How Indian Law Produces Statelessness

By Charlotte-Anne Malischewski

While at the Calcutta Research Group, one of my tasks has been to look into the legal aspects of statelessness in India to compliment the extensive archival and field work conducted by the CRG over the last three years in mapping the statelessness situation in India. In my research, I learned that India has numerous legal provisions with actively produce statelessness.

Wait a minute, what’s statelessness again?

Article 1 of the 1954 Statelessness Convention, a stateless person is one “who is not considered a national by any State under the operation of its law.”  Since that definition is now widely understood to be customary international law, meaning it should be applied by all states including those not party to the convention and Article 51(c) of the Indian Constitution provides that India “shall endeavour to foster respect for international law and treaty obligations in the dealings of organized peoples with another,” it follows that, regardless of whether or not the state accedes to either statelessness convention, this definition of statelessness carries the weight of law in India.

So, those who do not have a legal bond with any state are unambiguously de jure stateless. When this narrow definition is applied, however, it usually only covers those who are not automatically granted nationality at birth by the application of state legal instruments, those without nationality who are unable to obtain it through establish legal provision for its acquisition, and those whose nationality is revoked or terminated for any reasons and who do not have a second nationality.  Indeed, the 1954 Statelessness Convention definition precludes those with a legal bond with a state without ensuring that that bond carries with it particular rights, entitlements, or guarantees.  Because there is no universal standard for citizenship or nationality and because discriminatory laws, policies, and practices can mean that citizenship is experienced unequally between those citizens of the same state, it is possible for those with citizenship to experience it in such an ineffective manner that their experience mirror that of those who are de jure stateless.

The term de facto stateless, therefore, exists to describe the position of those who fall within the large range of people whose lived experiences are essentially of statelessness, but who do not form a part of the smaller group of people able to satisfy the de jure  definition.  While the term carries no legal definition and there is no clear consensus about its meaning in the literature, the term is generally used to refer to those who are unable to disprove the assumption that they have a nationality and those whose legal bonds of nationality is ineffective.

Isn’t that a bit restrictive?

Yes, I think so.  This definition rests on an assumed binary opposition of the citizen or national against the stateless person, which fails to account for the complexity of lived realities. In practice, many stateless people are unable to have their status recognized as such and legal bonds of citizenship are not always effective. States generally operate with a presumption of nationality, which makes it impossible for those whose nationality is unknown, but who have not been found to have established that they are without nationality to access protection as stateless people. Additionally, many states have demonstrated reluctance to classify certain people as stateless and others do not recognize the stateless status of those whose citizenship they have denied.  Matters are substantially complicated when the effectiveness of a person’s nationality are considered.

Ok, so how is it that Indian law produces statelessness?

A number of explicit provisions in the Citizenship Act of India, 1955 provide legal means by which a person in possession of Indian citizenship may lose that legal bond. First, renunciation (under section 8) entitles Indian citizens to renounce their citizenship even if by doing so, they would become de jure stateless and can deprive children of their Indian citizenship on the basis of their father’s actions in such a way that may leave them stateless until they reach the mandated age to resume their Indian citizenship by declaration. Second, termination (under section 9) leaves open the possibility that those whose citizenship is terminated end up de facto statelessness, because there is no guarantee that the non-Indian citizenship that has been voluntary acquired is an effective one. Finally, deprivation (under section 10), in no uncertain terms, provides for creates statelessness by prescribing it as punishment for certain action and inaction.

So, what’s to be done?

Simply put, India must stop legally sanctioning the production of statelessness. It should revise its citizenship laws such that citizenship cannot be revoked from those who would be rendered stateless by such an act.  It must, however, be remember that addressing statelessness in India, like elsewhere in the world, is not merely a legal question. The existence of effective rights and entitlements goes much beyond the courtroom to the political arena and socio-cultural milieu.

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