THE WEST BENGAL NATIONAL UNIVERSITY OF JURIDICAL SCIENCES

CITIZENSHIP AND IMMIGRATION LAW PROJECT

WINTER SEMESTER 2020-21

SUJOY CHOWDHURY

ID – 218107

THE STATELESS’ IDENTITY: TRACING THE ISSUE OF

STATELESSNESS IN INDIA
 CONTENTS
Introduction......................................................................................................................................3

Statelessness Defined.......................................................................................................................4

Tracing the Judicial Trend of India & Statelessness.......................................................................5

The Case of Deriving Citizenship from Domicile.......................................................................5

The Case of Chakma Tribe and Application of Citizenship........................................................6

The Case of Tibetan Refugees.....................................................................................................7

The Case of Nationality Vis-à-vis Surrogacy..............................................................................8

Conclusion.......................................................................................................................................9
 INTRODUCTION
Growing up, we seldom had to worry about our nationality and associated legal rights. Setting
aside economic barriers, we never doubted our primary education, at least not in the sense that
whether we deserve it. Nor do we question our healthcare or social security. We never concerned
ourselves whether we had these rights, as we knew for a fact that we did. This is because most of
us acquire Citizenship by birth, the most common way of attaining Citizenship. However, many
people have had to constantly worry about acquiring these benefits, for they are challenged by
their roots of foreign soil. For instance, the Slovenian government erased a certain group of
citizens from the register of permanent residents in 1992 and, therefore, systematically denied
education, health care facilities and social security to this group.1 Another case that exemplifies
the point is that of the Malaysian refugee children, who struggle to acquire formal education. 2
This illustrates the struggle of statelessness – being the world’s most invisible and under-
represented community – a failure of the system to grant Citizenship and let these people slip
into this category.

The United Nations High Commissioner for Refugees’ (hereinafter “UNHCR”) Global Report
2019 shows that there are approximately 4.2 million stateless persons.3 However, this figure falls
short in illustrating the more significant story as these figures are allegedly a grave
underestimation of reality.4

The importance of nationality is evidenced in the fact that it was recognised under the Universal
Declaration of Human Rights in 1948 as one of the fundamental human rights. 5 Nationality
serves as the legal bond between a person and the state. One of the most significant rights that
one inherits from being a citizen is the right to vote, and its exclusion effectively means
elimination from the political forum. This further undermines their decision-making powers –

1
JELKA ZORN, JASMINKA DEDIĆ, VLASTA JALUŠIČ, THE ERASED: ORGANIZED INNOCENCE AND THE POLITICS OF
EXCLUSION, at 74 (2003).
2
UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, Education in Malaysia, available here (Last visited on
March 04, 2021).
3
UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, Global Report 2019, available here (Last visited on March
04, 2021).
4
UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, Global Report: Forced Displacement in 2019, at 54,
available here (Last visited on March 04, 2021).
5
The Universal Declaration of Human Rights, Article 15.
essentially forcing them into an endless loop between statelessness and failure to acquire the
same due to the lack of resources to prove it.

The legal framework on the issue was laid out in two important conventions - the Convention on
Status of Stateless Persons, 19546 (hereinafter “the 1954 Convention”) and the Convention on
Reduction of Statelessness, 1961.7 Other than these, the International Humanitarian Law has also
played a supportive role in the fight against statelessness, along with other related conventions
on specific issues that have addressed the problems of statelessness. 8 However, India is yet to be
a signatory to either of the conventions. This is a serious problem as our state also lacks a robust
domestic framework to tackle the problem of statelessness.

STATELESSNESS DEFINED
Article 1 of the 1954 Convention 9 defines a stateless individual as one who is not considered as a
national of any given state as per their laws. This definition has now been accepted as part of the
International Customary Law by the International Law Commission.10 However, it has been
clarified that this definition primarily concerns the de jure stateless, that is, the people who have
no nationality at all, rather than concerned with those who have no effective nationality,
commonly known as the de facto stateless.11 Thus, there needs to be a distinction between
Stateless persons and Refugees, the latter being covered under the Refugee Convention of
1951.12

Therefore, the spectrum of statelessness is spread across the legal citizens at one end, and the de
jure stateless at the other, with the de facto stateless lying in the middle.13 This third category of
de facto stateless are persons who are outside the protection of the country of their nationality,
either because they are unable to claim such protection or, for valid purposes, unwilling to do

