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First Phase - 2010
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Third Phase - 2012
Mapping the Stateless in India
1. According
to the International Law Commission, the definition of stateless persons
contained in Article 1 (1) of the 1954 Convention relating to the Status
of Stateless Persons now forms part of customary international law. The
Article defines ‘stateless persons’ as those who are not recognized as
nationals by any state under the operation of its law. They therefore
have no nationality or citizenship and are unprotected by national
legislation and left in the arc of vulnerability. Besides, the
Convention also refers to the category of de facto stateless
persons - who remain outside the country of their nationality and hence
are unable, or, for valid reasons, unwilling to avail themselves of the
protection of that country. ‘Protection’ in this context refers to the
right to diplomatic protection exercisable by a State of nationality in
order to remedy an internationally wrongful act against one of its
nationals, as well as diplomatic and consular protection and assistance,
generally including her return to the State of nationality. Again,
Article 15 of the Universal Declaration of Human Rights lays down:
“Everyone has a nationality. No One shall be arbitrarily deprived of his
nationality, nor the right to change his nationality”. It implies first
of all that one cannot have the option of remaining stateless and
secondly, deprivation of nationality or denial of the right to
nationality is possible provided it is not ‘arbitrary’. International
Law empowers the state to determine by the operation of law who are its
citizens. The operation of law must be in accordance with the principles
established by International Law. The stateless are those who do not
have any nationality and not having nationality may be the outcome of
the way a state determines its nationality. One acquires one’s
nationality insofar as a ‘genuine and effective link’ is established
through any combination of birth, descent and residency within the
state.
2. Normally
statelessness emerges from succession of states or territorial
reorganizations. But it also emerges from persecution of minorities and
state’s majoritarian bias, which lead the states at time to expel
citizens or inhabitants. This condition reinforced by the protracted
refusal of the involved states to take them back creates a condition,
which may lead at times to loss of their nationality and citizenship.
Also, states of South Asia being what in academic circles are called
‘kin states’ represent social and ethnic continuities across the borders
and the cases selected here illustrate both these albeit overlapping
sources of statelessness in contemporary South Asia. 3. It is against this backdrop that the present study seeks first of all to map different categories of stateless persons in India and secondly to make a general survey of their condition. In a sense, this survey is a follow-up of CRG’s pilot study conducted in 2010-2011 on statelessness of the Chakmas of Arunachal Pradesh. CRG now proposes to document four more different cases of statelessness: the inhabitants of the Chhitmahals (Indian enclaves in Bangladesh), the Tamils of Indian origin - who migrated from Sri Lanka and took shelter in different settlements in the Southern part of India, Bihari, Nepali speaking population in the northeastern states, and the Chinese of Kolkata.
4. Objectives of Study: The main objectives of this study will be (a) To map in a broad brush various groups of stateless persons and take stock of their conditions in India; (b) To review the relevant literature and upgrade our knowledge bank on statelessness and update the baseline by way of gathering insights from various reports, accounts, memoirs, government documents available to us; (c) To study in a comparative perspective the general condition of statelessness in India and prepare a state-of-the art report on various categories of stateless people listed out in our study; (d) To explore and suggest policy alternatives in order to address the problem of statelessness in India; and (e) To disseminate knowledge thus acquired into the larger civil society by way of conducting dialogues and workshops with various sections of the societies under review and institute CRG as a node of coordination amongst them.
5.
Chhitmahals.
Chhitmahals: literally pieces of land along the Indo-Bangla border -
are Indian enclaves that are geographically separated from the Indian
mainland. In other words, these are pieces of Indian territory
surrounded by that of Bangladesh. Similarly, many Bangladeshi enclaves
are situated within the Indian territory. According to a recent report,
there are 130 Indian Chhitmahals in Bangladesh adjoining Cooch Behar and
Jalpaiguri districts of northern West Bengal (covering an area of about
20,957.07 acres) and 95 Bangladeshi Chhitmahals within the Indian
territory (covering an area of about 12,289.37 acres, or 4,973.4
hectares). An estimated 150,000 people reside in Indian Chhitmahals.
