Suddenly Stateless: International Law Implications of India’s New Citizenship Law

[Unnati Ghia is a final year law student at National Law School of India University, Bangalore and Editor at the National Law School of India Review.]

The past decade has seen significant challenges posed to international human rights law. Armed conflicts, minority persecution and nationalist xenophobia have contributed to the increase in the number of stateless populations around the world. Much like the United States and Myanmar, India too remains steadily blind to the perils of statelessness.

The recently passed Citizenship Amendment Act [“CAA”] is no stranger to controversy. The Indian Parliament’s clearance of the CAA was met with widespread protests across the country. The UN High Commissioner for Human Rights has described the bill as “fundamentally discriminatory”.

This article analyses the CAA’s inconsistency with India’s international law obligations, particularly under the International Covenant on Civil and Political Rights [“ICCPR”], which India ratified in 1966.

Background

The definition of “illegal migrant” under the 1955 law refers to foreigners who enter India without a valid passport or such other prescribed travel documentation. The CAA amends this definition . Under the new provision, no person belonging to specific communities and entering India from Afghanistan, Pakistan and Bangladesh before 31^st December 2014 shall be treated as an illegal migrant under the amended law. The Act notoriously excludes the Muslim community from the set of communities that are similarly situated within this definition. It also excludes minorities from other neighbouring nations such as Myanmar and Sri Lanka. Although discriminatory, this may seem fairly innocuous in a vacuum. However, the issue at hand is not simply a discriminatory legislation.

The Indian Government has created a National Register of Citizens in the North-Eastern state of Assam, which it plans to implement throughout the country. Through this exercise, any person found to be lacking relevant documentation, will be deemed to be an “illegal migrant/foreigner”. Individuals must either establish their citizenship prior to March 24, 1971, or establish the citizenship of their immediate ancestors. However, this ignores concerns that the poor simply do not possess the requisite documentation. Failing this process, they may appeal to certain tribunals that then decide on their citizenship,

Once no longer legal citizens of India, these individuals will suddenly be rendered stateless. This is not an outcome that the Indian state has not anticipated. It plans to set up detention centres all over the country (as already done in the North East) to hold such individuals until deportation.

Inconsistencies with International Law

Article 15(2) of the Universal Declaration of Human Rights [“UDHR”] prohibits the arbitrary deprivation of one’s nationality. While India signed the UDHR in 1948, it is not a legally binding document. Enforceability aside, the CAA directly contravenes the right to a nationality.

Importantly, India’s citizenship law is prima facie at odds with the general non-discrimination provision under the ICCPR. Article 2(1) requires States to guarantee rights without distinction on the basis of certain specified grounds. The CAA identifies certain communities based on religion and grants them a preferential status in regards citizenship. It specifically excludes Muslims from this framework. Therefore, the legislation discriminates on the grounds of religion in violation of Article 2(1).

The detention centres created by the Indian government pose another concern. Given their lack of official documentation, these individuals are unlikely to be deported to neighbouring countries immediately. This would mean that their detention is for an indefinite period of time, which directly affects their right to life (Article 6) and right to dignity in detention (Article 10) under the ICCPR.

The UN High Commissioner on Refugees has issued guidelines on the detention of asylum seekers, which reflect the state of international law obligations in this area. These guidelines prohibit the indefinite and discriminatory detention of asylum seekers. There is a distinction between asylum seekers and stateless populations within their “own” country. However, the Guidelines state that several standards apply mutatis mutandis to non-asylum seeking stateless populations. This includes the restrictions on arbitrary and indefinite detention. The Indian detention camps are clearly at odds with international law.

Although a key outcome of the CAA is the spectre of statelessness, India bears no specific obligations in this regard. India has not ratified either the UN Convention Relating to the Status of Stateless Persons (1954) or the Convention on the Reduction of Statelessness (1961) – both of which impose obligations on states to protect stateless populations. However, I explore how such statelessness populations may also be protected within the scheme of the ICCPR, particular under Article 12(4).

