We have slowly and horrendously morphed ourselves into a society where there are taller buildings but shorter tempers, wider highways but narrower viewpoints. The government in force in the world’s largest democracy, India, cuts a sorry reflection of the aforementioned thought. Much like our vaunted soul-cousins, the United States of America and two of our less fancied neighbors, Pakistan and Myanmar, India has left no stone unturned in posing some serious challenges to the facets of international humanitarian law with its ethically abhorrent and internationally decrepit legislations, the cynosure of which is the recent Citizenship Amendment Act (CAA). It is a well known fact that the passage of the Bill by the Parliament on December 11, 2019 was met with widespread resentment, immense brainstorming on the part of academicians and policy makers, unprecedented levels of protests across various states, most notably in the states of Assam, West Bengal and Delhi along with a copious amount of petitions being filed in the Hon.’ble Supreme Court of India against the move. India embarrassed itself for the umpteenth time in the international community when the UN High Commissioner for Human Rights went on record to label the bill as one that was “fundamentally discriminatory in nature.”
The prime objective behind penning this article is to try and scrutinize the parameters which the CAA fails to address in relation to India’s international law obligations, the key to which is the International Covenant on Civil and Political Rights(ICCPR), which had been ratified by the country way back in 1966.
AN OVERVIEW OF THE LEGAL HISTORY
Section 2(1) (b) of the Citizenship Act, 1955 laid down the definition of “illegal migrant” more or less as foreigners who entered the territory of India without any valid passport or relevant documents for travel. The CAA went on the tet-offensive as it amended the definition to no person belonging to specific communities and entering India from Afghanistan, Pakistan and Bangladesh before 31st December, 2014 would thus be treated as someone who is an illegal migrant. The contention in this regard is highly problematic since it nefariously excluded the Muslim communities along with minorities from our neighbors, Myanmar and Sri Lanka. One cannot help but read between the lines to see this as a politically fuelled, discriminatory step.
In pursuance of the same, the Indian Government went on to create a National Register of Citizens in Assam, with any person failing to provide the complete set of documentation, quite a few of which are steeped in generational history, being deemed as an “illegal migrant”. Foreigners’ Tribunals were set up as an additional measure to hear the pleas of any person(s) who failed to adduce the relevant documentation to establish their citizenship prior to March 24, 1971. Without battling an eyelid for the 1.9 million strong populace that has been rendered “stateless”, the Indian state went on to set up detention centres in the state of Assam, with plans to expand the idea in a few other states and further add to the imbroglio of “statelessness” and “forced displacement”.
DEVIANCE FROM PRESENT INTERNATIONAL LAW
The first point that strikes the mind is that of Article 15(2) of the Universal Declaration of Human Rights, 1948, which curiously had been signed by India too. The article prohibits the arbitrary depravation of one’s nationality and even though it is not a legally binding piece of legislation, the CAA clearly overrides the right to nationality specified herein.
Article 2(1) of the ICCPR calls upon the States to guarantee rights without any distinction on the basis of certain specified grounds. The CAA, on the other hand goes on to mete out preferential treatment to the Muslims and notoriously excludes them from the framework altogether. This underlines the fact that the CAA is violative of Article 2(1) of the ICCPR as it discriminates on the basis of a person’s religious faith.
Furthermore, the detention camps in the state of Assam and elsewhere are a breeding ground for subversion of rights. The lack of documentation for millions of records shall be taken to mean that the detained populace shall not be subject to immediate expulsion and thus their detention seems to be indefinite and outright arbitrary. The guidelines on the detention of asylum seekers, that had been issued by the UN High Commissioner on Refugees, elaborates on the standards that shall apply mutatis mutandis to the stateless populations. However, the detention camps in the country and their abject environment is at loggerheads with the guidelines.
India has historically been contraband to a lot of the provisos concerning international human rights obligations. Our country has neither ratified the UN Convention Relating to the Status of Stateless Persons, 1954 nor the Convention on the Reduction of Statelessness, 1961, both of which seek to allot responsibility to the States and help protect the rights of stateless populations.
