Article 7 of the Convention on Rights of Children provides that a child has the right to acquire nationality immediately after its birth. Article 7(2) specifically mentions that domestic laws should respect this right in cases where the child would otherwise become stateless. However, nations, including India, have gradually moved towards a jus sanguinis citizenship where one’s descent determines the grant of citizenship. In this article, we have sought to analyze how this shift has not only led to the scope for the creation of statelessness but also the denial of human rights. We have also taken South Africa as a point of reference, which has provided adequate safeguards against the creation of statelessness despite moving towards a jus sanguinus citizenship. Further, we have also analyzed some of the judgments of both the countries to understand the different approach taken by the judiciary in this regard.
Statelessness In India
Section 3 of Citizenship Act, 1955 originally conferred citizenship based on birth to everyone born in India. However, in 1986, through an amendment, the grant of citizenship was restricted to children born in India, either of whose parents were citizens of India at the time of his/her birth. By a subsequent amendment in 2003, citizenship at birth was restricted to only those children, both of whose parents are citizens at the time of birth or either of whose parents are citizens while the other parent is not an illegal migrant.
The Act defines an illegal migrant as a foreigner who has entered India without valid documents or who has overstayed beyond the permitted date. Further, the Act does not allow illegal migrants to naturalize as citizens. Given that the Citizenship (Amendment) Act, 2019 only exempts a selective class of people from the ambit of illegal migrants, based upon their religion, children of the rest also cannot acquire Indian citizenship, even if born in India. The Apex Court has also confirmed in Assam Public Works v. Union of India, in the context of the up-gradation of the National Register of Citizens (NRC) in Assam that children born on or after 3rd December 2004 will not be included in the NRC if any of the parents is an illegal migrant. Since every citizen has to compulsorily register in the NRC, not being included would entail a loss of citizenship.
The 1954 Convention on Reduction of Statelessness has defined a stateless individual as ‘a person not recognized as a national by any State under the operation of its law’. However, in the 1961 Conference on the Elimination or Reduction of Future Statelessness, Resolution No. 1 of the Final Act of the 1961 Conference on the Elimination or Reduction of Future Statelessness recommends the States to give nationality to both de jure and de facto stateless persons (Page 23). De facto Statelessness refers to people who are outside their country of nationality and unable to take its protection (Page 61). Even though India is not a party to this Convention, the term ‘Stateless’ has not been defined under any Indian law.
Rights of Illegal Migrants
Given that these illegal migrants are deprived of citizenship, it is vital to analyze whether they are entitled to other human rights. Article 21 of the Indian Constitution grants the Right to Life and Liberty to every person. This Article grants the right to procedural due process to every person. However, there have been instances where the courts have shown reluctance to grant it to non-citizens, especially those deemed to be illegal migrants.
In Louis De Raedt vs Union of India, where the accused foreigner alleged that he was expelled without giving any notice because his documents had expired, the Apex Court held that the Executive Government had an unrestricted right to expel a foreigner. The court said that there was no hard and fast rule pertaining to the manner of hearing. Further, the Court also observed that even if the person received a notice, it has not been shown that he could have proven his citizenship before the Authorities. Thus, although the Court held that Article 21 extended to foreigners, its benefit was not granted in the form of a notice and hearing. This reasoning is flawed because the outcome of the hearing cannot be a justification for not giving a hearing in the first place. Further, it is also contrary to Supreme Court’s decision in Maneka Gandhi vs Union of India, where it was held that a person had right to be heard even before making any quasi-judicial or administrative decision.
Basic principles of human rights were also not applied to illegal migrants in the controversial case of Sarbananda Sonowal vs Union of India. In this case, the constitutionality of the Illegal Migrants (Determination by Tribunals) Act, 1983 was challenged. This Act was applicable only in the State of Assam to detect illegal migrants. The Act was based upon the international standard of ‘presumption of innocence’, where the burden of proof lay on the person or authority alleging that someone was an illegal migrant. However, in the rest of India, the Foreigners Act, 1946 applied which had a ‘reverse onus’ clause, placing the burden of proof on the person itself, to show that he or she is not a foreigner. The IMDT Act was held unconstitutional by the court for providing more procedural safeguards than that under the Foreigners Act which made the latter applicable in the State of Assam.
