Christ University Law Journal

2019, Vol. 8, No.2, 25-44

ISSN 2278-4332X│https://doi.org/10.12728/culj.15.2

Contextualizing Statelessness in the Indian

Legal Framework: Illegal Immigration in
Assam

Anushka Sharma

Abstract

With the publication of the National Register of Citizens

(NRC) in Assam, the indispensable question regarding
the legal status of individuals who would be excluded
from the final version arises. This paper critically analyzes
the legal framework that addresses and governs
statelessness, by taking into consideration, both the
domestic laws, and the international treaties which India
is a party to, and argues that the contemporary legal
system does not address the issue of statelessness
effectively and requires an overhaul. The lack of a
comprehensive legislative policy to address statelessness
will prevent uniformity in the expulsion methods that is
employed by the state. In the light of forced deportation
and the subsequent expulsion, this paper highlights the
significance of formulating a uniform policy that operates
on established humanitarian principles that does not vary
from one instance to another.
Keywords: Citizenship Act, 1945, Forced Deportation, International
Conventions, National Register of Citizens, Statelessness

1. Introduction

A stateless person, as defined by the United Nations Convention

Relating to the Status of Stateless Persons, 1954 is someone who is


The West Bengal National Juridical Sciences, India;
[email protected]

25
 Christ University Law Journal Vol. 8, No.2 ISSN 2278-4322

not considered a citizen by any Nation.1A report of the United

Nations High Commission for Refugees (UNHCR) points out that
currently, there exists more than ten million stateless people in the
world.2The factors that contribute to statelessness include, but are
not limited to displacement induced by conflict, exemplified by the
widespread migration from Syria to various other countries such as
Jordan and Egypt; development, which is illustrated by the
Mexican migration to the United States and natural disasters
coupled with environment factors; a prime example of which is the
displacement induced by the Nepal earthquake.3 Other factors
include discrimination based on ethnic or religious grounds and
the emergence of new states or state succession.4 In the Indian
context, factors such as decolonization and partition5, coupled with
the existing conflict between erstwhile East and West Pakistan,
have led to widespread migration from the neighboring states into
our country, which, in certain instances have been rendered illegal,
thereby, leading to statelessness.6
Statelessness effectuates gross vulnerability, as stateless individuals
are not vested with rights that serve as a protective blanket against
the miscreancy of either the state, or other private individuals,
which invariably leads to them living in a perpetual state of a
politico legal vacuum. Denied of the benefits relating to
employment, education and health care, these persons are deprived
of the protection of even the most basic human rights.7 This was
brought out by Hannah Arendt in her seminal work, The Origins of
Totalitarianism, written post World War II, when statelessness

1 Convention Relating to the Status of Stateless Persons, Sep. 28, 1954,

United Nations, Treaty Series, vol. 360, p.117, Article 1 Cl. 1.
2 United Nations High Commission for Refugees, Global Action Plan to

End Statelessness, (Nov. 2014), http://www.unhcr.org/ stateless

campaign 2014/Global-Action-Plan-eng.pdf.
3 Andrew Scholten, International Law Aspects of Forced Deportations and

Expulsions, (2016), https://www.aacademica.org/ andrew.scholten/

9.pdf
4 Supra note 2.
5 Asha Bangar, Statelessness in India ,Statelessness Working Paper Series,

(June. 2017) http://www.institutesi.org/WP2017_02.pdf

6 Id.
7 Supra note 2.

26
Anushka Sharma Contextualizing Statelessness in the Indian Legal Framework

erupted on an unprecedented large scale.8She observed that the

political status of a stateless person, is worse than that of a prisoner,
for a stateless person loses the right to have rights.9Apart from
having serious consequences on the stateless individuals, it has the
potential to cause administrative difficulties in the host state and
hamper economic development due to the presence of large scale
unemployment, which will consequently overburden both the
natural and economic resources.
This paper aims to understand statelessness in the context of illegal
immigration in the state of Assam. It examines the existing
domestic and international frameworks of law applicable to India
and tries to understand the status of those who would be excluded
from the final draft of the NRC. It explores the background of the
Assam crisis, by analyzing two land mark judgments and discusses
the Indian legislations that govern citizenship and examines the
position of stateless people under them. It also throws light on the
role played by the Supreme Court in addressing the issue and its
attempts to resolve it. International Conventions to which India is a
party, whose provisions address matters pertaining to nationality
and statelessness, while primarily focusing on the roles played by
the International Covenant on Civil and Political Rights (ICCPR)
and Universal Declaration of Human Rights (UDHR) in situations
of statelessness, is also examined in the due course of this paper.
The possibility of forced deportation of those declared stateless,
and their status in the light of the international provisions of law
governing the same, also come under the purview of the paper.
National and international principles governing statelessness are
applied to the Assam crisis and the status of those who would be
rendered stateless after the publication of the final NRC is
enumerated. The author then applies and concludes by offering
solutions to resolve this crisis.

