Monday, April 28, 2014

Statelessness in India

Shuvro Prosun Sarker

The principal objective behind any research on statelessness in India should be to find out the communities/groups within India who are lacking nationality, rather protection of nationality, and to find out the means and methods to cover them under state protection or international protection. However, there is possibility that, this kind of research may trace communities/groups from both ways that ‘do not have the nationality of any state legally’ or ‘do not count on their state for protection’. It is noteworthy for a country like India that the second category has emerged from neighbouring states in relation to episodes of irregular migration because of sustained or systemic violation of basic human rights towards some communities/groups by their own state/ majority community. The situation actually leaves the victims virtually unprotected by the agencies of the state. This category of persons indicates that effective statelessness may no longer reflect in the relationship between the state and the person concerned. In one side there is hope that the host state will play a compassionate role and in other side there are strict law of the land which is defining the nature of nationality. All these factors raised the question of protection for this vulnerable class which may be called on by advocating for a new international protocol or evocative acts or advocacy for regional pact or direct national legislation.

Though there are two UN conventions on statelessness, but these two can’t make India liable to go by their terms as India has not acceded/ ratified/ adopted/ signed the conventions. The limitation of these conventions to reduce statelessness for a country like India is a writ of bit large as there is a growing number of people who are stateless de facto. Their human rights are more vulnerable as they have left the state to which they have a formal connection and also do not get protection by the host state as doubtful citizens. The relationship between protection of these stateless persons and human rights is one of the primary issues in India. It is necessary to consider for alternative protection for these stateless persons under the two human rights covenants as the hierarchy of non-citizens in a state highlights the gap between protection and human rights. There is expansion of non-derogable rights and the concept of social, economic and cultural rights started in the twentieth century, along with international affirmation of universality, indivisibility, interdependence and interrelatedness of human rights. All these should come together to consider the identification of specific groups/ communities whose human rights require special protection.

With regard to customary practices of international law, non refoulment is the principle with regard to refugees and stateless-refugees which is non-derogable in nature. Apart from that there is a significant body of international law that has elaborated the principle of nondiscrimination as a non-derogable norm that prohibits discrimination on the basis of race, ethnicity and related criteria. India’s acceding of ICCPR, ICESCR, CRC and ratification of ICERD and CEDAW have excelled the quantum of protection from the idea of compassion to rights. This development of a body of international law which triggered the prohibition of nationality based discrimination has been further encouraged by the advocacy efforts of international organizations, non-governmental actors, and particular states. Also the recent increase in public information and advocacy has served to remind international bodies and non-governmental organizations that the persistence of statelessness is a complex matter that underlines the centrality of effective protection. There is growing pressure from international NGOs, refugee organizations, and human rights monitoring bodies to provide protection to those who do not fall under either the refugee convention or the conventions on statelessness.

There is a specific case decided by the Supreme Court of India in the matter of chakmas from CHT, East Pakistan (presently Bangladesh) where the Court decided the case in favour of the chakmas with specific direction to process their citizenship application through the process established by law. It is mentionable here that a new public interest litigation, Swajan & Anr. Vs. Union of India & Anr., is pending before the Supreme Court right now asking for specific direction to confer citizenship/ refugee status to the Bangladeshi minorities staying in the State of Assam and the Court has already issued notice to the respondents Union of India and State of Assam. So it is evident that the expansion of human rights regime of stateless persons of the second category has got a positive momentum in India along with the expansion of locus standi of foreigners staying in India. Now it’s time to see whether Supreme Court comes out with a decision based on human rights consideration or on the ground of internal security and economic constraint of India. Countless number of deemed stateless or deemed nationals are looking forward to get Justice!

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