Final Seminar.docx

Rights of Non-citizens: A Legal Perspective with special reference to stateless persons in Assam

Submitted by: SAMIRAH KHAN 20187515 FACULTY OF LAW JAMIA MILLIA ISLAMIA ON 21ST OF JANUARY, 2019

Submitted to Dr. NUZHAT PARVEEN KHAN

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CERTIFICATE OF DECLARATION The I hereby declare that the project work entitled “Rights of Non-Citizens: A legal Perspective with special reference to Stateless persons in Assam” as a part of seminar paper is a record of an original work done by me under the guidance of A M Khan Sir , of Jamia Millia Islamia University, New Delhi, and this project work has not been submitted elsewhere for award of any degree. The material borrowed from other sources and incorporated in the research has been duly acknowledged.

Samirah Khan Date: 21/01/2019

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ACKNOWLEDGEMENT Firstly, I would like to express my profound sense of gratitude towards the almighty for providing me with the authentic circumstances which were mandatory for the completion of my project. Secondly, I am highly indebted to A M Khan Sir and my supervisor Dr. Ghulam Yazdani and also to the Dean, faculty of Law , for providing me with constant encouragement and guidance throughout the preparation of this project. My cardinal thanks are also for my parents, friends and all teachers of law department in our college who have always been the source of my inspiration and motivation without which I would have never been able to unabridged my project.

Samirah Khan

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LIST OF ABBREVIATIONS

AAGSP: Assam Gana Sangram Parishad AASU: All Assam Students Union AASU: All Assam Students' Union CEDAW: Convention on the Elimination of all Forms of Discrimination against Women CRC: The Convention on the Rights of Child CRPD: Convention on the Rights of Persons with Disabilities ICCPR: International Covenant on Civil and Political Rights ICESCR: International Covenant on Economic, Social and Cultural Rights NRC: National Register of Citizens UDHR: U.N. Declaration on the Human Rights UN: United Nations UNHCR: UN High Commissioner for Refugees

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TABLE OF CONTENTS CHAPTER 1 Introduction and Research Methodology………………………………….1.1 INTRODUCTION.............................................................................................................................1 1.2 Research Methodology.............................................................................................................................1 1.2.1 Title of the Study....................................................................................................................................2 1.2.2 Problem of the Study............. ...............................................................................................................2 1.2.3 objectives...................................................................................................................................................2 1.2.4 Review of Literature........... ...............................................................................................................2-3 1.2.5 Hypothesis......................... ......................................................................................................................3 1.2.6 Concepts of the study....... .....................................................................................................................4 1.2.7 Research Design..................... ................................................................................................................4 a. Nature of Study................. ...........................................................................................................................4 b. Sources of the Data............. ............................................................. ..........................................................4 1.2.8 Chapterisation............... ......................................................................................................................4-5 1.2.9 Limitation................... .............................................. ..............................................................................5 1.2.1o Contribution of the Study......... ........................................................................................................5 CHAPTER 2: NON-CITIZENS AND STATELESS PERSONS: DEFINITION, MEANING AND CLASSIFICATION... ....................................... ....................................... ...............6 2.1 Citizen.................................. ....................................... ...............................................................................6 2.1.1 Definition and meaning............... ....................................... ...............................................................6 2.1.2 Citizenship in the Indian Legal Framework...................................................................................6 2.2 Non-Citizens............................ ....................................... .........................................................................7 2.2.1 Definition and Meaning……….........................................................................................................7 2.2.2 Non-citizen in the Indian Legal Framework..................................................................................7 2.3 Stateless persons.................. ....................................... ............................................................................8 2.3.1 Definition................... ....................................... ....................................... .............................................8 2.3.2 Meaning.......................... ..................................... ....................................... ..........................................8 2.3.3 Statelessness—de jure and de facto Statelessness........... ..............................................................8 2.3.4 Stateless person in Indian legal framework............. ......................................................................9 CHAPTER 3 RIGHTS OF THE STATELESS PERSONS....................................................10-11 3.1 International Instruments relevant to Stateless Persons..............................................................11 3.1.1 1954 Convention relating to the Status of Stateless Persons............... ....................................11 5

3.1.2 Issuance of Identity Paper................ ....................................... .........................................................11 3.1.3 Issuance of Travel documents.................... ....................................... ........................................11-12 3.1.4 1961 Convention on the Reduction of Statelessness.......... ...................................................12-13 3.2 International Legal Framework Applicable To India............ ........................................................13 3.2.1 Universal Declaration of Human Rights, 1948.............. ........................................................13-14 3.2.2 International Covenant on Civil and Political Rights (ICCPR), 1966......... ......................... 14 3.2.3 International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966....14-15 3.2.4 The Convention on the Rights of Child (CRC), 1990.................................................................15 3.2.5 Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), 1979.............. ....................................... ....................................... .......................................15-16 3.2.6 Convention on the Nationality of Married Women, 1957.................. ......................................16 3.2.7 International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families, 1990................. ....................................... ................................................16-17 3.2.8 Convention on the Rights of Persons with Disabilities (CRPD), 2006.............. ...................17 CHAPTER 4 STATELESSNESS AND NRC: PRESENT SCENARIO IN ASSAM............ ....................................... ....................................... .............................................................................................18 4.1 Assam and Citizenship Issue.................................................................................................................19 4.2 Citizenship Act, 1955................... ..........................................................................................................19 4.3 Historical Background of Statelessness in Assam and NRC. ................................................19-21 4.4 NRC: ‘Just, Reasonable and fair’?............... ..................................................................................22-24 4.5 NRC: Solution to Humanitarian Crisis in Assam?....................................................................25-26 CHAPTER 5 STATELESSNESS AND ITS AWARENESS: AN EMPIRICAL STUDY 5.1 Questionnaire on Statelessness and its Awareness.........................................................................27 5.2 Analysis of Responses To Questionnaire....................................................................................28-31 CONCLUSION AND SUGGESTIONS...............................................................................................32 BIBLIOGRAPHY.............. ...................................................................................................................33-35.

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CHAPTER 1 INTRODUCTION AND RESEARCH METHODOLOGY 1.1 INTRODUCTION “Statelessness is the total destruction of an individual’s status in organised society” -Justice Earl Warren1 The present reality expects us to 'have a place' to some country. The connection between a State and an individual has developed over years, which has acquired an intense change by getting more rights and obligations to individuals having a nationality. On the other hand, it has additionally brought about individuals becoming lost despite a general sense of vigilance between household nationality laws that States institute, consequently abandoning them deprived of any nation's citizenship. They are, without uncertainty, one of the world's most undetectable and under-spoke to communities economically, socially, socially and politically. Human rights law in the International domain has assumed a critical job in spanning this hole by making a system of traditions that State gatherings may allude to so as to secure the privileges of such individuals. It is very hard to measure what number of stateless people are there the world, notwithstanding, as indicated by the most recent UNHCR report , at any rate 10 million individuals are stateless around the world. Because of the absence of deliberate endeavours to enhance their conditions, stateless individuals in numerous nations have restricted access to birth enrolment, personality documentation, training, social insurance, lawful work, property possession, political support and opportunity of development. Statelessness influences the happiness regarding practically every one of the rights which the greater part of us underestimate, for example the directly to work, the directly to cast a ballot, the directly to welfare advantages or welfare and a kid's entitlement to training. It confines individuals from moving, and builds their odds of self-assertive capture or detainment with no satisfactory cures. Generally speaking it very well may be said that, it minimizes and makes individuals feel useless with no prospect of their circumstance consistently enhancing, no expectation for a superior future for themselves or their kids. India is being talked about as of late the whole way across the outskirts because of late production of a National Register of Citizens, an activity of unlawful migrants. NRC is National Registration of Citizens, it is a procedure to record the citizenship. Furthermore, this is the first occasion when it is occurring in India, explicitly in the territory of Assam. It is vital to comprehend that there has been an issue of unlawful migration that is being raised, therefore it is an activity to enlist, who are the certified Indian Citizens. The issue talked about is whether, the general population forgotten in the NRC list, are in certainty Infiltrators? Thus, in this study, the Researcher will explain the above issue and all the important aspects related to it. 1

. Helene Lambert, Statelessness is an evil that has been hidden for too long, the guardian(Nov. 5, 2014), available athttps://www.theguardian.com/commentisfree/2014/nov/o5/statelessness-evil-hidden-long-un-refugee-agency, visited on 08/01/19.

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2 Review of Literature a) The 1954 Convention relating to the Status of Stateless Persons: It’s a major Convention which gives the definition of stateless persons and give details about their rights . b) The Convention of 1961on the Reduction of Statelessness deals with ways in which issue of Statelessness can be reduced and methods of resolving the same. c) India and the Challenge of Stateless-A Review of the Legal Framework relating to Nationality: This Research Report explains the importance of nationality and elaborately defines various aspects related to it, specifically the aspect of its absence, that is, Statelessness. d) Stateless in Assam: Precursors to genocide and Crimes Against Humanity?: It explains the present issue of Statelessness in Assam in chronological order. e) The Handbook on Protection of Stateless Persons (2o14): Briefly gives summary of International Law with respect to Statelessness. f) Statelessness in India to what extent have international standards concerning statelessness in the international human rights law framework been implemented in the Indian legal system and how could they be strengthened. It gives an insight into the Indian Legal Framework on the issue of Statelessness. g) The Universal Declaration of Human Rights, 1948: It provides for International obligation of States not depriving Individuals of their right to Nationality. h) International Covenant on Civil and Political Rights (ICCPR),1966: It provides for International Obligation of giving rights to Stateless Persons without any kind of discrimination. i) International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966: It provides for International Obligation to secure Economic and cultural rights of Stateless persons. j) The Convention on the Rights of Child (CRC)1990, provides for International Obligation for protecting children’s right to nationality. k) Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) 1979, provides for prevention of gender discrimination in all forms & manifestation including that of statelessness. l) The Convention on the Nationality of Married Women, 1957, provides for advocating rights of women in matter of obtaining, retaining and passing on Nationality. m) The International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families, 1990, provides for protection of people working in any other country, that is, not of their origin. n) The Convention on the Rights of Persons with Disabilities (CRPD), 2006, provides for protection of such persons from discrimination in matter of nationality. 3 Research Methodology 3.1 Title of the Study- Rights of Non-citizens: A legal perspective with special reference to the Stateless Persons in Assam. 3.2 Problem of the Study

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On 25th July, 2o18, the complete draft of National Register of Citizens (NRC) was published, in which more than 40 lakh of the 3.29 crore applicants in Assam were left out. This list is being prepared to identify infiltrators or illegal migrants and the final list of which is to be published in December 2o18. The issues which have arisen are as follows: First was that people among these above mentioned 40 lakh weren’t included in the final list, then how the situation would be dealt in India, since India neither signed the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness nor it has any specific legislation to deal with the issue of statelessness therein. Secondly, many discrepancies have been stated in the complete draft of National Register of Citizens (NRC). Lastly, The issue of clash of opinion regarding NRC is also been dealt in. Those favouring NRC have argued that NRC is important to preserve the culture of Assam and the others opposing have argued on the basis of Humanitarian Law. 3.3 Rationale of the Study: The draft published on 25th July, 2o18, has left out 40 lakhs people of the 3.29 crore applicants in NRC. NRC has said they have given time to file claims and objections. Let us say these claims and objections are filed, and reach their logical conclusion. Despite that, some people are left stateless. We don’t know the exact number yet, but there will be a number. The question which needs to be addressed ‘where will these people go?’ Bangladesh doesn’t accept them as citizens. Thus, it is pertinent to discuss the future course of action in relation to this issue, since the life of so many people is in oblivion. 4 Hypothesis Indian Legal Framework is not sufficient to deal with the present situation in Assam. Thus, there is need of special legal framework to be placed to deal with the issue of Stateless persons in Assam. 5 Objectives: a) To find out the meaning of Non-citizens and Stateless Persons under International Law and Indian legal framework? b) To find out the rights of the Stateless persons under various International Convention? c) To find out International Legal Framework with respect to stateless person applicable on India? d) To find out the Historical Background of issue of ‘Statelessness in Assam’ and NRC? e) To examine whether NRC is just, fair and reasonable? f) To examine whether NRC would be solution to humanitarian crisis in Assam? g) To examine awareness regarding issue of Statelessness?