8 Asher Lazarus Hirsch and Nathan Bell, The Right to have Rights as a
Right to Enter: Addressing a Lacuna in the International Refugee
Protection Regime,18 Hum Rights Rev. 4, 419 (2017).
9 Sanjib Baruah, Stateless in Assam, The Indian Express, January 19, 2018,
available at https://indianexpress.com/article/opinion/national-
register-of-citizens-5030603/.

27
 Christ University Law Journal Vol. 8, No.2 ISSN 2278-4322

2. The Assam Crisis

As a consequence of the scarcity of economic opportunities in the

state of Bangladesh, and the increased competition as a result of
population explosion, a number of people migrated and settled in
the neighboring state of Assam.10The existing porous border
between the two countries facilitated easy migration. The osmotic
effect created due to the availability of better economic
opportunities in India and the lack thereof in Bangladesh, further
contributed to accelerated migration.11 The large scale migration
inevitably resulted in an imbalance in the demographics in the state
of Assam, reducing the indigenous people to a minority in certain
districts.12 These factors coupled with the exhaustive use of the
economic resources, culminated in a widespread protest by the All
Assam Student Union, (AASU) demanding the identification and
expulsion of illegal immigrants from the state.13 Consequently, the
Assam Accord (The Accord) was signed between the protestors
and the government, deciding March 24, 1971 as the cutoff date to
determine citizenship of the immigrants. An amendment was
subsequently made to the Citizenship Act, inculcating the Accord,
stating that the immigrants who came to Assam before January 1,
1966 would be given Indian citizenship.14 The immigrants, who
came on and after January 1, 1966 but before March 24, 1971 would
be taken off the electoral rolls for the next ten years, after which
their citizenship would be regularized.15 Lastly, the immigrants
who came on or after March 25, 1971 would be identified and
expelled from the country.16 It was further decided that the NRC
would be updated to detect the illegal foreigners and expel them

10 SarbanandaSonowal v. Union of India, (2005) 5 SCC 665, at 4.

11 id.
12 Id.at5.
13 id.
14 § 6A, The Citizenship Act, 1955, Act No. 57 of 1955, Acts of Parliament,
1955 (India)
15 id.
16 id.

28
Anushka Sharma Contextualizing Statelessness in the Indian Legal Framework

accordingly.17 The Indian government also passed the Illegal

Migrants (Determination by Tribunals) Act, 1983 (IMDT Act) to
implement the Accord, by establishing tribunals to streamline the
process of expulsion.18 Under the aforementioned Act, the burden
of proof to prove the illegality of the immigrant lay on the state,
rather than the individual in question.19
The constitutionality of the IMDT Act was challenged by one of the
leaders of the Assam agitation, Sarbananda Sonowal, who
contended that the provisions of the statute were highly in favor of
illegal immigrants, and was in direct contravention of the purpose
for which the Act was enacted, i.e. to expel illegal immigrants.20 He
further argued that the Act was in violation of Article 14 of the
Indian Constitution, as it made an unreasonable distinction
between the state of Assam (where the IMDT Act was applicable)
and the rest of India (where the Foreigners Act was applicable and
the burden of proof lay on the Illegal Immigrant).21 The court
accepted his contentions and declared the IMDT Act
unconstitutional, on the grounds of it being in violation of Article
14 and Article 355 of the Indian Constitution. It also held that the
Act had established a high threshold of proof on the state, to
disprove the citizenship of the illegal immigrants, which rather
than accelerating the process of detection and deportation of the
illegal immigrants, dreadfully slowed down the process and
defeated the primary intention of the statute.22The court observed
that while section 9 of the Foreigners Act, casts the burden of
proving citizenship on the alleged foreigner, there is no parimateria
provision in the IMDT Act i.e. the Act is nebulous in relation to the

17 Sangeeta BarooahPisharoty, Why the NRC of 1951 is Being Updated as

per the Assam Accord,TheWire,August 18, 2018, available at
https://thewire.in/rights/nrc-assam-accord-updating-residents
18 The Illegal Migrants (Determination by Tribunals) Act, 1983, Act No. 39

of 1983, Acts of Parliament, 1983 (India)

19 Id.SarbanandaSonowal v. Union of India, (2005) 5 SCC 665, at 39.
20 SarbanandaSonowal v. Union of India, (2005) 5 SCC 665
21 Id.
22 Id Gautam Bhatia, The Constitutional Challenge to S. 6A of the
Citizenship Act (Assam Accord): A Primer,(May. 7, 2017), available at
https://indconlawphil.wordpress.com//?s=assam+accord&search=G
o.

