Course: Citizenship and National Identity

Module 2: Making and Unmaking of Citizens

This module examines the deprivation of citizenship and related legal and human rights issues in different national contexts.

This module will explore the process of how citizenship norms are formulated by nation-states, not least from a legal and human rights-based approach. We look at how people can acquire, revoke, or be deprived of their citizenship and the legal norms and protections offered by the international human rights order and its efficacy under domestic law.

Principles of Citizenship Acquisition

While states have discretion in determining the criteria for granting citizenship, these criteria are generally grounded in three fundamental legal principles governing the acquisition of nationality:

  • Jus sanguinis (right of blood) – nationality inherited through lineage.
  • Jus soli (right of the soil) – nationality granted by birth in a state’s territory.
  • Naturalization – nationality acquired through long-term residence or other criteria, such as marriage etc.

Arbitrary Deprivation of Nationality

Deprivation or denial of citizenship must not be arbitrary and in accordance with international human rights standards.

Fact box: Key Recommendations from the UN Human Rights Mechanisms

  1. UN Human Rights Council report (A/HRC/13/34) recommends that nationality cannot be arbitrarily removed and that although acquisition or loss of nationality is governed by internal legislation, the regulations are limited to maintain international order.
  2. UN Human Rights Council Resolution 10/13 recognizes that arbitrary deprivation of nationality, especially on discriminatory grounds such as race, colour, sex, language, religion, political or other opinions, national or social origin, property, birth or another status, constitutes a violation of human rights and fundamental freedoms.
  3. The UN Human Rights Committee, in its General Comments No. 16 and No. 27 under the ICCPR, interprets ‘arbitrary interference’ to include interferences authorized by law. It emphasizes that such interferences must still align with the aims and objectives of the Covenant and must be reasonable in the particular circumstances.

Principle of equality and non-discrimination

As reflected in Article 26 of the ICCPR, States are obliged to respect and protect human rights in all actions. This includes prohibiting discrimination on grounds such as race, gender, language, religion, political opinion, origin, or other status, including in matters related to nationality. States must refrain from both direct and indirect discrimination and take proactive measures to eliminate any discriminatory practices.

Upholding Fundamental Rights

This section aims to balance state sovereignty with international human rights obligations, with particular focus on the right to nationality and the protection of minority rights.

Nationality as a human right

Though international law does not necessarily impose a state mandate towards nationality, it is recognized as an inherent right and a basic requirement for the exercise of political rights and legal capacity of an individual. The right to nationality has been described as right to have rights.

Nationality as a Right Under International Law

Under Article 15(1) of UDHR, “everyone has a right to a nationality” and “No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.” With this article, the UDHR is establishing a core legal relationship between the individual and the state. An individual’s legal bond with a State via citizenship often establishes an essential prerequisite to enjoyment and protection of a full range of human rights. Although a soft law, it has been widely accepted as customary international law that articulates a universal standard of human rights and all States are expected to uphold, at minimum, by ensuring respect for core human rights obligations.

Several international human rights treaties affirm the right to nationality. Article 24(3) of the International Covenant on Civil and Political Rights (ICCPR) recognizes every child’s right to acquire a nationality. While states are not explicitly obligated to grant nationality, they must adopt measures, guided by non-discrimination principles, to protect this right. Furthermore, ICCPR Article 12, through its broad interpretation of “one’s own country,” reinforces the right to stay in a country where an individual has special ties.

The Convention on the Rights of the Child (CRC) strengthens this framework. Article 7 mandates birth registration and the right to acquire nationality, emphasizing state responsibility to prevent statelessness, especially for children. States are encouraged to adopt jus soli principles where necessary and ensure nationality laws are non- discriminatory. Article 3 of CRC further requires states to prioritize the best interests of the child in nationality-related decisions.

Other key treaties include CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women), which guarantees women’s equal rights in acquiring, changing, or retaining nationality (Article 9). The 1961 Convention on the Reduction of Statelessness prohibits arbitrary or discriminatory deprivation of nationality, particularly where it results in statelessness.

In conclusion, nationality extends beyond mere formal recognition by a state; it is also inherently acknowledged as a basic human right.