Article 12(4) and ‘one’s own country’          

Article 12 is concerned with the freedom and liberty of movement. The restrictions to Article 12 are limited to exceptional cases and must fulfil the three part test of prescription by law, legitimate aim and necessity in a democratic society. On a plain reading of Article 12, the CAA can possibly be justified by invoking the legitimate aims of public order and national security. This follows from the idea that conferring citizenship and regulating entry and exit is an essential exercise of a state’s sovereignty.

However, an important challenge arises under Article 12(4). The clause states that “no one shall be arbitrarily deprived of the right to enter his own country”. As per General Comment No. 27 on Article 12 of the ICCPR, this clause embodies an implied prohibition on mass expulsions to another country. Notably, the wording of the article does not distinguish between citizens and aliens, which would indicate a relationship broader than mere nationality. The placing of clause (4) in Article 12 is also unique – the protection is mentioned after the restrictions in clause (3). The position of clause (4) is hence ambiguous, leading some to wonder whether Article 12(4) is merely a political/moral imperative on States. However, the UNHRC has refrained from treating this provision as a lame duck.

Through this provision, stateless persons who have been long term residents of a country can be protected under the ICCPR. The General Comment further states there are few circumstances in which expulsion would be justifiable. One such circumstance arose in Stewart v Canada, where the UN Human Rights Committee [“UNHRC”] was asked to interpret the phrase “his own country”. While the UNHRC denied Stewart relief on the grounds that he has consciously disqualified himself from Canadian citizenship, it did recognise that there existed a category of individuals who may have been stripped of their nationality but continue to retain special ties with the country. This category of persons would be protected under Article 12(4), granting them a right to enter (and remain) in their country.

The UNHRC has built on this approach post Stewart, moving beyond the limits of formal nationality. In Warsame v Canadaand Nystorm v Australia, the UNHRC considered a variety of factors to determine “one’s own country”. These included family ties, the language spoken and the duration of residence in the country. As per the UNHRC, these constituted strong ties which directly linked the individual to the state even in the absence of nationality.

In the Indian context, the populations sought to be deported include long term residents whose ancestors migrated to India in the aftermath of the Partition of India and the 1971 Bangladesh War. They have hence lived in the country for decades, and may be religiously and ethnically similar to Indian communities. These communities may lack the detailed documentation mandated by the government, but they undoubtedly possess strong socio-cultural ties with India. Based on the grounds enumerated by the UNHRC above, India could certainly be described as their “own country”. Their detention and expulsion is therefore in violation of their rights under the ICCPR.

Beyond violations of their legal entitlements, a desolate reality awaits these individuals. This is because citizenship accompanies a number of welfare entitlements from the State, such as access to healthcare, rations, education and security of self. Hence, the implications of a loss of citizenship are dire for stateless populations.

Remedies and justiciability

Unfortunately, the remedies are restricted both domestically and internationally. First, India’s municipal legal framework is dualist. Article 253 of the Indian Constitution grants Parliament the power to enact a law to implement a treaty. This means that a violation of rights under the ICCPR would be unactionable without a specific statute implementing those rights. India has also made a reservation to Article 13 (rights of aliens), which allows it to apply its municipal law to foreigners without interference.

Second, the UNHRC also has its hands tied in this regard. This is because India has refused to ratify the First Optional Protocol to the ICCPR (1976), which enables the individual complaint mechanism. The ICCPR violations are therefore non-justiciable at the international level. The International Court of Justice can also address ICCPR violations – a jurisdiction it exercised in its Advisory Opinion on the Wall for instance. However, it cannot investigate the sovereign acts of states of its own accord, without the same being disputed by one or more States.

Perhaps it is time to rethink the expansive leeway given to states to fashion their own criteria for nationality. However, these crises also necessitate a hard look at the understanding of nationality in international law itself. It is important for States to move from a formal conception of nationality to one that recognises an individual’s multifaceted relationship with the State.