Back in 1974, both countries agreed to exchange the enclaves or at least
provide easy access to the enclaves from the other side. Little – if
anything – has so far come into effect. The proposed study would like to
focus on the situation of the Indian Chhitmahals in Bangladesh. These
enclaves are a legacy to the way parts of zamindaries (estates)
were exchanged between the two Maharajas (Kings) of Rangpur and Cooch
Bihar (now in Bangladesh and West Bengal, India respectively) and
subsequently the subcontinent was partitioned in 1947. These enclaves
for all practical purposes are stateless spaces located several
kilometers into the host country. Their enclave nature continues to
prevent any administrative contact with their home country while on the
other hand these are not administered by the host country either. In the
absence of any administration of sorts by either of the two countries,
these are sites of veritable anarchy where there is hardly any rule of
law and people live in a dismal condition without enjoying any of the
rights guaranteed by the Constitution of India. They cannot exercise
their franchise. Statelessness here is a problem of having to live
without any state effectively protecting the rights and ensuring the
rule of law. The official agencies and the Census personnel do not
enumerate them. It is only in July 2011 that a population count on the
enclaves has begun for the first time in history. In fact, some of them
have reportedly been displaced forcibly from their homes for more than
two decades. Yet, they are classified as neither internally displaced
persons (IDPs) nor refugees. Nor are they considered as stateless
persons, for, technically they are very much citizens of India (or
Bangladesh as the case may be). Chhitmahals truly represent a unique
case that the Municipal and International Law is yet unable to take into
account. However,
the problem of
Chhitmahals has only fleetingly attracted the attention of the country’s
policy makers – if at all. Besides, while efforts have been made to
connect some of these enclaves to the mainland by way of constructing
corridors (like Tinbigha) and transferring and readjusting territories
(like Berubari) between the two states, all this has been mired in legal
and political battles and creates newer sets of problems. It is
important that this study should focus on the legal and political
implications of what we consider as a slow and invisible humanitarian
disaster.
6.
Tamils of Indian Origin:
The study proposes to focus on the situation of the Tamils of Indian
origin now living in several settlements in various parts of South
India. According to a survey recently conducted on the camp residents, about
30,000 upcountry Tamils, who fled to India from Sri Lanka to escape the
civil war between the majority Buddhist Sinhalese and the minority Sri
Lankan Tamils, now live in as many as 100 refugee camps of Tamil Nadu.
The ancestors of these upcountry Tamils were taken from India to work in
the growing plantation of Sri Lanka by the British more than 200 years
ago. When Sri Lanka became Independent in 1948, the new and
predominantly Sinhalese-dominated Government used the Ceylon Citizenship
Act of 1948 and the Indian and Pakistani Residents Acts of 1949 to
render the upcountry Tamils stateless. These Tamils of Indian origin
were inducted as bonded labourers into tea estates and by all accounts
were never integrated into the political and cultural life of Sri Lanka.
Statelessness deprived them of their political power. Sri Lanka recently
passed the Grant of Citizenship to Persons of Indian Origin Bill, which
gave citizenship to any person of Indian origin who had permanently
resided in Sri Lanka since October 30, 1964 or descended from someone
who had permanently resided in Sri Lanka since that date. This bill
grants citizenship to approximately 168,141 stateless (plantation)
estate Tamils. In January 2004, it was predicted that 145,000 Sri Lankan
citizens of Indian origin would receive their National Identity Cards
within three months. However, the upcountry Tamils in the refugee camps
of India are not covered by the new law because they do not live in Sri
Lanka. They have been living in the camps in India since 1983, and some
have their children who were born in India. They fear that they may not
be given citizenship once they return to Sri Lanka and will never
receive any legal status in India as they came to this country as
refugees.
7.
Nepali Speaking Population in the Northeastern States: Through its
research on
Nepali-speaking population in the north-eastern states
CRG intends to draw attention to
the wide range of variations that are possible between complete
citizenship and complete statelessness. Statelessness too is graded as
much as citizenship is. There is a vast gray area that no strictly legal
definition of citizenship can actually capture. Similarly, the sliding
of citizenship into statelessness turns citizenship into a sham and the
Nepalese in the northeastern states of India are clear example of that.