5.1 Concepts of the study Citizen, for the purpose of this study, means ‘a member of a state’ as per Merriam-Webster Online Dictionary. 3

Non-citizen, means as ‘any individual who is not a national of a State in which he or she is present.’ as defined in U.N. Declaration on the Human Rights of Individuals who are not Nationals of the Country in which They Live. Stateless Persons defined in 1954 Convention relating to the Status of Stateless Persons, means ‘a person who is not considered as a national by any State under the operation of its law’ Illegal Immigrants: means ‘someone who lives or works in another country when they do not have the legal right to do this’, as defined in Cambridge Dictionary. 1.2.7 Research Design a. Nature of Study For this Study, the Researcher has followed both Doctrinal and Empirical Research Methodology to analyse the efficiency of present legal framework at International Level and at National Level pertaining to deal with the issue of Statelessness and to analyse the awareness of this issue among law students. b. Sources of the Data Primary Sources includes Constitution of India, The Foreigners Act, 1946, The Citizenship Act, 1955, 1954 Convention relating to the Status of Stateless Persons, 1961 Convention on the Reduction of Statelessness, Universal Declaration of Human Rights (1948), International Covenant on Civil and Political Rights (ICCPR), 1966, International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966 etc, that is, various other statutes and International Conventions which deal with the issue of Statelessness. Secondary Sources includes various research reports and newspaper articles available on Internet which are related to Stateless persons. For Empirical Research, the Researcher selected Faculty of Law, Jamia Millia Islamia as the universe, Students enrolled in course of LLM were the Population and the Researcher selected Samples for this study by Simple Random Sampling method. 1.2.8Chapterisation This Research Study comprises of four Chapters, namely, Chapter 1 Introduction and Research Methodology; Chapter 2: Non-Citizens and Stateless Persons: Definition, Meaning And Classification; Chapter 3 Rights of the Stateless Persons, Chapter 4 Statelessness and Nrc: Present Scenario in Assam and Chapter 5 Statelessness and its Awareness: An Empirical Study. Chapter 1 Introduction and Research Methodology deals with brief explanation of the issue of Statelessness and includes the methodology used for the purpose of this Study. Chapter 2: Non-Citizens and Stateless Persons: Definition, Meaning And Classification deals with brief definition and meaning of these terms. Chapter 3 Rights of the Stateless Persons deals with the various rights given to Stateless persons under International Law and also including those International Conventions which are applicable to India. Chapter 4 Statelessness and NRC: Present Scenario in Assam deals with present ongoing conflict in Assam regarding Citizenship. It includes history behind the present issue, present factual situation and also debate over the issue of NRC. 4

Chapter 5 Statelessness and its Awareness: An Empirical Study deals with awareness regarding issue of statelessness and analysis of the data collected through Questionnaire method. 2.9 Limitation This Study is limited only to the issue of Statelessness in Assam and does not discuss stateless in toto. 1.2.10 Contribution of the Study This Study will give an insight on the issue of Statelessness and will also help in finding ways to resolve this present situation of Statelessness in Assam.

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CHAPTER 2 NON-CITIZENS and STATELESS PERSONS: DEFINITION, MEANING AND CLASSIFICATION “Everyone has the right to a nationality. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.” -Article 15 of the 1948 Universal Declaration of Human Rights Every person has the Human Right to Nationality. It is a legal bond between a person and a state. Each state determines who their nationals are. Nationality Today, if we analyse is something without which one can’t have access to basic services from various governmental or private entities, unless s/he provides her/his identification document. Hence, a Person is stateless when he or she is not considered as a national by any state according to its law. If a migrant has a nationality and just lacks documentation and. Regular migratory status in the country where he or she is not a stateless. In present Scenario, one can’t even imagine his or her life without any nationality, because one of the bases of present Globalised and Digitalised Society is Nationality only. The basic services, like issuance of Sim Card, opening of bank account, travelling within the county or outside etc, can only be enjoyed if one is National (or Citizen) of that particular State. Thus, the Researcher has firstly dealt with the Concept of Citizenship (given below), and the next two concepts, ‘Non-citizens’ and ‘Stateless Persons’ are discussed in brief after this topic. 2.1 Citizen 2.1.1 Definition and meaning The term Citizen is defined as ‘a member of a state’2. Citizenship can be defined as "the status of having the right to participate in and to be represented in politics."3T.H. Marshall, who has prominently contributed by his work in the field of social citizenship, considered citizenship as "a status bestowed on those who are full members of a community. All who possess the status are equal with respect to the rights and duties with which the status is endowed." 4 Thus, it can be simply defined as an identity, which is formal juridical in nature, enjoyed by an individual by virtue of bundleof rights and obligations. 2.1.2 Citizenship in the Indian Legal Framework According to Indian Constitution, the following can be citizens of India: persons born and resident in India;5 persons resident in India and whose parents were born in India,6 persons

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"Citizen." Merriam-Webster Online Dictionary. 2018. https://www.merriam-webster.com/dictionary/citizen (Aug. 20, 2018). 3

United Nations, Econ. & Soc. Council, Citizenship (Aug. 20, 2018), available at http://www.unesco.org/new/en/social-and-human-sciences/themes/international-migration/glossary/citizenship/. 4 Citizenship, supra note 1. 5 INDIA CONST. art. 5, cl. a. 6 id at art. 5, cl. b.

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resident in India for more than five years since the start of the Constitution,7 persons resettling to India from Pakistan after 1 March 1947, persons who migrated to India from Pakistan before 19 July 1948 or those who came afterwards and have been resident in India since immigration,8 persons resident outside India but if either parent or grandparent was born in India.9 The Constitution left future matters of citizenship to be regulated by the Parliament.10 Accordingly, the Parliament enacted the Citizenship Act (‘Principal Act’) in 1955. As per the Act, Citizenship could be acquired by birth11, descent12, registration13, naturalisation14 and by incorporation of territory15 2.2 Non-Citizens 2.2.1 Definition and Meaning Article 1 of the UN Declaration on the Human Rights of Individuals who are not Nationals of the Country in which They Live (1985) defines the term ‘non-citizen’ as ‘any individual who is not a national of a State in which he or she is present.’16 2.2.2 Non-citizen in the Indian Legal Framework The Foreigners Act, 1946 is the primary law regarding non-nationals in India.17 This Act gives the Central Government the authority to prohibit, regulate or restrict entry of foreigners into and out of India.18 The Act defines a ‘foreigner’ as someone who is “not a citizen of India.”19. Such a foreigner “may be treated as the national of the country with which he appears to the prescribed authority to be most closely connected for the time being in interest or sympathy or if he is of uncertain nationality, of the country with which he was last so connected.”20 If the foreigner has a nationality by birth, she or he shall be deemed to retain that nationality unless the Central Government directs otherwise or where the individual proves that she or he has acquired by naturalisation or otherwise the nationality of another country.21

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id at art. 5, cl. c. id at art. 6, cl. b. 9 id at art. 8. 10 id at art. 11. 11 The Citizenship Act, 1955, No. 57, Act of Parliament, 1955(India). 12 id at § 11. 13 id at § 5. 14 id at § 6. 15 id at § 7. 16 U.N. Declaration on the Human Rights of Individuals who are not Nationals of the Country in which They Live (Aug 21, 2018), available at http://hrlibrary.umn.edu/instree/w4dhri.htm, visited on 10/o1/19. 17 The Foreigners Act, 1946, supplemented by the Registration of Foreigners Act, 1939; the Foreigners (Internment) Order, 1962; the Foreigners (Tribunal) Order, 1964; and the Registration of Foreigners Rules, 1992 18 The Foreigners Act, 1946, No. 31, Act of Parliament, 1946(India). 19 id at § 2. 20 id at § 8, . 21 id at § 8, cl. 1. 8

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2.3 Stateless persons 2.3.1 Definition Article 1(1) of 1954 Convention relating to the Status of Stateless Persons defines the term ‘stateless persons’ as given below: ‘The term “stateless person” means ‘a person who is not considered as a national by any State under the operation of its law’.22This definition, according to the International Law Commission, is now part of customary international law. 2.3.2 Meaning The concept and protection of a 'stateless person' is different from that of a 'refugee', who is covered under the Convention Relating to the Status of Refugees, 1951. If a stateless person is also a refugee, then s/he will be protected primarily under the Refugee convention. This provision entails that being a national of a country depends on the laws of the nation concerned. However, for ascertaining citizenship or statelessness, it is usually sufficient to look at whether the individual concerned has legal links with a particular state, such being the country of her/his birth, country of nationality of parents, country of habitual residence, or country of nationality of the person's spouse.23 If, after examination by the competent state authority, it is found that the person has no nationality, then s/he should be considered to satisfy the definition of a stateless person under Article 1(1) of the 1954 Convention. 2.3.3 Statelessness—de jure and de facto Statelessness Statelessness is caused either by the denial, loss or arbitrary deprivation of nationality or due to a conflict in the Nationality Laws. Discrimination is often the root of the problem. The 1954 Convention relating to the Status of Stateless Persons defines who is stateless. This definition is considered Customary International Law and binds all states. To determine if a person is stateless, the following must be assessed- First is the link with relevant states i.e., the country where he or she was born, the country of nationality of his/her father or mother. Second is the legislation and practice about nationality, which includes the laws, decrees, Regulations, Orders and Administrative and Judicial Jurisprudence. A stateless can be a migrant or have never crossed international border remaining in his or her own Country or can also be a refugee, according to the 1951 Convention relating to the Status of Refugees. Statelessness is generally divided into 2 types—de jure and de facto. Article 1(1) of the 1954 Convention establishes the generally accepted definition of a 'stateless person'. The Convention regulates who does not deserve protection, and they include Persons who have committed War Crimes, Crimes against peace and Humanity, and Serious non-political crimes.This definition is internationally understood to mean de jure statelessness, though the term has not per se been mentioned in both the 1954 and 1961 Conventions. The term de facto, on the other hand, has been referred to in the Final Act of the 1961 Convention. It was agreed upon by the participants of the Expert Meeting at Prato that the term refers to persons who are outside the country of their nationality and are unable or unwilling to 22

