What's going on in Assam

Stateless in Assam

In their homeland they are now considered illegal immigrants. The country to which they are to be expelled is slowly sinking under rising sea levels. Almost two million people living in the Indian state of Assam have been considered illegal immigrants since August 31, 2019, due to the publication of a National Register of Citizens of India (NRC) by the Indian central government under the Hindu national Prime Minister Modi Bangladesh.

In fact, those affected are already considered stateless. People are threatened with a situation of legal and territorial bottomlessness - lost between national citizenship law and international irresponsibility.

The aim of the citizens' register is, according to Citizenship Amendment Act from 1985 to track down "illegal immigrants" in the eastern state. Over the past four years, all residents of Assam had to prove that they belonged to the Indian state by means of birth certificates, marriage certificates and excerpts from the electoral register. A difficult endeavor for people who never had papers, women whose citizenship is derived from that of their fathers and husbands, or all those who live in floodplains and regularly have to surrender all their possessions to the floods, which have recently been increasing. Particularly and predominantly Muslim people are affected who came to the Indian state from Bangladesh after March 24, 1971 - the beginning of the Bangladesh War. By setting the due date in Citizenship Amendment Act according to the current legal situation that came into effect upon publication, they are considered illegal immigrants. For its part, the government of Bangladesh already announced during the preparatory phase of the civil register that it not only does not regard expelled persons as citizens of Bangladesh, but also does not want to accept them in the event of expulsion from India.

This threatens what the two UN conventions on the protection of stateless persons and on the reduction of statelessness seek to avoid: that people fall into an area without nationality, defenseless between the borders of several sovereign states.

The situation of those affected in Assam is also worsened with regard to international law, since neither India nor Bangladesh have acceded to the two UN statelessness conventions. Although these explicitly only stipulate those principles that are laid down, for example, in the International Covenant on Civil and Political Rights or the UN Racial Discrimination Convention, the handling of the international community is nonetheless weaker, since India may not see itself bound by the obligation under international law, not to withdraw citizenship from any person if this would result in statelessness.

Pitfalls of Indian Citizenship Law

Indian nationality law combines elements of the ius soli with such des ius sanguinis. According to Article 5 of the Indian Constitution, in principle every person who was born in India and of whom at least one parent was himself born within the Indian territory is regarded as a citizen of India. Children whose parents do not have Indian citizenship do not acquire them at birth. In principle, however, the acquisition of citizenship is possible through application (registration), Marriage or naturalization (naturalization) possible - but only if the person is not already classified as an illegal immigrant. Nevertheless, according to a study, the National Law UniversityDelhi Indian Citizenship Law with regard to the prevention, termination and reduction of statelessness contains significant loopholes. This means that the acquisition of Indian citizenship is already closed to those excluded from the NRC - because that is exactly what they are: illegal immigrants.

Art. 11 of the constitution provides that the acquisition and termination of citizenship can be determined by means of a parliamentary law, what with Citizenship Act from 1955, amended by the Citizenship Amendment Act from 1985, happened. The now published citizens' register is based on this. Since all those persons who could not prove that they or their blood relatives were already living permanently in India before the cut-off date in 1971 are retrospectively declared as illegal immigrants, not only they themselves, but also their children are not considered to be Indian nationals in the Meaning of the Indian Constitution. The lack of a name in the current NRC can have simple reasons such as a different spelling on old papers.

Current legal and political situation

The Indian central government has given assurances that no one should fear being detained in a camp and deported. To the already existing Foreigner Tribunals, before which those affected can lodge complaints against the exclusion from the citizens' register, further ones have been set up. This gives those excluded from the register the opportunity to prove that they belong to the Indian state. You have 120 days to file a complaint. A government spokesman assured that those affected are guaranteed a fair trial and that there are no prejudices against those who are excluded from the list. According to a decision of the Supreme Court in 2006, the burden of proof lies with the applicants.

The Foreigner Tribunals are, as far as their legal nature is concerned, to be located between the objection authority and the administrative court. Doubts have been expressed in many places about their independence. To the 100 existing Foreigner Tribunals A total of 421 more are to be set up to process the current cases. According to an analysis of more than 500 decisions of the existing Foreigner Tribunals 82% of the decisions were negative and the courts declared the applicants illegal immigrants. 90% of those affected were Muslim. Moreover, three quarters of the decisions were taken in the absence of the applicants. It should also be remembered that many of those affected may not have the financial resources to assert their rights Foreigner Tribunals to assert. At the same time, India's interior minister, Amit Shah, announced that not a single “illegal immigrant” would be able to stay. This rhetoric makes people fear ethnic cleansing.

Those affected are already experiencing harassment: Shortly after the publication of the register, the state of Meghalaya bordering Assam sent back 223 people without papers and branded them as “outsiders”. They were traveling to Meghalaya as migrant workers from neighboring Assam. Comprehensive border controls have been ordered at the inner-Indian border and further border posts are to be set up.