8. The Chinese of Kolkata: History reveals that the Chinese first arrived in the eighteenth century to work at the Calcutta port. Most of them belonged to Hakka community, a sub-group of the Hans from the provinces of Guangdong, Jiangxi and Fujian. By the mid-nineteenth century they established themselves as skilled and industrious people like tanners, shoemakers, carpenters, restaurant-keepers and the dentists. Currently they are estimated to be about 5000 in number. Most of them were naturalized into Indian citizens in 1998 and are now regarded as Indian Chinese. However, it is reported that there are few, who are still not recognized as Indian citizens. Our study intends to explore the conditions of this albeit small section of Chinese who now live in Kolkata without citizenship and voting rights.
9. Inquiry Questions: (a) How many of groups of stateless persons are now living in India? How are they distributed geographically across regions and states? In what way has statelessness been an outcome of decolonization and Partition? Are there other varieties of people who are stateless without in any way being connected to that event? (b) Since there has not been any study on the stateless persons with any comprehensive coverage barring only a few individual case studies done in a sporadic manner, it is important that we gather the information and data on all the varieties of the stateless people listed here and place them on a wider spectrum that is expected to enable us to compare the cases so that we have a fuller understanding of the state of statelessness in India. The study is more of a mapping exercise than an in-depth study of a single case or a few of them. (c) The comparison provides us with the opportunity of listing out the issues albeit in extremely broad terms. Is it the same story of persecution (of minorities) that renders certain varieties of people stateless? Or are there many stories - many histories – and not one - of persecution? Why are minorities vulnerable to systematic persecution by the states irrespective of significant variations in their regime character? This knowledge of history is likely to make us understand the possible measures that the international community might adopt in a bid to prevent statelessness in the first place. (d) These seven cases represent a wide scenario. While residents of Chhitmahals do not strictly fall into the category of the stateless, they – for all practical purposes – remain as stateless. On the other hand, the Hindu refugees from Pakistan and the Tamils of Indian origin continuing to live in the camps of Tamil Nadu are yet to be granted citizenship by their host country. A comparison between the stateless citizens of Chhitmahals and the aliens who have been forced to leave their country for fear of torture and persecution and have thereby been rendered stateless is expected to offer insights into the phenomenon of statelessness in India. Besides, how do these cases compare with each other? Is there any reason to believe that the differential treatment that the Indian state metes out to the various groups of stateless persons reflects on the diversity and complexity of modes that the state follows while governing them? To rephrase the same question, are there varieties of being stateless and how does one account for these variations in the treatment towards the stateless in India? (e) Is statelessness simply a legal problem or is it a humanitarian problem as well? Our study on the Chakmas of Arunachal Pradesh underscored the importance of political will and civil society interventions – more than overhauling legal mechanisms – in resolving the problem of statelessness. In all these cases – except perhaps the case of Tamils of Indian origin or the Chinese – the local population of the host country and the stateless persons – to say the least – are hardly on mutually good terms. Can legal mechanisms and court interventions work in a highly polarized society? Is it adequate to look upon statelessness simply as an inter-state problem? Or does this call for greater civil society action?
10. Methodology and Data-Base: As has already been pointed out, the study will (a) Take stock of the existing literature that has developed on the statelessness of these categories of people; (b) Seek to gather reports, tracts, pamphlets, Parliamentary and Assembly debates, memoirs and autobiographies, statistical accounts etc; (c) Study relevant bilateral treaties (d) And, attempt at conducting interviews with various cross-sections of relevant people - wherever possible.
11. In simple terms, the study will be focused on the following:
Mapping the Stateless in India
1. The present survey is a follow-up of CRG’s pilot study conducted in 2010-2011 on statelessness of the Chakmas of Arunachal Pradesh. CRG has finished its research work on four more different cases of statelessness: the inhabitants of the Chhitmahals (Indian enclaves in Bangladesh), the Tamils of Indian origin - who migrated from Sri Lanka and took shelter in different settlements in the Southern part of India, Nepali speaking population in the northeastern states, and the Chinese of Kolkata. In the third phase of the project CRG now proposes to work on three more cases namely, the Bhutanese of Nepali origin presently living in the eastern and northeastern parts of India, the displaced Hindus from Pakistan living in the Jammu valley and in the districts of Bikaner, Barmer, Jaisalmer and Ganganagar of Rajasthan; and, the Bihari Muslims from Bangladesh living mainly in West Bengal and Rajasthan.