29
 Christ University Law Journal Vol. 8, No.2 ISSN 2278-4322

question of burden of proof.23In cases where a citizen reports the

illegality of migration to the authorities, the provisions of the Act
require the complaint to be accompanied with the exact date of
immigration of the illegal immigrant into India. It further provides
for criminal prosecution in case the contents of the complaint, given
by a citizen, are found to be inaccurate.24 This will potentially
discourage citizens, with significant information to come forward
due to the fear of criminal prosecution associated with inaccuracy;
invariably creating information asymmetry between the State and
its people. Furthermore, the screening committee which was vested
with the power to reject complaints regarding the determination of
the status of illegal immigrants at the outset, with its orders being
non-appealable, did not comprise of any judicial members and was
run wholly by the executive, opening up the process to
vulnerability and arbitrariness.25Hence, the court observed that
these provisions, not only place the illegal immigrants residing in
Assam at an unfair advantage, vis-à-vis the illegal immigrants in
the rest of the country, but also are in contradiction to the objective
with which the IMDT Act was enacted.
The court also relied heavily on the concept of ‘economic
aggression,’ that persisted in the state of Assam due to the
unabated influx of migrants from Bangladesh. It held that the
continued influx of immigrants into the state has enabled them to
monopolize the majority of the cultivable land and the economic
opportunities that were initially available to the original
inhabitants.26 The resultant insurgency in the state and the
consequent social unrest, severely hindered the economic growth
and development of Assam27, bringing it under the ambit of Article
355 in the nature of external aggression. The existence of an
external aggression mandates the Centre to protect the States
against such insurgencies, by enacting appropriate laws.28

23 SarbanandaSonowal v. Union of India, (2005) 5 SCC 665, at 27.

24 Id. at28.
25 Id. at 30.
26 Id. at35.
27 Id.
28 Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665

30
Anushka Sharma Contextualizing Statelessness in the Indian Legal Framework

Subsequent to the delivery of the judgement, primarily due to the

lack of a unified political will, the process of deportation of illegal
immigrants was not accelerated. While some political parties
intended on using this issue to win subsequent elections, the others
found their vote banks in the immigrants. The utilization of the
situation to further political propaganda, dissuaded the parties in
power to actually deport the illegal immigrants. Hence, another
writ petition was filed before the Supreme Court in the case of
Assam Sanmilita Mahasangha v. Union of India29 (Assam Sanmilita) in
2012, pleading with the court to ensure the speedy deportation of
illegal immigrants and a variety of related reliefs. It was through
this judgement, that a two judge bench comprising of Justice
Nariman and Justice Gogoi supervised the process of deportation
and issued directives regarding the updating of the NRC.30Justice
Nariman, in the course of rendering his judgement, framed 13
questions of law, which were then subsequently transferred to a
five judge constitutional bench, for its consideration and decision.
The question of the validity of section 6A of the Citizenship Act
was included in the list of questions.31There are, however, certain
pertinent legal issues associated with it. While the aforementioned
division bench of the Court referred the question of the validity of
section 6A of the Citizenship Act to a larger constitutional bench
for its decision, it absurdly proceeded to issue far reaching
directions premised on the validity of the aforementioned section,32
further exposing it to ambiguous interpretations and suggestive
irrationality.
It is observed that while the court emphasized on the detection of
the foreigners, it entirely avoided the relevant discussion on the
fate of the persons who will end up being excluded from the NRC.
The lack of discussion on the resulting statelessness will
irrevocably leave a gaping hole, as its far reaching implications,
due to lack of proper debate and consideration, will not be
appropriately realized. The lack of foresight in the matter, will

29 Assam SanmilitaMahasangha v. Union of India, (2015) 3 SCC 1.

30 Id.
31 Id.
32 Supra note 3.

31
 Christ University Law Journal Vol. 8, No.2 ISSN 2278-4322

inevitably lead to the formulation of a policy that is non-exhaustive

and ineffective in dealing the resultant circumstances.
The court however, directed the Government of India to enter into
necessary discussions, to minimize the resultant statelessness, with
the Government of Bangladesh in the case of Assam Sanmilita
Mahasangha v. Union of India.33However, there has been no evidence
of any on-record discussions between the two countries on the
issue.34 There is an absence of agreement between India and
Bangladesh in which the latter has agreed to take back the persons
who will be declared as illegal immigrants under the IMDT Act. A
statement given by Bangladesh’s Information Minister, denying
unauthorized immigration from Bangladesh to India, and the lack
of effective measures taken by the Indian government to combat
the increasing immigration in the last thirty year reveals their
political stance on the matter.35
In the absence of a legally established procedure, there are only two
alternatives available to the state, to deal with the persons declared
as illegal immigrants - one being forced deportation, and the other
being, confinement of the immigrants in detention centers.36The
lack of economic feasibility to construct detention centers with a
capacity to detain over four million people for the near future,
makes forced deportation the more viable option for the State,
which will invariably render these people stateless, and leave them
without any rights or remedies. The lack of a definite legal
framework to sufficiently address the issue of statelessness, due to
the failure on the part of both the Judiciary and the Legislature, has
led to various human rights organizations across the world, such as
Amnesty International and Human Rights Watch, to express
concern over the impending crisis.37

