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Individual, Nationality And Statelessness - International Law and India

Updated: Sep 4, 2021

Statelessness is defined under Article 1 of the 1954 Convention on refugees as one who is not considered as a national by any state under the operation of its law. The status of statelessness puts the lives of individuals at stake and vulnerable to forced displacement. As per the estimates at least 10 million people are stateless worldwide. In this present decade, we have witnessed numerous incidents pertaining to political wars ranging from the Syrian War to the Rohingya refugee crisis. Arbitrary deprivation of nationality on discriminatory grounds may on its own give rise to a well-founded fear of persecution, in particular where it results in statelessness. There are two categories of stateless persons

  • De-Jure: Persons who are not national of any state either at birth or those who during their lifetime lost their own nationality.

  • De-Facto: Persons who themselves renounce the assistance and protection of the countries of which they are national.

Causes of Statelessness

Some of the common causes that may lead to the condition of Statelessness are:

  • Discrimination against Minority: In some cases, minority groups have either been prevented from acquiring the nationality of the country in which they reside or have been arbitrarily deprived of their nationality such as Rohingya.

  • Gap between the Laws: One gets his citizenship either through the birth connection or through descent route. However, if a person is unable to prove his link with a country will be at risk of becoming stateless.

  • Gender Based Discrimination: In a large number of States that apply jus sanguinis, only men are able to pass their nationality on to their children. These situations arise when two people from different countries marry each other and either of the states refuses to recognize their child.

  • Succession by another States: This kind of situation arises when their origin country disintegrates, dissolves, ceases to exist or their country comes under the control of another country. This leads to loss of national identity.

Modes of Acquisition and Loss of Nationality

In general, all the States have different sets of rules for granting nationality. However, the principal modes of acquisition of nationality are:

  • Jus Soli: by Birth, including birth on the territory.

  • Jus Sanguinis: by birth to a citizen parent i.e. by descent

  • Naturalisation: Under this, a state may prescribe in its law in order for a person to be naturalized as one of its citizens. The most prevalent is a residence requirement, requiring residence in the state territory for a prescribed period.

Loss of Citizenship

There are certain situations wherein a citizen stops or ceases to be a lawful citizen of the country.

  • Voluntarily relinquishing nationality

  • Where a citizen fails to adhere to legal obligations, his/her citizenship can be cancelled.

Nationality under Indian Laws

Article 5-11 of the Indian Constitution primarily deals with the regulation of Citizenship. Article 11 empowers the Parliament to enact laws for the acquisition and termination of Citizenship. The Citizenship Act of 1955 provides five different ways for acquiring citizenship.

  • By Birth- It states that anyone born in India on or after Dec 3, 2004, will be considered as a citizen by birth, if one of the parents is a citizen of India, while the other is not an illegal migrant.

  • By Descent- Under Section 4 of the Citizenship Act, 1955, a person born outside India shall be considered as a citizen of India if either of his is a citizen of India at the time of his birth provided that his birth must be registered at an Indian Consulate within 1 year of his birth. He must not be carrying a passport of another country.

  • By Registration: Under this, it provides citizenship to such persons including a minor, a spouse of an Indian Citizen, who are not ordinarily resident of India. However, they must fulfill the condition laid down under Section 5 of the Citizenship Act, 1955. The condition includes that the applicant should not be an illegal migrant and must be residing here for at least 7 years.

  • By Naturalisation: A person may apply for citizenship of India if he is not an illegal migrant and has either resided in India for the period of 12 months prior to the date of application.

  • By Incorporation: If a foreign territory becomes a part of India, the residents of the region become a citizen of India. Such people become citizens of India after the notified date.

Loss of Citizenship under Citizenship Act, 1955

  • By Renunciation of Citizenship voluntarily.

  • By Termination where an Indian citizen voluntarily acquires the citizenship of another country without duress

  • By Deprivation in case of obtaining citizenship by fraud, disloyalty to the Constitution of India.