When procedural fairness under Article 21 was argued to defend the IMDT Act, the Court held that since proceedings under the IMDT Act were not criminal trials, procedural fairness under Article 21 would not apply. However, the Court failed to consider that Section 14 of the Foreigners Act clearly mandates imprisonment for whoever resides in India without valid documents. Thus, if the Foreigner Act is applied for detecting illegal migrant, then the person would undergo through a criminal trial. Further, in the Maneka Gandhi case, the Court had held procedural safeguard is an indispensable essence of Article 21. (Paragraph 124) Given the fact that lack of citizenship could render anyone stateless, thus it is imperative that procedural safeguards and fairness is maintained in such trials.
The Stateless Exception in South Africa
The South Africa Citizenship Act, 1995 governs the citizenship regime in the country. It has also shifted from jus soli to jus sanguinis form of citizenship over the years. The amended Act of 2010 states that any person born in the territory shall require at least one parent with South African citizenship.(S. 2(1)(b)) Such a provision significantly restricts the acquisition of citizenship for all persons born in South Africa to non-citizens.
However, in consonance with the several international conventions ratified by it, South Africa has recognized a child’s right to nationality at birth in its Constitution, and has provided the ‘Statelessness Exception’ in the law.(S. 2(2)) Thus, citizenship can be granted to individuals born in South Africa who do not have the citizenship or nationality of any other country or have no right to such citizenship or nationality, so long as the birth is duly registered. It grants these children a right to nationality by birth, thereby making them eligible for all other rights and privileges guaranteed to citizens.
This provision has saved a child of stateless parents from becoming stateless in the Mulowayi case. Here, the parents were Congolese refugees who had renounced their Congolese citizenship before fulfilling the ten years ‘permanent residency’ period for applying for South African citizenship. Meanwhile, when the child was born, they were stateless, and subsequently, the child’s nationality was also rejected. However, the Constitutional Court held that the child has the right to nationality, although their parents are presently stateless.
In a recent judgment, the South African High Court also held that the right to education extends to undocumented children, including those who may be illegal migrants. It was observed that the right to education and other essential rights concerning a child should extend to every child within the boundaries of South Africa, irrespective of nationality and immigration status. This is also in agreement with the South African Constitution, which guarantees the right to education to everyone. This judgment is significant because it ensures that minor children of non-citizens enjoy socio-economic benefits at par with citizens, although the nationality is only granted upon attaining the age of majority. (S. 4(3)) The Court opined that the focus must be on proper immigration controls and not on the invasion of the children’s fundamental rights. (Paragraph 99).
Unlike South Africa, India has not provided any safeguards against Statelessness. Further, in contrast to South African judiciary which has interpreted its Constitution in letter and spirit, the Indian judiciary has mostly interpreted illegal immigrants as a ‘Security Concern’ rather than a human right issue. Thus, it has equated immigration to ‘external aggression’ in the Sarbananda Sonowal case (Paragraph 38). This approach has also prevented to grant Right to Fair Procedure mentioned under Article 21 of the Constitution to illegal migrants even though the Article applies to all individual. This is despite the fact that India is a party to the CRC and UDHR. Thus, it is pivotal that India recognizes ‘Statelessness’ in its domestic law so that India could comply with its international obligations.
 The 2003 Citizenship Amendment Act came into force on 3rd December, 2004.
ABOUT THE AUTHORS
Jyotishka is a fourth-year law student from WBNUJS. He is interested in issues concerning Human Rights and Comparative Constitutional Law Studies and is fascinated by Academic Writing. He has written articles advocating Prisoner’s Franchise Rights, misuse of sedition law to curtail dissent and the application of the RTI Act in judge’s appointment for greater transparency. He has also been the Associate Editor of Journal for Law and Society.
Srija Naskar is a fourth-year law student of The West Bengal National University of Juridical Sciences (WBNUJS). She is deeply interested in issues concerning human rights, gender and society. She has always enjoyed researching and writing and has written articles on the impact of the recent nationwide National Register of Citizens on the enclave exchanges between India and Bangladesh, status of the reproductive health of the sex workers in India, and on perceiving surrogacy from a Third World perspective.