A. T HE R IGHT TO NAT IONALIT Y FOR EV E RY INDIV IDUAL in most international and regional human rights instruments.78 This principle is a prominent rule of customary international law which has achieved the status of an erga omnes obligation.79 It is a violation of international law if any state derogates from such obligations, even during times of emergency.80 India’s Constitution also guarantees equality to every person before the law and ‘equal protection of all laws’ within Indian territory.81 This prohibition limits the state’s discretion in deprivation of nationality matters, as any deprivation rooted in ethnic or racial discrimination would constitute arbitrary deprivation of nationality.82 Discrimination based on the national origin of a person has been found to form a part of this prohibitive principle of racial discrimination.83 The Bengali community in Assam, especially the Bengali Muslim minority, have historically been portrayed as ‘foreigners’ and ‘illegal migrants’ in the state.84 In 1997, the Election Commission of India arbitrarily labelled more than 350,000 persons – many of whom were of Bengali origin – as ‘doubtful’ citizens.85 The Commission did so without any transparent process.86 This deprived them of their right of political 78 See Article 2 of the UDHR: ‘Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty’, Article 26 of the ICCPR: ‘All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’. See also Article 2(2) of ICESCR, Article 14 of ECHR, Article 2 of African Charter on Human and Peoples’ Rights and Article 24 of ACHR. 79 Mirna Adjami and Julia Harrington, ‘The Scope and Content of Article 15 of the Universal Declaration of Human Rights’ (2008) 27(3) Refugee Survey Quarterly 93. 80  Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) [1964] ICJ.   81 Constitution of India 1950, art 14. 82 Adjami and Harrington, ‘The Scope and Content of Article 15’ (n 79) 93. 83 ibid. 84 Human Rights Law Network, ‘Statelessness and Marginalisation in Assam: Report of the Public Hearing on the Citizenship Amendment Bill and the National Register of Citizens’ (n 46). 85 Human Rights Watch, ‘“Shoot the traitors” Discrimination Against Muslims under India’s New Citizenship Policy’ (9 April 2020) <https://www.hrw.org/report/2020/04/09/shoot-traitors/ discrimination-against-muslims-under-indias-new-citizenship-policy> accessed 20 April 2020. 86 Human Rights Law Network, ‘Statelessness and Marginalisation in Assam: Report of the Public Hearing on the Citizenship Amendment Bill and the National Register of Citizens’ (n 46). chapter i • status 61 SECTION I.A.3.3