from the Securing Citizenship Report

Khush Aalam Singh is a third-year law student pursuing the B.A. (LL.B.) program at Jindal Global Law School. He is a Student Fellow at Centre for Public Interest Law, JGLS, where he is currently assisting research interventions on questions of citizenship and statelessness. Khush is one of the authors of  Securing Citizenship: India’s legal obligations to precarious citizens and stateless persons, released in November 2020.

The Securing Citizenship report is divided into three chapters – Status, Detention and Socio-Economic Rights. Each chapter addresses the international law obligations of India vis-à-vis precarious citizens and stateless persons. As authors of the Detention chapter, real-time developments posed a challenge for us. We had to be mindful of the news and the overall argument the report sought to advance. This article is an attempt to engage with major developments since September 2020 which did not make the final text. As such, it endeavours to expand the conversation around issues at the nexus of statelessness, precarious citizens, and detention pending deportation.

A development of significance is the Gauhati High Court’s order (dated 7th October) in the case of Santhanu Borthakur v. Union of India and Ors. (W.P. (Crl.)/2/2020). In this criminal writ petition, the court observed that persons declared as foreigners shall be kept in detention centres outside of prisons. The court also observed that earmarking a specific area in jail premises as a detention centre is not in accordance with Supreme Court guidelines. These guidelines stem from its judgement in the case of Bhim Singh v. Union of India (2012).

Furthermore, the Santhanu Borthakur order refers to communications by the Central Government specifying that detention centres need to be set up outside jail premises. These communications included a recommendation that the state consider hiring private buildings for the purpose of keeping detainees while the detention centres are under construction. While the order does not declare the detention of foreigners inside prisons as outrightly illegal, it directed the state authorities to place a status report showing measures taken to set up detention centres. This status report is likely to be placed before the court at the next hearing of the matter.

The Court’s observations relating to the detention of ‘foreigners’ inside prisons complement a key concern that we flag in the report. The nature of confinement for persons declared as foreigners is materially different from that of convicts or undertrials. As per the Assam Government White Paper of 2012, the detention of declared foreigners is ‘administrative’ in nature. In other words, the detention of such persons takes place for deporting them to their country of origin and is not necessarily a criminal penalty. However, the intent of deporting is illusory as low rates of deportation show that removing such persons to their purported country of origin is not an option. This is because Indian citizens in Assam whose citizenship status is precarious are detained under the guise of ‘foreigner’. Stateless persons may also be detained as ‘foreigners’ without a nationality. These persons are kept along with undertrials and convicts without any proper system of distinguishing between these categories. This has worrisome consequences such as discrimination by jail officials, overcrowding of prisons, physical and mental health concerns as well as shortage of rations.

Therefore, the Court’s observations are welcome to the extent that they are consonant with international law on administrative detention pending deportation. However, we are yet to see a judicial pronouncement that explicitly sets out the premise that stateless persons and precarious citizens cannot be detained. Such a pronouncement must be foregrounded in the language of rights and should leave no scope for ambiguity. The Supreme Court orders allowing the release of detainees are examples of this ambiguity, as has been mentioned in the report. This is because the Court employs a language bereft of any reference to rights. The overriding imperatives prompting the orders seem to be administrative convenience or public health. This becomes an issue as these orders do not recognize the rights of precarious citizens and stateless persons.

After the Supreme Court relaxed the conditions required for release of detainees earlier last year (W.P. (C) 1/2020 (Supreme Court)), the Gauhati High Court initiated a suo motu writ petition (W.P. (C) (Suo Motu) 1/2020) to oversee the process. The orders record the release status of detainees and the number of detainees released. According to the last order dated 17September 2020, 349 eligible detainees had been released from detention. The data provided in the order does not specify whether this figure is across all detention centres or from a specific detention centre. None of the orders have a breakdown of the numbers from each detention centre. Instead, there is a lumpsum figure as was submitted by the state counsel. This is yet another reflection of the ambiguity surrounding numbers from Assam, making it difficult to have a clear idea of the situation. Furthermore, the numbers do not mean that there are no persons in detention at present. As of those eligible, about 13 detainees have not yet been released due to non-fulfilment of bail conditions. It is unknown whether persons who have not yet completed two years in detention are still inside these detention centres. Additionally, no details have emerged about the conditions inside these detention centres – especially given the COVID-19 situation.

Outside of Assam, the Karnataka High Court also made observations about the detention of illegal migrants/foreigners. In Babul Khan and Anr. v. State of Karnataka and Anr., Justice Phaneendra observed that persons found to have violated the Foreigners Act, 1946 do not have the right to move around freely “as if they are the citizens of the country”. Furthermore, the court reiterated that persons declared as foreigners shall be detained pending deportation. The order does recognize some aspects that we have sought to highlight in the report. The court affirms that children in detention are particularly vulnerable, along with women, therefore their rights have to be protected. The court relied on the UN Declaration on the Rights of the Child (1959) as well as the Supreme Court guidelines in R.D. Upadhyaya v. State of AP. These guidelines enshrine the right of the child to education, food, recreation, medical care, etc. Further, the court cited the Juvenile Justice Act (2015) and the Rules to show that these rights have a firm grounding without reference to the nationality of a child.

While the observations with respect to children complement our arguments, there are many concerns when it comes to the nature of detention in such cases. As Securing Citizenship argues, stateless persons and precarious citizens cannot be detained for deportation. Such persons have a right to immediate release if they are presently detained. In the case of stateless persons, they cannot be removed to any country, since no country considers them as its citizens. Precarious citizens, on the other hand, are Indian citizens by virtue of their ‘genuine link’ to this country. When both stateless persons and precarious citizens are deemed ‘foreigners’ before the law, their confinement inside detention centres is arbitrary and violates domestic and international law. The lack of a periodic review mechanism by a judicial body further aggravates the issue. This is particularly disappointing as courts have recognized statelessness as a situation to be avoided. Yet, courts and policy-makers have paid inadequate attention to the nexus between statelessness, precarious citizenship and detention pending deportation.