U.N., High Commissioner for Refugees, 1954 Convention relating to the Status of Stateless Persons (Sept. 28, 1954), available at http://www.unhcr.org/ibelong/wp-content/uploads/1954-Convention-relating-to-the-Status-of-StatelessPersons_ENG.pdf, visited on o9/o1/19 23 UNHCR, Handbook on Protection of Stateless Persons, June 30, 2014,available at http://www.refworld.org/docid/53b676aa4.html, visited on o9/o1/19

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avail themselves of the protection of that country.24 By the term 'unable to avail oneself of protection', it implies circumstances that are beyond the will control of the person concerned. Such inability according to the participants of the Expert Meeting, 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. Such persons do not qualify for protection under the 1954 Statelessness Convention. No regimes exist at the moment with regard to de facto stateless persons, who are, therefore, covered under general international human rights law. Furthermore a person ceases to be stateless when he or she acquires or reacquires a nationality 2.3.4 Stateless person in Indian legal framework Under Part II of the Passport Rules, 1980, “Stateless Persons residing in India, foreigners, whose country is not represented in India, or whose national status is in doubt” may qualify for a ‘Certificate of Identity’.25 The Passports Act is by far the most advanced Indian legislation relating to statelessness, as it is the only law so far that recognises such persons in their own category and provides them with an identification document. In this Chapter, the Researcher has briefly defined the term ‘stateless persons’, and now in the next Chapter titled ‘Rights of the Stateless Person’, the Researcher will deal with some of the Fundamental ‘Rights of Stateless Persons’, along with various other important aspects related to it.

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UNHCR. (2010). Expert Meeting - The Concept of Stateless Persons under International Law, available at http://www.refworld.org/docid/4ca1aeoo2.html, visited on 11/o1/19) 25 Class 2, Schedule II, Part II, Passport Rules, 1980

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CHAPTER 3 RIGHTS OF THE STATELESS PERSONS Statelessness is a serious human rights Problem that affects the effective enjoyment of fundamental rights of fundamental rights such as- Health, Identity, and Work. The state must ensure the full enjoyment of these rights to stateless persons without any discrimination. Nationality acts as a legal bond between the State and an individual. It brings with itself a sense of identity and also bundle of rights. The significance of nationality is that in absence of it, people don’t get opportunity to participate in the political process, specifically, the right to vote. Statelessness bars people from achieving their potential and may have dangerous impact on social cohesion and stability; it may even result into communal tension and displacement.26 The Universal Declaration of Human Rights (1948), in its Article 15 states that 'everyone has the right to a nationality'.27 These words show the commitment of the International Community to secure a legal bond of nationality with a specific State to each and every person. This commitment also shows that statelessness must be always avoided, in all cases, through the possession of nationality. All sovereign states have their own established procedure to grant nationality at the domestic level. To determine whether a person is a citizen is discretion of State and part of State Sovereignty. Therefore, to prevent and reduce cases of statelessness across the world, a collective effort from all states is required. Generally, States have in place a mixture of automatic and non-automatic modes for the acquisition of nationality.28 Automatic acquisition refers to nationality that is automatically acquired at birth, based on jus sanguinis (i.e. birth to a national) or jus soli (i.e. birth on the territory). Automatic modes are those where a change in nationality status takes place by operation of law (ex lege). In contrast, non-automatic acquisition of nationality is one wherein an act of an individual or a State authority is required before a change in nationality status can take place, such as obtaining nationality through the process of naturalization. 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.29 India has not acceded to either of the Conventions till date. Along with the two conventions, there are many other international instruments which have played a vital role in removing the inequality and marginalization of the stateless men, women as well as children, some of which India has 26

UNHCR., Preventing and Reducing Statelessness, Jan. 2014, available at .http://unhcr.org/cgibin/texis/vtx/home/opendocPDFViewer.html?docid=519e210a9&query=preventing%20and% 20reducing%20statelessness, visited on 10/o1/19 27 U.N. Declaration of Human of Human Rights, available at http://www.un.org/en/udhrbook/pdf/udhr_booklet_en_web.pdf, visited on 10/o1/19 28 UNHCR. Handbook on Protection of Stateless Persons, June 2014, available at http://www.refworld.org/docid/53b676aa4.html, visited on 11/o1/19 29 UNHCR. (2014)Handbook on Protection of Stateless Persons. Retrieved from http://www.refworld.org/docid/53b676aa4.html

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acceded to. The International human rights law has been working rigorously in the prevention of Statelessness through various provisions in international instruments, which have dealt with the right to nationality like Convention on the Rights of Child and International Covenant on Civil and Political Rights, etc. 3.1 International Instruments relevant to Stateless Persons 3.1.1 1954 Convention relating to the Status of Stateless Persons The Convention relating to the Status of Stateless Persons was adopted on 28 September 1954 and came into force on 6 June 1960. It is the most comprehensive codification of the rights of Stateless Persons which establishes a framework for the international protection of Stateless Persons.In the long term, it seeks to improve and regulate the status of stateless persons through International Agreements. The Convention defines Stateless as a person who is not considered as a national by any state under the operation of its law. The Convention, after defining who 'stateless persons' are, then further explains that those who qualify under the Convention are providedcertain minimum rights and treatments such as:    

Right to non-discrimination (Article 3)30, Right to religion (Article 4)31, Right to acquisition of movable and immovable property (Article 13)32, Artistic rights (Article 14)33,

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. Art 3-The Contracting States shall apply the provisions of this Convention to stateless persons without discrimination as to race, religion or country of origin. 31

. Art 4- The Contracting States shall accord to stateless persons within their territories treatment at least as favourable as that accorded to their nationals with respect to freedom to practise their religion and freedom as regards the religious education of their children. 32

.Art 13- The Contracting States shall accord to a stateless person treatment as favour- able as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances, as regards the acquisition of movable and immovable property and other rights pertaining thereto, and to leases and other contracts relating to movable and immovable property. 33

. Art 14- In respect of the protection of industrial property, such as inventions, designs or models, trade marks, trade names, and of rights in literary, artistic and scientific works, a stateless person shall be accorded in the country in which he has his habitual residence the same protection as is accorded to nationals of that country. In the territory of any other Contracting State, he shall be accorded the same protection as is accorded in that territory to nationals of the country in which he has his habitual residence. 11

  

Right of association with non-political and non-profit making organizations (Article 15)34. Right to have gainful employment (Articles 1735, 1836 and 1937), 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 2o-23).

3.1.2 Issuance of Identity Paper Under Article 27 of the Convention, Contracting States shall issue identity papers to any stateless person who is within their territory and does not have a valid travel document. Thus, the stateless person will be able to enjoy freedom of movement. 3.1.3 Issuance of Travel documents Under Article 2838, Contracting States shall issue to stateless persons lawfully staying in their territory travel documents for the purposes of travel outside their territory, unless compelling

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. Art 15- As regards non-political and non-profit-making associations and trade unions 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. 35

. 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-earning employment. 2. TheContractingStatesshallgivesympatheticconsiderationtoassimilating the rights of all stateless persons with regard to wage-earning employment to those of nationals, and in particular of those stateless persons who have entered their territory pursuant to programmes of labour recruitment or under immigration schemes. 36

. Art 18- The Contracting States shall accord to a stateless person lawfully 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 on his own account in agriculture, industry, handicrafts and commerce and to establish commercial and industrial companies. 37

. Art 19- Each Contracting State shall accord to stateless persons lawfully staying in their territory who hold diplomas recognized by the competent authorities of that State, and who are desirous of practising a liberal profession, treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances. 38

. Art 28- The Contracting States shall issue to stateless persons lawfully staying in their territory travel documents for the purpose of travel outside their territory, unless compelling reasons of national security or public order otherwise require, and the provisions of the Schedule to this Convention shall apply with respect to such documents. The Contracting States may issue such a travel document to any other stateless person in their territory; they shall in particular give sympathetic consideration to the issue of such a travel document to stateless persons in their territory who are unable to obtain a travel document from the country of their lawful residence. 12

reasons of national security or public order otherwise require. The provisions of this Schedule to the Convention shall apply with respect to such documents. Contracting States may issue such a travel document to any other stateless person in their territory; they shall, in particular, give sympathetic consideration to the issue of such a travel document to stateless persons in their territory who are unable to obtain a travel document from the country of their lawful residence. The Convention also has a Schedule attached giving further details regarding issuance of identity cards and travel documents. The Convention comes up with a positive obligation on the part of contracting States to not expel a stateless person from their territory save on certain grounds such as national security and public order (Article 31)39.The Convention further lays down provisions regarding assimilation and naturalization of stateless persons with the mainstream nationals of the contracting States under Article 3240. The Contracting States as per this Article shall make every effort to expedite naturalization proceedings and to reduce, as far as possible, the charges/costs associated with such proceedings. Hence, this Article is of immense importance for facilitating reduction of statelessness. In short, the Convention has played a pivotal role in providing member states a framework within which stateless persons can be regularized as nationals entitled to basic human rights. Considering the benefits it brings, ratification to the Convention must be encouraged in the long run in order to strengthen states' commitments towards identifying, preventing, and reducing the injustice of statelessness. 3.1.4 1961 Convention on the Reduction of Statelessness The Convention on Reduction of Statelessness was adopted by the United Nations General Assembly on August 30, 1961. The Convention was being adopted on 30 August 1961 by a Conference of Plenipotentiaries which met in 1959 and reconvened in 1961 in pursuance of General Assembly resolution 896 (IX) of 4 December 1954 and it came into forceon : 13 December 1975, in accordance with article 18 This was the second international instrument that directly deals with the issue of statelessness. While the 1954 Convention provides for acknowledgment of stateless persons as a category in 39

. Art 31- 1. The Contracting States shall not expel a stateless person lawfully in their territory save on grounds of national security or public order. 2. The expulsion of such as stateless person shall be only in pursuance of a decision reached in accordance with due process of law. Except where compel- ling reasons of national security otherwise require, the stateless person shall be allowed to submit evidence to clear himself, and to appeal to and be rep- resented for the purpose before competent authority or a person or persons specially designated by the competent authority. 3. The Contracting States shall allow such a stateless person a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary. 40

. Art 32- The Contracting States shall as far as possible facilitate the assimilation and naturalization of stateless persons. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings.