Case Presentation: Citizenship Determination Process in Assam, India

In Assam, India, two parallel processes have been carried out to determine who is an Indian citizenship.

Process 1: National Register of Citizens (NRC)

Fact box: Assam Public Works v. Union of India & Others

In 2013, the Supreme Court of India directed the central and state governments to initiate an exercise for updating the 1951 NRC to identify Indian citizens in Assam. Eligibility for inclusion in the updated NRC was assessed based on the 1951 NRC, electoral rolls up to 1971, and/or any admissible documents showing presence in Assam up to 24th March 1971. The statutes governing this exercise were the Citizenship Act, 1955, read with the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003, and the Ministry of Home Affairs (Office of the Registrar General, India) Order No. S.O. 596(E) dated 15 March 2010.

Deprivation of Citizenship: Legal Limits in India

Deprivation of citizenship refers to the involuntary loss of citizenship of a person. Under the 1961 Convention on the Reduction of Statelessness, deprivation is used to describe instances when the process of withdrawing a person’s citizenship is initiated by the State authorities. Deprivation has also been used synonymously with revocation, and denationalization of citizenship.

Section 10 of Citizenship Determination Act, 1955

Under Indian domestic law, the Citizenship Act 1955 is the primary legal framework for deprivation of citizenship by the Central Government. However, the State’s power to deprive a person of citizenship under section (s.)10 is restricted only to persons who have obtained citizenship by Registration (s.5) or Naturalisation (s.6). Thus, persons who have obtained Indian citizenship by Birth (s.3) or Descent (s.4) cannot be deprived of their citizenship under this section.

Section 10(2) of the Act empowers the Central Government to deprive such persons of their citizenship by passing of an order only on specific grounds. These specific grounds, among others, include obtaining citizenship by fraudulent means, showing disloyalty or disaffection towards the Constitution of India, unlawful trade, communication to assist an enemy. Clause 3 of s.10 further mandates that the Central Government after satisfying the conditions under clause 2, cannot deprive a person of citizenship unless it is satisfied that “it is not conducive to the public good that person should continue to be a citizen of India”.

The Central Government thus must satisfy both counts under s.10 to deprive a person of their citizenship. The person against whom such order is made is entitled to a notice in writing with the grounds under which such deprivation is initiated and make an application to the Central Government to refer the case to a Committee of Inquiry consisting of a Chairman and two other members appointed by the Central Government in this behalf.

Article 8 of the 1961 Convention on the Reduction of Statelessness prohibits depriving a person of their nationality wherein the result of such action would be the person becoming stateless. Clauses 2 and 3 of the Article contain exceptions to this prohibition, which among other things, include obtaining nationality of the Contracting State by fraud or misrepresentation, conduct that is seriously prejudicial to the vital interests of the state. Article 9 of the Convention prohibits deprivation of nationality of a person or a group of persons on racial, ethnic, religious or political grounds.

India is also under treaty obligation to prevent statelessness as a consequence of deprivation of nationality, and to ensure that no person is arbitrarily deprived of their nationality. Article 15(2) of the Universal Declaration of Human Rights (UDHR) prohibits arbitrary deprivation of nationality. This prohibition has now been recognised as a well-established norm of customary international law. Furthermore, India has had a vital role to play in advocating for the insertion of Article 15(2) during the drafting of the UDHR.

Process 2: Foreigner’s Tribunal (FT)

For further information and a critical reflectional on Foreigner’s Tribunal, see Legal Report “Unmaking Citizens: The Architecture of Rights Violations and Exclusion in India’s Citizenship Trials” , based on 1,193 High Court cases, landmark Supreme Court rulings, and in-depth field interviews, and offers the most comprehensive study of Assam’s Foreigners Tribunals.

Effective Remedy Under International Law

When individuals are deprived of their citizenship, they must have access to an effective remedy to challenge such decisions. This principle is rooted in the fundamental right to be recognized as a person before the law and to receive equal protection without discrimination.