33 Assam Sanmilita Mahasangha v. Union of India, (2015) 3 SCC 1

34 Baruah, supra note 7.
35 Id.
36 Alok Prasanna Kumar, To What End This Exercise, The Hindu, August
2, 2018, available at https://www.thehindu.com/todays-paper/tp-
opinion/to-what-end-this-exercise/article24576858.ece.
37 Amnesty International India, India: Assam’s Citizen Identification can

Exclude 4 Million People Ensure Rights, Non discrimination for all

Residents(July.31, 2018),available at https://amnesty.org.in/news-

32
Anushka Sharma Contextualizing Statelessness in the Indian Legal Framework

3. Domestic Legal Framework

Despite having a history of harboring refugees from various

countries and having witnessed large scale migration, India does
not have a comprehensive and codified legislation that deals with
statelessness. Therefore, the position of the illegal immigrants in
our country and specifically in Assam, can be discerned by
studyingthe existing laws that regulate citizenship in India, which
primarily comprises of the Foreigners Act, 1946, Citizenship Act,
1945 and Article 5 of the Indian Constitution.
As per Article 5, a person domiciled in India at the time of
commencement of the Constitution, who was, or either of whose
parents was born in India, or who was an ordinary resident of
India five years prior to the commencement of the constitution, is
deemed to be an Indian citizen.38This provision, read with the
Citizenship Act, 1945, provides for the acquisition of citizenship by
birth, descent, naturalization, registration or incorporation of a new
territory.39 It occurs, in the context of migration, an immigrant can
only acquire citizenship through naturalization or registration.40
However, under sections 5 and 6 of the Citizenship Act, illegal
immigrants can neither acquire citizenship by naturalization or by
registration, as the precondition to avail a remedy under these
provisions is to be a legal immigrant.41Thus, these provisions have
the potential to render thousands of families stateless, despite them
being residents of India for generations, as is the case with some
families in Assam.42

update/india-assams-citizen-identification-can-exclude-4-million-
people-ensure-rights-nondiscrimination-for-all-residents/.
38 Indian Const., Art. 5
39 The Citizenship Act, 1950.Deepika Prakash and Maanvi Tiku, Report on

India and the Challenge of Statelessness: A Review of the Legal

Framework Relating to Nationality, 23 (2014).
40 The Citizenship Act, 1955, Act No. 57 of 1955, Acts of Parliament, 1955

(India)
41 §5 & 6, The Citizenship Act, 1955, Act No. 57 of 1955, Acts of

Parliament, 1955 (India)

42 Harsh Mander, The dark side of humanity and legality; A glimpse

inside Assam’s detention centres for ‘foreigners,’ The Scroll, June 26,

33
Christ University Law Journal Vol. 8, No.2 ISSN 2278-4322

The standard to provide citizenship by birth to children, has also

been made more stringent over the years, by the government.
Under section 3 of the Citizenship Act, children born before July 1,
1987, acquire citizenship at birth, irrespective of the nationality of
their parents.43 Those born on and after July 1, 1987 but before
December 3, 2004 would be given citizenship at birth, if either of
their parents is Indian.44 But by virtue of the amendment to the
aforementioned section, the children born after December 3, 2004,
of which if one of the parents is an Indian citizen and the other an
illegal immigrant, now stand disqualified from being granted
citizenship by birth.45The amendment points towards a gradual
shift of the Indian citizenship policy from being jus soli (by soil)
oriented, to being jus sanguinis (by blood) oriented, as now the
mere birth of a child on the Indian territory is insufficient for him to
get citizenship. This shift has unfavorably impacted the interests of
such children, as they, by virtue of having an illegal immigrant as a
parent, become ineligible to obtain citizenship by birth. This state of
ineligibility to acquire a citizenship status cannot be altered
retrospectively, thereby, unjustly condemning these children to a
life in a politico-legal vacuum.
The introduction of the Citizenship (Amendment) Bill, 2016 is
vested with the potential to impact the lives of the alleged
foreigners positively. The bill proposes to relax the provisions for
granting citizenship to illegal immigrants. It proposes two major
amendments - firstly, people belonging to the Hindu, Sikh, Jain,
Buddhist, Christian and Parsi communities from Afghanistan,
Bangladesh and Pakistan would not be considered illegal
immigrants for the purpose of the Act, thereby making them
eligible to apply for citizenship.46Secondly, it reduces the period of
naturalization to acquire citizenship for the members of these

2018, available at https://scroll.in/article/883936/assam-citizens-

register-detention-centres-for-foreigners-offer-a-glimpse-of-the-
looming-tragedy.
43 §3, The Citizenship Act, 1955, Act No. 57 of 1955, Acts of Parliament,

1955 (India)
44 Id.
45 The Citizenship (Amendment) Act, 2003, Cl. 3(c)(ii).
46 The Citizenship (Amendment) Bill, 2016, 172 of 2016, Cl. 2.