13

itself, the Convention of 1961 provides a directive to countries for preventing 14 and reducing statelessness itself.41 The important provisions of the Convention are discussed below: 

Article 1 of the Convention states that the contracting state shall grant its nationality to a person born on its territory, either at birth or on registration, who would otherwise be stateless. The conditions stipulated for such grant of nationality, if not automatic, is that the person must have applied for such nationality within the stipulated age limit and to the concerned authority42.

41

United Nation, International Convention on Reduction of Statelessness, Dec. 13 1975, available on http://www.unhcr.org/protection/statelessness/3bbb286d8/convention-reduction-statelessness.html, visited on o8/o1/19 42

. Art 1- 1. A Contracting State shall grant its nationality to a person born in its territory who would otherwise be stateless. Such nationality shall be granted: ( a ) At birth, by operation of law, or ( b ) Upon an application being lodged with the appropriate authority, by or on behalf of the person concerned, in the manner prescribed by the national law. Subject to the provisions of paragraph 2 of this article, no such application may be rejected. A Contracting State which provides for the grant of its nationality in accordance with subparagraph ( b ) of this paragraph may also provide for the grant of its nationality by operation of law at such age and subject to such conditions as may be prescribed by the national law. 2. A Contracting State may make the grant of its nationality in accordance with subparagraph ( b ) of paragraph 1 of this article subject to one or more of the following conditions: ( a ) That the application is lodged during a period, fixed by the Contracting State, beginning not later than at the age of eighteen years and ending not earlier than at the age of twenty-one years, so, however, that the person concerned shall be allowed at least one year during which he may himself make the application without having to obtain legal authorization to do so; ( b ) That the person concerned has habitually resided in the territory of the Contracting State for such period as may be fixed by that State, not exceeding five years immediately preceding the lodging of the application nor ten years in all; ( c ) That the person concerned has neither been convicted of an offence against national security nor has been sentenced to imprisonment for a term of five years or more on a criminal charge; ( d ) That the person concerned has always been stateless. 3. Notwithstanding the provisions of paragraphs 1 ( b ) and 2 of this article, a child born in wedlock in the territory of a Contracting State, whose mother has the nationality of that State, shall acquire at birth that nationality if it otherwise would be stateless. 4. A Contracting State shall grant its nationality to a person who would otherwise be stateless and who is unable to acquire the nationality of the Contracting State in whose territory he was born because he has passed the age for lodging his application or has not fulfilled the required residence conditions, if the nationality of one of his parents at

14



 

Article 243 of the Convention stipulates that children of unknown parentage found in the territory of a Contracting State shall be deemed to be born in that nation itself and to parents having the nationality thereof, if there is no proof to the contrary. Article 344 states that in case of a child being born aboard a ship or aircraft, the birth shall be deemed to have taken place in the territory of the nation whose flag the ship flies or in which the aircraft is registered. Article 4 45obligates a state party to grant its nationality in case a person, who is otherwise stateless, is not born on the territory of that State but one of whose parents possesses nationality of that State.

the time of the person's birth was that of the Contracting Statefirst above-mentioned. If his parents did not possess the same nationality at the time of his birth, the question whether the nationality of the person concerned should follow that of the father or that of the mother shall be determined by the national law of such Contracting State. If application for such nationality is required, the application shall be made to the appropriate authority by or on behalf of the applicant in the manner prescribed by the national law. Subject to the provisions of paragraph 5 of this article, such application shall not be refused. 5. The Contracting State may make the grant of its nationality in accordance with the provisions of paragraph 4 of this article subject to one or more of the following conditions: ( a ) That the application is lodged before the applicant reaches an age, being not less than twenty- three years, fixed by the Contracting State; ( b ) That the person concerned has habitually resided in the territory of the Contracting State for such period immediately preceding the lodging of the application, not exceeding three years, as may be fixed by that State; ( c ) That the person concerned has always been stateless. 43

. Art 2- A foundling found in the territory of a Contracting State shall, in the absence of proof to the contrary, be considered to have been born within that territory of parents possessing the nationality of that State. 44

. Art 3- For the purpose of determining the obligations of Contracting States under this Convention, birth on a ship or in an aircraft shall be deemed to have taken place in the territory of the State whose flag the ship flies or in the territory of the State in which the aircraft is registered, as the case may be. 45

. Art 4- 1. A Contracting State shall grant its nationality to a person, not born in the territory of a Contracting State, who would otherwise be stateless, if the nationality of one of his parents at the time of the person's birth was that of that State. If his parents did not possess the same nationality at the time of his birth, the question whether the nationality of the person concerned should follow that of the father or that of the mother shall be determined by the national law of such Contracting State. Nationality granted in accordance with the provisions of this paragraph shall be granted: ( a ) At birth, by operation of law, or ( b ) Upon an application being lodged with the appropriate authority, by or on behalf of the person concerned, in the manner prescribed by the national law. Subject to the provisions of paragraph 2 of this article, no such application may be rejected.

15







Article 546 states that where the law of a Contracting State may lead to loss of nationality, such termination must be approved only if an alternate nationality is available to the person. Thus, the loss of nationality must be conditional upon possession or acquisition of another nationality. Article 647 states that where the law of a Contracting State facilitates loss of nationality to a person's spouse or children as a result of loss of nationality of that person, then such loss of nationality must be conditional upon possession or acquisition of another nationality. Article 748 states that where a person renounces nationality of a Contracting State, such renunciation must be facilitated on the condition that the person possesses or shall acquire another nationality.

2. A Contracting State may make the grant of its nationality in accordance with the provisions of paragraph 1 of this article subject to one or more of the following conditions: ( a ) That the application is lodged before the applicant reaches an age, being not less than twenty- three years, fixed by the Contracting State; ( b ) That the person concerned has habitually resided in the territory of the Contracting State for such period immediately preceding the lodging of the application, not exceeding three years, as may be fixed by that State; ( c ) That the person concerned has not been convicted of an offence against national security; ( d ) That the person concerned has always been stateless.

46

. Art 5- 1. If the law of a Contracting State entails loss of nationality as a consequence of any change in the personal status of a person such as marriage, termination of marriage, legitimation, recognition or adoption, such loss shall be conditional upon possession or acquisition of another nationality. 2. If, under the law of a Contracting State, a child born out of wedlock loses the nationality of that State in consequence of a recognition of affiliation, he shall be given an opportunity to recover thatnationality by written application to the appropriate authority, and the conditions governing such application shall not be more rigorous than those laid down in paragraph 2 of article 1 of this Convention. 47

. Art 6- If the law of a Contracting State provides for loss of its nationality by a person's spouse or children as a consequence of that person losing or being deprived of that nationality, such loss shall be conditional upon their possession or acquisition of another nationality. 48

. Art 7- 1. ( a ) If the law of a Contracting State entails loss or renunciation of nationality, such renunciation shall not result in loss of nationality unless the person concerned possesses or acquires another nationality; ( b ) The provisions of subparagraph ( a ) of this paragraph shall not apply where their application would be inconsistent with the principles stated in articles 13 and 14 of the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly of the United Nations. 2. A national of a Contracting State who seeks naturalization in a foreign country shall not lose his nationality unless he acquires or has been accorded assurance of acquiring the nationality of that foreign country.

16



Article 849 prohibits a nation-State, except according to the conditions mentioned in this Article, to deprive a person of his/her nationality if such deprivation would render him/her stateless.

3. Subject to the provisions of paragraphs 4 and 5 of this article, a national of a Contracting State shall not lose his nationality, so as to become stateless, on the ground of departure, residence abroad, failure to register or on any similar ground. 4. A naturalized person may lose his nationality on account of residence abroad for a period, not less than seven consecutive years, specified by the law of the Contracting State concerned if he fails to declare to the appropriate authority his intention to retain his nationality. 5. In the case of a national of a Contracting State, born outside its territory, the law of that State may make the retention of its nationality after the expiry of one year from his attaining his majority conditional upon residence at that time in the territory of the State or registration with the appropriate authority. 6. Except in the circumstances mentioned in this article, a person shall not lose the nationality of a Contracting State, if such loss would render him stateless, notwithstanding that such loss is not expressly prohibited by any other provision of this Convention.

49

. Art 8-1. A Contracting State shall not deprive a person of his nationality if such deprivation would render him stateless. 2. Notwithstanding the provisions of paragraph 1 of this article, a person may be deprived of the nationality of a Contracting State: ( a ) In the circumstances in which, under paragraphs 4 and 5 of article 7, it is permissible that a person should lose his nationality; ( b ) Where the nationality has been obtained by misrepresentation or fraud. 3. Notwithstanding the provisions of paragraph 1 of this article, a Contracting State may retain the right to deprive a person of his nationality, if at the time of signature, ratification or accession it specifies its retention of such right on one or more of the following grounds, being grounds existing in its national law at that time: ( a ) That, inconsistently with his duty of loyalty to the Contracting State, the person: (i) Has, in disregard of an express prohibition by the Contracting State rendered or continued to render services to, or received or continued to receive emoluments from, another State, or (ii) Has conducted himself in a manner seriously prejudicial to the vital interests of the State; ( b ) That the person has taken an oath, or made a formal declaration, of allegiance to another State, or given definite evidence of his determination to repudiate his allegiance to the Contracting State. 4. A Contracting State shall not exercise a power of deprivation permitted by paragraphs 2 or 3 of this article except in accordance with law, which shall provide for the person concerned the right to a fair hearing by a court or other independent body.

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 

Article 950 prohibits a nation-State to deprive a person of nationality specifically on racial, ethnic, religious or political grounds. Article 1o51 deals with cases where persons may become stateless owing to transfer or acquisition of territory, wherein it states that such treaty providing for transfer or acquisition of territory must include provision whereby no person is left stateless in that transfer.

These Conventions form a significant set of legal mechanisms which work towards identifying and reducing statelessness. They also aim at regularizing the status of stateless persons, which contributes not only to the economic and social development of the member states, but also to garner broader respect for 18 the rule of law in all societies.52 3.2 International Legal Framework Applicable to India 3.2.1 Universal Declaration of Human Rights, 1948 The Universal Declaration of Human Rights (UDHR) remains the cornerstone of international human rights law. It was adopted by the UN General Assembly on December 1o, 1948 as a 'common standard of achievement for all peoples and all nations'.53 The UDHR comprises 30 Articles that contain a comprehensive listing of key civil, political, economic, social, and cultural rights. The Convention is non-binding in status, thus making it an inherently flexible document. It offers ample room for new strategies to promote human rights, and served as a springboard for the development of numerous legislative initiatives in international human rights law, including the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), both of which were adopted in 1966. Over the years, it has become part of customary international law.

50

. Art 9- A Contracting State may not deprive any person or group of persons of their nationality on racial, ethnic, religious or political grounds. 51

. Art 10-1. Every treaty between Contracting States providing for the transfer of territory shall include provisions designed to secure that no person shall become stateless as a result of the transfer. A Contracting State shall use its best endeavours to secure that any such treaty made by it with a State which is not a Party to this Convention includes such provisions. 2. In the absence of such provisions a Contracting State to which territory is transferred or which otherwise acquires territory shall confer its nationality on such persons as would otherwise become stateless as a result of the transfer or acquisition.