Various international instruments affirm the right to an effective remedy in cases of citizenship deprivation. Article 8 of the Universal Declaration of Human Rights (UDHR) guarantees the right to seek redress for human rights violations, while Article 15 prohibits arbitrary deprivation of nationality. The International Covenant on Civil and Political Rights (ICCPR), under Articles 2 and 14, ensures the right to legal recourse and a fair hearing. Article 13 of the ICCPR also establishes conditions for the expulsion of non- citizens, requiring decisions to be made in accordance with the law and subject to review, except in cases of “compelling reasons of national security.”

The UN Human Rights Committee (HRC, CCPR General Comment No. 15) and the International Law Commission (ILC) emphasize key procedural safeguards, including the right to be heard, legal representation, and access to interpretation services. Additionally, the Inter-American Court of Human Rights (IACtHR, Haitian expulsion case; Juridical status & rights of undocumented migrants) has held that the absence of an effective remedy itself constitutes a human rights violation, reinforcing that remedies must be practical and accessible, not just formally recognized in law.

Using the citizenship determination process in Assam as an example, there is a legal remedy available by law as recourse against the deprivation of nationality. However, it is important to reflect on whether this remedy is truly ‘effective’ in practice, i.e., whether it is accessible and rooted in the realities on the ground.

Burden of Proof

Under international standards, the burden of proof lies with the state to ensure that the deprivation of nationality does not result in statelessness. This principle is rooted in the idea that every individual has the right to a nationality and should not be deprived of it without due process that is fair and just. However, in the case of Assam, India, the burden of proof lies with individuals to establish their Indian citizenship.

Ex-Parte Order in Assam India

An ex-parte order is a decision made without the presence or participation of one party, contrary to the usual rule requiring both parties to be present. In Moslem Mondal case (2013), the Gauhati High Court held that under Section 9 of the Foreigners Act, 1946, the burden of proof lies on the individual to establish, to the satisfaction of the Tribunal, that they are not a foreigner. If the person fails to appear, the Foreigners Tribunal is entitled to pass an ex-parte order, as the State is not required to present evidence in such proceedings and the burden is on the individual.

Order 3C of the Foreigners (Tribunals) Order, 1964 allows a Tribunal to set aside an ex-parte order if the proceedee shows sufficient cause for non-appearance, such as not being served notice in the reference proceeding or being prevented from appearing due to reasons beyond their control and applies within 30 days of the said order. In the abovementioned case, the full bench held that Tribunals can regulate their own procedure and have the jurisdiction to decide such applications, but must ensure that the reasons provided are valid and should not entertain such applications routinely. They may also reject them at the threshold if no grounds are established.

The Court has, however, failed to define what terms such as sufficient cause, exceptional/special circumstances, routine manner, and reasons beyond one’s control mean in a legal context. Nor has it attempted to consider the specific context or factual circumstances of individual cases. These vague phrases used by the Court have no efficient standards for making decisions. A substantial number of orders passed by Foreigners Tribunals are ex parte. In response to questions raised before the Indian Parliament, the Ministry of Home Affairs stated that, as of 2019, 63,959 individuals had been declared foreigners ex parte in proceedings before the Foreigners Tribunals—out of a total of 117,164 individuals declared foreigners by the Tribunals up to March 2019. This means that over half of the declared foreigners were determined through ex parte proceedings. Such figures reflect a serious disregard for the principles of natural justice by the Tribunals, which can result in severe consequences, as discussed in Module 3.

Establishing Citizenship: Documentation and Proof

Proving citizenship is not always a straightforward process, especially when the burden is on the individual to provide proof. This section explores the legal standards involved, and the challenges individuals may encounter in presenting ‘acceptable’ evidence in citizenship determination in the case of Assam, India.

Fact box: Legacy-Linkage System

In Assam, citizenship determination relies on a legacy-linkage system as per the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003. This system requires individuals to prove their citizenship through a two-part documentary process:

  1. Legacy: The legacy requirement demands that individuals demonstrate their or their ancestor’s residence in Assam before the cut-off date. This can be established using the NRC of 1951 or electoral rolls from before March 24, 1971, among other documents.
  2. Linkage: Those who are not able to establish their presence in Assam before March 24, 1971 must link themselves to their ancestor listed in the legacy document, typically through documents such as birth certificates, school records, or family linkage certificates that establish the relationship between the claimant and the legacy holder.

