Introduction
In recent years there has been an emerging consensus that India’s relationship with international law has been that of ‘creeping monism’. In interpreting fundamental rights, Indian courts have been inclined to apply international law obligations. On the other hand in matters of refugee rights or citizenship, petitions have been summarily dismissed without engaging with India’s international law obligations.
Against this backdrop, India’s Citizenship Amended Act (CAA) and National Register of Citizens (NRC) recently became a discussion point in various reports highlighting India’s international law obligations to prevent statelessness. This essay does not intend to reiterate the same. However, mainstream international law discourse on India’s manufacturing of statelessness fails to consider India’s jurisprudential tradition of both international law and citizenship as one inherited from its colonial order. This essay builds on TWAIL scholarship to uncover the colonial inheritances of citizenship law, as well as the majoritarian anxieties of the post-colonial state and its reproduction and legitimation by Indian judicial responses. It is thus argued that such historical and political inquiries must inform responses to India’s statelessness problem under international law. Finally, the challenge to the CAA at the Supreme Court indicates another opportunity for international law argumentation in court. Such an opportunity, for international law, is not one to be missed under the garb of realism, but to be exploited. This essay attempts to show why we should ‘care about international law’ and not measure its relevance only by its efficacy in producing state obedience. Rather it could be helpful as an alternative language for arguing about state power and discretion in producing statelessness, which has been hitherto absent in constitutional adjudication trapped in racialised and xenophobic rhetorics.
International Law in Indian Courts
While considering the interplay between international law and domestic law, 2 broad classifications populate international law literature – monism and dualism. As per the Monist view, international and domestic law is part of one system and thus international law ought to be automatically incorporated into the domestic law, without the requirement of any additional act of adoption or incorporation by the state. Indeed, these binaries have been questioned but as far as India’s engagement with international law we can see these two approaches broadly. Under the Indian Constitution, article 253 stipulates that the Parliament has the power to ‘make any law for the whole or any part of the territory of India for implementing any treaty, agreement, or convention’. Some courts have interpreted this article to espouse a dualist approach such that India is not bound to international treaties unless parliament passes a law to that effect.
Aparna Chandra has argued that the Supreme Court of India’s practice shows a shift from the dualist position of transformation towards the monist doctrine of incorporation of international obligations. In other words, enforcing international law does not require any legislative approval, unless faced with a conflicting domestic norm. Such judicial incorporation of international law has been seen in interpreting the Copyright Act (Gramophone Company of India Ltd. v Birendra Bahadur Pandey) or internalizing customary international environment law principles such as the polluter pays principle ( Vellore Citizens Welfare Forum v Union of India ) Likewise in Vishakha v State of Rajasthan and NALSA v Union of India the court saw international law to be useful in gap filling in domestic law and to ‘enlarge the meaning and content’ of fundamental rights under the Indian Constitution. Besides this interpretative function, it has also been suggested that international law may perhaps be useful in unsettling some normative presumptions in Indian constitutional adjudication particularly to question the boundaries of ‘domestic concerns’. Thus by ‘asking why international law has reasoned a certain way the Court will be forced to ask itself why it reasons the way it does’.
TWAILing for India
So far scholarship about India’s creeping monism while discussing the relationship between international law and Indian law is at best about how international law obligations ought to be enforced in domestic legal orders and whether they require parliamentary approval. Looking at the relationship between India and International law from a different perspective, specifically here TWAIL could radically expand our scholarly horizons. Third World Approaches to International Law (TWAIL) seek to look at the history, structures, and processes shaping international law doctrines from the perspective of peoples and nations of the Global South which mainstream international law neglects. TWAIL scholars thus argue that such an inquiry reveals how international law is embedded in the global power structures of colonialism, racism, and empire, and continues to maintain the hegemony of the Global North.
Accordingly, some TWAIL scholars would go on to point out how mainstream international law scholarship shies away from engaging with the roots of the doctrines of dualism and monism. For instance, Prof. Sornarajah shows that dualism was only a phenomenon that came in the late 19th century in common law with the rise of positivist currents in English jurisprudence. The divorcing of moral and ethical aspects of international law, allowed the English to then deny personality to the colonies, to assert that the founding of states on the basis that lands occupied by aboriginal people were terra nullius, the opening of the seas to navigation through the doctrine of the freedom of the high seas and forcefully impose the notion of freedom of commerce. These measures served the imperial interests of the British East India Company.