52

UNHCR Rule of Law Unit. (2011). Panel in the Context of Dialogue with Member States on Rule of Law at the International Level . Retrieved from http://unhcr.org/cgibin/texis/vtx/home/opendocPDFViewer.html?docid=4ddd1a3c9&query=preventing%20and% 20reducing%20statelessness

18

From the perspective of statelessness, the most relevant article of the UDHR is Article 15, which states 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. This Article, however, does not make clear as to upon whom the right to grant nationality rests. Nor does it state categorically that the positive duty of granting nationality lies with States. Yet the Article goes on to 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. 3.2.2 International Covenant on Civil and Political Rights (ICCPR), 1966 The ICCPR was adopted by the UN General Assembly on December 16, 1966 and was came into force on 23 March, 1976. It states the commitment of state parties to uphold civil and political rights, and has 52 Articles that form part of the core International Bill of Human Rights. India acceded to the Convention on 1o April, 1979. Articles 2 and 24 of the Covenant are of importance while dealing the issue of stateless persons. Both the Articles oblige 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. Article 24 further highlights the commitment of the International Community towards guaranteeing right to nationality to a child. Those rendered stateless, especially children, within nations not yet signatory to the Stateless Conventions of 1954 and 1961 may find a way out through this Covenant. 3.2.3 International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966 The ICESCR was adopted by the UN General Assembly on December 16, 1966. It seeks 'the ideal of free human beings enjoying freedom from fear and want'54by laying down conditions 'whereby everyone may enjoy his economic, social and cultural rights, as well as his civil and political rights'. The Covenant does not touch upon the issue of statelessness, the importance of this Covenant to statelessness lies in the fact that: 1. India has acceded to the Covenant (1979). 2. The framework of the Covenant seeks to secure, amongst the State parties, economic, social and cultural rights to all persons. 3. By being denied citizenship or nationality, these rights are effectively denied to a stateless person, thus excluding him from the loop of human rights itself. 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.

54

United Nations, International Covenant on Economic, Social and Cultural Rights (Preamble), Dec. 16, 1966, http://www.ohchr.org/en/professionalinterest/pages/cescr.aspx.

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3.2.4 The Convention on the Rights of Child (CRC), 1990 The CRC is important when it comes to the particular protection of children's right to nationality and also because nearly every country has ratified it. India acceded to this convention on December 11, 1992. The major provisions of CRC to consider from the perspective of statelessness are discussed below: Under Article 7, the state parties should ensure that: 1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents. 2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless. Article 8 states: 1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference. 2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity. 3.2.5 Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), 1979 The Convention on the Elimination of Discrimination against Women aims at reducing/preventing gender discrimination in all its forms and manifestations. The CEDAW provisions relating to the issue of statelessness are discussed as follows. Article 9 of the Convention reads: 1. State Parties shall grant women equal rights with men to acquire, change or retain their nationality. They shall ensure in particular that neither marriage to an alien nor change of nationality by the husband during marriage shall automatically change the nationality of the wife, render her stateless or force upon her the nationality of the husband. 2. State Parties shall grant women equal rights with men with respect to the nationality of their children. Furthermore, Article 15 of the Convention states: 'State Parties shall accord to women equality with men before the law.'55 This Convention is an all-encompassing instrument that seeks to strike at every form and manifestation of discrimination against women. The Committee on the Elimination of Discrimination against Women has, in particula15r, recognized that human rights are binding upon states parties in respect of all women within their jurisdictions, including displaced and stateless persons.56 55

United Nations Convention on the Elimination of All Forms of Discrimination against Women, Sept. 3 1981, https://www.ohchr.org/Documents/ProfessionalInterest/cedaw.pdf. 56 Committee on Elimination of All forms of Discrimination against Women. (2008). General Recommendation No. 26: Women Migrant Workers CEDAW/C/2009/WP.1/R.,

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3.2.6 Convention on the Nationality of Married Women, 1957 The Preamble to the 1957 Convention on the Nationality of Married Women echoes the UDHR by stipulating the right to a nationality and the right to not be deprived of a nationality. It also upholds the beacon of equality in matters of enjoyment of human rights since it promotes observance of human rights without discrimination as to sex. This Convention holds the foreground in advocating the rights of women in matters of obtaining, retaining and passing on nationality. Article 1 of the Convention enunciates that neither marriage nor its dissolution between two people having different nationalities, nor the change of nationality by the husband during marriage, shall automatically affect the nationality of the wife. Thus, marriage or its dissolution or change of nationality by the husband shall not be the reason for change or deprivation of nationality of the wife. Article 2 of the Convention prohibits the loss of nationality of the wife of a person who voluntarily acquires nationality of another nation, or renounces his nationality. This provision puts forth that voluntary acquisition of nationality of another State or renunciation of nationality of a State by one of its nationals shall not affect the retention of its nationality by the wife of such a national. Article 3 creates obligation on the State parties to ensure that their nationality laws give rights to an alien wife of a national of that State, to apply for privileged naturalization being the wife of such national, if the wife cannot become naturalized as a matter of right otherwise under the legal framework of that State. India has been party to the Convention since 1957. Coupled with CEDAW, this Convention is certainly a cornerstone in preventing statelessness as a direct result of gender-based discrimination in bestowal of nationality. 3.2.7 International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families, 199057 The International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families was adopted by the UN General Assembly (Resolution 45/158) on December 18, 1990. The objectives of this Convention are to protect the interests of workers who are employed in countries other than their own, bearing in mind the expertise and experience of that organization in matters related to migrant workers and members of their families. India has not, as yet, acceded to this Convention. From the viewpoint of statelessness, the following articles of the Convention are given below: Article 3 of the Convention states the conditions in which it does not apply. Under clause (d), the Convention does not apply to refugees and stateless persons unless such application is provided for in the relevant national legislation of or in the international instrument in force for, the state party concerned. Hence, the Convention states clearly that it does not apply to refugees and stateless persons unless the concerned state has signed or enacted a specific legislation or instrument regarding their treatment.

http://www2.ohchr.org/english/bodies/cedaw/docs/GR_26_on_women_migrant_workers_en.pdf. 57

Ibid.

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In view of a migrant worker's child, Article 29 states that each child of a migrant worker shall have the right to a name, to registration of birth, and to a nationality. The Convention does not apply to refugees and stateless unless the State has put in place legislation at the domestic level regarding the same, or is party to an international instrument on this issue. 3.2.8 Convention on the Rights of Persons with Disabilities (CRPD), 2006 Recognizing disability as an evolving concept of attitudinal and environmental barriers that hinders the full and effective participation in society of persons with disabilities on an equal basis with others, the UN adopted the Convention on the Rights of Persons with Disabilities in 2006. This Convention highlights the need for promoting respect for, and protecting the human rights of, all persons with disabilities. India acceded to the Convention on October 1, 2007. Article 18 of the Convention underlines prohibition of discrimination against persons with disabilities in matters related to nationality and the freedom of movement that is entailed therewith.58

58

United Nations Convention on the Rights of Persons with Disabilities, Dec. 13, 2006, http://www.un.org/disabilities/documents/COP/cosp9_infographic.pdf .

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CHAPTER 4 STATELESSNESS AND NRC: PRESENT SCENARIO IN ASSAM In India, the state of Assam is considered to have diverse cultural and political landscape. It has a population of around 30 million.59 Agriculture and the production of Tea is a primary source of income for Assam's economy.60 The challenge in achieving the desired results regarding its territorial and ethnic problems is one issue which Assam continues to face. In the past, some solutions to these issues have been resolved by the government, but many issues remain unresolved.61 Mahatma Gandhi visited the conflicted region of Assam some four times, with the final visit occurring in 1946.62 He assisted the Assam Congress in their recognition and integration into Independent India. Gandhi was determined for the people of Assam’s’ right to inclusion, despite forces coalescing for the partial apportionment of the Assam region to Pakistan.63 Following mutual savagery, in 1950 both the free legislatures of India and Pakistan went into the "Nehru - Liaquat Ali Khan Agreement" which guaranteed uniformity of citizenship among minorities paying little heed to religion. India explicitly underlined that this privilege was ensured under its Constitution. The Agreement likewise had an arrangement that permitted outcasts who fled to return to Assam. Since the 1950s, because of the ethnic and religious make-up of the district, there has been changing endeavors to diminish the Muslim populace by creating reports and displaying the certifiable Muslim inhabitants of Assam as "illicit Muslim outsiders" from Bangladesh.

59

office of the Registrar General & Census Commissioner, India, Ministry of Home Affairs, Government of India http://censusindia.gov.in/2011-Common/CensusData2011.html 60 Mohammad Iqbal, Migration Crisis Deepens in the Indian State of Assam: Is another Myanmar Style ‘Ethnic Cleansing’ Imminent?, School of Global, Urban and Social Studies RMIT University Melbourne, Australia, pp 1, June 18, 2018. 61 Stateless in Assam: Precursors to Genocide And Crimes Against Humanity? Familiar Good Foundation (Jul. 15, 2018) http://www.d.dccam.org/Projects/Affinity/pdf/Common_Good_Foundation_Assam.pdf 62 Natwar Thakkar, Mahatma Gandhi and the Ghandians in the North- East Dialogue, Astha bharti (october – December 2010), Volume 12, No. 2, http://www.asthabharati.org/Dia_oct%20010/nat.htm 63 Sangeeta Barooah Pisharoty, Revisiting Partition: Gandhi’s role in Integrating the Northeast with Independent India, The Wire (Aug. 9, 2017), https://thewire.in/history/partition-gandhi-northeast-independence

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Lawmakers have likewise contended that Bangladesh is leading a "statistic attack" into India and that political gatherings might help unlawful movement so as to assemble "vote banks." There is no proof to help any of these hypotheses pushed forward by political powers in India.64 4.1 Assam And Citizenship Issue Citizenship issues since the partition of India stay convoluted and politically charged, especially in Assam. In this way, it is vital to comprehend these issues as two separate yet parallel tracks.65 There are two aspects of discussions on Citizenship issue in Assam: firstly, the laws on acquiring and granting of citizenship in India, such as the 1955 Citizenship Act and the second one, the laws that revoke citizenship through mechanisms such as the Foreigners Act and the NRC. It is this second track which is the prime focus of this Research Project. 4.2 Citizenship Act, 1955 In 1955, India passed the Citizenship Act which had a specific provision regarding Assam. Section 6A of the Citizenship Act 1955 provides that Bangladeshi immigrants who entered between 1966 and 1971 have to register with the Regional Registration officer to be added to the NRC. On July 15, 2016, the Citizenship (Amendment) Bill introduced by Shri Rajnath Singh, Minister of Home Affairs amid a session of the Lok Sabha. The intention was to change the Citizenship Act 1955. This current demonstration accommodates the securing and assurance of Indian Citizenship. The Citizenship Bill expects to change the meaning of unlawful vagrants and modify the prerequisite of "constant remain" from 11 years to 6 years. It gives citizenship to minority networks, to be specific Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians from Afghanistan, Bangladesh, and Pakistan who were recently considered as illicit vagrants under the Citizenship Act 1955. In any case, the Citizenship Bill forgot certain minority gatherings, explicitly Muslim groups like the Shias and the Ahmediyas who additionally face mistreatment in different parts of Southeast Asia. The Citizenship Bill has not right now turned out to be powerful and is petulant. 4.3 Historical Background of Statelessness in Assam and NRC In 1946, India passed the "foreigners Act" which reached out to all of India and designated to every Central Government the specialist to deal with remote transients. As per the Act, an outsider is "an individual who isn't a resident of India." If an outsider has more than one nationality or an unsure nationality, they might be dealt with "as the national of the nation with which he appears to the recommended expert to be most firmly associated until further notice in intrigue or compassion or in the event that he is of questionable nationality, of the nation with which he was last so associated." The Act portrays a system for the assurance of nationality of outsiders who are perceived as a national by the law of more than one remote nation, or who is

64

Stateless in Assam: Precursors to Genocide And Crimes Against Humanity? Common Good Foundation (Jul. 15, 2018) http://www.d.dccam.org/Projects/Affinity/pdf/Common_Good_Foundation_Assam.pdf 65 Ibid.