34
Anushka Sharma Contextualizing Statelessness in the Indian Legal Framework

communities from eleven years to six years (excluding the period

of twelve months preceding the application).47 The provision does
not provide for deemed citizenship to the people of these
communities, i.e. it does not automatically confer citizenship upon
the completion of the naturalization period, but simply makes them
eligible to apply for citizenship.48 However, this amendment does
not include the members of the Muslim community, thereby,
making it blatantly discriminative in nature. There is a gross lack of
secular approach, as the Bill, while striving to protect members
belonging to other communities from statelessness, refuses to
recognize and minimize the impact on the Muslim community.
The Indian courts have failed to address, let alone deal with the
issue of statelessness which is evident from the non-existence of a
definition for the term. However, there has been recognition of
statelessness which has found mention in various cases regarding
citizenship. In the case of State of Arunachal Pradesh v. Khudiram
Chakma,49the Supreme Court while deciding the fate of the
Chakmas, who were primarily refugees, held that the government
cannot send them back because they face a threat of torture and
persecution upon return to their own country, i.e. the doctrine of
non-refoulement will invariably apply in situations involving
refugees. Therefore, sending them back would be in violation of
Article 21 of the constitution, which is impermissible as even non-
citizens enjoy the protection of article 21. However, the same
rationale cannot be extended to the situation of illegal immigrants
in Assam for two reasons, the first being that they are not refugees
but are rather illegal immigrants, who have faced widespread
opposition and protest from the locals against their presence. A
reading of the judgements of the Supreme Court in the cases

47 Id.
at Cl. 4.
48Raghav Katyal, Citizenship (Amendment) Bill: A positive step but BJP
government must justify religion-based provisions in proposal, The
Firtstpost, January 10, 2018, available at https://www.firstpost.com/
india/ citizenship-amendment-bill-a-positive-step-but-bjp-govt-must-
justify-religion-based-provisions-in-proposal-4296621.html.
49 State of Arunachal Pradesh v. Khudiram Chakma AIR 1994 1461,

DeepikaPrakash and MaanviTiku, Report on India and the Challenge

of Statelessness: A Review of the Legal Framework Relating to
Nationality, 64, 65 (2014)

35
 Christ University Law Journal Vol. 8, No.2 ISSN 2278-4322

Sarbananda Sonowal and Assam Sanmilita indicates that the Supreme

Court does not have an inclusive attitude towards them, which is
made evident in its consideration of the immigrants as a threat to
the national and the economic interests of the country.50Secondly,
the reason behind the invocation of Article 21 by the court, in the
case of the Chakmas, was due to the ever present threat of
persecution upon return to their own country. The court
recognized the inherent difference that exists between refugees and
illegal immigrants, when they refused to extend the protection of
Article 21 while dealing with the expulsion of these immigrants.
Hence, while the protection of Article 21 will continue to extend to
them with respect to the other facets, for as long as they reside
within the territorial boundaries of India, it cannot be utilized by
the illegal immigrants to escape expulsion.

4. International Conventions and the Indian Legal Scenario

The two primary documents governing statelessness at the

international level, are the UN Convention Relating to the Status of
Stateless Persons, 1954 and The Convention on the Reduction of
Statelessness, 1961.51The 1954 convention defines the term
statelessness, but does not provide for a mechanism that can be
stringently employed to determine statelessness. The formulation
of a mechanism is thus, left to the discretion of the states.52Notably,
India has not signed/ratified/acceded/adopted either of these
Conventions.53 However, conventions such as the UDHR and the

50 Sarbananda Sonowal v. Union of India (2005) 5 SCC 665.Assam

Sanmilita Mahasangha v. Union of India, (2015) 3 SCC 1.
51 Convention Relating to the Status of Stateless Persons, September 28,

1954, United Nations, Treaty Series, vol. 360, p.117. Convention on the
Reduction of Statelessness, August 30, 1961, United Nations Treaty
Series, vol. 989, p. 175.
52 European Network on Statelessness, Statelessness: Determination and

the Protection Status of Stateless Persons, available at

http://www.refworld.org/pdfid/53162a2f4.pdf.
53 Sabysachi Basu Ray Chaudhury & Ranabir Samaddar, The Rohingya in

South Asia, 76 (2018).Shuvro Prosun Sarkar, Reducing Statelessness: A

New Call for India, The Rohingya in South Asia 172-189 (2018).

