Law

1. Citizenship Law

a. Jus sanguinis provisions

Since 1987, access to Indian citizenship has operated through a jus sanguinis structure, with children born in India only considered citizens by birth if both parents are citizens of India or if one parent is a citizen of India and the other is not an undocumented migrant. Children born outside of India to at least one Indian parent are considered citizens by descent so long as their birth is registered and they are not considered citizens of another country. The law, however, fails to provide any jus soli safeguards to children who would otherwise be rendered stateless and prevents access to citizenship, by birth or descent, to any child if either parent is an “illegal immigrant” according to the law. There is no definition of a stateless person included in the citizenship legislation of India.

Further, there has been domestic and international attention regarding the impact of the Citizenship Amendment Act (2019) which provides a pathway to citizenship for undocumented migrants of certain religions from enumerated neighboring countries. Notably, persons of Muslim faith are excluded from the operation of the Act.

b. Naturalized citizenship

Section 6 of the Citizenship Act (1955) provides for citizenship by naturalization. To qualify, an individual must renounce prior citizenship upon acceptance of naturalization to India, have resided in India for 14 years immediately preceding the twelve months before making the application, and must know an Indian language, among other requirements. India also requires reciprocity, meaning that an Indian citizen should be eligible for citizenship by naturalization in the other country in order for citizens of that country to naturalize in India. The required period of residence has been reduced to five years for persons from the Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh, or Pakistan as a result of the Citizenship Amendment Act (2019). Stateless individuals are not eligible for the naturalization process, unless in exceptional cases at the discretion of the Central Government. An individual who has been categorized as an “illegal immigrant” or has renounced or been deprived of his citizenship previously also does not have access to naturalization provisions.

c. Dual citizenship

India does not currently offer dual citizenship. A person seeking to become an Indian citizen must renounce citizenship of another country. However, the Government of India introduced a scheme for overseas citizenship in 2006. To reduce and prevent statelessness, the Citizenship Rules (2009) provide that an individual acquiring Indian citizenship needs to renounce their foreign citizenship only once their application for Indian citizenship has been sanctioned, providing a safeguard in case their citizenship application does not get approved.

2. Treaty ratification status

While India has not yet ratified the 1954 Convention relating to the Status of Stateless Persons, the 1961 Convention on the Reduction of Statelessness, or the 1951 Refugee Convention and its 1967 Protocol, it has ratified the ICCPR, ICESCR, ICERD, CRC, and CEDAW with no relevant reservations.

During its 4th Universal Periodic Review in 2019, India was advised to ratify the Conventions on Statelessness along with the Refugee Convention and take the necessary steps to implement them domestically. The recommendations also included a review of the National Register of Citizens to “avoid statelessness, deprivation or denial of nationality, arbitrary detentions or expulsions”. In the UN’s report submitted prior to the review, India was recommended to establish statelessness determination procedures to strengthen its framework for protection and assistance of stateless persons. It was also recommended that India expedite the naturalization for certain groups and extend the application of the Citizenship Amendment Act (2019) to other persecuted groups. Further, “several special procedure mandate holders called on the authorities to take resolute action to review the implementation of the National Register of Citizens and other similar processes in Assam and in other states, and to ensure that they did not result in statelessness, discriminatory or arbitrary deprivation or denial of nationality, mass expulsion or arbitrary detention”. Such arbitrary arrests and detention put India in violation of its obligations under ICCPR, which asks for a detention to not just be lawful, but also be “necessary, proportionate and reasonable.”

In 2019, the CRPD Committee expressed concern about persons with disabilities, particularly Muslim persons with disabilities, detained in camps of Assam and rendered stateless. It recommended India to adopt measures for reacquisition of nationality to those persons with disabilities rendered stateless as well as those in detention camps.

Children’s citizenship in India is determined by birth and requires at least one parent to be an Indian citizen and the other must not be an undocumented migrant. The Citizenship Act does not provide citizenship to stateless children. The Act is stated to not contain provisions explaining who it considers to be a parent or to clarify whether it includes different sets of parents of a child such as unmarried, adoptive, biological, or surrogate parents. The Citizenship Act does not cover foundlings with unknown parentage who are protected by Article 2 of the 1961 Convention which protects such children if there is no proof found to the contrary against them. While India is not a signatory to the 1961 Convention, it is a party to the CRC which requires that children be immediately registered after their birth and have a right to a nationality. The Citizenship Act is in direct contravention to India’s obligations under International Law.

Status of Accession of International Human Rights Treaties in South Asia

Country	Stateless 1	Stateless 2	Refugee	ICCPR	ICESCR	ICERD	CRC	CEDAW
India

Signifies that the country is a party to the convention

Stateless 1 – 1954 Convention relating to the Status of Stateless Persons

Signifies that the country is not a party to the convention

Stateless 2 – 1961 Convention on the Reduction of Statelessness

Population

1. Reported Stateless Persons

In 2022, India reported a stateless population of 21,591 persons. UNHCR has noted that this figure covers only Rohingya refugees registered with the UNHCR and is not an estimate of the entire stateless population in India.

In the Lok Sabha (the lower house of India’s bicameral Parliament) in 2021, the Central Government through the Ministry of Home Affairs stated that it does not maintain data at a central level of foreigners who have entered India without valid travel documents claiming to be refugees, asylum seekers or stateless persons and that they are governed by the provisions of the Foreigners Act. This is in contrast with the position it took the Ministry took in 2014 when it informed the Lok Sabha that there were 10,340 such persons from Afghanistan, 4,621 persons from Myanmar, 102,241 persons from Sri Lanka and 101,148 stateless persons including Tibetans.

2. Persons at Risk of Statelessness

There are a number of different populations groups in India at risk of statelessness including Tibetan and Sri Lankan refugees, Bengali Muslims in Assam, ethnic minority groups living in border regions (including the Chakma, Hjong and Kutchi communities) and former Kashmiri militants.

3. Stateless Refugee

India’s entire reported stateless population of 21,591 people consists of stateless Rohingya refugees from Myanmar. Human Rights Watch has estimated that Rohingya registered with UNHCR represent half of the total population of 40,000 Rohingya refugees in India. With continually tightening restrictions of refugees within India, many fear that the population will face deportation to Myanmar. Additionally, based on the most recent census conducted by the Central Tibetan Relief Committee 73,404 Tibetan refugees reside in India. While some Tibetan refugees in India have gained citizenship through previous schemes, many remain stateless by choice. More than 92,120 Sri Lanka refugees still reside in India, many of whom lack identity documents and birth registration and may be at risk of statelessness.

4. Undetermined Nationalities

Enhanced focus has been given in recent years to the situation in Assam following the publication of the state’s National Register of Citizens in 2019 which excluded over 1.9 million Assamese, leaving them labelled as foreigners or ‘D voters’ and the validation of their citizenship left at the hands of the foreigners’ tribunals. In a recent court proceeding, the Central Government informed the Supreme Court of India that between 2017 to 2022, 14,346 individuals have been deported from India with 32,381 individuals being declared as foreigners. Another 123,829 cases remain pending before the tribunals. There are some recent unverified reports that as of August 2022, this figure may have drastically increased to 30,000 persons.

Reported stateless persons to the UNHCR

Country	2019 (year start)	2020 (year end)	2021 (year end)	2022 (year end)
India	17,730	18,174	20,154	21,591

Source: UNHCR, Global Trends: Forced Displacement from 2019-2022.

Causes of Statelessness

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.

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