This article is written by Somya Jain, from the Vivekananda Institute of Professional Studies. The article analyses the concept of Jus Sanguinis citizenship and statelessness with respect to India and South Africa. It also establishes the current issue underlying the Citizenship Amendment Act, 2019.

Introduction

Citizenship, by many, is presumed to be one’s national identity determined by birth, ancestry, ethnicity, culture and upbringing. Legally speaking, citizenship is considered to establish a relationship between an individual and the corresponding nation-state. Possessing citizenship of a country will grant an individual all the prospective rights that a citizen of that country has. Rights such as the right to vote, protection by the state, the right to hold office etc, are acquired with citizenship. 

Although nationality and citizenship are used interchangeably, there lie differences between the same. The most substantial difference between the two is while citizenship is a legal concept and is generally provided by the government on effectuating the provided conditions, on the other hand, nationality is a racial and an ethnic concept that is acquired mainly by birth. Further, citizenship can be changed but nationality on the other hand cannot be changed or reversed. 

There are two main doctrines that govern the granting of citizenship. They are:

  1. Jus Soli- it is a type of citizenship that is given on the basis of birth in a country.
  2. Jus Sanguinis- It is that type of citizenship that is conferred upon a person based on his/her parent’s nationality. Basically, the child obtains citizenship through descent independent of where his/her parents are born. So, a child born in India must have at least one parent who holds Indian citizenship for the child to obtain the citizenship of India. 

Understanding statelessness as per International Law

According to Article 15 of the Universal Declaration of Human Rights (hereinafter UDHR), every person is entitled to a nationality. This connotes that no person should be stateless by avoiding it by all means, through the possession of nationality. The concept of statelessness has been largely covered under two conventions namely, the Convention on Status of Stateless Persons, 1954 and the Convention on Reduction of Statelessness, 1961

Article 1 of the 1954 Convention relating to the Status of Stateless Person defines a stateless person as a person who is not considered a national by any nation under the operation of its laws. According to this definition, the Convention will be applicable to those persons who do not have any nationality as compared to those who have no effective nationality. The present Convention elaborates the rights and duties of the stateless person in a country. Further, Article 3 of the Convention specifies that every contracting state will apply the provisions of the Convention without discriminating against the stateless persons on the basis of religion, race and country of origin. 

1961 Convention on Reduction of Statelessness was constituted with the aim to eliminate statelessness from all aspects and giving effect to Article 15 of UDHR. Article 1 and Article 2 of the Convention establishes the treatment of a stateless person by either granting nationality on the basis of birth or upon application or by granting nationality to those children who are found to be abandoned in a respective State. 

The statelessness can be divided into De Jure and De Facto statelessness. De Facto statelessness can be defined to include people who are outside their country of nationality and unable to take its protection. In other words, the question of not holding an effective nationality is covered under the scope of De Facto statelessness. As far as De Jure statelessness is concerned, it extends to cover all those people who are not considered as a national of any State under the operation of its law. The term De Jure has not per se been mentioned in either of the Conventions discussed above. On the other hand, the term finds its way back to the Final Act of the 1961 Convention. However, according to 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, the States are mandated to provide nationality to both De Jure and De Facto stateless persons. 

Another prominent Convention relates to the rights and status of the refugees in signatory countries. The 1951 Convention relating to the Status of Refugees defines the term refugees and outlines the rights of refugees, as well as the legal obligations of States to protect them. The underlying principle in the Convention was non-refoulment. That is to say, a refugee should not be sent back to his country where he would face serious threats of life and freedom, barring certain exceptions of people like war convicts or who are dangerous to the security of the country. 

The International Covenant on Civil and Political Rights, adopted in the year 1966, ensures numerous human rights to people ranging from freedom of thought and expression, protection from torture and inhuman treatment through punishment, fair trial rights, privacy to non-discrimination on the basis of religion and other factors. 

