Statelessness: A Man Made Malaise

~Earl Warren

Citizenship is associated majorly with political privileges and that of being able to belong. In an ever-evolving world and with politically organized societies, being left-out can be frightfully disturbing, for it brings along generational existential insecurity. The idea of 'State' is man-made and abstract, yet holds utmost significance when it comes to belongingness. It is correct that one can be known for the village he resides in, the religion he follows, the caste he was born in, the language he speaks or the occupation he pursues, however, since the very primitive days, it is the membership to a politically organized community; the 'State', that carries with it functional rights and duties.

Even as human beings, we hold certain moral obligations and rights, yet, in true sense, these rights are only enforceable when backed with political recognition provided under the legal regime of a 'State'. All spheres of our life circle around the 'State' we are a part of. For instance, medical needs, schooling, employment, everyday security and protection, all depend upon and revolve around one's membership to a State. In its absence, chaos is inevitable. Yet surprisingly, as per the UNHCR, there are many millions globally who lack an identity and are stateless. Not to be a citizen is directly proportionate to living a life in perdition; for such persons are not covered by any law or jurisdiction. They can be detained for the very reason of being stateless. If they are ripped off of their possessions, it is little they can do for there is no police station that would report the incident. They can easily be made to part ways with their families. Hunger, diseases, survival sex and unawareness are part of their lives, making them absolutely vulnerable to numerous wrongs. For every wrong inflicted upon them, there are no doors they can knock or authorities they can approach; and eventually it's a perpetual loop of dreadful nightmares they are stuck with for the remaining days, months and years of their lives. Even after all the odds, if they do wish to survive, it is only the illegal routes that are available. Either way, they have to settle between the devil and the deep sea.

William Samore in his essay on statelessness talks about the causes of the loss of nationality. Interestingly, he relates the same with the methods by which nationality is acquired, the most of them common being birth, minority and marriage. It won't be absurd to think of statelessness as a disease that can be inherited. Apparently, the lines drawn on a "political" world map are considered so important, that one tends to forget that these are shadow lines and there are many more aspects that the governments of the countries should cater to, instead of being fanatical about these imaginary territories.

The United Nations, in order to curb the situation at hand and with an aim to reduce in-human activities emerging out of statelessness, brought forth several conventions such as the 1951 Convention relating to the Status of refugees, the 1954 Convention relating to the status of stateless persons and then the 1961 convention on reduction of statelessness. All the aforesaid conventions deal with protecting the rights of refugees and those who find themselves stateless. Refugee Convention is a Multilateral Treaty of the United Nations dealing with the protection of refugees. It sets forth various rights available to such persons and highlights the legal duties and obligations of the concerned State. It states that refugees who have a risk of facing persecution or a threat to life in their home land, must not be sent back and be given refuge accordingly. Right to freely move within the territory, right not to be punished for illegal entry while in the territory of a contracting State and a right to have a house are major fortes the aforesaid convention focuses upon. In fact, the UDHR through its Article 15 states that "everyone has the right to nationality". It is a strange paradox that despite having innumerous laws established in favor of those who are stateless, thousands and millions fall prey to it every year. As a matter fact, in every 10 minutes, a child is born stateless.

As far as the Indian Scenario is concerned, there are many who have taken refuge in India. However, countless persons still roam around, carrying anonymous identities, hiding away from the civil authorities. In August 2019, the State of Assam released a list of persons who were eligible to register themselves as Indian Citizens. The purpose behind having a National Register of Citizens (NRC) was to prevent influx of illegal migrants from other parts of the world. Almost around 19 lac people were removed from the NRC and their fates were left with the hands of those privileged. To be called an Indian, one has to furnish proofs of his residence in India before the cutoff date i.e. 25-03-1971. Accordingly, documents evidencing that the person himself or his ancestors have entered the country before the cutoff date are must. The question then arises is, 'What if the person does not hold any such document?' 'what if the documents were destroyed during the floods?' or 'what if there were no documents at all?' Those of all excluded from the NRC are required to file an appeal to Foreigner's Tribunal and thereafter to the High Court and the Supreme Court. However, if in the end, the person actually fails to prove his citizenship, he shall face an arrest and will be sent to detention centers. The availability of limited space, scarcity of food and water, criminal activities, survival sex and the unhygienic conditions one is forced to live in when he is in the detention center is a topic of discussion better left for some other time. Violation of human rights in the cruelest forms is sometimes seen, which obviously goes un-reported.