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dubious about his/her nationality. contravention of its’ provisions.

66

The Act was amended in 2004 to include a penalty for

In 1950 Assam passed the Immigrants (Expulsion from Assam) Act which allows for the removal of persons if the person(s) are deemed "detrimental" to the "interests of the general public of India." 67 Subsequently, the NRC was created after the 1951 census to document the names of Indian citizens from the region of Assam. It was updated to include new names from electoral roll up to March 24, 1971 (as agreed in the Assam Accord, discussed below). The data relied on is known as Legacy Data which forms the basis for a claim to be recognized as a citizen. The government claims that it is to be used to identify and remove “illegal immigrants” from Bangladesh.68 These records were eventually transferred to the police.69 In the 1970s, illegal immigration came to be perceived as a burning issue in India once again due to a considerable number of immigrants obtaining voting rights despite not being able to prove their Indian identity. In response to this turn of events, a movement which would later be known as the Assam Movement or the Assam Agitation was launched by The All Assam Students Union (AASU) working alongside Assam Gana Sangram Parishad (AAGSP) in 1979.70 The Assam Movement lasted six years during which period the state apparatus failed, and the area became ungovernable. These events eventually led up to the "Nellie Massacre" where reports indicate close to three thousand people, mostly Muslim, were brutally massacred on the day of local elections in 1983. The ethnic clashes resulted from continuous discontent with the presence of "illegal immigrants" and by the controversial state elections where 4 - 6 million perceived "foreigners” were given voting rights.71 Negotiations between the AASU and AAGSP with the Indian government brought calm to the area, which resulted in the creation of the Assam Accord.72 The Assam Accord was marked in New Delhi on August 15, 1985, between the agents of the administration and those of AASU and AAGSP. Remote nationals who had entered India from 1951-1961 were to be given full citizenship, which included the directly to cast a ballot, while the individuals who entered from 1961-1971 were rejected from voting in favour of ten years however appreciated all other citizenship rights. The outsiders who came to India after 1971 were to be extradited. Besides, the Assam Accord stipulated a monetary advancement bundle for the Assam individuals and guaranteed authoritative and regulatory shields to ensure their social, social and etymological personality, and legacy. Notwithstanding the Accord conveying some harmony to

66

Foreigners Act, 1946, No. 31, Act of Parliament, 1946(India). The Immigrants (Expulsion from Assam) Act, 1950. 68 FE online, In-brief: What is Assam’s National Register of Citizens updation and how it will impact illegal immigrants, Financial Express, (1 January 2018), https://www.financialexpress.com/india-news/explained-in-briefwhat-is-assams-national-register-of-citizens-updation-and-how-it-will-impact-illegal-immigrants/997223/. 69 Ibid. 70 Stateless in Assam: Precursors to Genocide And Crimes Against Humanity? Common Good Foundation (Jul. 15, 2018) http://www.d.dccam.org/Projects/Affinity/pdf/Common_Good_Foundation_Assam.pdf 71 Ibid. 72 Ibid. 67

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the zone, the absence of usage by the administration with respect to imperative issues rendered an enduring help from the pressure inconceivable. There have been instruments made to offer teeth to the Foreigners Act and ensuing requests. The first of these systems was the Illegal Migrants Determination by Tribunals Act in 1983 (IMDT Act). The IMDT Act which made IMDTs across the nation was struck somewhere around India's Supreme Court as illicit and illegal on account of Sarbananda Sonowal v. Association of India. The Court held, "The IMDT Act which contradicts Article 355 of the Constitution is, along these lines, completely unlawful and must be struck down." The Court coordinated "all cases pending before the Tribunals under the Illegal Migrants (Determination by Tribunals ) Act, 1983 will stand exchanged to the Tribunals established under the Foreigners (Tribunals) request, 1964 and will be chosen in the way gave in the Foreigners Act, the Rules made thereunder and the technique recommended under the Foreigners (Tribunals) request, 1964." Outsiders Tribunals are the successors to the IMD. The Foreigners Tribunals should be progressively defensive of the interests of the state and worked under a lower standard concerning "reasonable, just and sensible" preliminary methodology as embraced by the Supreme Court. The Government of Assam set up Foreigners Tribunals in 2005, with the Foreigners Tribunal Amendment request and the Foreigners (Tribunals for Assam). In any case, a legitimate test was made to the 2005 request that it was subjective and not lined up with the Sonowal choice. The Supreme Court concurred with the applicants and struck down the request. The Supreme Court at that point requested for councils to be set up by what was arranged in Sonowal choice. The present quantities of Tribunals working are required to increment, according to a Supreme Court request in 2o14, in addition, current measurements venture that 90,ooo individuals in Assam have been announced to be outsiders.73 Since then, The Court is now overseeing the documentation process relating to the NRC and had then requested that the final register to be published by July 30, 2o18.74 Documents used to prove citizenship include land and tenancy records, citizenship certificates, permanent residential certificates, and passports. The full list is to be completed by December 2o18. If applicants are born after 1971, they can use documents connected to their ancestors.75 4.4 NRC: ‘Just, Reasonable and fair’?

73

Michael Safi, Assam's list: Indian state preparing to deport tens of thousands of 'foreigners'" the guardian, (February 25, 2018), https://www.theguardian.com/world/2018/feb/26/assams-list-indian-state-preparing-todeporttens-of-thousands-of-foreigners 74 PTI, SC extends the deadline for Assam NRC final draft to July 30, Times of India, (July 2, 2018), https://timesofindia.indiatimes.com/india/sc-extends-deadline-for-assam-nrc-final-draft-tojuly30/articleshow/64833043.cms 75 Ganesan Seetharaman, National Register of Citizens in Assam: Issue of illegal foreigners continues to be a major political one, Economic Times, (14 June 2015).

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on 25th July, 2o18, the complete draft of National Register of Citizens (NRC) the , in which more than 40 lakh of the 3.29 crore applicants in Assam were left out.76 Those excluded in the NRC will get the chance to record objections the procedure for which has started. Be that as it may, the greater inquiry is, the end result for those whose interests are turned down? Will they be extradited? The Union government has not made its position clearand India does not have repatriation concurrences with Bangladesh and Nepal for the equivalent. It will be a long battle for those esteemed unlawful.77 There is a fear that the National Register of Citizens draft in Assam may render a significant number of people stateless and arbitrarily deprive people of their nationality, according to human rights watchdog Amnesty International India.78 Many questions are being raised on the credibility of the exercise of NRC because of instances like few people from a single family being left out of the NRC etc. Below, the Researcher is citing excerpts, which raises apprehension of the exercise of NRC being arbitrary and faulty process, from various major daily Newspapers: a. Gautam Soren, individual from Foreigners Tribunal 3 (FT3) in Morigaon, featured "unfair practices" in the process in his August 27 request while expelling a body of evidence against Amina Khatun and three others (named inverse gatherings or oPs) of the region's Madhya Kalikajari town. He saw that outsiders' cases "at this point had accepted the type of an industry as each individual required" with such cases have been "attempting to mint cash using any and all means"79 b. According to lawyer activist Aman Wadud, the Morigaon case is only a glimpse of a larger problem. "Assam Border police and Election Commission have damaged more major privileges of nationals than every single other organization set up together. They blame Indian subjects for being unlawful settlers with no examination at all. These two associations have annihilated lakhs of families," he claimed. This happens in light of the fact that the Border Police are offered focuses to give outsiders' cases, he said. A Border Police officer, declining to be cited, conceded that stations in the locale are required to give 2o cases a month while the objective for each urban police headquarters is five or six. "Motivations and advancements dependent on the quantity of cases gave are a factor in fieldworkers serving notification to individuals arbitrarily," the officer said.80 c. The difficulties can be particularly overwhelming for needy individuals with restricted education. The Assamese realistic writer Parismita Singh, the writer of The Hotel toward the End of the World (Penguin, 2009), has composed touchingly of the experience of residents close Biswanath Chariali, a region where she grew up. Numerous around there 76

a Rahul Karmakar, over 40 lakh left out of draft NRC in Assam, The Hindu (Jul. 31, 2018), https://www.thehindu.com/news/national/other-states/over-40-lakh-people-left-out-in-new-draftnrc/article24550576.ece over 40 lakh left out of draft NRC in Assam 77 G Seetharaman, NRC row: Where does India stand on refugees, Economic Times (oct. 6, 2018 11:oo PM), https://economictimes.indiatimes.com/news/politics-and-nation/nrc-row-where-does-india-stand-onrefugees/articleshow/66102150.cms 78 PTI, Assam NRC process might render people stateless, deprive Indian residents of their nationality, says Amnesty International, Firstpost (Jul. 30, 2018), https://www.firstpost.com/india/assam-nrc-process-might-render-peoplestateless-deprive-indian-residents-of-their-nationality-says-amnesty-international-4853431.html 79 Rahul Karmakar, NRC: Tribunal questions process of identifying foreigners, The Hindu (Sept. 19, 2018), https://www.thehindu.com/news/national/other-states/nrc-tribunal-questions-process-of-identifyingforeigners/article24980471.ece 80 Ibid.