Disproportionate Impact on Women

International human rights standards oblige State Parties to guarantee women equal rights to acquire, change, or retain their nationality. However, in practice, some countries continue to apply gender-discriminatory nationality laws or administrative procedures that can result in the deprivation of nationality, often through unequal access to documentation and verification processes. In Assam, India, women particularly those who are married or widowed, are disproportionately affected, as they often lack documentation linking them to their parents or ancestors, making it difficult to prove citizenship through legacy-linkage. Read more here.

Rights of Minorities

As discussed in Module 1, the relationship between ethnic, religious, and national identity and citizenship reflects a complex interplay. This dynamic may be understood in two ways with respect to the enjoyment of citizenship. First, citizenship may be grounded in a civic bond with the state, independent of identity markers such as ethnicity, religious identity, or gender, and aligned with human rights obligations. Second, the acquisition, determination, or deprivation of nationality may be conditioned on ethnic and/or religious identity, resulting in restrictive conceptions of citizenship. This latter approach often marginalizes minority groups within the state and carries profound implications for their right to nationality. More than 75% of worlds known stateless population belong to minority groups.

Fact box: Defining minorities

Minority identity is understood to involve subjective and objective elements. The self-identification of the person concerned is taken to be determinative.

UN definitions, set out primarily in a 1992 Declaration, focus on four categories: national, ethnic, religious and linguistic.  It is commonly understood that in many cases, these are not hard-and-fast categories, but rather potentially overlapping ones.

Case Presentation: Impact on Bengali speaking Muslims in Assam

Bengali-speaking Muslims in Assam share linguistic, ethnic, and religious similarities with the majority population in Bangladesh, a connection shaped by colonial-era migration and boundary changes. Although they have had a presence in Assam since before Indian independence, post-independence political shifts and the rise of Assamese sub-nationalism have increasingly cast them as ‘outsiders.’ This perception, coupled with limited access to documentation, has deeply affected their experience under citizenship determination processes such as the NRC and Foreigner’s Tribunals.

– Short documentary made in year 2021

Indian Citizenship Amendment Act, 2019

The Citizenship (Amendment) Act, 2019 (CAA) is a law passed by the Indian Parliament on 11 December 2019, amending the Citizenship Act of 1955. It provides a path to Indian citizenship for certain religious groups, namely Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians, from Afghanistan, Bangladesh, and Pakistan, who entered India on or before 31 December 2014. The Act reduces the residency requirement for these groups from 11 years to 5 years. The scope of this provision has sparked discussion about its potential impact on constitutional principles, particularly secularism and equality before the law.

Genuine Connection and Nationality

Nationality is not merely a legal status conferred by birth or formal recognition; it also reflects an individual’s genuine connection or special ties to a country. Under international law, nationality should be based on a meaningful relationship between the person and the state, ensuring that citizenship is not an arbitrary grant but a reflection of real social, economic, and political relations.

Each of the three primary legal principles of citizenship acquisition (as highlighted in the beginning of this module) assumes a certain degree of connection to the state. However, scholars like Bauböck et al. propose a fourth concept of citizenship based on genuine links, emphasizing an individual’s special relationship with a country rather than just birth, lineage or residence.

The Concept of Genuine Link in International Law

The International Court of Justice (ICJ) affirmed the importance of genuine connection in the Nottebohm Case (1955), stating that nationality should reflect a real and effective bond between the individual and the State. Similarly, in the Haitian Expulsion Case, the Inter-American Court of Human Rights (IACtHR) recognized that long-term residents who establish deep ties in a country should not be treated as transients but as individuals with legitimate claims to nationality. The Human Rights Committee (HRC), interpreting Article 12(4) of the ICCPR, expands the concept of “own country” beyond formal nationality. It acknowledges that individuals with special ties to a country, such as long-standing residence, family connections, or socio-economic integration, should have a right to enter and remain in that country, even if they lack formal citizenship. This interpretation is particularly relevant for stateless persons and those arbitrarily deprived of nationality.