36
Anushka Sharma Contextualizing Statelessness in the Indian Legal Framework

ICCPR, to which India is a party, contain provisions that will be

attracted in the event of statelessness.
The UDHR is considered to be the cornerstone of International
Humanitarian Law and was adopted by the UN General Assembly
on December 10, 1948, in Paris.54 It delineates certain fundamental
human rights which are to be protected universally and is now a
part of customary international law.55Article 15 of the Declaration
provides for the right to nationality to ‘everyone,’ the corollary of
which imposes an obligation on the nation-states to ensure that no
person is rendered stateless.56 However, it is not succinct in
bringing out the parties against whom one can enforce the right to
nationality i.e. it does not impose a definitive obligation on the
home country or the host country and leaves the situation to dictate
upon whom the responsibility rests. This ambiguity will facilitate
nation-states to evade the responsibility of either hosting or re-
admitting stateless individuals.
The convention also provides a safeguard to the stateless people
under Article 2, which states that no distinction can be made
between people on the basis of their national origin, for the
purposes of the convention.57 This article is a significant provision
as it mandates the government to provide the stateless people with
basic human rights as enshrined in the UDHR. This can be
contrasted with the prevalent realities in the state of Assam, where
a study conducted by the National Human Rights Commission has
pointed towards the violation of basic human rights of the illegal
immigrants who have been kept in the detention centers.58There

54 United Nations, Universal Declaration of Human Rights, available

athttp://www.un.org/en/universal-declaration-human-rights/
55 Deepika Prakash and Maanvi Tiku, Report on India and the Challenge

of Statelessness: A Review of the Legal Framework Relating to

Nationality, 11, 12 (2014)
56 Universal Declaration of Human Rights, G.A. Res. 217A, (December 12,

1948) Article 15.

57 Id., Article 2.
58 National Human Rights Commission, Report on NHRC Mission to

Assam’s Detention Centers from 22 to 24 January, 2018,

(Mar.3,2018),available

37
Christ University Law Journal Vol. 8, No.2 ISSN 2278-4322

exist other provisions of the Covenant, which operate to confer on

the persons covered under it, an equal protection of the law59along
with the right to protection against torture and inhuman treatment.
It further provides for punishments in cases of infringement
including unlawful confinement in detention centers.60
Another pertinent convention regarding the protection of human
rights is the ICCPR, which was acceded to by India on April 10,
1979.61 The rights under the Covenant are available to all people
irrespective of the status of their nationality, like the UDHR.62
Article 24 of the Covenant aims to protect the rights of a child, and
vests in him the right to acquire a nationality.63 Section 3 of the
Citizenship Act, which denies the right to a child to get citizenship
by birth, in case either of his parents, is an illegal immigrant, is in
direct contravention to this provision.64 Further, the section also
violates Article 7 of the United Nations Convention on the Rights of
the Child (CRC) which India has acceded to, as the Convention
mandates the state to provide nationality to the child immediately
post birth.65 The UNHCR, in its ten point action plan to end
statelessness across the world by 2024, has also remarked that the
states must endeavor to grant nationality to those children who
cannot acquire it from any other nation.66 Hence, the Indian

athttps://drive.google.com/file/d/1skGrqF6L8XnW8nsYbw2oruAi5y
KsuxUx/view.
59 Universal Declaration of Human Rights, G.A. Res. 217A, (December 12,

1948) Article 7.
60 Id., Article 5.
61 National Human Rights Commission, Core International Human Rights

Treaties, Optional Protocols & Core ILO Conventions Ratified by India,

available at http://www.nhrc.nic.in/ documents/ india_ ratification_
status.pdf.
62 International Covenant on Civil and Political Rights, December 16, 1966,

United Nations, Treaty Series, vol. 999, p. 171, Article 2.

63 Id., Article 24.
64 §3, The Citizenship Act, 1955,Act No. 57 of 1955, Acts of Parliament,

1955 (India)
65 Convention on the Rights of the Child, United Nations, Treaty Series,

vol. 1577, p. 3, Article 7.

66 Supra note 2.

38
Anushka Sharma Contextualizing Statelessness in the Indian Legal Framework

citizenship policy runs contrary to multiple International

provisions.