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d.

e.

f.

g.

h.

i.

addressed her about a great deal of kheli-meli, perplexity. An alternate spelling of a name of a grandparent in a voters rundown of decades past was now and then the wellspring of the peculiarity. Ladies were especially powerless since "their names never show up ashore records, or family trees, or school enrolment records". A dad and a tyke don't generally have a similar surname: a lady with the original name Khatun might be Bibi after marriage. Additionally, for a few people in the zone "records have dissipated in the changes of removal through floods and political unsettling influences, ethnic conflicts, shared mobs, brutality.81 Zahiruddin Ahmed found that his name did not make it to the list, though the names of all his 11 siblings did, as did the names of two daughters. “I, along with my brothers and sisters, have shown as legacy my father’s documents in Assam dating back to 1951,” he said.82 Md Kuddus Ali was bewildered by his exclusion. He had won a trial in the Foreigners Tribunal in 1993 where it was established that “Md. Kuddus Ali, his parents, his wife and his children as mentioned in the reference are not from East Pakistan to Assam”. His younger son, Md Tamar, was also excluded, though his elder one, Jehrul Islam, was not. The two brothers had submitted almost identical documents with the same “legacy data” of their father.83 Anwara Begum, 60, of Major top village in Chaygaon was listed as a D-voter before she challenged it in the Foreigners Tribunal at Uluberi in Guwahati, nearly 1oo km away from Chaygaon. She won a decision in her favour in February this year. However, in June she received notice that she was a D-voter. She and her husband have been running from pillar to post in order to establish her Indian citizenship. Her father, Mohoruddin, and her husband, Abdur Rehman, are both Indian citizens.84 Abdur, a landless agricultural worker, has already spent Rs.60,ooo on lawyers to fight her case at the tribunal and has no more money left to pursue the matter. "on August 3, I was supposed to go and present myself with my wife at the tribunal, but I could not, as we have nothing left," he said. There are several similar cases in Major top, all of them stories of hopelessness. "Whatever happens to the others will also happen to us," said a defeated and despairing Abdur. In a few cases, children who are not old enough to vote have been listed as D-voters. Eight-year-old Monuwar Hussein of Hojai district has no idea what it all means, but he has had to travel over 200 km with his father, Babur Ali, to Guwahati, to meet with lawyers.85 Mahibur Rahman, vice president, AAMSU, said: “This kind of deliberate harassment is ruining the poor people financially and destroying their health. They have lost their peace of mind, as they know to be a D-voter, they are not eligible to enjoy the basic rights of a citizen. They can neither open a bank account nor get a driver's licence."86 Riyazul Islam says he had to produce family documents going back to 1951 to prove he was an Indian and not an illegal Bangladeshi immigrant. However, a draft list of citizens released in July excluded him and his mother, among a total of about 4 million people left off. "If my father is an Indian citizen how come I am not?" said Islam in an interview in

81

Sanjib Baruah, Non-citizens and history, Frontline (Aug. 31, 2018), https://www.frontline.in/the-nation/article24702054.ece. 82 Ibid. 83 Ibid. 84 Ibid. 85 Ibid. 86 Ibid.

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the small Assam town of Dhubri, close to the border with Muslim-majority Bangladesh. "What more proof do they need?"87 j. The NRC nodal office had sent near six lakh applications to different states for confirmation. out of them, just 30 percent responded back. In its oath to the preeminent court, the NRC says 11,4971 cases alone were sent to the Mamata Banerjee government to confirm uses of occupants professing to have their underlying foundations in West Bengal. In any case, Assam, the sworn statement says, got reactions for just 7,438 cases. The rest of checked at the particular appointee official dimension in different regions of Assam, Hajela said. Without a doubt, huge numbers of them couldn't be verified and were forgotten.88 k. Eshani Choudhury, 26, is a social specialist from Tinsukia now situated in New Delhi. Her folks — a Bengali-Muslim dad and a Bengali-Hindu mother — have isolated. Choudhury's mom and maternal grandma are in the draft however she and her sister, who utilized the heritage information of her mom, are most certainly not. Her dad and his predecessors are additionally in the draft. "For me, to head out back to Assam and fill the cases structure and after that take an interest in the ensuing procedures may mean various treks via air from Delhi at short notice. I have certain monetary limitations, and this will add to that," said Choudhury.89 l. Masuma Begum, 25, is a Bengali-speaking Muslim from Lakhimpur region who did her Masters in Assamese language and is as of now seeking after a B. Ed under Gauhati University. Her name isn't in the refreshed draft in spite of the fact that those of her three more youthful kin and guardians are. Begum, a focal panel pioneer of the All Assam Minority Students' Union (AAMSU) and previous collaborator general secretary of the Cotton University association, says she is befuddled. "My kin additionally drew their inheritance from similar archives that I did — this is ridiculous," she said90 These were few instances which clearly show that the process of NRC is not just, fair and reasonable because the given amount of faults in this process indicates that there is a need of greater accountability and transparency. Now there is another set of debate over NRC, that is, whether NRC would help in solving humanitarian crisis in Assam. The researcher will now (below) deal with this latter set of debate. 4.5 NRC: Solution to Humanitarian Crisis in Assam? one set of argument is based on linguistic and cultural reasoning. For some, it is a process which fulfils long-term demand of identifying illegal Bangladeshi immigrants in the state. They argue that large scale illegal migration from East Pakistan/Bangladesh over several decades has been

Reuters, In India’s Citizenship test, a selling error can ruin a family, Economic Times(Aug. 17, 2018), https://economictimes.indiatimes.com/news/politics-and-nation/in-indias-citizenship-test-a-spelling-error-can-ruina-family/articleshow/65434885.cms. 88 Anand Patel, Fact Check: The mystery behind 40-lakh omissions in Assam's NRC, India today (Aug. 3, 2018), https://www.indiatoday.in/fact-check/story/fact-check-the-mystery-behind-40-lakh-omissions-in-assam-s-nrc1303941-2018-o8-o3. 89 Abhishek Saha, Uncounted in Assam NRC final draft: School teacher, one of twins, MLA, B.Ed student, a social worker in Delhi Indian Express (Aug. 1, 2018, 12:37:26 pm), https://indianexpress.com/article/north-eastindia/assam/assam-citizenship-nrc-final-draft-names-missing-rajnath-singh-sarbananda-sonowal-5285568/. 90 Ibid. 87

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altering the demographic complexion of this state. It poses a grave threat both to the identity of the Assamese people and to their national security. They also argue that compelling Assam to share the burden of refugees after the formation of East Pakistan, to denying its economic growth while using its abundant oil and coal reserves and tea plantations, laid the foundation for conflict. The grievances peaked after the formation of Bangladesh in the 1970s, as the Indian Government failed to stop the influx of ‘illegal Bangladeshi' immigrants into the state. Thus, for them, NRC surely seems to be the first step towards a plausible solution by legally determining who these illegal immigrants are.91 In ‘NRC is what Will Allow Assam to Escape from the Cauldron of Hate’, the respected Guwahati-based professor Hiren Gohain has said the National Register of Citizens “is the only sane and tangible instrument which will restore peace and goodwill in the communities”.92 The other set of view is based on humanitarian principles. They contend that the NRC was made under strain of the tumult in Assam driven by the All Assam Students Union coming full circle in the 1985 Assam Accord. The agreement – and the related NRC – visualizes tolerating the outside nationals who moved into Assam prior to March 24, 1971, as Indian natives, yet not the individuals who came after that. They question that in the case of executing this arrangement will re-establish harmony and generosity? To look at this, let us take a theoretical case. Assume somebody from Bangladesh had entered India in 1972 when he was 2o-years-old. Today, he would be 67, and in this manner most likely a granddad. Will he be ousted? Where will he go if Bangladesh does not acknowledge him? In addition, with regards to the posterity of such vagrants, the image turns out to be considerably progressively muddled93 The Atal Bihari Vajpayee government introduced another amendment to the Citizenship Act in 2003, which specified that persons born in India after December 3, 2003, become Indian citizens by birth either if both parents are citizens, or if one parent was a citizen and the other was not an illegal immigrant. They argue, given these successive amendments, what will be the legal status of children of "illegal" immigrants who were born in Assam? Children born in India before 1987 would automatically be considered Indian citizens even if their parents are considered "illegal". The children of an "illegal" migrant who married an Indian would also be considered Indian if they were born between 1987 and December 2003. However, any children born of an "illegal" migrant parent after December 3, 2003, would be denied Indian citizenship. Where will they go? Bangladesh will not accept them, and even if it did, they might have no home there. If, on the other hand, they are allowed to stay in Assam without being granted citizenship they will be in limbo, with the Damocles’ sword of deportation always hanging over their head. Former Supreme Court Judge, Justice Markandey Katju, supported this view. He said: "This legal approach to the matter reminds me of a case which came before my bench when I was a judge of the Supreme Court. It related to illegal squatters in jhuggi shops in Mumbai. My colleague on the bench shouted "You have no legal right to live there. Just get out". I said "But

91

Amlan Das, I am Assamese & Here's Why NRC is Critical to our Identity, The Quint (Aug. 3, 2018), https://www.thequint.com/voices/blogs/assam-nrc-identity-politics-bangladeshi-immigrants. 92 Markandey Katju, Debate: The NRC Will Not Resolve Assam's Humanitarian Crisis, The Wire (Aug. 16, 2018), https://thewire.in/politics/nrc-final-draft-citizenship-assam-violence. 93 Ibid.

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where are they to go? Should they be dumped into the sea? It is a humanitarian, not just a legal, problem ". Almost certainly squatters in Mumbai are for the most part Indians who originated from different parts of India and not from a remote nation like Bangladesh. Notwithstanding, everywhere throughout the world, individuals move to remote nations without appropriate papers to escape from degraded neediness or a battle area or some other reason. It is assessed that there are 11 million undocumented Mexican vagrants living in the US. When even the American specialists, having the most recent innovation, can't oust them, how do our experts propose to do as such? The outskirt is long and permeable, by what method can a divider be worked, as boss pastor Sarbananda Sonowal had guaranteed in his decision battle?"94 Further, he said: "I see no solution to the imbroglio, only more tension, insecurity, anxiety and possibly worse.95”

94 95

Ibid. Ibid.

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CHAPTER 5 STATELESSNESS AND ITS AWARENESS: AN EMPIRICAL STUDY This Empirical Research is directed towards collecting the data regarding the awareness of the issue of Statelessness among Law Students. For Empirical Research, the Researcher selected Faculty of Law, Jamia Millia Islamia as the universe; Students enrolled in the course of LLM and PhD were the Population, and the Researcher selected Samples for this study by Simple Random Sampling method. 5.1 ANALYSIS OF RESPONSES TO QUESTIONNAIRE Q1. Who are stateless persons? According to 10% of the total Respondents, stateless persons are Non-citizens or foreigners, and 20% responded that stateless persons are Refugees. 70% of the Respondents responded that stateless persons are not recognised by any State or disowned by any state. It depicts that the majority of the Respondents had an idea about what is statelessness.

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Q2. Is there any problem of statelessness in India? According to 75% of the Respondents, ‘yes' there exists such problem, and 25% responded that such a problem does not exist. It depicts that many Respondents knew that such a problem exists in our Country.

25% Yes(75%) No(25%) 75%

Q3. Which State is in the news regarding the problem of Statelessness? According to 15% of the Respondents, Manipur is in the news regarding the problem of Statelessness, 25% responded that it is West Bengal and 65% said that it is Assam. It depicts that many Respondents knew about the current situation in Assam.