Recognizing nationality based on genuine ties is in line with international human rights standards. It guarantees that individuals who have established their lives in a country are not deprived of their fundamental rights. By adopting the principle of genuine connection, states can uphold the right to nationality, ensuring that citizenship is granted not solely by law but through real, meaningful relationships between individuals and the nation-state they call home.

Additional Resources

Read more

Nationality & Human Rights

  1. Adjami, M., and J. Harrington. 2008. “The Scope and Content of Article 15 of the Universal Declaration of Human Rights.” Refugee Survey Quarterly 27 (3): 93–109. https://doi.org/10.1093/rsq/hdn047.
  2. Edwards, Alice. 2014. “The Meaning of Nationality in International Law in an Era of Human Rights.” In Nationality and Statelessness under International Law, edited by Alice Edwards and Laura Van Waas, 11–43. Cambridge: Cambridge University Press. https://doi.org/10.1017/CBO9781139506007.002.
  3. Adjami, M., and J. Harrington. 2008. “The Scope and Content of Article 15 of the Universal Declaration of Human Rights.” Refugee Survey Quarterly 27 (3): 93–109. https://doi.org/10.1093/rsq/hdn047.
  4. Baubock, Rainer, and Paskalev, Vesco. 2015. “Cutting Genuine Links: A Normative Analysis of Citizenship Deprivation.” Georgetown Immigration Law Journal30 (1), (September): 47.
  5. Hirsch Ballin, Ernst. 2014. Citizens’ Rights and the Right to Be a Citizen. Brill | Nijhoff. https://doi.org/10.1163/9789004223202.
  6. Monono, Darren. 2021. “Darren Ekema Ewumbue Monono,Peoples’ Right to a Nationality and the Eradication of Statelessness in Africa,” (2021): 33-58.” The University of Melbourne, Peter McMullin Centre on Statelessness ; ISI, Institute on Statelessness and Inclusion, Statelessness & Citizenship Review 3, no. 1, , 33–58.
  7. Thym, Daniel. 2014. “Residence as De Facto Citizenship? Protection of Long-Term Residence under Article 8 ECHR.” In Human Rights and Immigration, edited by Ruth Rubio-Marín, 106–44. Oxford University Press. https://doi.org/10.1093/acprof:oso/9780198701170.003.0004.

