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Authors

Urvi Pathak

Abstract

For decades since the Sri Lankan civil war, Sri Lankan Tamil refugees have lived as stateless persons in India. However, India does not recognise “refugees” and “stateless persons” as legally separate categories, and treats them in a common immigration system with “ foreigners”. This conflation of citizenship law with the immigration regime is a result of the introduction of the category of “illegal migrant” as a determinative tool of Indian citizenship. This paper explores recent shifts in Indian citizenship laws, which have been embroiled in the tension between jus soli and jus sanguinis bases of citizenship, particularly with the category of “illegal migrant” and the Citizenship (Amendment) Act, 2019, and their impact on Sri Lankan Tamil refugees’ citizenship. This paper finds that despite the influence of international human rights, formal citizenship continues to be the clinching factor in Sri Lankan Tamil refugees’ quality and security of life in India today – an echo of Hannah Arendt’s conception of the “right to have rights”, by which she meant that the right to citizenship is a gateway for an individual to access all other rights. Against this backdrop, this paper suggests interim solutions for Sri Lankan Tamil refugees to secure formal citizenship in India, and in particular, the role of courts in crafting jurisprudence that would support the alleviation of their statelessness. In the same breath, this paper strongly argues in favour of, first, the need for a forward-looking reconceptualization of Indian citizenship laws based on the jus soli principle; and second, a recognition of India’s burden under the UN Conventions on statelessness to reduce and prevent statelessness, particularly through eliminating documentation-heavy citizenship determinations.

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