2. Objectives of Study:
The main objectives of this study will be (a) To map in a broad brush various groups of stateless persons and take stock of their conditions in India; (b) To review the relevant literature and upgrade our knowledge bank on statelessness and update the baseline by way of gathering insights from various reports, accounts, memoirs, government documents available to us; (c) To study in a comparative perspective the general condition of statelessness in India and prepare a state-of-the art report on various categories of stateless people listed out in our study; (d) To explore and suggest policy alternatives in order to address the problem of statelessness in India; and (e) To disseminate knowledge thus acquired into the larger civil society by way of conducting dialogues and workshops with various sections of the societies under review and institute CRG as a node of coordination amongst them.
3. The Case of the Lhotshampas (Bhutanese of Nepali origin) Living in India’s Northeast and Bordering West Bengal - The Lhotsampas started migrating to Bhutan since the late 19th century in search of economic opportunities. A number of the Nepali people from India and Nepal also reached Bhutan around 1958-59 in search of better economic opportunities - out of which many of the seasonal workers stayed back in Bhutan and did not ultimately return to their ancestral land. However, in the 1980s, the situation began to drastically change as the King of Bhutan and the ruling elite adopted the ‘one country, one people’ policy. The King became increasingly apprehensive of the growing number of the migrants particularly in the southern part and feared that the native Drukpas might be outnumbered by the Lhotsampas in no time. As a result, the Royal Government of Bhutan passed the Citizenship Act in 1985 in order to restore the dominance of the natives in the “number game” that identity politics everywhere entails. During the process of “Drukpanization” initiated by the ruling Drukpas since the 1980s to assert the Drukpanese identity the minority ethnic groups including the Lhotsampas felt increasingly alienated from the mainstream politics of Bhutan. As the state unleashed a series of repressive measures in southern Bhutan, pro-democracy protests erupted in response and the ethnic Nepalese were targeted by the Bhutanese authorities. Their property was seized and many were arrested, incarcerated and tortured. Individuals were forced to sign so-called “voluntary migration certificates” before being expelled from the country. In December 1990, the authorities announced that Lhotsampas who could not prove that they had been residents of Bhutan in 1958 would have to leave. The crackdown brought about a massive demographic instability in Bhutan and led to the expulsion of one sixth of the country’s population. The refugees left Bhutan and moved to India. But instead of giving them refuge, India was reportedly instrumental in transporting them to eastern Nepal. Approximately 107,000 refugees were given shelter in makeshift camps in Jhapa and Morang districts of Nepal. After languishing in the camps for several years, without any prospect of return to Bhutan, a section of Lhotsampas crossed the border and took refuge in the eastern and northeastern parts of India. CRG would intend to assess the condition of the Lhotsampas, who are citizens neither of Bhutan nor of India.Tamils of Indian Origin: The study proposes to focus on the situation of the Tamils of Indian origin now living in several settlements in various parts of South India. According to a survey recently conducted on the camp residents, about 30,000 upcountry Tamils, who fled to India from Sri Lanka to escape the civil war between the majority Buddhist Sinhalese and the minority Sri Lankan Tamils, now live in as many as 100 refugee camps of Tamil Nadu. The ancestors of these upcountry Tamils were taken from India to work in the growing plantation of Sri Lanka by the British more than 200 years ago. When Sri Lanka became Independent in 1948, the new and predominantly Sinhalese-dominated Government used the Ceylon Citizenship Act of 1948 and the Indian and Pakistani Residents Acts of 1949 to render the upcountry Tamils stateless. These Tamils of Indian origin were inducted as bonded labourers into tea estates and by all accounts were never integrated into the political and cultural life of Sri Lanka. Statelessness deprived them of their political power. Sri Lanka recently passed the Grant of Citizenship to Persons of Indian Origin Bill, which gave citizenship to any person of Indian origin who had permanently resided in Sri Lanka since October 30, 1964 or descended from someone who had permanently resided in Sri Lanka since that date. This bill grants citizenship to approximately 168,141 stateless (plantation) estate Tamils. In January 2004, it was predicted that 145,000 Sri Lankan citizens of Indian origin would receive their National Identity Cards within three months. However, the upcountry Tamils in the refugee camps of India are not covered by the new law because they do not live in Sri Lanka. They have been living in the camps in India since 1983, and some have their children who were born in India. They fear that they may not be given citizenship once they return to Sri Lanka and will never receive any legal status in India as they came to this country as refugees.