There is a dire need for a well-drafted and well-thought out policy that addresses these issues substantively. Through our intervention, we have attempted to highlight areas of concern with the existing policies and how they neglect these categories of persons. The impact of detention without substantive and procedural safeguards continues to be disproportionate. As we argue in the report, principles of international law need to be kept in mind while addressing these issues, with an overarching emphasis on human rights. To ensure this, the fundamental rights contained in the Constitution can provide a strong basis. Furthermore, detention should be used as a measure of last resort. The state shall exhaust all possible lesser-restrictive options before deciding to detain someone. Our paramount concern remains the situation of stateless persons and precarious citizens in detention centres, particularly in Assam. We sincerely hope that our intervention finds consideration and concrete expression through policy reform.

‘History of Citizenship and Migration in South Asia’: A talk by Mr. Manav Kapur

Manav Kapur read law at NALSAR, Hyderabad and New York University, New York. He has previously taught law at NALSAR and Jindal Global Law School. He is presently pursuing his Ph.D. in legal history from Princeton University, New Jersey. This is a transcript of a lecture delivered as part of the lecture series at the Fall 2020 Citizenship and Statelessness Clinic, Jindal Global Law School. You can find the full recording of the lecture here.

In the course of today’s discussion I thought we’d talk about citizenship and Partition. It’s kind of interesting because many of these debates are similar to the debates that have come up over the last year or so, and what I’ve been thinking about in the past few weeks is while much has been made about how the CAA [Citizenship Amendment Act, 2019] marks a break with the liberal conception of citizenship in India and how its explicit privileging of Hindus, Sikhs, Buddhists, Jains, Christians, and Parsis from Afghanistan, Pakistan, and Bangladesh is seen as a break from the earlier regime, I don’t think that’s true. This is definitely not a defence of the CAA, but it’s interesting to see how even, and partly because of the Partition, these issues came up at the very outset of the setting of the terms of citizenship. 

I’m going to start off talking about two distinct questions: first, the ways in which Partition and citizenship were imbricated, both in the popular imagination and in the legal categories – and how did this become a South Asian problem? So what’s interesting also is that Indian debates and Pakistani debates are supposed to be different, but that really wasn’t what was happening. The second question is how did India’s citizenship provisions go from being relatively uncomplicated to ones that ‘received far more attention’ than any other provision (Nehru) by the time the debates end or ‘a headache’, in the words of Ambedkar? 

What had happened after independence was, and what we need to remember is that post-colonial South Asia had changed so much from what it was even six months before independence, that you couldn’t actually assume categories of citizenship qua populations, but that this was actually a produced category that was debated and given sanction, both from the top-up and bottom. So it was a long-term project aimed at turning subjects into citizens and both populations were active participants in this process. 

Now if we go to Seervai, which is one of the basic canonical texts of Indian constitutional law, he says that citizenship is a triangular relationship, it’s a personal bond between state and citizens, whereby citizens bear allegiance to the state and in turn are given full political and other rights. There were two models of citizenship: one is jus soli i.e. the right of anybody who is born in a particular territory to be a citizen of that territory, and the second one is jus sanguinis, which comes from the Latin for the ‘right of blood’ and is linked to questions of nationality and ethnicity, where ethnicity and parentage are key. Now, both [Niraja Gopal] Jayal and [Joya] Chatterji when they’re talking about citizenship in India say that the idea of citizenship in India actually starts off as a jus soli thing. If you look at the first draft of the citizenship provisions in the constitution, and interestingly the first draft was the fundamental rights section, they didn’t even think it was necessary to have a separate chapter on citizenship. This is on April 23 1947: within six months they’ll know that this is not going to be as simple as they think it is. ‘Every person born in the Union or naturalized according to its laws and is subject to the jurisdiction thereof’ (Clause 3, April 23, 1947) was supposed to be an Indian. So this is basically jus soli simpliciter. Of course when this was being talked about this was tempered with some elements of jus sanguinis, because there was this question of what happens to  people who are born in India but whose families don’t live in India, and the converse, what happens to people whose families live abroad but are actually domiciled in India. So then domicile came up, and what is now Article 5 of the Constitution at this time. Article 5 says: 

At the commencement of this Constitution every person who has his domicile in the territory of India and:

(a) who was born in the territory of India; or

(b) either of whose parents was born in the territory of India; or

(c) who has been ordinarily resident in the territory of India for not less than five years preceding such commencement, shall be a citizen of India.

When we look at this, this is pretty simple but this doesn’t really think about what the Partition is going to do to this entire question. 

A small note on domicile: domicile is basically defined as a place where the habitation of a person has been fixed, and from where there’s no intention of moving therefrom. The reason why I’m specifically mentioning domicile is because domicile becomes specifically relevant in the context of Partition, particularly in the context of women and their citizenship. As Joya Chatterji points out, this is also useful because given that the Constitution was being drafted contemporaneously with the Partition and independence, both India and Pakistan, according to her, thought of a jus soli basis of citizenship, which is primarily territorial – so where you’re born, you’re a citizen of that country and after Partition happens, the other country really has no role to play in deciding your rights or lack thereof. But of course, this was predicated on the assumption, which later turned out to be erroneous, that Partition would not result in large-scale migrations. And interestingly, this idea that Partition would not lead to large-scale migrations persists through June, July, and August 1947. In June 1947 for example there’s a story about how Jinnah met a set of prominent Muslim leaders from Delhi and said that well, if Delhi isn’t part of Pakistan – which also wasn’t clear at the time, because the Punjab was to be divided and Delhi was at the border with Punjab—then you’re Indian citizens, and that’s the end of it. 

