Stripped of Citizenship: The Indian Constitution, Human Rights and Public Law

Thursday, 5 August 2021

The NSW Bar Association’s Human Rights Committee invites members to a seminar on contemporary human rights issues in India.

Join Professor Kate O’Regan, Director of the Bonavero Institute of Human Rights at the University of Oxford and former judge of the Constitutional Court of South Africa, in conversation with Professor Anupama Roy, Jawaharlal Nehru University; Rupali Samuel, Parichay Legal Clinic; and Padmini Baruah, Tufts University, as they discuss the history and effect of India’s Citizenship Amendment Act (“CAA”) and National Register of Citizens (“NRC”).

The Indian Government seeks to prepare a ‘list’ of Indian citizens in the state of Assam (the NRC). This process has proven controversial because of the omission of nearly two million residents of the state, on the basis that they or their families have not established that they had lived in India before 26 March 1971.

The NRC process has operated in parallel with the enactment of the CAA, by which ‘persons belonging to minority communities, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan … shall not be treated as illegal migrants for the purposes of [the] Act’. This law hence provides for a unique set of protections for non-Muslim persons from specified nations. In conjunction with the NRC, this may mean that non-Muslims who would otherwise be stripped of citizenship under the NRC process are nonetheless permitted to remain in India, whereas Muslims will not enjoy that protection.

Ongoing debates over the CAA and the NRC are significant both for India and internationally. These debates illustrate the contested nature of citizenship in modern international law and politics: when is citizenship ‘inalienable’, and when may it be subject to legal and political forces? What does it mean to ‘belong’ to a nation-state in the contemporary world? Does the Indian experience have resonance for the rights and status of Australian citizens? How might lawyers ensure that the substantive and procedural rights of individuals are protected?

Professor Anupama Roy will focus on debates in the Parliament of India on the CAA, and will place those debates in the context of contests over citizenship in the aftermath of India’s independence. Rupali Samuel will speak to the constitutional and legal context of the CAA and the NRC. Padmini Baruah will address the implementation of these laws in practice, including through India’s ‘Foreigners Tribunals’.

Chair:

• Kate O'Regan is the inaugural Director of the Bonavero Institute of Human Rights and a former judge of the South African Constitutional Court (1994 – 2009). In the mid-1980s she practiced as a lawyer in Johannesburg in a variety of fields, but especially labour law and land law, representing many of the emerging trade unions and their members, as well as communities threatened with eviction under apartheid land laws.  In 1990, she joined the Faculty of Law at UCT where she taught a range of courses including race, gender and the law, labour law, civil procedure and evidence. Since her fifteen-year term at the South African Constitutional Court ended in 2009, she has amongst other things served as an ad hoc judge of the Supreme Court of Namibia (from 2010 - 2016), Chairperson of the Khayelitsha Commission of Inquiry into allegations of police inefficiency and a breakdown in trust between the police and the community of Khayelitsha (2012 – 2014), and as a member of the boards or advisory bodies of many NGOs working in the fields of democracy, the rule of law, human rights and equality.

Speakers:

• Anupama Roy is a Professor at the Centre for Political Studies in Jawaharlal Nehru University, Delhi who works on citizenship, political anthropology of political institutions, political ideas, and gender studies. She obtained her MPhil degree from University of Delhi, and her PhD degree from the State University of New York at Binghamton, USA. She is the co-author of the book Election Commission of India: Institutionalising Democratic Uncertainties (OUP, 2019) and author of Citizenship in India (Oxford India Short Introduction Series, OUP, 2016), Mapping Citizenship in India (OUP, 2010, reprinted 2015), and Gendered Citizenship: Historical and Conceptual Explorations(Orient Longman, 2005, paperback, 2013). She has co-edited Dimensions of Constitutional Democracy (Springer 2019) and Poverty, Gender and Migration in South Asia (Sage, 2008). Her research articles have appeared in various national and international journals including Asian Studies Review, Australian Feminist Studies, Critical Asian Studies, Contributions to Indian Sociology, Economic and Political Weekly. Seminar, and Election Law Journal. Anupama Roy was a senior fellow in the Centre for Women’s Development Studies, before she joined the Centre for Political Studies in JNU. She has been a visiting scholar in Sydney University, University of Warwick and University of Wurzberg, Germany. She was Sir Ratan Tata post-doctoral Fellow at the Institute of Economic Growth in Delhi and KTP Fellow at the University of Technology, Sydney, Australia.
• Rupali Samuel works with Parichay, a nongovernmental human rights initiative providing legal representation to vulnerable persons facing the prospect of statelessness as a result of a citizenship verification exercise conducted in the state of Assam in northeast India. At Parichay, Rupali leads and coordinates student teams in supporting Parichay’s mission of aiding disenfranchised individuals, both through representation and documentation, as well as engaging in strategic impact litigation. Rupali is a graduate of the National Academy of Legal Studies and Research (NALSAR) University and Harvard Law School.
• Padmini Baruah is an incoming MPhil candidate in the Department of Social Anthropology at the University of Cambridge. A Robert Meagher fellow and a recent graduate of the Fletcher School of Law and Diplomacy at Tufts University, they focus on gender and comparative politics. They hold a law degree from the National Law School of India University, Bangalore and have worked in the past for the Leir Institute for Human Security, MIT's J-PAL, and McKinsey and Co. As a Samvidhaan Fellow with the Vidhi Centre for Legal Policy, they are researching the constitutionality of the Foreigners Tribunals in Assam, examining potential grounds for reform and conducting ethnographic work from the field.