6
Convention Relating to the Status of Stateless Persons, 1954.
7
Convention on the Reduction of Statelessness, 1961.
8
Convention on the Rights of the Child, 1989, Article 2; International Covenant on Civil and Political Rights, 1966,
Article 2. These conventions highlight the importance of equal treatment, regardless of the origin of the concerned
individuals.
9
Convention Relating to the Status of Stateless Persons, 1954, Article 1.
10
Expert Meeting organized by the Office of the United Nations High Commissioner for Refugees, The Concept of
Stateless Persons under International Law, May 27-28, 2010, at 2, available here (Last visited on March 04, 2021).
11
Id.
12
The Refugee Convention, 1951.
13
Indira Goris, Julia Harrington and Sebastian Köhn, Statelessness: What It Is and Why It Matters, FORCED
MIGRATION REVIEW, FMR 32 (April 2009), available here (Last visited on March 04, 2021).
so.14 The circumstances which make these persons unable to avail protection may range from the
concerned nation-state refusing to grant protection to an entire lack of ability to protect. In any
case, these de facto stateless persons have been excluded from the ambit of the international
conventions and are, therefore, at the mercy of the general International Humanitarian Law.

TRACING THE JUDICIAL TREND OF INDIA & STATELESSNESS

In India, the discourse on nationality and statelessness has been an on-going issue ever since its
independence. Ever since the partition of 1947, India has faced the raging issues of nationality
and is further challenged by an influx of migrations from then-East Pakistan as well as from
Tibet, with more recent instances being those of the Rohingyas from Myanmar. With an ever-
increasing number of persons with uncertain nationality in our country, the Indian legislature has
been seriously under-equipped with facing this issue. However, the judiciary has played a
significant role in addressing the problems of statelessness in India.

THE CASE OF DERIVING CITIZENSHIP FROM DOMICILE

This issue was at the heart of the discussion at the Punjab and Haryana High Court in the case of
Mangal Sain.15 At the heart of the issue lied the verdict of the Rohtak Election Tribunal, which
set aside the appellant (Mangal Sain)’s election to the Punjab Legislative Assembly, citing
reasons that his election was not valid in light of the Representation of the People Act, 1951. 16
The challenge before the High Court was to determine whether the appellant was a citizen of
India at the time of his enrolment as a voter, or at the time of acceptance of his nomination
papers, or even when he was duly elected. To ascertain the appellant’s Citizenship, the High
Court had to effectively determine whether he could be granted Indian Citizenship, based on his
domicile in India after he had migrated from his hometown, which now comes under the
jurisdiction of Pakistan.

The appellant claims his citizenship rights17 under Art. 5(c) of the Constitution,18 or in arguendo
under Art. 6 of the Constitution.19 The former lays down the requirements for acquiring

14
Supra note 10, at 6.
15
Mangal Sain v. Shanno Devi, AIR 1959 P&H 175.
16
The Representation of the People Act, 1951, §5(c).
17
Supra note 15, ¶4.
18
The Constitution of India, 1950, Article 5(c).
19
The Constitution of India, 1950, Article 6.
Citizenship at the time of commencement of the Constitution to all such people who are
domiciled in India, with clause (c) focusing on those who have been ordinarily resident in India
for not less than five years, immediately preceding its commencement. The latter deals with
Citizenship in regards to those who have migrated from Pakistan to India.

While appraising the facts of the case, the court remarked that the appellant clearly intended to
make “the Dominion of India as his place of abode.” The court went on to deliberate that it is
unwise to construct a narrow interpretation of the term ‘migrate’ as it would lead to the appellant
and many other similarly placed individuals to lose their Citizenship and become stateless, which
the Constitutional makers would not have intended. 20 Furthermore, the court held that if the term
‘migrate’ under Art. 6 was capable of two meanings, then the court would be inclined to adopt
the more liberal interpretation. Thus, the court allowed the appeal. It is to be noted that, while
deciding on the issue, the court kept emphasising the fact that the appellant was not a Pakistani
or Burmese national and that, were this court to deny him of citizenship rights in India, he would
be rendered stateless. This case was later upheld by the Supreme Court.21

THE CASE OF CHAKMA TRIBE AND APPLICATION OF CITIZENSHIP

The Kaptai Hydroelectric Power Station Project of 1964 flooded nearby areas and forcibly
displaced several thousand people, most of whom were those belonging to the Chakma tribe of
then-East Pakistan. Most of these people fled to the state of Assam and were later re-allocated in
the state of Arunachal and, ever since, have fought for their citizenship rights in India. Their case
was taken up by the National Human Rights Commission (hereinafter “NHRC”), who filed
public interest litigation on their behalf in 1996.22 NHRC alleged that the Chakma tribe was
being persecuted by the local community of Arunachal, and consequently, claimed the protection
of their lives and personal liberty under Art. 21 of the Constitution. 23 Furthermore, the second
respondent (Union of India) in the case claim that they have made constant efforts towards
granting citizenship rights to the Chakma tribe, but the process was intervened by the first
respondent (state of Arunachal), whose local officers had withheld the applications for
Citizenship.