5. Legal Implications of Forced Deportation

The irrepressible questions regarding the forced deportation of

illegal immigrants and whether it aligns with the International
Legal Framework that India has ratified, will invariably arise after
the publication of the NRC. The need to speedily address these
difficult questions and seek comprehensive solutions, which are in
line with conventions and treaties, is pressing and indispensable.
The regulatory framework regarding deportation under the
International law is not governed by any singular legislation that is
exclusively dedicated to deal with the issue. A question that then
arises in this respect is, whether a state has a right to forcefully
expel or deport the illegal immigrants who are consequently
rendered stateless? Can it exercise its sovereignty in denying these
people their human rights? Does the procedure of deportation need
to be in consonance with the basic principles of human rights or
can the state employ any means that it deems fit?
The CCPR General Comment 15 states that, it is a matter of
discretion of the state in matters regarding the admission and
residence of an alien in its territory.67 However, the alien will enjoy
the protection of certain rights under the covenant in relation to the
entry or residence, such as the right against being subjected to
inhuman treatment.68 A discussion paper of the office of the United
Nations High Commissioner for Human Rights (OHCHR) on this
issue,69 mentions that there are three kinds of protections against
expulsion that are available to foreigners. They include(i)
substantive protection against expulsion if there is a threat of grave
human rights violations on return, (ii) procedural measures

67 United Nations Human Rights Committee, CCPR General Comment

No. 15: The Position of Aliens Under the Covenant, April 11, 1986,
available at http://www.refworld.org/pdfid/45139acfc.pdf.
68 Id.
69 OHCHR discussion paper, Expulsion of Aliens in International Human

Rights Law, (September, 2006).

39
 Christ University Law Journal Vol. 8, No.2 ISSN 2278-4322

governing deportation and (iii) protection regarding the methods

of expulsion.
The first ground of protection available to the aliens (which
includes stateless people) is given under Article 7 of the CCPR,
which has been read to include the prohibition of the expulsion of
aliens, if there exists a substantial danger of torture upon return.70
Additionally, in the General Comment 31/80, it has been
categorically stated that the obligation of the state to ensure that the
rights under the Covenant are available to all people in its territory
under Article 2 of the ICCPR, entails that a person in danger of
facing human rights violations on return, should be allowed to
remain in its territory.71In the situation concerning the immigrants
in Assam, there exists an absence of a threat of persecution upon
their return as opposed to refugees, and hence, the doctrine of non-
refoulement will fail to apply in this case.
One of the procedural safeguards that is available to a stateless
person under Article 13 of the ICCPR, mandates a due process to be
followed while expelling an alien who is in line with the principles
of natural justice. This process automatically involves granting the
alien a chance to represent himself, except in cases where the
expulsion is on the basis of maintaining national security.72
However, this protection is only available to the aliens who are in
the territory lawfully and would therefore not extend to illegal
immigrants.73

70 United Nations Human Rights Committee, CCPR General comment No.

20: Article 7 (Prohibition of Torture or Other Cruel, Inhuman or
Degrading Treatment or Punishment), (Mar. 10, 1992), available at
http://www.refworld.org/docid/453883fb0.html. OHCHR discussion
paper, Expulsion of Aliens in International Human Rights Law,
(September, 2006).
71 United Nations Human Rights Committee, General comment no.31[80 ],

The nature of the general legal obligation imposed on States Parties to

the Covenant, (May. 26, 2004), available at http:// www.refworld.org/
docid/478b26ae2.html
72 International Covenant on Civil and Political Rights, December 16, 1966,

United Nations, Treaty Series, vol. 999, p. 171, Article 13.

73 OHCHR discussion paper, Expulsion of Aliens in International Human

Rights Law, (September, 2006).

40
Anushka Sharma Contextualizing Statelessness in the Indian Legal Framework

The third ground of protection regarding the limitations placed on

the method of deportation prohibits mass expulsions by the state
and requires that each person’s case must be scrutinized on an
individual basis.74The government, in the context of Assam, is
meticulously scrutinizing each individual application. Further, it is
required as a general principle, over and above these provisions,
that the method of expulsion should not subject the person to
degrading, cruel or inhuman treatment.75

6. The Status of the Immigrants in Assam

An overview of the law governing citizenship in India and the

International Conventions and Covenants that bind it, suggest that
even though there is no concrete legislation that governs
statelessness, there are multiple provisions under the Indian legal
framework (inclusive of both national and international
legislations) that will apply in the situation at hand. However, there
is a significant absence of legislations, which address and elucidate
the status of the people who will be rendered stateless after the
publication of the final draft of the NRC. The non-ratification of the
two primary instruments that govern statelessness in the
international level by India, substantially complicates matters.
The domestic laws that govern citizenship have been made
increasingly stringent over the years and exclude illegal
immigrants from acquiring citizenship, by registration or by
naturalization. The judgements penned by the Apex court in the
cases relating to illegal immigration in Assam also indicate that the
Court does not have a particularly humanitarian approach towards
the matter. Rather, the court has taken notice of the economic
difficulties stemming out of the migration and has been pro-
expulsion throughout.76Their intervention is limited to ensuring
that the decision of expulsion of these suspected illegal migrants is
made in accordance with the existing legal provisions.