The International Covenant on Economic, Social and Cultural Rights 1996, seeks to ensure that the economic, social and cultural rights of the people are observed irrespective of his/her citizenship. As far as the concept of statelessness is concerned, if a person is denied citizenship in the contracting States then it would exclusively deny the said human rights. Therefore, every contracting State must ensure that statelessness is removed paving the way for fulfilling the above stated rights. 

Another Convention in the international forum is the Convention on the Rights of Child 1990. Recognising the status of a child, who is most vulnerable to statelessness, this Convention was introduced. As per Article 7 of the Convention, every child has a right to obtain nationality immediately after his birth. Further, the Article states that every signing State should assure the implementation of these rights as far as possible so that no child is left without any nationality. 

Statelessness in India

Legislations governing citizenship and statelessness in India have been in constant rumours for some years now. The creeping whims of the concept of citizenship have occurred due to India’s denial of committing towards the established International Law. India is not a signatory State of Convention on Status of Stateless Persons, 1954 and the Convention on Reduction of Statelessness, 1961. Further, India failed to ratify the Refugee Convention of 1951. Despite such advancements in International Law, India refuses to incorporate these positive changes under its domestic Laws. This rejection has adversely affected India as no robust system for citizenship has been provided to the citizens. The concept of nationality has been separately dealt with by India in a number of legislations. Some of them are:

The Constitution of India

The Constitution of India is the first document which deals with the provision of citizenship. Article 5 of the Constitution elaborates citizenship at the time of commencement of the Constitution. Although the Indian Constitution nowhere mentions the definition of citizenship, Article 5 expressly establishes who should be a citizen of India. It specifies that any person who is either born or whose parents were born on the territory of India, or who has been ordinarily resident in India for at least five years before the commencement of the Constitution, shall be deemed to be a citizen of India if he had a domicile in the territory of India at such commencement. Further, Article 11 of the Indian Constitution empowers the Parliament to either make or resolve the laws relating to citizenship. 

As far as the word domicile is concerned, a plethora of judgments have been passed defining the same. In the case of Abdus Samad v State of West Bengal (1973), the Supreme Court defined domicile as a place which a person has fixed for his/her habitation along with the family for the greater purpose of permanent settlement. 

The Citizenship Act, 1955

The Parliament enacted the Citizenship Act in the year 1955 (hereinafter 1955 Act), and the Constitution along with this Act formed the epicentre for dealing with citizenship and statelessness in India. There are five types of ways that are recognised under the Act to provide citizenship to people. These are:

  1. By birth;
  2. By descent;
  3. By registration; 
  4. By naturalisation;
  5. By incorporation of new territory.

1. Citizenship by birth

  • Section 3 of the 1955 Act renders automatic dissemination of citizenship to a person born in the territory of India. It is largely called Jus Soli. 
  • It was stated that if a person was born in India on or after January 26, 1950, and before July 1, 1987, then the person will be a citizen of India. Furthermore, if a person is born after July 1, 1987, but before the commencement of the Citizenship Amendment Act 2003, then he/she shall be considered as a citizen of India only when one of his/her parents was a citizen of India at the time of his/her birth. 
  • From the perspective of statelessness, the 1955 Act fails to appreciate a situation where neither of the parents was a citizen of India or was without a nationality. The Act also states that if the child is born to illegal migrants then the child will not receive citizenship by virtue of Jus Soli. This results in creating statelessness by operation of law, as such a child is prevented from acquiring citizenship through the other parent. 

2. Citizenship by descent

  • Section 4 of the 1955 Act deals with a situation where citizenship is non-automatic in nature and will be granted when the people who are born outside the territory of India follow the requisite preconditions established in this regard. This is called Jus Sanguinis. 
  • The Citizenship Amendment Act 1986, replaced Jus Soli with a stricter doctrine of Jus Sanguinis.
  • There are three phases covered under Section 4 of the 1955 Act. Firstly, if a child is born outside India between 26 January 1950 and before 10 December 1992, then if his/her father is an Indian citizen, he/she will also be considered as an Indian citizen.
  • In the second phase, if a child is born outside India between 10 December 1992 and 7 January 2004 and when either of his/her parents is an Indian citizen, then the child will also be an Indian citizen
  • Lastly, if the child is born after 7 January 2004 then it will be dealt with in a similar manner as that of the second phase. There should be a declaration made by the parents that the child does not hold any other passport. 
  • The position in India in this regard is pretty much clear and well established to cover the stateless persons as well. 

