Indian Citizenship: Surrendering & the bizarre right to be Stateless
“Why should citizenship be a matter of birth? The premise held by those who want to end birthright citizenship is that some people deserve it and some do not- that the status shouldn’t be handed out automatically. Frankly that’s a premise worth considering.- Eric Liu”
Citizenship is the status of being a citizen of a particular state. Along with citizenship come rights, privileges and duties of being a citizen. A person without the citizenship of any state is known as stateless. Under the scheme of international law, statelessness is the lack of citizenship. A stateless person is someone who is "not considered as a national by any state under the operation of its law.
Article 1 of 1954 Statelessness Convention, deﬁnes a stateless person is “who is not considered a national by any State under the operation of its law.”
There are two kinds of statelessness de jure and de facto. A person who is stateless and will be treated a foreigner by every country. This phenomenon can also be classiﬁed as de jure, though the term has not per se been mentioned in both the 1954 and 1961 conventions. Whereas, the term “de facto” has been referred to the Final Act of 1961 convention. Where the main contention lies is in what way a nationality should demonstrate itself to be ineffective, in order to warrant the use of the label of “de facto statelessness”
The Convention, after establishing who 'stateless persons' are, stipulates that those who qualify as such are provided, under the Convention, certain minimum rights and treatments such as right to 'non-discrimination, practice religion, artistic rights, gainful employment, freedom of movement etcetera.
Conﬂicting nationality laws are one of many causes of statelessness. Jus soli in layman terms knows as 'right of the soil' denotes a regime by which nationality is acquired through birth on the territory of the state. Jus sanguinis which is the 'right of blood' is a regime by which nationality is acquired through descent, usually from a parent who is a national. The concept is attracted when a person who does not have either parent eligible to pass citizenship by jus sanguinis becomes stateless at birth if born in a state which does not recognize jus soli.
An important step to prevent and dissuade the concept of statelessness at birth provides and embraces nationality to children born in a territory who would otherwise be stateless. This concept ﬁnds substance from the1961 Convention on the Reduction of Statelessness and ﬁnds force in several regional human rights treaties which include the American Convention on Human Rights, the European Convention on Nationality, and the African Charter on the Rights and Welfare of the Child pertinently implicit in the United Nations Convention on the Rights of the Child.
People may also become stateless as a result of administrative and practical problems, especially when they are from a group whose nationality is questioned. There have been publicized cases of individuals who became voluntarily stateless upon renouncing their citizenship like the "world citizen" Garry Davis and also Albert Einstein, who, in January 1896, at the age of 16, was released from his Württemberg citizenship after ﬁling a petition to that effect when later in February 1901 his Swiss citizenship was accepted. Generally states do not allow citizens to renounce their nationality unless they acquire another.
The statutory enactment governing the acquiring and termination of citizenship in India is governed by the The Citizenship Act 1955. As per Section 3 of The Citizenship Act, citizenship in India makes it an entitlement as a birthright of every person born in India providing if one of the parents is a citizen of India and the other parent is not an illegal migrant at the time of his birth, he shall be a citizen of India by birth. Then there is another provision in Section 5 of the 1955 Act which states that if a person wants to acquire citizenship of India by marrying a citizen of India then that person has to reside
in India for seven years including the period of twelve months immediately before making an application for registry. On the other hand, the condition on which a person cannot be granted the citizenship in India is if the person is an illegal immigrant. If the person does not have sufﬁcient documents to prove his/her nationality, he cannot get citizenship.
The provision for registration is for- by a minor child, a spouse of an Indian citizen and a person in general. For a minor child to be registered as a citizen under The Citizenship Act, 1955, one of the parents of the child should be a citizen of India. Though there is not mentioned what if the other parent is stateless or of unknown nationality. There is no such provision to deﬁne this. While section 6 of The Citizenship Act, 1955 states that a person can register himself as a citizen of India if the person is not an illegal migrant and has attained the age of majority.
The purview of Statelessness also ﬁnds place under the Indian law, though indirectly. According to the Indian Citizenship Act, section 8 is the relevant provision to renounce citizenship of India. It is a right given to Indian citizens to renounce their citizenship, and by doing this they become de jure stateless. Renouncing a citizenship follows with consequences also, once a citizen has renounced his or her citizenship in India, the children of such a person are also deprived of the citizenship in India. The children can resume their termination of the Indian citizenship within one year, after attaining the age of majority, if they feel that the decision taken for them during minority was wrong or unacceptable.
It is a strange paradox that earlier the renouncing of the Indian citizenship was only possible, when a person acquired a citizenship of another country. However after the amendment by the parliament in section 8 of the Act in 2014, the words 'acquiring of citizenship of another country' were omitted, which brought into formation the concept of statelessness. As per the present provision, an Indian citizen can renounce his Indian citizenship without even acquiring a citizenship of another country, which was necessary earlier.
Such a provision attracts two arguments altogether. On a positive front, the provision can be argued in support of a personal right for a person to decide whether he wants to continue his Indian citizenship or renounce his Indian citizenship and become a citizen of another country or just completely become stateless after renouncing. The essential part which entails renouncing of the Indian citizenship is that the person after renouncing his Indian citizenship also relinquishes away his right to domicile in the country.
On the other hand, the negative front brings out a mis-use of the provision by many immigrants. In a recent case, I personally represented a client from the US before the Delhi High Court, and the real latent nascent effect of the amendment of section 8 came out to be understood. The renouncing of the Indian citizenship without acquiring a citizenship of another country if done on a foreign land makes the matter more complicated. If an Indian citizen who is residing on a foreign land renounces his citizenship overseas and becomes stateless, he shall gain the rights as a refugee to domicile in the present country of abode. The individual shall lose his right to return to India after renouncing his citizenship, and even in circumstances where his visa on the foreign land expires, he shall circumvent deportation back to India.
Another section dealing up with one of the indirect sources of statelessness is section 9 of the act dealing up with the aspect of termination of citizenship. Any person who has acquired citizenship in India voluntarily, either by registration or by naturalization and has voluntarily acquired citizenship of another country also, the government shall with due notice terminate the citizenship. Section 10 on the other hand deals with deprivation and provides and creates statelessness by prescribing it as punishment for certain action and inaction.
This article is aimed to analyze India’s nationality laws in light of the current international legal framework surrounding statelessness. India provides a right to its citizens under Section 8 to renounce their citizenship which leads them to statelessness on their own will.
''The essential need to review exists, but the argument of a person's individual right to decide his status supersedes. Any decision on reviewing an already existing law in India has to go through the rigours which run not solely through the courtroom but much beyond to the political arena and socio-cultural milieu.''— Karan S.Thukral
© 2017 Karan S Thukral