In order to understand citizenship, I think we have to take the idea of what Vazira [Fazila Yacoobali-] Zamindar calls ‘the Long Partition’ somewhat seriously. The ‘Long Partition’ has been defined, according to her, as ‘the ways in which two postcolonial states’– namely India and Pakistan—‘comprehended, intervened, and “shaped” the colossal displacements of Partition, and in doing so, recalibrating the categories of citizen, state, nation and territory’. All these categories seemed clear in March 1947; all of this was changed in September 1947. All of this resulted in mass migrations that started in 1947 but continued until at least the 1960s on both flanks of the border: on the Eastern flank which is the Bengal, Assam, and the East Bengal border, and the Western flank which stretches all the way from Kashmir up to Gujarat and Sindh. There’s also a note of terminological caution I want to make over here because the terms that were used were ‘refugee’ and ‘migrant’, but the idea of a ‘refugee’ has to be distinguished from what we understand of a refugee now as a stateless person. At this point of time the term ‘refugee’ in India referred to those who moved to India from Pakistan, and a ‘migrant’ was seen as somebody who moved from India to Pakistan. Now importantly they were called refugees, but they weren’t refugees like stateless people, they definitely had a state allegiance and that allegiance was acknowledged by the state they were moving to, it was just that their domicile and the state that they wanted to be part of did not at that particular point intersect.  

Two dates are very significant: 1 March 1947 and 19 July 1948, and we will see this when we discuss Articles 6 and 7 of the Constitution. 1 March 1947 was a significant date because it was the cut-off date for Partition violence, or so the Indian government thought, because violence started in Rawalpindi on 3 March and continued in Punjab throughout this time. And because the Eastern border wasn’t considered – as we shall see throughout this discussion, the Eastern border was considered peripheral to questions of citizenship in the ways that were fundamental to the determination of citizenship law at the time when the Constitution was being drafted. So the violence of Direct Action Day on Noakhali and stuff did not feature. 

Article 6 is something that we should spend a little bit of time on, because it talks of the rights of citizenship of certain persons who have migrated to India from Pakistan. It has a non-obstante clause at the beginning: ‘notwithstanding anything contained in Article 5’ – which is basically a jus soli conception of citizenship, with a little bit of jus sanguinis, about parents, but this is a departure from that –‘a person who had migrated to the territory of India from the territory now included in Pakistan shall be deemed to be a citizen of India at the commencement of this Constitution if he and either of his parents or any of his grandparents was born in India as defined in the Government of India Act, 1935 (as originally enacted), and’—even his little bit about the Government of India Act is significant, because before the Government of India Act, India included Burma and Aden, so both of them were excised from the idea of India, and that was particularly significant because Burma had a huge population of Indians, and Joya Chatterji does talk about that in questions around Indian nationals vs. citizens – ‘In the case where such person has so migrated before 19 July 1948…has been registered as a citizen of India by an officer appointed in that behalf by the Government….’ The important thing to note here – this is about 11 months after Partition—the very fact the Government decided to use this date [19 July 1948] meant that the Government thought that Partition migration had more or less in the ordinary course of events ended; migration after the 19th of July 1948 was seen as exceptional, and this was only true for the Western frontier and only for the provinces of West Punjab and the North-West Frontier Province. Hindus from Sindh continued to move to India until the 50s, and also from Balochistan. 

We should talk about Article 7 as well, which is another exception to the jus soli conception. This is the most controversial clause: called obnoxious by its detractors and obligatory by those who supported it, and it’s interesting even though religion is not explicitly mentioned, debates around both Article 6 and Article 7 make it very clear who is contemplated under these provisions and who isn’t, and that is largely based on religion, and in that category you see Muslims as one category and non-Muslims as another. Article 7 reads, beginning with a notwithstanding clause:

a person who has after the first day of March, 1947, migrated from the territory of India to the territory now included in Pakistan shall not be deemed to be a citizen of India:

Provided that nothing in this article shall apply to a person who, after having so migrated to the territory now included in Pakistan, has returned to the territory of India under a permit for resettlement or permanent return issued by or under the authority of any law and every such person shall for the purposes of clause (b) of article 6 be deemed to have migrated to the territory of India after the nineteenth day of July, 1948.

So basically, the person should have a permit for resettlement or permanent return and then be registered as a citizen of India. At first, this doesn’t seem like a particularly problematic position. Of course, it says if you leave in March 1947 you lose Indian citizenship, but you have a way of getting back – just register etc. It seems clear, but it isn’t. 

Now let’s get to the meat of what the problem was with the way in which these three provisions were drafted. Three questions come up: one is India’s perceived sole responsibility for Pakistani Hindus and Sikhs—the assumption is (and this comes out very clearly in the Constituent Assembly debates across party lines) that Pakistani Hindus and Sikhs don’t have any other place in the world to go to but India. There is also a related suspicion of Muslim migration into India, both the return of people who had gone to Pakistan and the movement of other Muslims to India. And this is all undergirded by the hard economics of rehabilitation – or what I would call the ‘costs’ of citizenship. 

The question of Hindus and Sikhs as fundamentally Indian was a question that arose out of Partition, and out of the belief among many members of the Constituent Assembly Debates that the Partition was not a territorial division but also an excision of a part of the Motherland. Because of this, the idea was that any Hindus and Sikhs in Pakistan (which at the time included Bangladesh) were seen as the responsibility of India. P. R. Deshmukh actually very clearly and very strongly articulates this in 1949:

By the mere fact that he is a Hindu or a Sikh, he should get Indian citizenship because it is this one circumstance that makes him disliked by others. But we are a secular State and do not want to recognise the fact that every Hindu or Sikh in any part of the world should have a home of his own. We are not debarring others from getting citizenship here. We merely say that we have no other country to look for acquiring citizenship rights and therefore we the Hindus and the Sikhs, so long as we follow the respective religions, should have the right of citizenship in India and should be entitled to retain such citizenship so long as we acquire no other.

This is very similar to questions around the way in which the CAA is thought of presently, the idea of non-Muslims as being discriminated against in other parts of the subcontinent, and that Indian Muslims are not discriminated against. This idea of Pakistani Hindus and Sikhs as a lost limb comes up time and again in the Constitution. It’s something that Nehru himself mentions in his tryst with destiny speech, that we ‘feel for those who have been cut away from us in this unnatural division and we will always have a responsibility for them’.