India/ Myanmar

  1. Talha Abdul Rahman, “Identifying the Outsider: An Assessment of Foreigner Tribunals in the Indian State of Assam”, Statelessness & Citizenship Review, Vol 2 No I (2020), 112-137
  2. Rajvi Desai, How the NRC‑CAA Will Effect Women, Transgender People and People With Disabilities, The Swaddle (26.12.2019), available at https://theswaddle.com/how-the-nrc-caa-will-effect-women-transgender-people-and-people- with-disabilities/
  3. Amalendu Guha, “Little Nationalism Turned Chauvinist: Assam’s Anti-Foreigner Upsurge, 1979-80” Economic and Political Weekly, Vol. 15, No. 41/43, Special Number (Oct., 1980), from pp. 1705-1711.
  4. Padmini Baruah, ‘”The Right to Have Rights”: Assam and the Legal Politics of Citizenship’ (2020) 16(2) Socio-Legal Review 17 (https://repository.nls.ac.in/cgi/viewcontent.cgi?article=1086&context=slr)
  5. Baruah, Sanjib. 1999. India against Itself: Assam and the Politics of Nationality. Critical Histories. Philadelphia: University of Pennsylvania Press.
  6. Baruah, Sanjib. 2009. “The Partition’s Long Shadow: The Ambiguities of Citizenship in Assam, India.” Citizenship Studies 13 (6): 593–606. https://doi.org/10.1080/13621020903309581.
  7. Bhat, M. Mohsin Alam, Constitutional Citizenship in India: Contours and Contradictions (May 1, 2024). The Cambridge Companion to the Constitution of India (2024), Queen Mary Law Research Paper No. 439/2025, Available at SSRN:https://ssrn.com/abstract=4813677
  8. Fariya Yesmin, ‘Beyond Papers: Understanding the Making of Citizenship in the Foreigners’ Tribunals of Assam’ (2024) 32 Contemporary South Asia 475.
  9. Sital Kalantry and Agnidipto Tarafder, ‘Death by Paperwork: Determination of Citizenship and Detention of Alleged Foreigners in Assam’ (2021) Cornell Legal Studies Research Paper.
  10. Makepeace Sitlhou, ‘Strangers in Their Own Land: Assam’s Bengali-Origin Muslims Face Disenfranchisement and Indignity’ [2022] The Baffler 26.
  11. Lavanya Rajamani, ‘International Law and the Constitutional Schema’ in Pratap Mehta, Sujit Choudhry & Madhav Khosla (ed), THE OXFORD HANDBOOK OF INDIAN CONSTITUTIONAL LAW (OUP 2016).
  12. Amalendu Guha, “Little Nationalism Turned Chauvinist: Assam's Anti-Foreigner Upsurge, 1979-80” Economic and Political Weekly, Vol. 15, No. 41/43, Special Number (Oct., 1980).
  13. Sagar, ‘How Assam’s Foreigners Tribunals, Aided by the High Court, Function like Kangaroo Courts and Persecute Its Minorities’ (The Caravan, 6 November 2019).
  14. Roy A and Singh UK, ‘The Ambivalence of Citizenship: The IMDT Act (1983) and the Politics of Forclusion in Assam’ (2009) 41 Critical Asian Studies 37.
  15. Mohan R, ‘“Worse than a Death Sentence”: Inside Assam’s Sham Trials That Could Strip Millions of Citizenship’ (Scroll.in).
  16. Siddique N, ‘Discourse of Doubt’ (2019) 54 Economic & Political Weekly 25.
  17. Ranjan A, ‘National Register of Citizen Update: History and Its Impact’ [2019] Asian Ethnicity.
  18. Sriraman, Tarangini (2018):In Pursuit of Proof: A History of Identification Documents in India, New Delhi: Oxford University Press.
  19. Rahman, Talha Abdul (2020): “Identifying The ‘Outsider’: An Assessment Of Foreigner Tribunals In The Indian State Of Assam,” Statelessness& Citizenship Review, 2(1)
  20. Jayal, Niraja G (2019): “Reconfiguring Citizenship in Contemporary India,” South Asia: Journal of South Asian Studies, 42(1): 33-50.
  21. Sufian, Abu. 2020. “Geopolitics of the NRC-CAA in Assam: Impact on Bangladesh–India Relations.” Asian Ethnicity, September, 1–31. https://doi.org/10.1080/14631369.2020.1820854.
  22. Saikia, Nandita, Apala Saha, Jayanta Kumar Bora, and William Joe. 2020. “Immigration and Bengali Population in Assam: Evidence from Direct and Indirect Demographic Estimation.” In Population Dynamics in Eastern India and Bangladesh, edited by Aparajita Chattopadhyay and Saswata Ghosh, 393–416. Singapore: Springer Singapore. https://doi.org/10.1007/978-981-15-3045-6_23.
  23. Ghosh, Sahana (2019): ““Everything Must Match”: Detection, Deception, and Migrant Illegality in the India-Bangladesh Borderlands,” American Anthropologist, Vol. 000 (No. 0), pg 1-14.
  24. Ibrahim, Farhana (2020): “‘We got citizenship but nothing else’: Love, (be)longing, and betrayal in the context of India’s citizenship regime,” HAU Journal of Ethnographic Theory, Vol 10 (3).
  25. Raheja, Natasha (2022):“Governing by Proximity: State Performance and Migrant Citizenship on the India-Pakistan Border,” Cultural Anthropology, Vol. 37 (3): 513–548
  26. Pandey, G (1999): “Can a Muslim be an Indian?,” Comparative Studies in Society and History, Vol. 41(4): pp. 608-629.
  27. Shani, Ornit (2010). “Conceptions of Citizenship in India and the ‘Muslim Question’,” Modern Asian Studies, 44: 145-173.
  28. Murshid, Navine. 2016. “Assam and the Foreigner Within.” Asian Survey 56 (3): 581–604. https://doi.org/10.1525/as.2016.56.3.581.
  29. Crouch, Melissa. 2017. “Judicial Power in Myanmar and the Challenge of Judicial Independence.” In Asia-Pacific Judiciaries, edited by H. P. Lee and Marilyn Pittard, 1st ed., 264–83. Cambridge University Press. https://doi.org/10.1017/9781316480946.014.

