India

KEY ISSUES 

• In August 2019, the citizenship status of 1.9 million people in Assam was rendered uncertain when they were excluded from the new National Register of Citizens. Tens of thousands of those affected have been declared foreigners in appeal before “Foreigners Tribunals”.  
• In late 2019, the passing of the Citizenship Amendment Act (CAA) introduced a preferential pathway to citizenship for Hindus, Christians, Buddhists, Parsis, Jains and Sikhs – discriminating against Muslims and other groups. 
• There are no official statistics on statelessness in India and data reported by UNHCR only accounts for Rohingya refugees in the country. 
• Since 2017, Rohingya in India have faced a deteriorating protection situation, characterised by an erosion of their legal status and enjoyment of rights, as well as the increased incidence of detention. 
• There are no safeguards to protect children born in the country from statelessness, nor any to prevent statelessness for foundlings. 
• India is not a signatory to either the 1954 or 1961 statelessness conventions and has no statelessness determination or protection framework in place. 

STATELESSNESS IN INDIA 

Since the independence and partition of India, the country’s citizenship laws have become progressively more restrictive, with new rules sometimes also being applied retroactively. This has led to exclusion for some people with long-standing ties to the country, while also prolonging statelessness across multiple generations for refugees who do not hold citizenship of their country of origin. Among the communities affected by statelessness or the risk of statelessness in India are Chakmas, Rohingya from Myanmar and refugees from Tibet.  

Today, two major issues dominate the picture in terms of nationality and statelessness in India. A massive citizenship ‘verification’ exercise in the state of Assam, which called into question the status of 1.9 million people, when they were excluded from the National Register of Citizens upon its publication in August 2019 and tens of thousands of those affected have subsequently been declared foreigners under the appeals process before the “Foreigners Tribunals” (FTs). Later the same year, the passing of the Citizenship Amendment Act (CAA) introduced a preferential pathway to citizenship for Hindus, Christians, Buddhists, Parsis, Jains and Sikhs – discriminating against Muslims and other groups. The inclusion of religious criteria in the law elicited widespread protest in the country and beyond. Such discrimination is not only contrary to international law, but also prompted concern that this legislation may have much more far-reaching impacts as part of “a systemic plan to revoke citizenship from Muslims and vulnerable populations”. 

India is not a signatory to either the 1954 or 1961 statelessness conventions and has no statelessness determination or protection framework in place. There is no comprehensive data on the scale of the problem of statelessness in India. At the end of 2023, UNHCR reported a figure of 22,646 stateless people in India. However, this only accounts for the Rohingya population registered with UNHCR. Other groups, including those left stateless or at risk of statelessness in Assam, are not included in these statistics.  

In 2009, India introduced the Aadhaar card:  a single identity card linked to various benefits, services and facilities. Enrolment numbers are the higher than any other digital identity card in the world, and, as such, it has become an increasingly critical digital identity tool in India. What rights a person can exercise in India is strongly linked to possession of the Aadhaar card. For stateless people, including stateless refugees, this can pose a problem. Since October 2018, refugee cards are no longer considered a valid documentation to obtain Aadhaar, affecting Rohingya and other refugees whose Long Term Visas are no longer being renewed, or who were only granted UNHCR Refugee Cards. Those excluded from the National Register of Citizens in Assam are also unable to apply for an Aadhar, excluding them from vital rights and services. 

RIGHT TO NATIONALITY IN INDIA 

Citizenship in India is governed by the 1950 Constitution of India and the 1955 Citizenship Act, which has since undergone a number of substantial amendments. Gender discrimination was removed in the 1992 Citizenship Amendment Act, but other changes have made the rules more restrictive. Successive amendments in 1986 and 2003 made birthright citizenship contingent on parental status, and children born in India only acquire citizenship if one parent is an Indian citizen and the other is not an “illegal migrant”. This transformed the system from a jus soli regime to a largely jus sanguinis regime. There are no safeguards to protect children born in the country from statelessness, nor any to prevent statelessness for foundlings. 