20
Supra note 15, ¶17.
21
Shanno Devi v. Mangal Sain, AIR 1961 SC 58.
22
National Human Rights Commission v. State of Arunachal Pradesh & Union of India, AIR 1996 SC 1234.
23
The Constitution of India, 1950, Article 21.
The Supreme Court held that there exists a clear violation of Art. 21 rights of the Chakma tribe
by way of persistent objections by the local communities to leave the state. The court also held
that the first respondent had violated the constitutional and statutory rights of the Chakma tribe
from applying for Indian Citizenship. While this case aided their struggle, the fight for
Citizenship by the Chakma tribe was far from over, as the government never complied with the
order. Thus, after many attempts, another case was filed in the Supreme Court, wherein the court
ordered the Union of India and the state of Arunachal Pradesh to grant the Chakma tribe Indian
citizenship.24

However, even after the 2015 order, the government is yet to grant citizenship rights to the
Chakma tribe.25 This establishes the harsh reality of law – while the Supreme Court upholds the
right to Citizenship of the Chakma tribe, the procedural aspects are plagued by the inefficiency
and unwillingness of the Legislative as well as the executive, who strategically hamper the legal
process at every stage of the application.

THE CASE OF TIBETAN REFUGEES

The Tibetan emigration to India took place in three different waves – the first was a result of the
failure that was the Tibetan uprising of 1959, which followed the escape of the 14 th Dalai Lama
from Lhasa, Tibet, to Dharamshala, India. The second wave of emigration came in the 1980s,
and the final wave started in the late 1990s, which continues to date. The third wave is
effectively out of the equation of Citizenship, following the 2004 amendment to the Citizenship
Act, which limited jus soli citizenship to only those born in India between January 26, 1950, and
July 01, 1987, while placing further restrictions on those born between July 01, 1987, to
December 03, 2004.26 Thus, this influx is divided among themselves between the Shichak
Tibetans (those including the first and the second wave) and the Sanjor Tibetans (those of the
third wave). The following case deals with those of the former category (born prior to 1987).

Namgyal Dolkar27 was born to Tibetan refugees in Himachal Pradesh in 1986. In 2005, she
submitted the required applications and was granted an Identity certificate as per sec. 4(2)(b) of

24
Committee for C.R. of C.A.P. & Ors. v. State of Arunachal Pradesh and Ors., AIR 2015 SC 3750, ¶16, 20.
25
Vijaita Singh, Rijiju now says Chakmas can’t be given Citizenship, September 20, 2017, available here (Last
visited on March 05, 2021).
26
The Citizenship (Amendment) Act, 2003, No. 6 of 2004, §3.
27
Namgyal Dolkar v. Government of India, Ministry of External Affairs, MANU/DE/3504/2010.
the Passport Act.28 Following this, she applied for an Indian Passport, but her request was denied
on the reason that her parents were both Tibetan refugees. The Union of India defended its stance
by citing sec. 6(2)(a) of the Passports Act, 29 which states that the authorities can deny the
issuance of a passport if the concerned person is not a citizen of India. This fact was backed by
the argument that the claimant identifies herself as a Tibetan national since she possessed the
Identity certificate.

The court observed that renunciation of Citizenship could only occur through the process
underlined under sec. 8 of the Citizenship Act 30 and that the petitioner’s case is not covered
under the same.31 The court also clarified that her Citizenship could not be terminated by the
government as the provisions for the same 32 are not attracted towards the petitioner.33 The court
also clarified that the petitioner’s act of identifying herself as a Tibetan national is of no legal
consequence as the Citizenship Act itself is silent on the concept of nationality; furthermore, it is
evidenced that the Ministry of External Affairs itself considers Tibetans as ‘stateless’ and
therefore, issues then the identity certificate, without which, these people face the prospects of
deportation.34 Since the petitioner’s claim to Citizenship lies well within the definition of sec.
3(1)(a) of Citizenship35 by birth, and therefore, the government was at fault while denying her
passport.

However, the position of those born after 1987 remains uncertain to date. Recently, during the
2019 protests against the Citizenship (Amendment) Act, the government clarified its stance that
those born prior to 1987 are Indian citizens and shall not bother themselves with the Amendment
Act.36 What this fails to address, like the abovementioned case, is the status of the stateless
Tibetan refugees who were born in India after July 01, 1987. Thus, Namgyal’s was a positive
case where the judiciary came to the rescue, but many Tibetans still suffer the brunt of
statelessness.

