The Blind Side: India’s Tryst with Citizenship, Deprivation and Statelessness
By Padmini Baruah
India is face to face with the daunting prospect of mass statelessness. Playing out in the verdant, fertile plains of the province of Assam is a humanitarian crisis in which close to two million people are at risk of being deprived of their right to citizenship. This is the result of a complex tangle of nationality laws, bureaucracy and judicial process that began as early as the 1960s, and continues to loom over the population.
In an earlier piece, I had provided context to the crisis in Assam, and how it arose from the rhetoric around “illegal immigrants.” I spoke of the National Register of Citizens (NRC), a government-issued register, inclusion within which guaranteed citizenship. This process, I argued, was likely to arbitrarily discriminate against minorities, particularly the community of Bengali speaking Muslims, who have a long history of being targeted in the state. This dire prediction, sadly, came to pass.
In the aftermath of the NRC, 1.9 million people were ultimately excluded from the list. Simultaneously, the government of India passed the controversial Citizenship Amendment Act, 2019 (which sparked prolonged protests). This contained provisions bestowing the right of Indian citizenship to migrants from a number of South Asian countries belonging to all major religious groups except for Muslims. In effect, the lethal combination of the CAA and the NRC leaves a loophole for people left out of the NRC to acquire citizenship by claiming that they are persecuted refugees. Muslims do not have this option.
This is problematic on multiple counts, as it accounts to discrimination on religious grounds and a violation of the secularism that has informed the Indian Constitution since its inception. I am most concerned, however, with the horrifying reality that those excluded from the NRC face: statelessness.
Statelessness is defined as a condition where a person is “not recognized as a national by any state under the operation of its law.” This has an immediate effect on a person’s political, economic and social rights. The legal framework on the right to nationality is entrenched in several human rights conventions. Specifically, the 1954 Convention Relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness provide procedural guidelines for states. International law prohibits the arbitrary deprivation of nationality.
India statutorily applies deprivation for citizens who have acquired their status through registration or naturalization, not through birth. However, in the case of Assam, deprivation has extended to systematically and arbitrarily exclude people, mostly Muslims, who have been born on Indian territory. The main choke point through which this happens is the Foreigner’s Tribunal (FT) - a body which is quasi-judicial in nature, and holds the fate of one’s citizenship in its hands. There are no clear grounds to determine what constitutes sufficient grounds for challenging citizenship before an FT. Through my review of notices that people are provided, there is no explanation as to why doubt was created regarding the person’s status.
Moreover, members of FTs are strongly incentivized to rule against the people appearing before the court. The more people are declared as foreigners, the better their performance review has been. The standards of evidence for proving one’s citizenship are extraordinarily high. Through a review I conducted of twenty-three decided cases, I have found that there is a trend towards dismissing documents that applicants put forward on procedures that the tribunals themselves determine arbitrarily. In the cases I looked at, people have brought forth all kinds of documents – land records, voter lists, school documents, marriage documents – which have been dismissed by the Tribunals. Over the last year alone, close to 23,000 people have been declared as foreigners.
Once someone is declared a foreigner, few options are open to them. Despite widespread public suspicion that the trail of “illegal immigrants” is coming from Bangladesh, an infinitesimal number has been deported. In 802 cases, declared “foreigners” have been sent to one of six detention centers, where they hang in limbo in extremely confined spaces with none of the basic rights usually extended to prisoners. Even in cases where they are not detained, the status of those declared as foreigners becomes extremely uncertain. The Supreme Court of India has allowed for deprivation of citizenship for descendants of those whose have been declared foreigners, in complete contravention of the Child Rights Convention. Thus, once a person is tarred with the brush of being a foreigner, their children face the immediate risk of being deprived of citizenship. There is no appeals process – after jumping through all the hoops, if a person is found to be a foreigner, they can petition the High Court which carries out the limited task of sending cases back to the Tribunal.
This entire process clearly constitutes arbitrary deprivation of nationality per the norms of international law. 1.9 million people now face the grueling prospect of having to prove themselves before bodies that do not create conditions for a fair hearing. In the absence of clear policy directives, there is a very real risk that the Assamese will have a body of stateless people with nowhere to go. In 1983, close to 2,000 Muslims were brutally massacred as an outcome of indigenous anger towards “foreigners.” The hate and resentment that led to this genocide continues to fester below the surface in the state. One can only imagine the implications of drawing up a list of “foreigners” who are unlikely to be deported. The only future facing them is death, detention, or a half-life with suspended rights at best. Human rights cannot be sacrificed at the altar of arbitrary procedure. This process has to be brought to a halt, lest the state of Assam once more finds itself with blood on its hands.
Padmini Baruah is a second year student at the Fletcher School, and is doing her MALD in Gender and Comparative Politics. Her research focuses on gender and migration, with a special emphasis on statelessness.