But now what was happening, as Joya Chatterji points out, is that in the period 1947 to 1950 there was this very very complicated relationship that minorities had with the governments of the opposite dominion. When Partition happened by September 1947, the High Commissioners of the other dominion had taken charge of minority camps pending their movement, which again was ensured through military evacuations carried out by soldiers of the other dominion itself. One interesting aspect of this is that the first Pakistani High Commission in India was located in the barracks of the Sher Shah Suri mess, which is now the site of the Delhi High Court. Now of course it’s impossible for any Pakistani citizen to enter any cantonment zone, but because of the Partition, because of the responsibility both countries took over for its minorities, and because of the military escorts that they had to provide, the first Pakistani High Commission was located within an army mess in India. Also the Pakistani High Commission in Delhi and the Indian High Commission in Karachi were simultaneously organizing water, food, and medicines to camps – there are these long letters that go from the Indian government to the Pakistani High Commissioner in September 1947 about the fact that the Lal Quila camp only had two functional toilets for 40000 people. So there is that sense of responsibility for people just after Partition.

Now interestingly, what happened is that the moment you look at the idea of people moving to Pakistan, there’s this question of what the scope of migration was, or what the intent behind Partition migration was. So in the Constituent Assembly, and in a lot of writing around Partition in India, you see the idea of Muslims moving to Pakistan as part of a deliberate desire to move. So it is a conscious, well thought out decision to leave India. As Jaspat Roy Kapoor, Constituent Assembly member whose family had migrated from West Punjab to UP says: ‘Once a person has migrated to Pakistan and transferred his loyalty from India to Pakistan, his migration is complete. He has made up his mind at the time to kick this country and let it go to his own fate and to go to Pakistan and make it a prosperous country’. On the other hand, when the question comes about Hindus who continue to live in Pakistan till the winter of 1947, Justice Mahajan says something completely different. He says that: ‘In October or November 1947, men’s [sic] minds were in a state of flux. Nobody thought that when he was leaving Pakistan for India or vice-versa that he was forever abandoning the place of his ancestors’ (Mahajan J. in Central Bank v Ram Narain (1955)). Which obviously makes sense, because in 1947 there was no clarity on what these migrations meant, the only thing that happened was that in the Punjab both Governments had agreed to transfer populations pending a settlement of the situation. But the situation was never settled in any way other than the vast majority of people not being able to come back. But this distinction between the idea of Muslims going to Pakistan going with a form of malice or forethought versus people coming into India as refugees who had no other option, having lost everything, persisted through the course of these debates and is significant in the way Article 7 was both drafted and operated. 

Now the history behind Article 7 – we’ve seen that this led to a permit system for settlements or permanent return to come back to India. This seems pretty straightforward but isn’t –this is because in early 1948, after Gandhiji’s fast in Delhi and his subsequent death, and the Government’s crackdown on RSS [Rashtriya Swayamsevak Sangh] and anti-Muslim violence in much of North India, a set of people who’d gone to Pakistan started to come back. Now the numbers weren’t very huge – this table on CID Enumeration of Muslim Movements shows that the number of people who came back in  toto were about 12 to 15000. These numbers are not huge, but the way in which they were seen by the population in Delhi, by a lot of the Government, was as this one-way traffic that was coming from Pakistan of people trying to come back and take over their houses. This almost medical terminology of influx of people moving in, of this fear of contamination and infection, is what led to a permit system being put in place. Initially, from August 1947 to July 1948 there was no bar on Indians moving to Pakistan and vice-versa, in fact one of the conditions of Partition had been that there would be no restriction placed on people moving: to the extent that Nehru’s first visit to Pakistan was supposed to be 1949, but throughout the winter of 1947 Nehru was constantly going to Lahore for meetings with regard to people who were moving, and Liaquat and Jinnah were constantly coming to Delhi, and that wasn’t even considered foreign travel. 

Now a permit for permanent resettlement was one of the hardest ones to get. The permit system basically allowed permits to be given in three circumstances: for transiting, for visits and meeting divided families, and for permanent resettlement. This permit for resettlement was almost impossible to get, only 1200 got it in the first year of its installation. Again, to get the permit required a background check, a family check, and any link to the Muslim League before Partition meant that you wouldn’t get the permit. What’s interesting is not that you’d get the permit so sparingly, but the fears it aroused. The assumption was that when Muslims were coming back to India, people who had already left for Pakistan were coming back, they were coming back either as a fifth column that was attempting to destroy India from within, or coming back to take over their property. 

Now why would taking over the property be a problem? Because of the whole way in which the evacuee property regime had started to function. Now the evacuee property norms have in a lot of scholarship been described as ‘brutal’ laws, as ‘exceptional’ laws, as deeply complex laws. Their complexity comes because they were serving two contradictory purposes. In the weeks after Partition, in early 1947 as populations were on the move in Punjab, both governments came up with a set of norms by which they’d take over the property of those who’d left and hold it in trust for them until they came back. So the migrants, the people leaving were recognized as the sole owners of the property they’d left behind, but in order to protect this property, and to prevent it from being alienated in unauthorized ways, the Government would take it over and hold it in trust. But there were 2-3 things that happened at the same time. This was also harvest season, the Punjab was a very fertile land and food supplies in both countries were in a state of flux, and refugees needed to be resettled on these lands. So while refugees were resettled, the assumption was that migrants continued to be sole owners of this property but pending their coming back or the settlement of the question of compensation, refugees would be allowed to live on these lands. This was also happening because a lot of refugees, out of desperation on both sides of the border, were forcing their ways into these houses. So now evacuee property laws were serving two contradictory purposes: firstly they were safeguarding the property of those who had migrated until they returned or until an inter-governmental solution could be found (India was rooting for an inter-governmental solution; Pakistan, because the volume of property was more in Pakistan, was rooting for person-to-person exchange); and simultaneously all of this property had gone in a compensation pool to rehabilitate refugees who were living on this. 