As the realm of International Humanitarian Law calls for “dynamic action”, it becomes imperative to read the fine print. Invocation of Article 12 (4) of the ICCPR, which gyrates ‘round the freedom of movement shall not be sufficient since the CAA might escape with a possible justification on the grounds of protecting the aims of public order and national security. One must therefore try and carefully notice the positioning of clause (4), since it has been mentioned after the restrictions stated in clause (3) of the same Article. At this juncture of the discourse, General Comment No. 27 on Article 12 of the ICCPR must be looked at. It tries to address the problem of forced expulsions by stating that the reasons provided by the States for such expulsion must meet the “test of proportionality” and must not be “expeditious”. Also, the verbiage of the article draws no separate thread between citizens and aliens, an idea consonant of a relationship beyond mere nationality.
PRECEDENTS ON STATELESS PERSONS: FROM THE ARCHIVES OF INTERNATIONAL LAW
It is important to note the case of Jama Warsame vs. Canada, one in which the UNHRC brought into the fore a wide range of factors that must be considered to help narrow down on “one’s own country”. The basket for such a test constituted factors like ties with the family, the mother tongue, the duration of residence in a country, among others. The UNHRC was of the opinion that these went on to advocate “strong ties” and helped in creating a direct, proportionate link between the individual and the State, even when formal nationality was absent. The same ideas have been echoed by the UNHRC in the case of Nystorm vs. Australia as well.
In the case of Stewart vs. Canada, the UNHRC recognized a category of individuals who might have been stripped of their nationality but still continued to forge a special, unfettered tie with the country in question. The UNHRC went on to expound that such categories of people shall therefore be given protection under Article 12(4), allowing them to enter (and remain) in their “country”.
Let us now look at the stateless population from an Indian perspective. Scores of them might have stories of their ancestors having migrated after the Partition of India in 1947 or when the Bangladesh War erupted in 1971. These communities might fail to meet the “foolproof documentation” required by the government but unquestionably possess valid socio-cultural, economic and political ties with India. Another argument working in favor of these communities is their religious, cultural and ethnic similarities to the other communities in the various states. If the grounds listed by the UNHRC through its judgments were to be read hand-in-hand with the situation of these communities, India shall very well be described as their “own country”.
INDIA’S DIALECTIC STAND TOWARDS REMEDIES
The hard fact remains that the remedies discussed above remain restricted in our domestic and international realms. Firstly, Article 253 of the Constitution of India grants the Parliament the power to enact law(s) for the implementation of a treaty. This issue must be read in light of the fact that even though there is a violation of rights under the ICCPR, it stands no ground for action unless a statute implementing those rights is introduced in India. Secondly, India had made a clear reservation to Article 13 of the ICCPR, thus allowing us to subject the foreigners to municipal law without external interference. Thirdly, India has also refused outright to ratify the First Optional Protocol of the ICCPR, which elucidates the process of individual complaint mechanisms for individuals who claim that their rights under the ICCPR have been violated and who have ended up exhausting domestic remedies of all kinds.
We are midway through 2020, having ushered in a new decade mired with complexities and challenges. The UNHCR needs to seriously rethink the absolute freedom that has been given to the States to tailor their suitable covers for nationality. The crisis of the stateless in Assam and the other Indian states is reflective of a bigger conundrum: the dualist and often misinterpreted conception of nationality in the horizons of international law. It is time for India and a host of other nations to carefully revamp their policies to recognize an individual’s relationship with the State on a variety of levels instead of a rote, hard-bound and formal definition of nationality per se.
ABOUT THE AUTHOR
Pranoy is a third-year student at National Law University and Judicial Academy, Assam. He is currently engaged as a Research Assistant with the Center for the Study of Law and Culture, Columbia Law School. He has an avid interest in the areas of Intellectual Property, International Humanitarian Laws, Gender Justice Laws and Dispute Resolution. He can be reached at email@example.com.