Resolutions/ Reports

  1. UN Human Rights Committee (HRC), CCPR General Comment No. 16: Article 17 (Right to Privacy), The Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation, 8 April 1988, available at: https://www.refworld.org/docid/453883f922.html [accessed 26 October 2021]
  2. UN Human Rights Committee (HRC), CCPR General Comment No. 15: The Position of Aliens Under the Covenant, 11 April 1986, available at: https://www.refworld.org/docid/45139acfc.html
  3. UN Human Rights Council, Human rights and arbitrary deprivation of nationality: Report of the Secretary-General, 19 December 2013, A/HRC/25/28, available at: https://www.refworld.org/docid/52f8d19a4.html
  4. UN Committee on the Elimination of Racial Discrimination (CERD), CERD General Recommendation XXX on Discrimination Against Non-Citizens, 1 October 2002, available at: https://www.refworld.org/docid/45139e084.html [accessed 26 October 2021]

Precedents

  1. Advisory Opinion No. 4, Nationality Decrees Issued in Tunis and Morocco, 4, Permanent Court of International Justice, 7 February 1923, available at: https://www.icj-cij.org/public/files/permanent-court-of-international-justice/serie_B/B_04/Decrets_de_nationalite_promulgues_en_Tunisie_et_au_Maroc_Avis_consultatif_1.pdf
  2. Advisory Opinion on Proposed Amendments to the Naturalization Provision of the Constitution of Costa Rica, OC-4/84, Inter-American Court of Human Rights (IACrtHR), 19 January 1984, available at: https://www.refworld.org/cases,IACRTHR,44e492b74.html
  3. Advisory Opinion on Juridical Condition and Rights of the Undocumented Migrants, OC-18/03, Inter-American Court of Human Rights (IACrtHR), 17 September 2003, available at: https://www.refworld.org/cases,IACRTHR,425cd8eb4.html
  4. Case of Nadege Dorzema et al. V. Dominican Republic, Inter-American Court of Human Rights (IACrtHR), 24 October 2012, available at: https://www.corteidh.or.cr/docs/casos/articulos/seriec_251_ing.pdf
  5. Case of Slivenko v. Latvia, Application no. 48321/99, European Court of Human Rights, 9 October 2003, available at: https://hudoc.echr.coe.int/rus#{%22itemid%22:[%22001-61334%22]}
  6. The Haitian Centre for Human Rights et al. v. United States, Case 10.675, 10.675, Inter-American Commission on Human Rights (IACHR), 13 March 1997, available at: https://www.refworld.org/cases,IACHR,3ae6b71b8.html
  7. Nystrom v. Australia, CCPR/C/102/D/1557/2007, UN Human Rights Committee (HRC), 18 July 2011, available at: https://juris.ohchr.org/Search/Details/1211
  8. Üner v. the Netherlands, 46410/99, Council of Europe: European Court of Human Rights, 18 October 2006, available at: https://www.refworld.org/cases,ECHR,45d5b7e92.html

Questions for reflection and discussion

  1. Considering the Assam case study, how might international human rights standards help us assess whether the process is fair and lawful?
  2. The burden of proving citizenship often rests on individuals who must provide official documents. What challenges might this pose, and how could people in your community be affected if such requirements were enforced?
  3. Can you identify communities in your country or region who may be vulnerable to being denied or deprived of citizenship on the basis of ethnicity, religious identity, or gender?
  4. Considering the concept of genuine links, do you think ethnic and religious minorities deprived of citizenship in your country can be recognized as citizens? If so, in what ways and for what reasons?