Statelessness under Indian Law

In India, the Foreigners Act (1946) is the primary law regarding non-nationals in India. This Act gives the Central Government the authority to prohibit, regulate or restrict entry of foreigners into and out of India. Further, the Passports Act, 1967, issues three types of documents: passports, travel documents and certificates of identity.

Under Part II of the Passport Rules, 1980, stateless persons residing in India, foreigners, whose country is not represented in India, or whose national status is in doubt, may qualify for a ‘Certificate of Identity’.The Passports Act is by far the most advanced Indian legislation relating to statelessness, as it is the only law so far that recognises such persons in their own category and provides them with an identification document.

Consequences of Statelessness

Deprivation of national identity leads to the non-availability of numerous basic rights which an ordinary citizen must enjoy. Statelessness affects socioeconomic rights such as

  • Health and Well-being, where existent, is dependent on legal status, the ability to produce identity documents.

  • Lack of national identity may lead to deprivation of food resources and ultimately threat to livelihood.

  • Foreigners and stateless minority groups often become victims of hate speech

  • It may curb movement restrictions

  • Statelessness increases vulnerability to arrest and arbitrary detention.

International Conventions on the issue of Statelessness

Statelessness was first recognized as a global problem during the first half of the 20th century. Adoption of the 1948 Universal Declaration on Human Rights was the first to recognize the right to nationality as a fundamental right. Article 15 of the 1948 Universal Declaration of Human Rights provides:

  1. Everyone has the right to a nationality;

  2. No one shall be arbitrarily deprived of his nationality or denied the right to change his nationality.

Since the adoption of 1948 Universal Declaration of Human Rights, the right to a nationality has been reiterated in every subsequent universal and regional human rights treaty. There were further conventions that tried to address the grave concerns of Statelessness:-

  • Convention relating to the Status of Refugees, 1951: This Convention enumerates that refugees should not be sent back to the countries where they face serious threats to their life or freedom except war convicts or those people who are considered as dangerous to the security of the country. This Convention also highlights certain safeguards for the prevention of discrimination and other basic rights such as the right to employment, rationing, etc.

  • Convention relating to the Status of Stateless Persons: This convention of 1954 was implemented as a concrete step to set up a specific regime for stateless persons. . It provides the definition of a stateless person and establishes minimum standards of treatment for stateless people with respect to a number of rights. These include the right to education (under Article 22), employment (Article 18), and housing (Article 21). The 1954 Convention also guarantees stateless people a right to identity, travel documents, and administrative assistance. Further, Article 16 of the Convention provides free access to court to all the Stateless persons in the concerned State.

  • Convention on the Reduction of Statelessness: The 1961 Convention requires that States establish safeguards in legislation to address statelessness occurring at birth or later in life. It also sets out important safeguards to prevent statelessness due to loss or renunciation of nationality or state succession. The 1961 Convention also sets out the very limited situations in which States can deprive a person of his or her nationality, even if this would leave the person stateless.

Other International Instruments

There are other International instruments also that contain provisions relating to the right to nationality and contribute to the protection of stateless persons and the prevention of statelessness.

  1. International Covenant on Civil and Political Rights,

  2. The International Convention on the Elimination of All Forms of Racial Discrimination,

  3. The Convention on the Elimination of Discrimination against Women,

  4. The Convention on the Rights of the Child,

  5. The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, and

  6. The Convention on the Rights of Persons with Disabilities

India and the International Conventions

States set the rules for acquisition, change, and loss of nationality as part of their sovereign power. India is home to 2.44 lakh refugees and asylum seekers. In India, foreigners are governed under the Foreigners Act of 1946. India is yet to accede to the 1954 and 1961 Convention that could have addressed the issue of statelessness by adopting changes to include stateless persons in the mainstream community. These Conventions have the potential to reduce further incidents of Statelessness, which, in turn, leads to numerous cases of violation of human rights and illicit trade. India does not have a refugee policy or a refugee law of its own. This has allowed India to keep its options open on the question of refugees.

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