There is no facilitated naturalisation for stateless people and there are naturalisation difficulties for both adults and minors due to requirements such as specific documentation, residency requirements, foreign passports, and nationality of the parents. The 2003 Citizenship Amendment Act introduced the term “illegal migrant” into the citizenship rules, denying access to citizenship by naturalisation and registration to people who fall in this category. The 2019 Citizenship Amendment Act explicitly discriminates against Muslims and other groups, by creating a preferential pathway to citizenship for other religions such as Hindus, Christians, Buddhists, Parsis, Jains and Sikhs, with the cut-off date on 31 December 2014. Anyone from these non-Muslim groups who came after that date will not be eligible for CAA benefits. They have been exempted from the definition of the term “illegal migrant” and from prosecution for immigration offences and can apply for expedited naturalisation and registration. This discrimination is carried out under the guise of protecting minority rights of these groups, but there are concerns that the new rules will, in practice, engender greater exclusion of Muslim and other groups. 

India’s Citizenship Act provides for the possibility of deprivation of nationality on a number of different grounds, including: fraud, disloyal behaviour, association with an enemy during war, imprisonment in any country within 5 years of registration or naturalisation and residing outside India continuously for 7 years (without registering in the prescribed manner). The law does not provide a safeguard to prevent a citizen from being rendered stateless through deprivation of Indian nationality.  

ROHINGYA REFUGEES IN INDIA 

Rohingya have sought refuge in India in small numbers for decades, but most of the Rohingya currently registered with UNHCR entered the country after 2012, following a wave of extreme violence against the community in Myanmar. For several years the Rohingya were a tolerated refugee group, permitted to live freely and receive assistance from UNHCR and non-governmental organisations. Between 2012-2017 the Indian government had granted annually renewable Long-Term Visas (LTVs) to refugee card holders, granting them legal permission to reside in the country. These LTVs could be used to access Aadhaar identification cards, creating more opportunities to access house rental, purchase SIM cards, and open bank accounts. 

Since 2017, Rohingya in India have faced a deteriorating protection situation. The Indian government issued a deportation order for Rohingya refugees a matter of weeks before a new wave of genocidal violence hit Myanmar on 25 August 2017, declaring Rohingya entry into the country as illegal. Rohingya are able to access refugee status determination with UNHCR and receive UNHCR refugee cards, but these are not a valid form of identification for the purposes of accessing basic health, education or employment and Rohingya are not formally recognised as refugees by the Indian government. The authorities stopped renewing Rohingya LTVs and explicitly excluded Rohingya refugees from holding Aadhaar cards. Their precarious legal status in the country has left them at risk of forced repatriation or refoulement to Myanmar, as well as arbitrary arrest and indefinite detention.  

The erosion of status and protections for Rohingya in India has impacted living conditions and access to services, leading to increasing insecurities and vulnerabilities. Poverty is compounded by the community’s inability to find secure and sustainable livelihoods. For many, the only option to make ends meet is to find work within the informal economy, which is often low skill, insecure, and highly exploitative. Housing and living arrangements have also become increasingly insecure. Some landlords and brokers exploit Rohingya tenants, knowing they have no other option, while others are reluctant to rent to a community that is publicly maligned by the government and media. In addition to flooding and fire risks, Rohingya settlements across the country also suffer from poor sanitation, lack of regular water supply, and overcrowding. 

The number of Rohingya detained in India has steadily grown. Rohingya in Delhi and Haryana have reported increasing harassment by state authorities while in the vicinity of their homes and communities, as well as increasing incidents of arbitrary arrest and detention. On 6 March 2021, Indian authorities rounded up Rohingyas in Jammu for an identity “verification exercise”. Around 170 were arrested. Despite the majority of these holding UNHCR refugee cards, they were arbitrarily detained in a sub-divisional level jail converted to a “holding centre” with the declared intention of deporting them back to Myanmar. Lawyers submitted a legal challenge in response to these detentions in April 2021. The Supreme Court subsequently issued an interim order rejecting the Rohingyas’ right to non-refoulement and concluding that the government is not bound by this fundamental principle of international law because India is not party to the 1951 Refugee Convention.  As of August 2023, 271 Rohingya refugees remain in Jammu holding centres having been first detained in March 2021. 70 children are being detained alongside their parents, many of whom were born within the centre. In addition, around 32 children of detainees are living in the slums without supervision, unable to access basic health and education services.  

The content on this page was reviewed by Angshuman Choudhury, Founding Member, Right to Nationality and Citizenship Network; and Member, Board of Trustees, Development and Justice Initiative, New Delhi 

[last updated January 2024] 

Cover image by Kyran Low