28
The Passports Act, 1967, §4(2)(b).
29
The Passports Act, 1967, §6(2)(a).
30
The Citizenship Act, 1955, §8.
31
Supra note 27, ¶29, 30.
32
The Citizenship Act, 1955, §9.
33
Supra note 27, ¶30.
34
Supra note 27, ¶28.
35
The Citizenship Act, 1955, §3(1)(a).
36
The Indian Express, Govt issues note to clarify: Those born here before 1987 are Indians, December 21, 2019,
available here (Last visited on March 05, 2021).
 THE CASE OF NATIONALITY VIS-À-VIS SURROGACY

Prior to the Indian government’s stance against commercial surrogacy, India was considered one
of the primary international hubs for surrogacy around the world. In 2009, the Gujarat High
Court was faced with the question that whether a child born to a surrogate mother of Indian
Citizenship and a father who is a foreign national shall be a citizenship of India or not. 37 The
petitioner was a German national residing in the United Kingdom, who, along with his wife,
opted for surrogacy in India. The surrogate mother (Marthaben) gave birth to two baby boys on
April 04, 2008. Due to certain legal objections raised by the Ministry of External Affairs, the
petitioner had to surrender the passports of his babies, which was subject to further clearance. In
the present case, the petitioner seeks direction by the relevant authority to have the passports
returned. He claims that since the children were born in India, they are Indian citizens and
therefore, Germany would not grant them entry, nor would it grant them Citizenship on the basis
of mere identification documents (i.e., their birth certificates), and this would effectively render
the babies stateless. The petitioner, therefore, claims that denial of passports is a violation of
their Art. 21 rights.38

This was a first-of-its-kind situation when the judiciary lacked any set precedent to determine the
nationality of children born to surrogate mother. The court opted for a liberal interpretation so as
to prevent the children from being rendered stateless. The court expresses its view on the subject
as by simply providing ova, a woman cannot be regarded as the natural mother of a child unless
the legislature comes up with any contrary provisions. The court said that the gestation mother,
who carried the baby for full ten months in her womb, shall be regarded as the natural mother.39
The court further deliberated on the fact that, as per sec. 3(1)(c)(ii) of the Citizenship Act, 40 these
children are qualified for Indian Citizenship and, therefore, eligible to get their passports.
Following the precedent set in this case, the Ministry of Home Affairs issued guidelines to be
followed by foreign nationals visiting India for surrogacy.41 However, in 2015, the government
retracted these guidelines and issued a ban on India's commercial surrogacy.

37
Jan Balaz v. Anand Municipality & Ors., AIR 2010 Guj 21.
38
Supra note 23.
39
Supra note 37, ¶16.
40
The Citizenship Act, 1955, §3(1)(c)(ii).
41
Ministry of Home Affairs, Government of India, Guidelines issued by the Ministry of Home Affairs vide letter no.
25022/74/2011-F.I. regarding foreign nationals intending to visit India for commissioning surrogacy, July 09, 2012,
available here, page 4 onwards (Last visited March 05, 2021).
 CONCLUSION
India has been facing the problem of statelessness since independence. There is an apparent lack
of any official government record that accounts for the stateless persons in the country. There
exist mere NGO data and academic/institutional records which can give a bare approximation of
reality. This problem is not limited to the Indian context, as there is still a genuine, normative
gap in the international law regime regarding statelessness. Despite the existence of conventions
dealing with the issues, there is a severe lack of procedural law in establishing the link between
the person and the state, as well as an evident inadequacy of enforcement agencies in the
implementation of the laws.

This is evident from our discussion, wherein we saw that while the judiciary has been somewhat
liberal in its interpretation of citizenship laws and kept the challenges of statelessness in mind
while delivering its judgement, the legislature, as well as the executive, have taken little interest
in defending the rights of these people. Even our judiciary, while taking its liberal stance, has
failed to draw any attention towards the two international conventions on statelessness and only
deriving protection from principles of equality and natural justice.

At the moment, it seems as if only the passport act somewhat addresses the issue of statelessness
by granting them a temporary travel document, the Indian Identity certificate, but the utility of
this document is limited to travel permits. To even begin to solve a problem, one must recognise
its existence. Presently, we lack any authoritative data on the exact number of stateless people
residing in India. While an approximation can be ascertained from the number of identity
certificates issued, these are only granted on an application, and therefore, they are mere
approximations that fall substantially short of the reality. Thus, the government must begin with
conducting proper surveys to identify a reliable approximation of the number of stateless people
in India while also making a positive step forward by complying with the judicial orders and
safeguarding the rights of the concerned.