4. Hindu Refugees: The study also proposes to inquire into the situation of the Hindu refugees from Pakistan living presently in Jammu valley and in the districts of Barmer, Jaisalmer, Bikaner and Ganganagar of Rajasthan. It has been reported that following the Partition of 1947, about 5,764 families, most of them belonging to Scheduled Castes, migrated to Jammu region from Sialkot district of then undivided Punjab as communal riots rocked the entire Punjab belt. Their present population is estimated to be around 250,000 and they are settled along the Indo-Pak border right from Jorian to Kathua in Jammu.
5. Although they have been living in the Jammu valley since 1947, these refugees have not been granted citizenship as per the Constitution of Jammu and Kashmir recognized under Article 370 of the Constitution of India. Article 6 of the Constitution of Jammu and Kashmir, which came into effect on 26 January, 1957, provides citizenship only to those who are considered as “permanent residents” of the state. Clause (l) of Article 6 provides that an Indian citizen shall be recognized as a permanent resident of Jammu and Kashmir only if on the fourteenth day of May, 1954, (a) he was a state subject of class I or of class II: or (b) having lawfully acquired immovable property in the state, he has been ordinarily resident in the State for not less than ten years prior to that date. Clause 3 of Article 6 explains that the definition of Class-I or Class-II subjects depends on State Notification No I-L/84 dated 20 April 1927, read with the State Notification No 13/L dated 27 June 1932. The Hindu refugees migrating from Sialkot do not fall under this category. Hence, they are not considered as permanent residents of Jammu and Kashmir. Consequently, they can neither own property nor cast their votes. Nor are they entitled to get government jobs and any other benefits that the citizens of India otherwise enjoy. They do not have the Permanent Resident Certificate. This essential legal document is given only to those whose ancestors have lived in the State for at least 10 years before May 14, 1954. While human rights groups have been pressing for the demand of granting Permanent Resident Certificate, many political parties are opposing it fearing that the sanctity of the document will thereby be lost. So they continue to remain as stateless persons in India. It is pertinent to note that about 20,000 people belonging to the Hindu community, who had migrated from Pakistan at various stages after the 1965 war and have presently been living in the districts of northwestern Rajasthan without the citizenship rights seem reportedly to be at mercy of the state. Most of these displaced persons belong to the Dalits (the downtrodden), mainly the Meghwals, Kolis and Bhils. The Pak Visthaapit Sangh (PSV), a community-based organization working particularly among the post-1965 refugees from Sindh (Pakistan) presently living in Rajasthan and Gujarat, registered protest against the increase in fee for registration as Indian citizens under the Citizenship Act. Through public meetings, demonstrations, lobbying and meetings with government officials and leaders of political parties, PVS highlighted the problems of the refugees, related mainly to citizenship and rehabilitation. In 2005 the Indian Government agreed to provide citizenship to only 13,000 refugees living in Rajasthan. However, the rest still remains stateless.