Now especially in India, because the amount of property which Muslims had left was much lesser than property Hindus and Sikhs had left when they came to India, the whole question of Muslims coming back was seen as taking away what the already marginalized Hindus and Sikhs who came from Pakistan were going to get. So therefore it became almost impossible for the Government to actually be seen to be giving permits to people, only a few thousand were likely to return. When this was debated in the context of Article 7 of the Constitution, Nehru made a very strong point about how we can’t discriminate between Muslims who have chosen to leave in situations that were not of their volition. But he also says – and this was the way in which he tries to assuage the ‘costs’ of Muslims coming back – that only a few thousand are likely to return, and they’re ensuring  that the procedure for getting  the permit has been made extremely difficult. Now, because this was made so difficult—and not only was it made difficult, after 1951 and the Liaquat-Nehru pact the Government actually came up with a law which said that even if people are given permits for resettlement, this resettlement will not mean their property will no longer be evacuee property. So even if they come back, they are not going to get their property back. Their property is going to go into the compensation pool until an inter-governmental solution comes up; as it happens, an inter-governmental solution never came up, and the Government nationalized this property in 1957 and redistributed it. 

As we can see, what is actually happening in the period between 1947 and 1950 is that the Governments of both dominions are taking a very significant interest in the lives of minorities on both sides. The Liaquat-Nehru pact – and Amit Shah himself when he spoke of the CAA said that the Liaquat-Nehru pact is an example of this – but the Liaquat-Nehru pact is the point when this starts to break. Contrary to the discussions around CAA which state that the Liaquat-Nehru pact situated responsibility on the ‘other’ dominion, the pact actually did the opposite. A little bit of background – this pact comes in response to violence in Bengal. Throughout this time there has been very little sustained violence that happens in Bengal: in 1948 migration slowed down in Bengal, there were about 8 lakh people who moved across the border, as opposed to the Western border where 75 lakh people have moved, and this movement is continuing. In late 1949, however, there was rioting that started in East Bengal, across East Bengal, and spread to India as well. This leads to about a million and a half people moving, and the fears of a migration of the kind that happened in the West are what lead to both Nehru and Liaquat Ali Khan coming together and specifically saying that minority rights are the responsibility of their own governments: 

The Government of India and Pakistan solemnly agree that each share ensure to the minorities throughout their territory complete equality of citizenship irrespective of religion..full security in respect of life, culture, property and personal honour.

Both governments wish to emphasise that the allegiance and loyalty of the minorities is to the states to which they are citizens and that it is to the Governments of their own state that they should look for the redress of their grievances.

Now on the Eastern frontier the bulk of migration happens after the 1947-1948 cutoff dates. Migration here starts in 1946, there’s some in 1947, the situation stabilizes by late 1948, then in early 1950 all of this starts again. Economics was not as important here: since there was no exchange of populations, evacuee property norms in Bengal were very different from evacuee property norms in the rest of the country. Evacuee property in Bengal continued to be property held in trust by the state for migrants who were presumed to return, and this was not distributed to refugees. The Permit system did NOT apply in the East: the free movement of minorities was supposed to ensure a feeling of security, and as a result of that you could cross the border without a permit. The very nature of the border also, because it wasn’t properly demarcated, meant there was little policing of migrants. 

But even in Bengal, particularly in Assam, you see the refugee-migrant difference coming up in the Immigrants (Expulsion from Assam) Bill, 1950 which was enacted two months after the Constitution came into force – this was actually initially called the ‘Undesirable Immigrants (Expulsion from Assam) Bill’, the name was changed after a very complicated debate in the Provisional Parliament. Now we can see in this Bill that the Central Government has a lot of untrammelled power to order expulsion of certain immigrants:

If the Central Government is of opinion that any person or class of persons, having been ordinarily resident in any place outside India, has or have, whether before or after the commencement of this Act, come into Assam and that the stay of such person or class of persons in Assam is detrimental to the interests of the general public of India or of any section thereof or of any Scheduled Tribe in Assam, the Central Government may by order— 

(a) direct such person or class of persons to remove himself or themselves from India or Assam within such time and by such route as may be specified in the order; and 

(b) give such further directions in regard to his or their removal from India or Assam as it may consider necessary or expedient: 

Provided that nothing in this section shall apply to any person who on account of civil disturbances or the fear of such disturbances in any area now forming part of Pakistan has been displaced from or has left his place of residence in such area and who has been subsequently residing in Assam.’

This is to do with migrants, and the proviso very clearly says that this doesn’t apply to refugees. What we should think about is how similar this language and this provision is to the raison d’être of the CAA 2019. When this was discussed in the Provisional Parliament, the religious difference was very clear. It was very clear for everybody talking about the bill that reference to outside of India was only construed as Pakistan, and that too East Bengal. There were two lakh Nepali people working in tea gardens in Assam, but because they were told they were in language and religion akin to our people, this would not apply to them. That’s interesting because while Bengali and Assamese are undoubtedly different languages, Bengali, Assamese, and Nepali are also different languages. So it’s not a question of language but merely a question of religion. Now this had again emerged out of a similar fear as the return of migrants across the western border, and this will come out of this fear of Muslim migration in Assam that preceded the Partition of India, and the movement of lakhs of ‘undesirable immigrants’ (Sardar B. S. Mann, from West Punjab) who are likely to be a source of ‘separatism…with the old League mentality and outlook’ (Biswanath Das, Parliamentary Debates 08.02.1950). And these people, Muslim Bengalis, are viewed as coming with a ‘careful and calculated intent…to a country over which they have not the least claim after Partition’. Look at the language here – now ‘all those who emigrated on account of civil disturbances, are only to be construed as non-Muslims’, as ‘those who have no place in Pakistan and are thrown out mercilessly’, again this trope of the violent Pakistani populace against Hindus and Sikhs.

In conclusion, I’m going to summarize what the main argument of both the pieces we discussed were. The first, by Niraja Jayal, is that the initial definition of citizenship has been understood to be predicated on jus soli with domicile and descent complementing rather than undermining citizenship based on birth in BOTH India and Pakistan, but that has changed over time to take more elements of jus sanguinis. Joya Chatterji takes a broader picture, looks at the Indian diaspora, and argues that not only did India and Pakistan move away from jus soli, they also moved away from conventional jus sanguinis, to prevent undesirables who formed part of the diaspora from returning to India. What I actually think is significant over here is the idea that there hasn’t been a movement towards jus sanguinis as such but there’s always been this underlying current. I wanted to think about what this means in the context of citizenship in India, and what this means in the context of constitutional guarantees of equal citizenship and secularism.