The inconsistency of the action of the Supreme Court

That the citizens' register in implementation of the Citizenship Act from 1955 or des Citizenship Amendment Act from 1985, which has been prepared since 2015 and now finally published, goes back to a decision of the Indian Supreme Court in 2014. In this, the court not only urged implementation, but also declared that it would monitor implementation (for the history of the case and the questions referred, see here). The judges argue that the state of Assam is disproportionately affected by illegal immigration. At the same time, and paradoxically, the Supreme Court declared that Citizenship Act as amended in 1985 to verify that Section 6A of the Citizenship Act, which dates back to the 1985 amendments, is in compliance with the Constitution. For this purpose, the case was sent to Constitution Bench transferred. In 2017 it was decided to refer the case to a major Constitution Bench.

The question of the constitutionality of the norms already implemented in the citizens' register has still not been answered. Imagine if the Federal Constitutional Court were to issue a decision calling for the swift implementation of norms, the constitutionality of which it wants to clarify in plenary a few years later. The complainants in the still pending case are associations of indigenous peoples in Assam, including the Assam Sanmilita Mahasangha (ASM), an umbrella organization of various indigenous organizations. Around 30 of these organizations have meanwhile demanded that members of indigenous groups who are excluded from the civil register in its final version - mostly due to a lack of valid documents - should be included in the register without their nationality first Foreigner Tribunal to have to prove. Here one vulnerable group is played off against the other.

Possibilities for protection and action under international law?

India is not a member of the United Nations Convention on Stateless Persons. The United Nations campaign to end statelessness by 2024 has been running since 2014. The fact that almost two million people in the world's largest democracy may now become stateless also shows the weakness of the campaign, which does not contain any legally binding obligations to act. It seems a shame that the UNHCR, whose mandate also includes the protection of stateless persons, expressed concern about the situation in Assam in early September and called on the Indian government to reduce the risk of statelessness. India is also not one of the states that have recently declared their readiness to accede to the two stateless conventions or at least to take significant steps to prevent and reduce statelessness within their jurisdiction. According to Article 1 of the 1954 Convention, a stateless person is a person who is not considered a national by any state under its law. And since the current world order is still determined by sovereign states, all other rights are derived from this affiliation. For those now affected in India, a particular vulnerability arises from the fact that the state of Assam and the region will be most severely affected by climate change-related temporary floods and steadily rising water levels. This gives rise to a responsibility not to neglect the processes that ostensibly only concern Indian nationality law as such.

De iure and de facto statelessness: Inadequate definitions?

The people who cannot find their name in the current NRC are according to the definition of de-iure- Statelessness according to the Convention on the Status of Stateless Persons, stateless people because they are no longer recognized as its citizens due to a parliamentary law of the Indian state. Nonetheless, this law states that if they did not live in Assam until after 1971, they were never citizens of India. The withdrawal of citizenship is effective ex tunc: those affected have always been illegal immigrants. Already here the definition becomes blurred, because in the opinion of the Indian administration there has been no withdrawal of citizenship from the persons concerned in Assam. Rather, according to the objectives of the NRC, “illegal immigrants” were “singled out”. Furthermore, a decision of the Supreme Court is now pending, which could come to the conclusion that Section 6A of the Citizenship Act is unconstitutional. In this case the de-iure- Statelessness withdrawal, which itself has retroactive effects, retroactively withdrawn its legal basis.

The contradictory nature of the Indian Supreme Court, which is reflected here, makes it clear that there is not always a clear distinction between withdrawal of citizenship de iure and de facto is possible. De-iure- According to the agreement on the legal status of stateless persons, stateless persons are persons who no state regards as citizens on the basis of its law. A common definition of De facto- Statelessness does not exist. However, a study by the UNHCR suggests the following definition: De facto- Stateless people are people who have a nationality but are outside their home state and cannot or do not want to receive protection from this state. The people excluded from the NRC are inside their home state of India and not outside of it. The latter would only be the case if those affected - as the Indian administration believes - were Bengali. Although many of the people affected are ethnically Bengali, there is no evidence of their belonging to Bangladesh and it does not take into account which state the people concerned consider themselves to be a part of. Nevertheless, neither the Indian state nor Bangladesh take responsibility for the people concerned.

The almost two million people in Assam are threatened with what is often called "locked in limbo"Is designated: De iure they lose their affiliation to the Indian state, but at the same time are not caught by international treaty norms. They stand in the void of law between international human rights regimes and national norms. Should they turn to the neighboring states for help and apply for asylum there, it can already be seen with a glance at the Geneva Refugee Convention that it may not apply: the people affected do not belong to a state from which persecution is taking place. Even if one assumes continued membership of the Indian state, the now published citizens' register, which uses general criteria for defining nationality in the form of a deadline, shows persecution of the Muslim minority in the eastern Indian state, but it is coming not in the implemented Citizenship Act to expression.

From a legal point of view, however, the situation for the people affected in Assam will only become clearer after the 120-day appeal period has expired. In fact, their situation will then worsen in the face of flooded areas in eastern India and Bangladesh.

SUGGESTED CITATION Caspari, Catharina: Stateless in Assam: Between Supreme Court and Central Government II, VerfBlog, 2019/9/20, https://verfassungsblog.de/staatlos-in-assam/, DOI: 10.17176 / 20190920-232416-0.