3. Citizenship by registration

  • Section 5 of the 1955 Act establishes different situations where a person on an application being made, can be registered as a citizen of India. 
  • It included those categories of people whereby a person of Indian origin who is currently a resident of India for 7 years or more before making an application, or a person of Indian origin who is resident in any place outside undivided India, or a person who is married to an Indian citizen and is a resident in India for 7 years or more before making an application, or minor children of persons who are citizens of India, or a person of full age or capacity whose parents are registered as citizens of India, or a person of full age and capacity who was earlier a citizen of independent India and is resident in India for 12 months before making an application, or a person of full age and capacity who has been registered as an Overseas Indian citizen for 5 years and has resided in India for 12 months before making an application. 
  • The term ‘parent’ has not been clarified whether it would include an adoptive parent or biological parent in the Act. This further leaves a gap in interpreting whether a child born through adoptive parents will be eligible for citizenship in the present scenario and this situation, in turn, leads to statelessness.

4. Citizenship by naturalisation

  • Section 6 of the Citizenship Act 1955 along with the Third Schedule of the Act deals with citizenship by naturalisation. Such a type of citizenship is granted when the person fits in no other category. 
  • The requirement stating that a person must not be an ‘illegal migrant’, as established by the 2003 Amendment Act, many people are ousted from the arena of citizenship by naturalisation.
  • Further, if a person has not previously renounced nor has he been deprived of Indian citizenship, then such a stateless person will not be allowed citizenship by way of naturalisation.
  • As per Rule 10 of the Citizenship Rules 2009, one of the prerequisites for a person to obtain citizenship by naturalisation is that he should have adequate knowledge of at least one of the many languages as specified under Schedule eight of the Constitution. This clause has added to the already prevalent situation of statelessness as most people are unaware of these languages. Therefore, the Act can be considered to be too rigid in its essence as it denies citizenship to those stateless people who have no other avenues in this regard. 

5. Citizenship by incorporation of new territory

  • Section 7 of the 1955 Act deals with citizenship by incorporation of new territory.
  • It elaborates a situation where the territory of India is extended to states outside India. Thereby, when a state not previously included within the territory of India becomes a part of India then citizens of that state become citizens of India. 

The Citizenship Amendment Act, 2003

The Citizenship Amendment Act 2003, is one of the principal amendments that brought about some major changes in the original Act of 1955. Some of them are:

  • For a person to be eligible for citizenship through naturalisation, the 1955 Act established the requirement of residency in India or service of a Government in India for 12 years for periods amounting to the aggregate of a minimum of nine years, but according to the 2003 Amendment Act, the period was increased to 14 years and 11 years respectively. This change in the time period has left many stateless people in a state of hysteria and limbo.
  • The First Schedule of the original Act was omitted and the term ‘specified country’ was replaced with ‘illegal migrants’ which was defined as a foreigner entering India without any valid documents or includes those who have stayed without a permit. This has posed a threat to the stateless people who were looking for obtaining citizenship in India as many do not constitute the relevant documents proving the same. 
  • Moreover, the usage of ‘illegal migrants’ in Article 5 of the Amendment Act denies citizenship to every parent who is considered an illegal migrant along with their minor child. For obtaining the certificate of citizenship in such situations, a copy of a valid passport, residential permit, and proof that each parent of the minor child is an Indian citizen is essential. The absence of the same will render the citizenship of the minor child impossible leaving them under the head of a stateless person.

