Briefing Note Asian Law Centre Peter McMullin Centre on Statelessness Melbourne Law School Citizenship, Constitutionalism and Civil Liberties: A Briefing Note on Recent Developments in India Indian Citizenship and Statelessness Research Project Published 17 July 2020 Revised 4 August 2020 India’s Constitution commits it to democracy, equality, secularism, asymmetrical federalism and the protection of civil liberties, including freedom of speech and religious freedom. Nevertheless, each of these commitments is now under threat from authoritarian nationalism. This note offers a brief summary of developments in India, primarily over 2019-2020, relating to (I) risks of statelessness and (II) authoritarian nationalism. I. Risks of Statelessness Historically, the north-eastern Indian State of Assam has witnessed a steady inflow of migrants for various political and economic reasons.1 In the mid-twentieth century, the Indo-Pak war and the subsequent creation of Bangladesh in 1971 led to another round of migration into Assam.2 As a result, the State has long seen strong political movements towards the detection of suspected foreigners within the State. This demand gained impetus in 2013, when a Supreme Court bench presided over by the ex-Chief Justice of India, Ranjan Gogoi, decided to actively oversee a citizenship verification process in Assam.3 Based on the Supreme Court’s directives, in 2015, a citizenship verification process, to update a National Register of Citizens (‘NRC’)4 — a list containing all those who have been deemed Indian citizens — commenced in Assam. When this process concluded in August 2019, 1.9 million people had been excluded from the NRC. In order to be included on the NRC, residents had to produce official documents demonstrating a connection to India prior to 24 March 1971. Many vulnerable people, including impoverished residents, transgender people and minorities, are unable to provide these documents.5 Persons excluded from the NRC may appeal against their exclusion to so-called ‘Foreigners Tribunals’. However, there are significant flaws in this system of review, the most notable being that approximately 64,000 people have been declared foreigners without being given an opportunity to be heard.6 National and international experts and organisations have consistently raised serious concerns about the competence of tribunal members, existence of due process, and the fact that the burden of proving citizenship falls solely on the individual.7 It is also alleged that Bengali Muslims have been ‘disproportionately affected and targeted’ by Foreigners Tribunals.8 Large numbers of people declared to be foreigners by these Tribunals are now held in detention centres, often within prisons, in harmful conditions and with limited legal rights.9