15% Manipur(15%) 25%

65%

West Bengal(25%) Assam(65%)

Q4. Where is National Register of Citizens being maintained?

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According to 15% of the Respondents, National Register of Citizens is being maintained in Manipur, 25% responded that it is being maintained in West Bengal and 65% said that it is being maintained in Assam. It depicts that many Respondents knew about the current situation in Assam.

15% Manipur(15%) 25%

West Bengal(25%) Assam(65%)

65%

Q5. Q5. Is there any Indian Legislation which deals with Stateless persons? According to 70%, there is Indian Legislation in place which deals with Statelessness, and 30% responded in negative. It depicts that many people do not know that India doesn't have any Legislation which deals with it.

30% Yes(70%) No(30%) 70%

. Q6. Is there any Indian Legislation which deals with Stateless persons? 34

According to 70%, there is Indian Legislation in place which deals with Statelessness, and 30% responded in negative. It depicts that many people do not know that India does not have any Legislation which deals with it.

30%

Yes(70%) 70.00%

No(30%)

Q7. Suppose an Accord between a State Government and a Student Union envisages accepting the foreign nationals who migrated into Assam on or before March 24, 1971, as Indian citizens, but not those who came after that. Now, A is from Bangladesh and entered India in 1972 when he was 2o-years-old. Today, he would be 67. According to you, which set of argument do you support? According to 65% Respondents, ‘It is a humanitarian, not just a legal, problem', and the other 35% supported the latter argument, that is, ‘Large scale illegal migration from Bangladesh over several decades has been altering the demographic complexion of this state. It poses a grave threat both to the identity of the Assamese people and to their national security.' It depicts that majority are not in support of the latter argument, and they prefer the humanitarian solution to the current problem in Assam.

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35%

Large scale illegal migration from Bangladesh over several decades has been altering the demographic complexion of this state. It poses a grave threat both to the identity of the Assamese people and to their national security.(35%)

It is a humanitarian, not just a legal, problem. (65%) 65%

. Thus, the conclusion which can be drawn from this empirical research is that the majority of the Respondents knew about the current situation in Assam, but they were not aware of the legal scenario circumscribing this issue of Statelessness. It is pertinent to note that many Respondents supported the humanitarian approach to this issue. Therefore, it is important to make people aware about the legal aspect of statelessness and also Government can survey this present situation, since many Respondents agreed to humanitarian approach. Thus, this survey may help in devising a humanitarian solution to this issue which involves human rights of masses.

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CONCLUSION AND SUGGESTIONS Statelessness is caused because of many factors. In India, as already discussed above, there is a long history behind this situation in Assam. The final list of NRC is yet to be published, that is, on 31st December 2o18. There are various reasons because of which there is a fear that this exercise of NRC would render many people stateless and one of the major reasons behind this fear is a political one. Since there is still time for the final list to be published, let's hope that these people who have been living here since such a long time will not be rendered stateless and will get to live life just like other citizens of this country. Now, coming to the present situation in Assam, specific steps are much needed to be taken in the exercise of NRC, which are as follows: Firstly, the process of NRC should be Transparent and accountable. Since already discussed above, there have been instances reported of arbitrarily leaving out only a few members of the same family. The NRC data should be under RTI and rejection of such Application should be with a sufficient reason. Secondly, Political Parties should not use NRC as a weapon to influence public’s view regarding these ‘accused infiltrators’, since it would disrupt public peace and harmony in Assam and might also be a threat to the lives of those 40 lakhs people left out of the NRC. Thirdly, India must accede to the 1954 and 1961 Conventions on Statelessness and implement them into domestic laws. Acceding to the Conventions would create positive obligations on India’s part by requiring it to make the necessary changes in its national framework. Fourthly, the possible deportation of these people being justified by the argument of importance of preservation of culture of Assam does not seem to be a good reasoning. Human Rights must prevail in all circumstance because even one life matters. Fifthly, Awareness regarding the issue of Statelessness should be raised among Law Students and students of various other fields as such, since this will not only increase research on this issue but may also provide potential solution for this issue. Lastly, the final List is going to be published after two months. Thus, India urgently need to establish a mechanism to deal with the future consequences because in the absence of such mechanism a chaos would be created and would render India to be a discussion in World Forum for possible gross human rights violation. Thus India must take some urgent steps as per the above situation to be true to its Aspirations as enshrined in the Preamble, that is, Secular, Socialist, Democratic and Republic.

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BIBLIOGRAPHY Statutes 1. 2. 3. 4. 5.

The Constitution of India, 1950 The Citizenship Act, 1955, No. 57, Act of Parliament, 1955(India). The Foreigners Act, 1946, No. 31, Act of Parliament, 1946(India). The Passport Act, 1967 The Passport Rules, 1980

International Conventions 1. 2. 3. 4. 5. 6. 7.

Convention relating to the Status of Stateless Persons,1954 Convention on the Reduction of Statelessness,1961 Universal Declaration of Human Rights, 1948 International Covenant on Civil and Political Rights (ICCPR), 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966 The Convention on the Rights of Child (CRC), 1990 Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), 1979 8. Convention on the Nationality of Married Women, 1957 9. International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families, 1990 10. Convention on the Rights of Persons with Disabilities (CRPD), 2006 Reports 1. UNHCR Rule of Law Unit. (2o11). The panel in the Context of Dialogue with the Member States on Rule of Law at the International Level, http://unhcr.org/cgibin/texis/vtx/home/opendocPDFViewer.html?docid=4ddd1a3c9 &query=preventing%2oand% 2oreducing%2ostatelessness 2. office of the Registrar General & Census Commissioner, India, Ministry of Home Affairs, Government of India http://censusindia.gov.in/2o11-Common/CensusData2o11.html 3. Global Trends Report 2o14. Retrieved from http://www.unhcr.org/5399a14f9.html 4. Handbook on Protection of Stateless Persons. Retrieved from http://www.refworld.org/docid/53b676aa4.html 5. Preventing and Reducing Statelessness. Retrieved from http://unhcr.org/cgibin/texis/vtx/home/opendocPDFViewer.html?docid=519e21oa9 &query=preventing%2oand% 2oreducing%2ostatelessness 6. UNHCR Rule of Law Unit. (2o11). Panel in the Context of Dialogue with Member States on Rule of Law at the International Level . Retrieved from http://unhcr.org/cgibin/texis/vtx/home/opendocPDFViewer.html?docid=4ddd1a3c9 &query=preventing%2oand% 2oreducing%2ostatelessness 7. Committee on Elimination of All forms of Discrimination against Women. (2008). General Recommendation No. 26: Women Migrant Workers CEDAW/C/2009/WP.1/R. Retrieved from

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8. Lt Gen S K Sinha, "Report on Illegal Migration into Assam" November 8, 1998, para 8, http://www.satp.org/satporgtp/countries/india/states/assam/documents/papers/illeg al_migration_in_assam.htm. 9. Rajnath Singh, “The Citizenship (Amendment) Bill, 2o16,” July 15, 2o16, http://www.prsindia.org/uploads/media/Citizenship/Citizenship%2o(A)%2obill,%2o2o 16.pdf 14 Articles 1. Anand Patel, Fact Check: The mystery behind 40-lakh omissions in Assam's NRC (Aug. 3, 2o18), https://www.indiatoday.in/fact-check/story/fact-check-the-mystery-behind-40lakh-omissions-in-assam-s-nrc-1303941-2o18-o8-o3 2. Deepika Prakash & Maanvi Tiku, India and the Challenges of Statelessness: : A review of the Legal Framework relating to nationality, 3. https://nludelhi.ac.in/download/publication/2o15/august/India%2oand%2othe%2oCh allenge%200f%2oStatelessA%2oReview%200f%2othe%2oLegal%2oFramework%2orelating%2oto%2oNationality. pdf 4. Asha Bangar, Statelessness in India, http://www.institutesi.org/WP2o17_o2.pdf 5. Mohammad Iqbal, “Migration Crisis Deepens in the Indian State of Assam: Is another Myanmar Style ‘Ethnic Cleansing’ Imminent?” School of Global, Urban and Social Studies RMIT University Melbourne, Australia, pp 1, June 18, 2o18. 6. Natwar Thakkar, “Mahatma Gandhi and the Gandhians in the North- East” Dialogue, october – December 2o1o, Volume 12, No. 2, http://www.asthabharati.org/Dia_oct%2001o/nat.htm 7. Sangeeta Barooah Pisharoty, “Revisiting Partition: Gandhi’s role in Integrating the Northeast with Independent India” August 9, 2o17, https://thewire.in/history/partition-gandhi-northeast-independence 8. Debasree Purkayastha, “What is the Citizenship (Amendment) Bill, 2o16?” May 26, 2o18, https://www.thehindu.com/news/national/other-states/what-is-the-citizenshipamendment-bill2o16/article23999348.ece 9. FE online, “In-brief: What is Assam’s National Register of Citizens updation and how it will impact illegal immigrants”, Financial Express, (1 January 2o18) 10. Samar Halarnkar, "In Assam, Millions live in Fear of Arbitrary Deportation Drive" october 28, 2o17, the quint, https://www.thequint.com/news/india/millions-try-toprove-citizenship-in-assam 11. Michael Safi, "Assam's list: Indian state preparing to deport tens of thousands of 'foriegners'" the guardian, February25,2o18,https://www.theguardian.com/world/2o18/feb/26/assams-listindian-state-preparing-to-deporttens-of-thousands-of-foreigners 12. Ganesan Seetharaman, “National Register of Citizens in Assam: Issue of illegal foreigners continues to be a major political one”, Economic Times, (14 June 2o15)

ANNEXURE 39

QUESTIONNAIRE Q1. Who are stateless persons? a. Non-citizens or foreigners b. not recognised by any State or disowned by any state c. Refugees Q2. Is there any problem of statelessness in India? a. Yes , b. No Q3. Which State is in the news regarding the problem of Statelessness? a. Manipur b. West Bengal c. Assam Q4. Where is National Register of Citizens being maintained? a. Manipur b. West Bengal c. Assam Q5. Is there any Indian Legislation which deals with Stateless persons? a. Yes b. No Q6. Is India Party to 1954 Convention relating to the Status of Stateless Persons and 1961 Convention on the Reduction of Statelessness? a. Yes b. No Q7. Suppose an Accord between a State Government and a Student Union envisages accepting the foreign nationals who migrated into Assam on or before March 24, 1971 as Indian citizens, but not those who came thereafter. Now, A is from Bangladesh and entered India in 1972 when 40

he was 2o-years-old. Today, he would be 67. According to you, which set of argument do you support? a. Large scale illegal migration from Bangladesh over several decades has been altering the demographic complexion of this state. It poses a grave threat both to the identity of the Assamese people and to their national security. b. It is a humanitarian, not just a legal, problem.

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