74Id. at 15.
75Id. at 17.
76 SarbanandaSonowal v. Union of India (2005) 5 SCC 665. Assam

SanmilitaMahasangha v. Union of India, (2015) 3 SCC 1.

41
 Christ University Law Journal Vol. 8, No.2 ISSN 2278-4322

The provisions that prohibit forced deportation also ultimately vest

the right of expulsion of aliens with the state as its sovereign
prerogative. The only exception that seems to have been carved out
in this area is when the person faces a threat of persecution or
grave human rights violations on return, which is not the case with
these people. It seems to be highly unlikely that the government of
Bangladesh, which is already struggling with the problems of
population explosion and the rehabilitation of the rohingya
refugees, would be willing to take back these people as its own
nationals.77 In such a situation, these people would be forced to
either live in India as stateless people, who will merely have the
protection of Article 21 or they would be subjected to forcible
deportation, as the principles of non-refoulement are not applicable
in the given situation. The condition of these stateless individuals,
subsequent to the non-inclusion in the NRC would be worse than
that of the refugees, for the refugees can either avail the principles
of non-refoulement to stay in the host country or can force their
home country to readmit them under International law.
There seem be two possible solutions to this crisis, the first being
the Bangladeshi government absorbing all the illegal immigrants
into their country, which as discussed above is politically unlikely
and economically unsound from their perspective. The second can
be to grant Indian citizenship to all illegal immigrants, which
appears more feasible, as even at present it is our country that is
providing them with economic and social shelter. Additionally, it
would be in furtherance of the humanitarian responsibility of the
Indian state. The resentment amongst the local people upon
granting citizenship to the illegal immigrants could lead to severe
backlash, causing political and economic instability in the region.
Hence, the government must initiate a conciliation process with the
local leaders of the Assam movement which will facilitate a
compromise that would include both granting the illegal
immigrants the right to reside in the area and not give them
political rights for a period of time, as was also done in the Assam
Accord. Alternatively, a treaty can be negotiated with the
government of Bangladesh pursuant to which the immigrants can

77 Supra note 9.

42
Anushka Sharma Contextualizing Statelessness in the Indian Legal Framework

be sent back in phases which would not burden the economy of

Bangladesh. The Indian government can further promise economic
benefits as incentives to formulate a treaty to provide for a uniform
due process that would be followed by both governments to
combat statelessness. It is imperative that political leaders take the
initiative to resolve the crisis, as political will is of utmost
importance in finding a solution. The governments as well as the
citizens of both the countries must display the willingness to
resolve the issue amicably, in an expedient manner.

7. Conclusion

Dr. Ambedkar once remarked that Article 5, which dealt with

citizenship, was the most cumbersome provision to draft in the
entire constitution, as the world was going to scrutinize the Indian
citizenship policy based on it.78 Now, as we steer closer towards the
publication of the final draft of the National Register of Citizens
(NRC) in Assam, the eyes of the world would again be on the
Indian government’s policy to deal with this complex issue of
citizenship, which could turn around four million people, stateless.
Since, the laws as currently applicable in India, do not provide
sufficient protection to stateless people, it becomes necessary for
the government to adopt a humanitarian approach towards these
people and give due consideration to the vulnerable sections of the
society such as widows, who have no proof of residence, post
marriage or children whose parents are deceased.
The approach of the Supreme Court in dealing with the issue of
statelessness has not instilled hope in the stateless population of the
country; with the court largely favouring the government in its
design, to deport those who have been declared as illegal
immigrants. This is made evident by the increased inculcation of
stringent methods to establish the citizenship of an individual.
There being no provision to accord citizenship to illegal immigrants
by naturalization, the statutory framework governing citizenship in
India also fails to address this problem. The non-ratification of the
International Conventions governing statelessness by India, further
exacerbates the situation and cements the position of stateless

78 Katyal, supra note 35.

43
Christ University Law Journal Vol. 8, No.2 ISSN 2278-4322

people in a state of uncertainty and insecurity. There is a need for

the Indian government to either ratify the International
Conventions that govern statelessness and consequently formulate
a legislative policy in accordance with it or to deal with
statelessness effectively by amending the current laws by reducing
the scope of arbitrariness that exists regarding the status of these
people.
In the light of the socio-political framework as it stands currently,
the possible options to resolve this crisis seem to be either by
granting citizenship to the illegal immigrants or to negotiate a
treaty with the government of Bangladesh, pursuant to which the
latter agrees to take back these citizens, both of which seem
unlikely at this stage, as has been discussed previously in the
paper. Hence, it is imperative to find a legal solution for this
impending crisis so as to ensure that there are no people left
without the ‘right to have rights’, at the end of this exercise.

44