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STATELESSNESS AND THE CITIZENSHIP AMENDMENT ACT, 2019
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Indian citizenship law has increasingly shrouded itself in jus sanguinis
citizenship, which determines insiders and outsiders based on shared ethnic identity. However, jus sanguinis as enshrined in amendments to the 1955
Act, and most recently in the 2019 Act, has a powerful potential to exacerbate
statelessness, or of preventing India from reducing the incidence of stateless
within its territory. One such effect that has been felt immediately with the
operation of the 2019 Act is fear among Sri Lankan Tamil refugees that they
will continue to live as stateless persons in India indefinitely or face deportation, and beget their lack of citizenship to their future generations.
Caught in a limbo between being insiders based on shared ethnicity with
Tamil Nadu, but being outsiders through the lack of formal citizenship, Sri
Lankan Tamils in Indian refugee camps have experienced a formidable extent
of Arendt’s ‘right to have rights’. Their experience is a searing reminder of the
continued importance of formal citizenship in accessing rights.
Indian citizenship debates have been cognisant of the link between jus
sanguinis, statelessness and a deterioration into an ethnonationalist state like
Europen nations post World War II. Most prominently, Ajit Prasad Jain said
before the Constituent Assembly that “citizenship constitutes the rock foundation of our constitution”.
In light of the paramount importance of formal citizenship in ascertaining
belongingness, security and rights, this paper has suggested for a forward-looking and inclusive citizenship law for India that is based on jus soli as opposed
to jus sanguinis. Such an approach stands to benefit the stateless persons that
India is currently housing, including Sri Lankan Tamils.
To extinguish Sri Lankan Tamils’ lack of citizenship, this paper has
put forth interim pathways to Indian citizenship under prevailing law, and
attempted to cast a stronger obligation on courts to make sharper analyses of
the shifts in citizenship law, particularly the requirement of documentation and
the repercussions of the introduction of the category of illegal migrant. In the
long-term, however, this paper strongly believes in the need for a structural
overhaul of citizenship law towards jus soli, a simplified naturalisation process,
and a rejection of the documentation-heavy determination of citizenship and
rights like the NRC process.
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