Exercise

Moot Court Exercise- Mr. M v. State of Assam

Following is a fictional case study that you can use as a classroom exercise:

Facts of the case

Mr. M, a resident of Nalbari district in Assam, has been declared a foreigner by the Foreigners Tribunal in Nalbari. Mr. M is married and has two children, both of whom have been Indian citizens since birth (2005). Prior to this declaration, the citizenship of neither Mr. M nor his wife had ever been questioned by any authority.

The proceedings originated in October 2024, when the Border Police, Nalbari, claimed to have a reasonable suspicion regarding Mr. M’s citizenship status. Based on this suspicion, the Inquiring Authority initiated an investigation into his nationality.

Mr. M, however, contends that the suspicion was not based on credible evidence, and that no material existed on record to suggest that he is a foreigner who entered India from the “Specified Territory” of Bangladesh under Section 6A of the Citizenship Act, 1955. He asserts that the Border Police never visited his residence and failed to provide him an opportunity to submit documents in support of his citizenship claim.

To support his arguments, Mr. M relies on the precedents:

  • Moslem Mondal v. State of Assam (Gauhati High Court)
  • Rahim Ali v. Union of India (Supreme Court of India)

They emphasize the necessity of a fair and evidence-based inquiry in citizenship determination proceedings.

Mr. M further submits that he possesses legacy and linkage documents proving the presence of his ancestors in Assam prior to 1966, and his direct descent from them. The documents include:

  • A Khiraj Patta (land document) in his grandfather’s name;
  • A Gaon Panchayat certificate issued by the village secretary confirming continuous residence of his family since before 1966; and
  • Voter lists showing his and his ancestors’ names registered at the same address across multiple years.

 

Now that the Tribunal has declared him a foreigner, you have to advise Mr. M on the next course of action. Discuss the best legal approaches he can pursue to challenge the Tribunal’s order and prove his citizenship, taking into account the history of the case and the evidence he holds. Use relevant definitions, legal provisions, case precedents, and additional readings from this module to support your reasoning and to determine the most appropriate strategy for Mr. M. You may refer to the Foreigners (Tribunals) Order, 1964, the Citizenship Act, 1955, and relevant judgments of the Gauhati High Court and the Supreme Court of India that address similar matters.

Additionally, you are required to advise Mr. M on the citizenship status of his children, considering that he has now been declared a foreigner by the Tribunal.

 

Questions to Consider:

  • What procedural steps were (or were not) followed by the Border Police before referring the case to the Foreigners Tribunal?
  • Can the failure to give Mr. M an opportunity to present his documents amount to a violation of the principles ofnatural justice?
  • How might this decision impact Mr. M’s children, who are citizens by birth?
  • In what ways do procedural irregularities affect the legitimacy of citizenship determination processes?

 

Additional Information

In the ordinary process before a Foreigners Tribunal (FT), several procedural stages are generally followed by the authorities:

  • Initial Investigation: The process begins with an investigation conducted by the Border Police to identify individuals suspected of being foreigners.
  • Issuance of Notice: Once suspicion is established, the individual receives a notice to appear before the Foreigners Tribunal.
  • Proceedings before the Tribunal: A trial is then conducted in accordance with the norms of domestic law, where the person has the opportunity to present evidence and arguments in their defense.
  • Right to Appeal: If the person is unsuccessful before the Tribunal, they have the right to seek further relief through – a Writ Petition before the Gauhati High Court; and if necessary, a Special Leave Petition (SLP) before the Supreme Court of India
    • Writ of Certiorari: is an important constitutional remedy available before the High Court. However, it can be issued only in specific circumstances – The writ may be granted only when there has been a failure of justice. It cannot be issued simply because it is legally permissible to do so.

The petitioner must demonstrate that the statutory authority has committed a jurisdictional error, that is, acted beyond or without its legal authority. The High Court, when issuing a writ of certiorari, acts in a supervisory capacity rather than as an appellate authority. This means the Court does not re-examine evidence or substitute its own findings but checks for errors of law. An “error apparent on the face of the record” refers to a clear and obvious mistake that:

  • Is immediately visible upon review;
  • Does not require complex reasoning or interpretation; and
  • May involve reasons that are legally flawed, inconsistent, unclear, or inadequate.

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