Other Legislations

There are other legislations that cover the concept of statelessness in India. Some of them are:

  • The Census Act 1948, establishes the need to record the strength of the population. In general practice, those who do not have any nationality or lacks citizenship are omitted to be included in the census. This may deprive them from protecting their rights under International Law. Further, they may be non-existent on papers due to which it becomes difficult to study their hardship and provide proper redressal.
  • According to the Foreigners Act 1946, the Central government is empowered to regulate the entry, presence and departure of foreigners in India. Section 8 of the Act does not expressly include a stateless person in its definition of a foreigner. However, people who have uncertain nationality, for the purpose of the Act, will be considered to hold the nationality of the last connected place. 
  • According to the Passport Act 1967, a separate category of stateless people is recognised for issuing certificates of identity. This is the only Indian Act that has acknowledged the rights of stateless persons and has identified them to include people who reside in India but have no nationality or who are foreigners but whose nationality is doubtful. 
  • The Registration of Births and Deaths Act, 1969 ensures that every birth within the territory of India is registered irrespective of them being citizens or non-citizens. Although such a step does not exclusively tackle the problem of statelessness, it ensures proof of the link between a person and the State of birth.

The underlying issue of the Citizenship Amendment Act, 2019

Indian parliament in the year 2019 enacted the Citizenship Amendment Act 2019 (hereinafter CAA 2019) which brought about an uproar in the midst of the general public. One of the major concerns of the public regarding the amendment was the differentiation created on the basis of religion. Highlighting the substantial amendments brought by the Act, some of them include:

  • The CAA 2019 amends Section 2(b) of the 1955 Act which defines ‘illegal migrants’. The amendment excludes persons belonging to minority communities of Jains, Hindus, Sikhs, Parsis, Buddhists and Christians belonging to Afghanistan, Bangladesh and Pakistan from the ambit of illegal migrants. 
  • The amendment further added a separate Section 6B which reduced the period of citizenship by naturalisation from 6 years to 5 years but the period of naturalisation for Muslim immigrants remained the same i.e. for 12 years. 

The above features or amendments manifested several negative views from various International organisations like according to the Office of the United Nations High Commissioner for Human Rights (OHCHR), the CAA 2019 is “fundamentally discriminatory in nature”. In addition to this, the United States Commission on International Religious Freedom (USCIRF) termed the amendment Act as “a dangerous turn in the wrong direction”. 

Reasons for opposing the CAA, 2019

With the advent of the Citizenship Amendment Act 2019, there have been constant sparkes amongst the people who support it and the ones who are against the Act. There have been protests by many across the country. Thereby, it is imperative to understand the hue and cry behind the Act and its relative impact on human rights.

  • One of the most substantial arguments placed by the opposers was that the Act was violative of Article 14 of the Constitution of India which states that no person shall be denied equality before the law or equal protection of laws within the territory of India. This also covers the situation where a person is a foreigner and is residing in India, then he should also be governed by the same law. But the government can surely provide some exemptions. So, the intelligible differentia can be provided but it should be reasonable enough to be justified in guaranteeing classification on that basis. In the case of Chiranjit Lal Chowdhury v. Union of India (1950), the Supreme Court observed that to classify and differentiate, the intelligible differentia should be reasonable and that the legislature is free to classify the communities but only after perusing the degree of harm rendered on that community. After analysing the Amendment Act based on these contentions, it was claimed by the people that the Act did not provide for reasonable classification and merely discriminated against people on the basis of religion and place of their origin. 
  • The Act was also attacked as it was not considered to be secular in its practice. It was contended that secularism forms the basic structure of the Constitution and therefore it cannot be changed. In the case of  S.R. Bommai v. Union of India (1994), the Court held that secularism is a part of the basic structure of the Constitution and any act in violation of the principle of secularism will be violative of the Constitution. The present Act, according to the people, is solely based on denying citizenship to Muslims which is thereby violative of the principle of secularism.
  • Several petitions were filed in the Supreme Court regarding the same. Approximately, 140 cases pertaining to the Act being violative of Article 14, Article 21 dealing with the right to life, Article 15 dealing with the prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, Article 19 establishing the right to freedom as well as the constitutionality of the Amendment Act 2019 has been filed before the Court. 
  • Further, as per the Statement of Objects and Reasons clause under the Citizenship Amendment Bill 2019, the objective of the Act is to protect minority communities from persecution. But ironically, the Act establishes an indirect ground for the Muslim community persecuting them in a similar manner. 
  • The protest against the Act started majorly in Assam as it invalidated the purpose of the National Register of Citizens (hereinafter NRC). NRC was constituted to create a list of people who will be granted citizenship in India. It refused citizenship to all the people who were illegal migrants and were living in Assam for a very long time irrespective of their religion. This meant that even the Hindus who were illegally staying in Assam were rejected for citizenship. But after the CAA 2019 came into force, only Muslims from neighbouring countries were denied citizenship. This posed a great threat to the culture and the ethnicity of Assam as other illegal migrants who belonged to communities other than the Muslims were granted permission to reside and were given citizenship in India. 