Interview with Ravi Hemadri

Ravi Hemadri is Founder and Head of Development and Justice Initiative (‘DAJI’), a public charitable trust working on issues of justice, human rights, and dignity for marginalized communities, with a particular focus on urban migrant workers, refugees, internally displaced people, stateless persons, and Indigenous peoples. He has over two decades of experience in research and advocacy on the rights of Adivasis, Dalits, women, migrants, and refugees. He was also one of the advisors on the Securing Citizenship report.

The following questions were formulated with the help of Devashri Mishra and Aashish Yadav. This interview was conducted over an audio call and has been edited for length and clarity. 

Arunima Nair: What is the situation of the Rohingya refugees in India, and the socio-economic deprivations that they are faced with? How have they been affected due to the Covid-19 pandemic?

Ravi Hemadri: My organization DAJI has worked with the Rohingya since 2012, and has conducted mapping exercises with the UN High Commissioner for Refugees (‘UNHCR’) including on child protection issues etc. We’ve also conducted research with other agencies such as the Danish Refugee Council and the Asia-Pacific Refugee Rights Network. As part of this network and the Statelessness Network Asia Pacific (‘SNAP’), we’re also aware of situation of the Rohingya in Myanmar, Malaysia, Bangladesh etc.

In India, the Rohingya are the worst off among all other refugee groups. They are under UNHCR protection and care, unlike the Sri Lankans and Tibetans who are given refugee cards directly by the Home Ministry. Typically all other categories of refugees—like the Afghans and all the Myanmar refugees—fall under the ambit of the UNHCR. These categories of refugees have a precarious legal status, because UNHCR cards have uncertain legal validity. These cards are accepted by the law enforcement agencies as a customary practice. The UNHCR card gives some protection against detention since it’s a UN issued card. However, in the context of the 2017 campaign launched against the Rohingya in Jammu and other places, a junior Minister in the MHA stated on the record that UNHCR cards are not valid. That puts the Rohingya and other refugees under the mandate of UNHCR in a very precarious situation. Initially, when the whole Aadhaar scheme was launched, it was for all residents including foreigners (i.e. any foreigner who had continuously stayed in India for 180 days) which was a good start – several refugees did get Aadhaar cards, but then the Police took away the Aadhaar cards that many refugees had in 2017. The Government also has the Long Term Visa (‘LTV’) facility – anyone who has stayed in the country for a long time can get an LTV, and several Rohingya had also got LTVs in Hyderabad, Delhi, Jaipur etc., but a huge issue was created in Parliament along with the 2017 campaign against them in Jammu etc., and then the Government stopped issuing LTVs to Rohingyas.

AN: Is this lack of legal validity of UNHCR cards common across South Asia – presumably stemming from the fact that no country in South Asia has signed any refugee or statelessness conventions?

RH: The Rohingya are also the least skilled of all refugee groups who’ve come into India. The Afghans, for example, are comparatively better-educated and better skilled, with many engineers, doctors etc. among them. The Rohingya as the least educated and least skilled need the most support, but they have the least support from the Government. The UNHCR operates in India under a wider mandate between the Government of India and the United Nations Development Program (‘UNDP’). The only formal collaboration the UNHCR has with the Government is with respect to the repatriation of Sri Lankan refugees to Sri Lanka. UNHCR India facilitates the repatriation of refugees to Sri Lanka.

The term refugee is undefined in Indian law – they are treated as any foreigner, they’re also subject to detention when they enter India ‘illegally’ in West Bengal, Assam, Manipur etc. At least 300 Rohingya are in detention, including 70 children in these border states.

AN: Are the children separated from their families?

RH: As far as I know, till the age of 6, they’re allowed to be with their mothers, after that the boys are separated and sent to children’s homes and the girls are allowed to remain with their mothers up till 10 years. So a lot of children are separated—when they migrate across the border, many times those who are able to cross into India and those who are detained are fragmented families. Once they reach Delhi and get the refugee card, they are relatively safe from detention, but if caught in these border states, particularly without valid UNHCR cards, they are detained.

Since Rohingya are traditionally farmers, cultivators fisherman etc. in Myanmar, they don’t have any urban skills, and so most of them go to professions requiring the least skill, which is picking up recyclable waste in cities – 70% of Rohingyas in India are involved in rag picking. Because of that their income levels are very low. In Jammu, several used to work in cinema theatres, hotels, pharmacies etc. – but since the misinformation campaign started, these establishments started asking for Aadhaar cards etc., so they lost this kind of semi-formal employment. So definitely, the precarious legal status of all refugees, coupled with xenophobia particularly in the case of the Rohingya, have a deep impact on their socio-economic condition.

In COVID-19, they have been severely impacted in a similar way to other migrant workers – in the sense that they lost their jobs due to the strict imposition of lockdown, with no way of finding alternate employment, and in general as has happened with all workers, the employers have taken this opportunity to cut down salaries. In the Tablighi Jamaat incident in April, some Rohingya refugees from Mewat were part of the congregation. Some four of them were arrested and put in isolation for a month.

The Rohingya community in Myanmar has dispersed all across Asia and South-East Asia. You are right when you say that in South Asia and South-East Asia, except for Afghanistan, none have signed the refugee conventions.