One overlooked aspect is another kind of ‘dualism’ that Prof. Chimni calls the dual life of international law for post-colonial India, where international law functions as ‘both an instrument of domination and possible emancipation’. He points out that even Indian international law scholarship till the late 90s failed to challenge the character of the post-colonial state and deep structures of caste, class, and gender. It helped advance the view that all that was problematic in international law was the colonial content. Chimni claims that scholars from the ‘periphery’ (of international law) cannot be for or against international law, but can ‘only devise strategies to cope with it’. Indian international law scholarship must then develop a ‘theoretical outlook that embraces interdisciplinary scholarship as a way of understanding deep global structures and the location of international law and institutions within it’ especially from the perspective of subaltern groups and classes.
Citizenship and International Law
The right to nationality has been codified in various instruments such as Article 15 of the Universal Declaration of Human Rights (UDHR) and recognized as customary international law by various human rights courts. Similarly, Article 12(4) of the International Covenant on Civil and Political Rights (ICCPR) prohibits any state from arbitrarily depriving a person of the right to enter his own country. There is an emerging consensus that states have a customary international law obligation to prevent statelessness. Regulation of citizenship is not the exclusive preserve of municipal law and international human rights law seeks to limit the justifications a state can provide for any deprivation of nationality (see here).
Against this backdrop, India’s Citizenship Amended Act (CAA) and National Register of Citizens (NRC) recently became a discussion point in various reports that extensively analyzed India’s international law obligations. (See also here and here ) These reports successfully show that India’s new citizenship regime raises pertinent questions of international law. Yet the question arises of how these obligations are to be invoked in Indian courts. While international law has been invoked in reading fundamental socio-economic rights, the Supreme Court in adjudicating matters of refugees, migrants, or nationality has regularly deferred to the executive, by allowing the language of national security to prevail. For instance, in its 1955 Hans Muller decision, the Supreme Court concluded that the Foreigners Act confers “absolute and unfettered discretion” to the central government to expel foreigners. Similarly, in Sarbananda Sonowal it was held that the entry and exit of illegal aliens are:
“an incident of the State’s territorial sovereignty. International law does not prohibit the expulsion enmasse of aliens [..] reception of aliens is a matter of discretion, and every State is by reason of its territorial supremacy, competent to exclude aliens from the whole or any part of its territory.”
Most recently the Supreme Court allowed the deportation of Rohingya refugees back to Myanmar in a mere 6-page order without engaging with the principle of non-refoulement. The court’s unwillingness to even engage with questions of international law when the senior counsel representing the Special Rapporteur appointed by the United Nations Human Rights Council was not allowed to make submissions simply because “serious objections were raised” (by the Union government) When the argument about non-refoulement was raised the Supreme court responded by stating that it “cannot comment upon something happening in another country” ( see full discussion here)
The crisis of citizenship in India through the NRC/CAA project has raised significant questions and international law challenges. Yet the discussion has remained limited to the implementation of existing human rights norms. If international law norms are formulated over the practice of states and depict a consensus regarding certain minimum commitments such that norms from the domestic order get universalized and become international norms then relying on international law requires a critical evaluation of how these norms (such as Citizenship) are forged in the first place. Colonial legacies have contributed to nationality laws and judicial responses to deal with statelessness ( See for example Syria) Accordingly, it is imperative to be attentive to how interdisciplinary scholarship helps inform the debates on citizenship norms, historicizes these debates, and locates them in power structures and majoritarian anxieties of the Indian state.
From birth-based citizenship to racialised citizenship
The history of colonial citizenship in India is marked by various contestations and hierarchies despite a pretence by the British Crown at inclusion and formally declaring a uniform legal status of all subjects of the Crown yet with differential rights. (Niraja Gopal Jayal, 2013) The Indian constitution was a watershed moment in the sense that citizenship was to be made on a jus soli basis. The Constituent Assembly debates show that jus soli basis was justified by its presumed “enlightened modern civilized” (CAD 1: 424) character.