Rights of illegal migrants in India

Illegal migrants or refugees who are not granted citizenship in India can claim refugee or asylum in India. Despite a large number of refugee seekers, India has not constituted any robust national legislation governing the same. Further, legal policy regimes do not apply uniformly across groups of refugees or asylum seekers; and India is not a signatory to the 1951 Convention on Refugees or the 1967 Refugee Protocol. But, the Constitution of India grants some rights to illegal migrants for their protection. 

Article 21 of the Indian Constitution provides the right to life and liberty to every person resident in India. In the case of Louis De Raedt vs Union of India (1991), the Court has extended the scope of Article 21 to include foreigners as well. But, the Court further denied that Article 21 does not deal with the right to reside and settle in the country to a foreigner. Such a right is only reserved for Indian citizens. In the present case, the accused contended that he was expelled from India without giving any notice for the same. The Court held that the central government reserves the right to expel any foreigner and that there is no hard and fast rule for any procedure to be fulfilled. In another case of State of Arunachal Pradesh v Khudiram Chakma (1993), the Supreme Court held it cannot be denied that Article 21 of the Constitution extends its scope to include foreigners as well to provide them with the right to life and liberty but that right does not include the right to reside. Further, the Court observed that this Article also includes the right to a fair trial and it is also applicable to aliens. 

The role of the judiciary in expanding and liberally interpreting the Constitution has protected many stateless persons. In the case of National Human Rights Commission v State of Arunachal Pradesh (1996), the Court restrained the unwarranted expulsion of the Chakma refugees from the state. The Court further directed the government to ensure that the right of life and personal liberty of every member of the Chakma community should be protected at large. 

Apart from the Constitutional protection, human rights have also been ensured to the illegal migrants. In the case of Sarbananda Sonowal vs Union of India (2005), the constitutionality of the Illegal Migrants (Determination by Tribunals) Act, 1983 (hereinafter IMDT Act) was challenged. The Act was applicable only in the state of Assam and was constituted to find any illegal migrants. One of the prominent essentials of the Act was that it was based on ‘presumption of innocence’ that means the authority or the person challenging the status of a person should prove that the respondent is an illegal migrant. This Act was found to be in violation of the Foreigners Act 1946 that stated the principle of ‘reverse onus’ that means the person whose status has been challenged has to prove that he is not an illegal migrant. Thus, the Court held the IMDT Act unconstitutional and violative of a greater Act of Foreigners Act. 

The concept of statelessness applied by South Africa

South Africa has been one such country that has established an exception to the concept of statelessness. Citizenship in South Africa is governed by the South Africa Citizenship Act, 1995. Similar to India, South Africa transformed from Jus Soli citizenship to Jus Sanguinis citizenship over the years. Some of the features of the Act are:

  • According to Section 2(1)(b) of the Amendment Act of 2010, any person born in or outside the territory of South Africa should have at least one parent who has the citizenship of South Africa. This provision surely restricted the people from having citizenship of South Africa.
  • But, keeping in view the set International Conventions and the growing need for human rights, South Africa has incorporated within its legislation the need to provide citizenship to people not covered under the above principle. Section 2(2) of the Act provides ‘statelessness exception’ by recognising the citizenship of those people who are born in South Africa but do not have any citizenship or nationality of any country or have no right to such citizenship or nationality, so long as the birth is duly registered. This curbs the gap created by the Act causing the children to suffer from statelessness. In the case of Mulowayi v Minister of Home Affairs (2019), a Congolese couple renounced their Congolese citizenship. Meanwhile, when they were stateless, they had a child whose nationality was denied as the parents were stateless. The Constitutional Court held that a child will obtain nationality even though the parents do not have one.  
  • The Right to education is provided to every child within the boundaries of South Africa irrespective of his nationality or citizenship. In a recent case of Centre for Child Law and Others v Minister of Basic Education and Others (2019), it was held by the Court that the right to education cannot be denied to any child even if does not have the immigration status. The Court observed that the nationality should be observed for controlling the immigration but it should not extend to restrict any child of his/her fundamental rights. 
  • Apart from the above features, Section 10 of the Act states that if a parent ceases to remain a South African citizen then a minor child who is not born in South Africa will also cease to be a South African citizen.
  • The Citizenship Act only recognises the status of citizenship of a child born in South Africa and does not consider the status of migrant children. In such cases, a special permit or exemption has to be sought by the Department of Home Affairs.
  • In the case of Chisuse v Minister of Home Affairs (2020), the Court observed that citizenship is not just a legal status rather it enumerates a person’s identity and their sense of belonging to a community. The Court upheld that in accordance with the 1955 Act, Section 2 would accommodate all those individuals who acquired their citizenship in South Africa by either birth or descent. Under the amended Section 2(1)(b), if one of the parents has South African citizenship then the child is said to obtain citizenship by birth. 
  • In another landmark case of Lumka Nzama v Minister of Home Affairs (2018), two prominent questions were raised. Firstly, the role of courts and litigation while addressing matters concerning statelessness. In the present case, the Court held Lukma a citizen of South Africa and ordered for activate his identity card again. The second question deals with the issue of whether the fathers have the right to pass their nationality to their children. Lukma struggled to obtain nationality when his father tried to register him. He could not acquire the nationality status from his mother as she was a Swazi national and according to their law, women are prohibited from passing their nationality. Further, in another case of Naki v The Minister of Home Affairs (2018), the Court held that births of all children born in South Africa can be registered, regardless of the legal status of their parents. While interpreting the law, the Court took a wider stance by stating that unmarried fathers or single fathers can also pass on their nationality to their children as otherwise, it would deprive the children from enjoying their rights enshrined under the Constitution. 

In addition to this, Article 5 of the African Charter on Human and Peoples’ Rights states that every person shall have a right to dignity and to recognition of legal status. This Article has confirmed that statelessness is a violation of the right of human dignity and legal status. Keeping in view the above lacuna, a Draft Protocol to the African Charter on Human and People’s rights on the specific aspects to the Right to a Nationality and the eradication of statelessness in Africa was constituted. The main objective of this protocol was to provide solutions for the resolution of the practical problems linked to the recognition and exercise of the right to a nationality, to eradicate statelessness along with studying the relations between individuals and States. The Protocol has tried to eradicate statelessness from all aspects and protect the rights of a stateless person who suffers due to the lingering lacuna in his/her legal status. Thereby, in order to guarantee nationality to people, a comprehensive framework of the African Union has been instituted in terms of this protocol. 

Conclusion

While comparing the Citizenship Act of South Africa with that of India, it is clear that India lacks in establishing a robust and complete system for people not carrying the citizenship status. On the other hand, South African Citizenship Act protects the human rights of stateless persons keeping it on a greater pedestal. There is all the more reason for India to recognise the rights of stateless persons and not create a bifurcation between the people on the basis of religion. Keeping aside the political agenda, it is imperative for India to reconcile with International law and analyse the shortcomings of the present Domestic law. 

References


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