1. Discriminatory Nationality Laws
As outlined in the Myanmar chapter, the statelessness of the Rohingya community is largely caused by ethnic discrimination embedded in the citizenship laws of Myanmar. The stateless status of Rohingya in India is further protracted by their discriminatory exclusion from the application of the Citizenship Amendment Act (2019). The Citizenship Amendment Act provides a pathway to Indian citizenship for ‘illegal migrants’ in India who belong to Hindu, Christian, Buddhist, Jain, Parsi and Christian faiths from Afghanistan, Bangladesh and Pakistan. Notably, persons of Islamic faith are excluded from the amendment, an act labelled by numerous commentators as being discriminatory on religious grounds.
The Citizenship Amendment Act further limits pathways to citizenship for persons of Muslim faith declared foreigners by the NRC process. The Passport Act (1967) also has implications for persons who are stateless or at the risk of becoming stateless. Section 6(2)(a) of the Act allows the issuing authority to refuse to issue a passport if the applicant is not a citizen of India or if the issuance of a passport will be against public interest. Section 12 of the Act prescribes the offenses and penalties for persons who are not citizens of India and who apply for a passport or obtain one by suppressing information about their nationality or hold forged passports or travel documents with imprisonment for a minimum of one year and a maximum of five years, with a fine. This Act also provides the designated customs officer the power to make arrests based on “reasonable suspicion” and conduct searches at any place and seize a passport or any travel document based on it. The implication of this provision is that a person suspected of being a stateless person residing in India or an undocumented migrant can face harassment, be arrested, sent to jail and be forced to pay a significant fine.
2. Lack of Legal Safeguards Against Childhood Statelessness
The citizenship laws of India do not address access to citizenship for foundlings or children born to stateless parents. Avenues to citizenship for children born to stateless persons could provide protection for children born to stateless refugees within India including the Rohingya from Myanmar. The lack of legal safeguards for stateless individuals remain persistent as India has not ratified either of the Conventions on Statelessness, which leaves the status of stateless persons unrecognized. Further, the law groups together all non-citizens, including stateless persons, refugees, and asylum seekers, as foreigners despite their needs being different from each other.
3. Citizenship Stripping
The history of the National Register of Citizens in Assam is politically complex and driven by ethnic and religious tension spanning back to the early 1900s. The first National Register of Citizens in Assam was undertaken in 1951, and through the modern process residents of Assam have to evidence their family lineage to Assam prior to 1971 (when Bangladesh gained independence from Pakistan) to be included in the registry of citizenship. In 2019, the final National Register of citizenship excluded 1.9 million residents from the list, essentially stripping them of their citizenship. Persons excluded from the National Register of Citizens must in turn apply to the government or Foreigners Tribunal to have their citizenship status verified, with those unable to verify their status as citizens rendered stateless. As noted above, between 2017 to 2022, 14,346 individuals have been deported from India with 32,381 individuals being declared as foreigners.
The right to appeal a decision given by the Foreigners Tribunal exists, as the individual can file an appeal to the High Courts and Supreme Court, respectively. However, the scope of judicial review in such cases was limited by the case of State of Assam v. Moslem Mandal (2013), where the High Court denied reviewing the fact-finding undertaken by the tribunals and limited themselves to reviewing apparent errors of law. It has been noted that the cases of citizenship involve gross fact-finding errors by investigating authorities and the lack of due process followed by Foreigner Tribunals results in a case where the scope of appeal in cases of citizenship deprivation becomes very narrow.
4. Administrative Barriers
Barriers to birth registration among Sri Lankan refugee populations and ethnic minority groups including the Kutchi community residing in border regions of the country places these populations at risk of statelessness. The burden of documentary evidence (which is a non-exhaustive list of documentation) placed on a ‘doubtful’ individual to prove their citizenship displays the highly arbitrary nature of proceedings in the quasi-judicial tribunals. These administrative and documentary requirements placed on persons excluded from the National Register of Citizenship have acted as a barrier to the verification of thousands who have lost or had destroyed relevant documents due to relocation and flooding. The Citizenship Rules indicate that a birth certificate is a supporting document for many kinds of citizenship, indicating that having a birth certificate would It would be necessary for obtaining citizenship in most situations, among other documentation. However, Foreigner Tribunals have often not accepted a birth certificate as proof of birth ipso facto in the absence of tangible evidentiary connection to an ancestor whose residence can be traced to Assam prior to 1971. India reported an 89% birth registration rate in 2021.