However, the journey from the jus soli regime to a more ethno-nationalist regime of jus sanguinis has not been linear. In fact, Jayal in her seminal work ‘Citizenship and its Discontents’ argues that “the tension between these two conceptions was present from the founding moment of the republic and is reflected in the constitutional settlement of the question. The subsequent move from jus soli to jus sanguinis occurs gradually over time,… constantly refined with more qualifications yielding new classifications and exceptions, each of these reflecting the primary fault line of religious difference in India between the Hindus and the Muslims”
The ghost of Sonowal and post-colonial anxieties
The Supreme Court’s alarmism and reconfiguration of citizenship can be traced to its decision in Sarbananda Sonowal and how it dealt with illegal migration in Assam, which is tied to the movement leading up to the NRC. (see here)
What is interesting is that national security was not only justified in the language of municipal law, but the court invoked international law after framing the matter to be one about ‘external aggression’. It went on to lay a catalogue of definitions of aggression under the UN charter, its preparatory documents and the writings of J.G. Starke and Julius Stone. The court then went on to rely on a statement made by Dr. Nagendra Singh before the UNGA 6th Committee to infer that “the stand of our country before the U.N.O. was that influx of large number of persons from across the border into India would be an act of aggression”. Thus for the court and for India refugees were to be equated with aggression threatening the security of the state. For this, it borrowed heavily from the colonial jurist Denning LJ and went on to extol him in the following words. Lord Denning in his book “The Due Process of Law” had written an “Introduction” to Part Five – “Entrances and Exits” (page 155). This text is from the opening paragraph thereof.
“In recent times England has been invaded – not by enemies – nor by friends – but by those who seek England as a haven. In their own countries, there are poverty, disease and no homes. In England, there is social security – a national health service and guaranteed housing – all to be had for the asking without payment and without working for it. Once here, each seeks to bring his relatives to join him. So, they multiply exceedingly.” (Emphasis supplied)
Thus, one of the most respected and learned Judges of recent times has termed the influx of persons from erstwhile colonies of Britain into Britain as an “invasion.”
The irony of the Indian judge relying on this remark by Denning made for those coming to England captures succinctly the ability and proclivity of the post-colonial Indian state to mimic the xenophobic and racist logic of the colonial state. The court by relying on a report by an ex-governor of Assam, falsely concluded that Assam was facing an external invasion by ‘illegal Bangladeshi nationals’ and fanned the flames of Assamese ethno-nationalist sentiments. As pointed out (see discussion here and here), the Governor’s report was replete with Islamophobic and xenophobic sentiments, such as:
“The silent and invidious demographic invasion of Assam may result in the loss of the geostrategically vital districts of lower Assam. The influx of these illegal migrants is turning these districts into a Muslim majority region. It will then only be a matter of time when a demand for their merger with Bangladesh may be made”
The Supreme Court’s 2014 judgement in Assam Sanmilita Mahasangha and Ors. v. Union of India which directed the implementation of the NRC process also reiterated the Sonowal case and the claims of colonial census officer Mullan of 1931 who claimed the existence of an “invasion of a vast horde of land-hungry immigrants mostly Muslims, from the districts of East Bengal”
In this complex history of the post-colonial regime of citizenship, judicial responses have thus racialised citizenship through nationalist imaginations, disproportionately affecting minorities. While at the national level, citizenship is racialised by Hindus seeing Muslims as the enemy outsiders, at the subnational level, ethnic Assamese Hindus exclude Bengalis. Consequently, scholars have suggested that judicial responses to perceived threats of illegal migrants from Bangladesh have facilitated the move towards a more exclusionary jus sanguinis conception of citizenship (see A. Roy 2011) .
Conclusion
The constitutional challenge to the CAA indicates another opportunity for international law argumentation in court. Invoking international law may provide an ‘alternative language’ for discussing the manufacturing of statelessness, which has been hitherto absent in constitutional adjudication trapped in the post-colonial anxieties of the Indian state articulated through racialised, xenophobic rhetorics. It may also compel the Supreme Court to confront its tensions with globally accepted norms on the right to nationality. Thus, the task for international law – lawyers in India is to remain attentive to these discourses, and vehemently challenge the defence of ‘national interest’ and ‘national security’ whenever international law is invoked in Indian courts. At the same time, TWAILers must continue to challenge the processes of creating norms in international law in times of racialised citizenship and how international law may reproduce the hierarchies of citizenship. As Jayal has aptly pointed out “A global citizenship regime alone can transcend and extirpate the fundamental tension between universal principles of human rights and the acceptance of nation-states as the normative framework for citizenship.”
