“To be stateless means that you are deprived of the right to have rights.” – Hannah Arendt

Ten million people in the world are living unidentified, unnamed, and deprived of their right to have rights. 40% of this population belongs to Asia and the Pacific. India ‘being home to stateless’ is a significant contributor to this number. Despite several human rights guaranteed by the Constitution, access to basic needs remains a far-fetched dream for “the stateless”. The definition of stateless lies in Article 1 of the Convention Relating to the Status of Stateless Persons. India is neither a party to the convention nor does it have legislation to deal with the issue of statelessness. The Passports Act of 1967 is the only Act that acknowledges the problem of statelessness to some extent.

India is one of the most preferred destinations for surrogacy and the commercial sex industry. The moment a child is born out of an Indian surrogate’s womb to parents of a foreign nation having no surrogacy laws, their nationality comes into question. Being born in a country that has deaf ears to the cries of the stateless puts them in an even more problematic state. Distinct yet similar, thousands of people are trafficked into India for employment opportunities but remain trapped in an alien land with no rights.

This article seeks to perceive statelessness from a less-known facet of surrogacy and trafficked prostitution.

Surrogated Statelessness

India is a hub of commercial surrogacy. However, it is unfortunate to note that a slew of children born through commercial surrogacy either end up stateless or find it onerous to prove their nationalities.  

The case of Jan Balaz (S) v. Anand Municipality & 6 (S) dealt with the issue of nationality of children born through surrogacy to an Indian surrogate mother and a father having German citizenship. Since surrogacy was not recognized in Germany, newly-born children could not receive German citizenship. Furthermore, as the children did not fit into the current legal definition of an Indian citizen, they were left stateless. Addressing this issue, the apex court stated that the children born out of gestational surrogacy to an Indian mother are Indian citizens. The court further stressed the urgency of comprehensive legislation to deal with the rights of the children born out of surrogacy. However, to date, no such legislation has taken effect.

The Assisted Reproductive Technologies (Regulation) Bill 2014 is the sole step taken by the legislature. It deals with the statelessness of children born out of surrogate agreements. However, the same has not been passed by the legislature. Moreover, section 38 of the Surrogacy (Regulation) Act 2021, makes it a penal offence for a person to abandon a child born out of surrogacy. However, the issue of statelessness has been largely left unaddressed. 

The root cause of the problem in international surrogacy agreements lies in the irregularity of surrogacy laws in different countries. For instance, surrogacy is completely illegal in France. In such a scenario, if a couple from France, enters into a surrogacy agreement with a surrogate mother from India, the child will be in a hapless state of statelessness due to the absence of laws dealing with the issue.

Prostitution And Trafficking

The commercial sex industry of India, where women trafficked from different countries are exploited, opens the door to statelessness. The legal lacuna is the reason that India is infamously one of the preferred countries for commercial sexual exploitation where victims of trafficking from Nepal and Bangladesh are brought. In India, only commercial prostitution through procurers, and forced prostitution is illegal. On the other hand, sex work in India’s neighbouring countries is completely illegal. This increases the rate of trafficking into India for a better opportunity and aids statelessness.

Female sex workers remain in dire need of sexual and reproductive health (SRH) services. However, despite this need being observed, they are consistently denied access to these services. Moreover, sex workers fail to convince the clients to use contraceptives, let alone fight for access to SRH services. This leads to unintended pregnancies and the passing on of the mother’s misfortune to her child. Trafficked women in India do not fall under the definition of an immigrant or a refugee. Since the child’s mother is not a citizen of India, the child is denied fundamental rights like access to education and healthcare facilities promised by the central government. The non-issuance of Aadhaar cards worsens the situation. Therefore, neither law nor society comes to the rescue of the stateless.

Rohingya women are lured by false promises of jobs and fall prey to forced prostitution. Since they enter Indian territory with the help of forged documents, they lose their identity and fall into the pit of statelessness. Further, having no legal protection adds to their plight if they are caught and sent to prison or asylum. Since India does not have a refugee law, the government deals with refugees and asylum seekers in a make-do way. Consequently, the stateless status in India is nothing more than mere mortal existence, as the official census carried out does not include a population belonging to unknown nationalities. Remaining in the legal grey area is a sorry state to be in as the stateless can neither go back to the countries they came from nor enjoy the rights promised by the country they are residing in, leaving these populations exceptionally vulnerable and disadvantaged.

Way Forward

More than seven decades have passed since India enacted its Constitution, and still, statelessness is given the cold shoulder in the Indian statutes. Though international efforts have been made to fiddle with the issue, UDHR confers that everyone has the right to nationality and the right to change one’s nationality. Consequently, the Convention on Reduction of Statelessness became  the most vital treaty responsible for reducing statelessness. However, India not being a party to the convention and giving no statutory recognition to the stateless leave the stateless within India in a vulnerable and uncertain position. 

India is in a clamorous need to enact a humanitarian statute, and the responsibility lies on the shoulder of parliament to order it. Initially, the government must include the population in the census, to ascertain the number of the stateless. Concomitantly birth certificates may be issued to the children of unknown parentage or to those whose parent(s) is/are stateless.  In India, a birth certificate is a necessary document to prove age, secure admission to educational institutions, apply for immigration, and obtain identity proof documents like Aadhar, PAN, passport etc. Thus, although birth certificates are not  proof of nationality, they will prove the place of birth and parentage of the child, which may help provide recognition from the state. To note, the lack of documentation doesn’t mean someone is stateless per se, however, it makes the process arduous to prove nationality, issuing and accepting birth certificates can help circumvent this issue.

The evil of statelessness is intermingled with a slew of issues, so one solution approach is not applicable in this case; nevertheless, parliament has to be held responsible for the  enactment of a pro bono publico legislature or amend the current laws to address this widespread phenomenon of statelessness and its effects in India.

Bibliography

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