6. Bihari Muslims: Our study seeks also to make an exploratory survey on the situation of Bihari Muslims from Bangladesh - who had first crossed the border and migrated to the then East Pakistan and then came back after the birth of Bangladesh in 1971 comprising predominantly the Bengali-speaking people - in search of livelihood and took shelter in the areas adjacent to India-Bangla border in West Bengal and also in Rajasthan. By all accounts they were most unwelcome even in their villages they had long left. The people known in Bangladesh as "Biharis" or "Stranded Pakistanis" are the descendants of Urdu speaking Muslims who lived in Bihar and UP prior to the partition of India in 1947, and then migrated to East Pakistan (now Bangladesh). Most of them are now stateless and live in refugee camps in Bangladesh, as neither of the two Governments - Pakistan or Bangladesh – seems prepared to offer citizenship to them. As per an agreement in 1974, Pakistan accepted only 170,000 Bihari refugees as its citizens; however, the repatriation process has since been stalled. In 2006 a report estimated that between 240,000 and 300,000 Biharis live in 66 overcrowded camps in Dhaka and 13 other regions across Bangladesh. In May 2003, a high court ruling in Bangladesh allowed 10 Biharis to obtain citizenship and voting rights. On May 19, 2008 the Dhaka High court again approved citizenship and voting rights for about 150,000 refugees who were minors at the time of Bangladesh's war of independence in 1971, and those who were born after this event on Bangladeshi soil would also gradually secure the right to vote. However, the situation has not been changed much.
7. Inquiry Questions:
(a) How many of groups of stateless persons are now living in India? How are they distributed geographically across regions and states? In what way has statelessness been an outcome of decolonization and Partition? Are there other varieties of people who are stateless without in any way being connected to that event? (b) Since there has not been any study on the stateless persons with any comprehensive coverage barring only a few individual case studies done in a sporadic manner, it is important that we gather the information and data on all the varieties of the stateless people listed here and place them on a wider spectrum that is expected to enable us to compare the cases so that we have a fuller understanding of the state of statelessness in India. The study is more of a mapping exercise than an in-depth study of a single case or a few of them. (c) The comparison provides us with the opportunity of listing out the issues albeit in extremely broad terms. Is it the same story of persecution (of minorities) that renders certain varieties of people stateless? Or are there many stories - many histories – and not one - of persecution? Why are minorities vulnerable to systematic persecution by the states irrespective of significant variations in their regime character? This knowledge of history is likely to make us understand the possible measures that the international community might adopt in a bid to prevent statelessness in the first place. (d) These seven cases represent a wide scenario. While residents of Chhitmahals do not strictly fall into the category of the stateless, they – for all practical purposes – remain as stateless. On the other hand, the Hindu refugees from Pakistan and the Tamils of Indian origin continuing to live in the camps of Tamil Nadu are yet to be granted citizenship by their host country. A comparison between the stateless citizens of Chhitmahals and the aliens who have been forced to leave their country for fear of torture and persecution and have thereby been rendered stateless is expected to offer insights into the phenomenon of statelessness in India. Besides, how do these cases compare with each other? Is there any reason to believe that the differential treatment that the Indian state metes out to the various groups of stateless persons reflects on the diversity and complexity of modes that the state follows while governing them? To rephrase the same question, are there varieties of being stateless and how does one account for these variations in the treatment towards the stateless in India? (e) Is statelessness simply a legal problem or is it a humanitarian problem as well? Our study on the Chakmas of Arunachal Pradesh underscored the importance of political will and civil society interventions – more than overhauling legal mechanisms – in resolving the problem of statelessness. In all these cases – except perhaps the case of Tamils of Indian origin or the Chinese – the local population of the host country and the stateless persons – to say the least – are hardly on mutually good terms. Can legal mechanisms and court interventions work in a highly polarized society? Is it adequate to look upon statelessness simply as an inter-state problem? Or does this call for greater civil society action?
8. Methodology and Data-Base: As has already been pointed out, the study will (a) Take stock of the existing literature that has developed on the statelessness of these categories of people; (b) Seek to gather reports, tracts, pamphlets, Parliamentary and Assembly debates, memoirs and autobiographies, statistical accounts etc; (c) Study relevant bilateral treaties (d) And, attempt at conducting interviews with various cross-sections of relevant people - wherever possible.
9. In simple terms, the study will be focused on the following: · Assessment of the scale of the problem (numbers, geographical distribution, demographic trends etc.); · Establishing the profile of the population affected by statelessness; · Determining the causes and obstacles to solutions to statelessness (gaps in legislation, administrative practice, etc.); · Tracing the protection issues implicit in these cases, particularly in relation to treaties; · Identifying all stakeholders involved in the issue; and · Suggesting possible ways of improving their situation and resolving the problem.
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GC-45,
First Floor, Salt Lake, Sector III, Kolkata-700 106 |
Statelessness
