India and Statelessness: the Citizenship Act

In one line

India has not acceded to either statelessness convention, has no procedure for determining that a person is stateless, and its Citizenship Act, 1955 now grants citizenship by birth only where a parent is a citizen, with no provision granting nationality to a child who would otherwise be stateless.

What India has and has not signed

India is not a party to the Convention relating to the Status of Stateless Persons, 1954.

India is not a party to the Convention on the Reduction of Statelessness, 1961.

India is also not a party to the Refugee Convention of 1951 or its 1967 Protocol, which matters here because the two regimes overlap in practice.

India is a party to the Civil and Political Covenant, whose article 24(3) provides that every child has the right to acquire a nationality; and to the Convention on the Rights of the Child, whose article 7 provides that the child shall be registered immediately after birth and shall have from birth the right to acquire a nationality, and in particular where the child would otherwise be stateless.

So India has an international obligation on this subject even though it has signed neither statelessness convention, and saying that is what turns the answer from a recitation into an argument. Article 7 of the child rights convention is the treaty India is bound by, and article 1(1) of the 1961 Convention is the domestic provision she does not have.

The birthright rule, and how it was withdrawn in two steps

Section 3 of the Citizenship Act, 1955 governs citizenship by birth, and it has been amended twice in ways that matter here.

As enacted in 1955, the rule was jus soli. A person born in India on or after 26 January 1950 was a citizen of India by birth, subject only to the diplomatic and enemy alien exceptions. Place of birth alone was enough.

The Citizenship (Amendment) Act, 1986, with effect from 1 July 1987, added a parental requirement: a person born in India on or after that date is a citizen if either parent is a citizen of India at the time of the birth.

The Citizenship (Amendment) Act, 2003, with effect from 3 December 2004, tightened it again: a person born in India on or after that date is a citizen if both parents are citizens of India, or if one parent is a citizen and the other is not an illegal migrant at the time of the birth.

Trace the movement. 1950 to 1987: place of birth. 1987 to 2004: one citizen parent. 2004 onwards: both parents citizens, or one citizen and the other not an illegal migrant.