India’s policy has always been ad-hoc: it has changed based on the diplomatic relations between the country of origin and India. When the whole student uprising started in Myanmar against the military in 1988, India gave the International Award to Aung San Suu Kyi. 1988 was when the Burmese activists started coming to India and taking refuge, there were camps set up to receive them in Mizoram etc. That slowly faded as relations between India and Myanmar grew, both economic and military. Even with the Rohingya, initially they gained visibility since 2012, when they put up a demonstration, because prior to that they were only being given asylum seeker cards and not refugee cards. Questions were raised in Parliament over why, since India has had refugees from Myanmar since 1988, Buddhists and Christians and so on were all given refugee cards, but Muslim refugees were not. After that they started recognizing getting refugee cards. There was absolutely no problem even in Jammu, but suddenly in 2017 political issues were raised at the local level. In 2017 the then Chief Minister of J&K gave a written reply in Parliament that there is no radicalization threat from the Rohingya settled in Jammu and Kashmir. Since 2017, we’ve only seen more xenophobia against the Rohingya.

AN: The Securing Citizenship report recommends that the Indian state must recognise stateless persons formally and issue identity certificates. These certificates will guarantee them legal personhood and the full gamut of rights until they are granted citizenship. The Ministry of External Affairs is empowered to grant identity certificates under the Passports Act, 1967 and the Passport Rules, 1980. Do you believe that this recommendation, as an interim measure, can combat discriminatory treatment in part?

RH: In the context of cases like Sheikh Abdul Aziz case (W.P. (Crl.) 1426/2013, Delhi High Court), where the person first said he in Bangladeshi, and Bangladesh refused, then he said Saudi Arabia, and Saudi also refused, in cases like this where he was very clearly a foreigner, this measure may work. Similarly with refugees, who are clearly foreigners from another country.

I don’t think the time is ripe for any solution of this kind in Assam specifically. When the NRC was finalized in August last year and there was a lot of international outcry there is a statement by the Government on the PIB website stating that there will be options available to persons excluded from the NRC and they will have to appeal their exclusion before the Foreigners Tribunals (‘FTs’). So that remains the official position, and this process has still not started even over a year since the NRC was published, despite appointing members to over 200 new FTs which have been established. Now they’re talking about re-verification in certain districts. It doesn’t seem that the Government is seeking any solutions at this stage. Our concern should be with the FTs, whether they’re appropriate platforms for the excluded to seek justice and inclusion in the NRC. I find it problematic to imply that the MEA will grant stateless certificates to such persons; the people will not accept it. Many Bengali Hindus I know are not happy with the CAA. Look at the irony – a person has been in Assam for decades, even if they came in 1971 they have been here for 50 years, yet to secure citizenship through the CAA, the Bengali Hindus, Buddhists etc. who have been excluded from the NRC will first have to admit that they entered India illegally! So it’s very ironic and insulting for someone who has been in the country for 60 years, even those whose lineages have been in Assam for 200 years, to call themselves ‘illegal migrants’ first. And we know how the smallest spelling mistakes or discrepancies have excluded people from the NRC.

No refugee is asking for Indian citizenship, except for the Sikhs and Hindus who have arrived from Afghanistan. Unfortunately the CAA is a political project – because the naturalization avenue has always been available, yet lots of Sikh and Hindu refugee families from Afghanistan, who came to India in the 1980s and they still haven’t got Indian citizenship! Recent news featured stories of Hindu refugees who came from Pakistan to Rajasthan, a lot of them have gone back! 11 refugees committed mass suicide. The problem in giving citizenship to these refugees from Afghanistan/Pakistan is more of a procedural problem as the law had always existed. The CAA doesn’t solve issues of refugees, even if we go by these three countries and these six particular communities that the Government has identified, they are not getting citizenship. It is extremely difficult and lengthy process that involves a lot of scrutiny. There’s a lot of corruption – every application of Pakistani and Afghanistani Hindus and Sikhs goes to all kinds of agencies – the Intelligence Bureau (‘IB’), Research & Analysis Wing (‘RAW’) etc. – each of which has to approve. There has been one case from a Bheel family who came 2-3 years ago whose application was rejected, they appealed to the Rajasthan High Court, which passed an order stating that their application should be considered, but by the time the order was passed they’d reached the Wagah border, and a woman of the family had died!

In the case of Assam, we are talking about resident populations, who have inter-generational relationship to Assam. It’s completely unjust, unfair, and completely violative of all international commitments to deem them illegal migrants. I see the problem more as an underlying ethnic tension between two communities, which manifests in the form of anti-foreigner movement. The Government has to admit that what is happening is wrong, only then can we move on to solutions.

AN: The report further recommends a path to citizenship for all stateless individuals in India keeping in mind India’s duty to prevent and reduce statelessness and to operationalise the right to nationality of such individuals. Do you think this recommendation can prove effective and model a path forward?

RH: One of the latest developments re: the Rohingya is that Myanmar has offered to take back people BORN in Myanmar. But then what will happen to children born in India, Bangladesh, Malaysia, Indonesia etc.? It becomes a very protracted situation. Myanmar has consistently refused to take back the Rohingya, even from Bangladesh. It is something that is going to be around for many years to come. There will have to be an international effort to come up with a solution to this. Otherwise, as we have seen, the Rohingya have become a floating population, risking lives, traveling on mechanized boats. The men keep moving across borders all the time; women and children are trafficked. This undocumented movement is then a threat to regional security. Therefore, populations like the Rohingya will have to be documented, they will have to be given some status in whichever country they are in, and they will have to be resettled internationally. This requires an international solution to the Rohingya issue. The Rohingya are stateless persons; since they are stateless, it is the responsibility of the India or whichever other country they are in to take them, give them residence, give them documents etc.

AN: You have worked with individuals who have been excluded from the National Register of Citizens (‘NRC’) in Assam, in an effort to legally empower them. Can you tell us about the ground realities of the current proposal of re-verification of the NRC? What role should civil society play to assist those facing uncertainty regarding their citizenship status in Assam?

RH: What happened in 2019, almost 2 million were excluded, and 120,000 declared foreigners by FTs so the situation was already bad. This re-verification exercise is going from bad to worse. Many Assamese parties, CSOs, and student bodies want numbers of exclusions to increase; as per media reports in Assam, the percentage of exclusions in Bangladesh-bordering districts is low. What will happen is that those who have been excluded from NRC and declared foreigners will be excluded from other rights and services.