Prevention and Reduction of Statelessness would only find its way if the States join hands, as determination of a person's nationality is essentially a prerogative of State sovereignty. Individuals can become stateless simply by falling in the cracks created by the inconsistency between domestic laws and the international framework. There is no doubt as to existence of glaring gaps in the Indian legislature when it comes to defining and dealing with the issue of statelessness, yet, it is only a limited number of cases wherein the Indian Courts have expressed and dealt with the question. The Courts have been seen taking a back-seat when it comes to defining or explaining the concept of Statelessness. However, it is also true that the Courts in India have been proactive and taken a different approach to avoid any occurrence of statelessness by applying principles of equity and that of natural justice. In 2019, in the case of "Philip Mammen Koshy vs Ministry Of Home Affairs" the Hon'ble Madras High Court held the following:

"…But in spite of all the action that was initiated at some level, unfortunately, the claim of the petitioner for citizenship has not been either rejected or considered favourably. Somewhere the procedure for grant of such citizenship has blocked the efforts of the administration to take the claim of the petitioner to its logical end. The petitioner who is living in this country for as many as 32 years as of now, cannot be made to suffer statelessness despite being an Indian descent and his father being Indian national and citizen of this country. Unfortunately, it appears that the claim of the petitioner has been caught up in procedural wrangles and rigmarole resulting in abject negation of right of the petitioner to be a citizen of this country. If a person who is admittedly an Indian descent and whose Singapore Passport has already been revoked long ago in 1997/1998 itself, cannot be reduced to the level of refugee in his own country and cannot remain a stateless person having no right whatsoever at all for his life time. Despite his stay in India for over three decades, the petitioner's status has not been defined or regularized and if his stay is not regularized in India, where can he go without any Passport. The petitioner who has stayed in this country for over 30 years now, due to intervention of this Court for some time, cannot suffer ignominy of being stateless and denied Indian Citizenship due to procedural insistence…"

The aforesaid observation were made keeping in view the 'basic right to Nationality' as per Article 15 of the UDHR and in furtherance of protecting the rights of an individual. From the observations of the Court, it is clear that the judiciary is definitely working towards making things easier and carving out any administrative attributes.

In yet another case titled "Kiran Gupta vs The State Election Commission" in 2020, giving validity and support to various international conventions with respect to reduction of statelessness, the Hon'ble Patna High Court has made the following observations:

"…There is no doubt that matters of nationality, migration, and immigration are a nation state's sovereign prerogative. In Indian law, this prerogative is vested in the Government of India under the Citizenship Act, 1955, which flows directly from Article 11 and Entry 17 of List I of the Seventh Schedule of the Constitution. However, the development of international relations and international law over the past few decades has placed certain consideration on the state's prerogative in regulating nationality. Article 51(c) of the Constitution mandates the State to foster respect for international law and treaty obligations in the dealings of organized people with one another. The UNHRC 1954 Convention Relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness are presently the leading multilateral treaties about the prevention and reduction of statelessness. Both conventions simply confirmed the prevailing international law custom of a state's duty to prevent and reduce statelessness…"

Pointing towards the duty of the State, the Court further observed;

"…Yet, at the same time, this Court is not permitted to direct the Central Government to grant the petitioner Indian citizenship. This would impinge upon the Executive's functions. However, in light of the peculiar situation of the petitioner; her ordinary residence and family life in India; and India's international law obligations to prevent statelessness, we direct that upon receipt of the petitioner's application, if so filed, the appropriate authority may consider her application expeditiously, keeping in mind the complications that have emerged in her legal status as enumerated above…"

There are various complexities when it involves a question of citizenship, since every case is unique in itself and may pop up a separate question of law. The Administration in such cases cannot be allowed to take refuge behind procedural formality and deny a person of all rights and reduce him to an existence without any life in it. This would ultimately result in filing of multiple cases in the Courts. The only aspect the Governments need to stress upon is the welfare of society at large, while ensuring sovereign peace is maintained and no person is unnecessarily forced to live a life, which can simply be termed as 'sub-human'.

The issue has been present since the days of yore, yet was only brought to light after the world saw the dreadfully lasting effects of the World Wars. No one can erase from the history, the fate which the Jews, stripped off of their citizenship were made to face. Or, recently the Afghans who are struggling for an identity are facing. It is upon the societies to now recognize the fate of such individuals and be pro-active while dealing with such cases. A little humanity would not hurt anybody. The earth does not only belong to a handful of political leaders who decide the future of this place, but even to those who have somehow been ousted of their very basic rights. It is the duty of every state, its leaders and the citizens to be vigilant while dealing with their fellow mates. They are no criminals, but can surely be forced to become one, if not provided for well. Even though there are mechanisms set out internationally and even domestically to deal with cases of statelessness, there is still a long way forward to achieve the desired results and make this world free from the concept of it all. Statelessness is not a natural disaster but a malaise created by men. But are we so obsessed with the borders, that we completely let go of the humanity within us, is a question to ponder upon!

About the Author: Mr. Karan S. Thukral, Advocate is the practising and managing head at the Thukral Group formerly known as the Thukral and Associates. Views are personal.