We have recently done research of COVID exclusions in Assam, which will come out at the end of this month. We have noticed that already there is some exclusion from PDS, ration cards have been cancelled of some of those who have been declared foreigners, we have evidence from one district of a letter asking cards to be cancelled. A lot of people in Guwahati city people who were looking like they were from the border districts were not given the food rations. Another is land registration law, where there seems to be some new developments . What we thus fear is that there will be more and more marginalization and exclusion from rights and services. Such persons may lose freedom to travel freely in the country: we have seen how vigilante groups in states bordering Assam put up barricades on borders asking for NRC inclusion papers. So formally or informally they will be excluded and denied a lot of rights and services and freedoms.

 So civil society has two roles to play: first in highlighting citizenship by legally empowering communities to support them in fighting their cases before FTs, and the second is supporting them in securing access to services, and participation in local government. What may happen is that 2-5 years down the line the Assam Government may say that you require NRC inclusion to fight Panchayat elections. Unless a stop is put to this madness, the madness will go on advancing. If at all this crisis gets resolved, it’ll take many years; if it doesn’t get resolved, it will be very unfortunate and will become another Rohingya-like situation – the population will go footloose, there could be mass violence, and it will be a threat to regional stability and peace. It’s easy to target persons who aren’t considered citizens: even attacks on Rohingyas are because the attackers know they can get away with it with no repercussions.

AN: The Securing Citizenship report calls such persons precarious citizens since they are facing the threat of arbitrary deprivation of their Indian nationality. The Securing Citizenship report recommends that India must affirm the citizenship of precarious citizens in Assam who have been rendered vulnerable from the operation of the NRC and the Foreigners Tribunals (‘FTs’). Drawing on your previous work, do you think this recommendation is viable? What could be the possible challenges in its implementation?

RH: Absolutely, they should be treated as Indian citizens. One of the problems with FTs and the entire process is that the benefit of the doubt is not given to the applicant. So the smallest discrepancies in names, dates, locations etc. are treated as enough grounds to exclude someone or declare them as foreigners. One of the things about Assam is that it’s an ecologically sensitive region: lots of flooding, lots of shifting river basins and islands coming up and disappearing, so people shift a lot. So people have shifted a lot, according to one report 140 villages have disappeared in Assam in last 20 years. I have with me FT orders where for reason of shifting locations, people have been considered to be migrants from Bangladesh and declared foreigners. The exclusion is a political project – the members are required to declare a certain number as foreigners, they’ve been given a quota.

On the one hand, if someone says they’re stateless, people will argue that you can’t say that as they all have the option of going to the High Court. The question is how many can even go to the HC? Secondly, if there is still an option open for appeal, why detain people? Not only should they be considered citizens, they should not be detained. Even if FTs have to exist, there has to be a complete overhaul of the system, there are too many procedural problems, there is too much political interference in terms of appointment of members etc. There has been controversy over this: there is a case of some members who went to the Gauhati High Court over their non-continuation as FT members, there he has clearly alleged that his appointment was discontinued because of low level of declaring people foreigners (Sri Kartik Chandra Roy & Ors. v State of Assam W.P. (C) No. 4868/2017).

AN: The Securing Citizenship report recommends that the National Human Rights Commission (NHRC) and State Human Rights Commissions (SHRCs) must be further empowered to function akin to an Ombudsman to tackle discrimination faced by vulnerable groups such as stateless persons. Do you agree with this recommendation?

RH: SHRC is in disarray in Assam, it is not functional at all as far as I know. The last time I went there the office was closed for no reason. One of the issues however is that FT decisions are often upheld by the High Court, the High Court is in a way validating the arbitrariness. HRCs should look at procedures and appointment of members, which is a responsibility that the HC has.

AN: But with HRCs as they currently exist, there is little they can do to have their recommendations enforced, right? The most they can do is serve show cause notices to the government or release a set of recommendations, which the government can very easily choose not to comply with.

RH: Yes, that’s correct. The High Courts have the responsibility to look at procedures because of this lack of enforcement on the part of the HRCs. There’s just too much arbitrariness in the process.  

AN: In your opinion, how can awareness and research around statelessness be foregrounded in human rights discourse by civil society and academia? Accordingly, how can we effectively use the Report in such advocacy efforts in India?

RH: There are certainly increasingly internationally many people being excluded from citizenship. Lots of Governments are using this to exclude minorities from citizenship. People also need to understand the link between rights and citizenship – we’ve seen in this country how communities have been deprived of rights, resources. Their land has been taken away, their water and air have been polluted. Resources are being taken away, we have a history of the state denying resources to people. I see citizenship deprivation as a continuation of the same policy of depriving people of natural resources. Other rights groups like farmers, women, Dalits etc. need to understand that this is one way through which the Government is trying to control the population.

AN: How would you respond to the counters that the issue in Assam, and the necessity of the NRC exercise, flaws and all, are in order to protect indigenous Assamese lands and cultures from historical encroachment and movement of non-indigenous persons, and that Assam has borne the brunt in terms of shrinking resources due to the waves of illegal migration by virtue of being a border state?

RH: This is certainly an issue to be considered: the protection of indigenous populations. However, Assam is no Tripura: the Assamese elite are not the same as Tripura’s indigenous people. In Tripura in the course of 70 years, the tribals were 70% in 1950 or so, now they’re 30%, the proportions between indigenous and non-indigenous populations has completely reversed. This is what happened in Tripura, which is highly problematic. This isn’t the case in Assam. In Government jobs, trade, industry etc., while trade has more Marwaris, in Government jobs you’ll hardly find any Bengalis. Even this spectre of large-scale illegal economic migration is suspect. Bangladesh’s economic situation is much better than in Assam, and the fishing and leather industries are thriving, so why should there be economic migration in Assam? There are some refugee flows of Buddhists happening, but not large-scale migration. While I agree that land should be protected as in Meghalaya and Himachal Pradesh, the bogey of illegal migration and targeting minorities as ‘illegal foreigners’ is not the solution. Depriving people of citizenship will be counterproductive to India’s objectives of peace, development and justice.