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An estimated 18-minute read

Supreme Court orders to grant Indian citizenship rights to Chakmas and Hajongs in 3 months

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IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO.510 OF 2007COMMITTEE FOR C.R. OF C.A.P. & ORS. …PETITIONERSversusSTATE OF ARUNACHAL PRADESH & ORS. ...RESPONDENTS J U D G M E N TADARSH KUMAR GOEL, J.1. This petition under Article 32 of the Constitution of India mainlyseeks direction against Union of India through Ministry of Home Affairs togrant citizenship to the Chakma and Hajong Tribals who migrated to India in1964-1969 and were settled in the State of Arunachal Pradesh.2. Petitioner No.1 has described itself as “Committee for CitizenshipRights of the Chakmas of Arunachal Pradesh” (“CCRC”). According to theaverments in the petition, representations were filed with the NationalHuman Rights Commission (“NHRC”) alleging persecution of Chakmas andHajongs in the State of Arunachal Pradesh. The NHRC approached this Courtby way of a Writ Petition (C) No.720 of 1995 titled “National Human RightsCommission vs. State of Arunachal Pradesh” seeking direction from thisCourt to ensure that the Chakmas and Hajongs are not forcibly ousted fromthe State of Arunachal Pradesh, which was disposed of on 9th January,1996 [(1996) 1 SCC 742]. In the said case, the Union of India appeared before this Courtand stated that decision to settle the Chakmas in the State of ArunachalPradesh was taken after discussion between the Government of India and theNorth-East Frontier Agency (“NEFA”) Administration (Predecessor of theState of Arunachal Pradesh). The Chakmas were residing in the State ofArunachal Pradesh for more than three decades and had close social,religious and economic ties. As per joint statement issued by the PrimeMinisters of India and Bangladesh in February, 1972, the Union Governmenttook a decision to confer citizenship on the Chakmas under Section 5(1)(a)of the Citizenship Act, 1955 but the State of Arunachal Pradesh hadreservations on this count. The Central Government was in favour of adialogue between the State Government, the Chakmas and all concerned toresolve the issue of granting citizenship while also redressing the genuinegrievances of citizens of Arunachal Pradesh. The stand of the State ofArunachal Pradesh was that it had provided basic amenities to the Chakmasbut the State had a right to ask the Chakmas to quit the State. The Statecould not permit outsiders to settle within its territory as it had limitedresources and the Union of India had refused to share its responsibility.The Deputy Commissioner of the area was to forward the applications forcitizenship after due inquiry but no such application was pending. Furtherstand of the State was that settlement of Chakmas will disturb its ethnicbalance and destroy its culture and identity. The tribals of the Stateconsider Chakmas as potential threat to their tradition and culture.3. This Court considered rival submissions and held that the Chakmasapprehend threat on the All Arunachal Pradesh Students’ Union (“AAPSU”) whowere reported to be enforcing economic blockades on the refugee camps,adversely affecting supply of ration, medical and essential facilities tothe Chakmas. Some Chakmas had died on account of blockade. This Courtfurther noticed that Chakmas could invoke Section 5(1)(a) of theCitizenship Act by filing application in form prescribed by Part II of theCitizenship Rules, 1956. The observations in NHRC case (supra),inter alia, are as follows :-“18. From what we have said hereinbefore, there is no doubt that theChakmas who migrated from East Pakistan (now Bangladesh) in 1964, firstsettled down in the State of Assam and then shifted to areas which now fallwithin the State of Arunachal Pradesh. They have settled there since thelast about two and a half decades and have raised their families in thesaid State. Their children have married and they too have had children.Thus, a large number of them were born in the State itself. Now it isproposed to uproot them by force. The AAPSU has been giving out threats toforcibly drive them out to the neighbouring State which in turn isunwilling to accept them. The residents of the neighbouring State have alsothreatened to kill them if they try to enter their State. They are thussandwiched between two forces, each pushing in opposite direction which canonly hurt them. Faced with the prospect of annihilation the NHRC was moved,which, finding it impossible to extend protection to them, moved this Courtfor certain reliefs.19. By virtue of their long and prolonged stay in the State, the Chakmaswho migrated to, and those born in the State, seek citizenship under theConstitution read with Section 5 of the Act. We have already indicatedearlier that if a person satisfies the requirements of Section 5 of theAct, he/she can be registered as a citizen of India. The procedure to befollowed in processing such requests has been outlined in Part II of theRules. We have adverted to the relevant rules hereinbefore. According tothese Rules, the application for registration has to be made in theprescribed form, duly affirmed, to the Collector within whose jurisdictionhe resides. After the application is so received, the authority to registera person as a citizen of India, is vested in the officer named under Rule 8of the Rules. Under Rule 9, the Collector is expected to transmit everyapplication under Section 5(1)(a) of the Act to the Central Government. Ona conjoint reading of Rules 8 and 9 it becomes clear that the Collector hasmerely to receive the application and forward it to the Central Government.It is only the authority constituted under Rule 8 which is empowered toregister a person as a citizen of India. It follows that only thatauthority can refuse to entertain an application made under Section 5 ofthe Act. Yet it is an admitted fact that after receipt of the application,the Deputy Collector (DC) makes an enquiry and if the report is adverse,the DC refuses to forward the application; in other words, he rejects theapplication at the threshold and does not forward it to the CentralGovernment. The grievance of the Central Government is that since the DCdoes not forward the applications, it is not in a position to take adecision whether or not to register the person as a citizen of India. Thatis why it is said that the DC or Collector, who receives the applicationshould be directed to forward the same to the Central Government to enableit to decide the request on merits. It is obvious that by refusing toforward the applications of the Chakmas to the Central Government, the DCis failing in his duty and is also preventing the Central Government fromperforming its duty under the Act and the Rules.20. We are a country governed by the Rule of Law. Our Constitution conferscertain rights on every human being and certain other rights on citizens.Every person is entitled to equality before the law and equal protection ofthe laws. So also, no person can be deprived of his life or personalliberty except according to procedure established by law. Thus the State isbound to protect the life and liberty of every human being, be he a citizenor otherwise, and it cannot permit any body or group of persons, e.g., theAAPSU, to threaten the Chakmas to leave the State, failing which they wouldbe forced to do so. No State Government worth the name can tolerate suchthreats by one group of persons to another group of persons; it is duty-bound to protect the threatened group from such assaults and if it fails todo so, it will fail to perform its constitutional as well as statutoryobligations. Those giving such threats would be liable to be dealt with inaccordance with law. The State Government must act impartially and carryout its legal obligations to safeguard the life, health and well-being ofChakmas residing in the State without being inhibited by local politics.Besides, by refusing to forward their applications, the Chakmas are deniedrights, constitutional and statutory, to be considered for being registeredas citizens of India.”4. Accordingly, direction was issued to the State of Arunachal Pradeshto ensure that life and liberty of Chakmas residing in the State wasprotected against any attempt to evict them by organized groups such asAAPSU and their applications could be forwarded to the Central Government.5. Case of the petitioners, further is that the application of the Stateof Arunachal Pradesh for modification and Writ Petition (C) No.593 of 1997filed by an organization of tribals of Arunachal Pradesh against thejudgment of this Court was also dismissed. Another writ petition being WritPetition No.13 of 1998 against the judgment of this Court was dismissed on9th December, 2002. Thereafter applications were filed for citizenship butthe same were not acted upon. The Election Commission of India in thelight of judgment of this Court passed orders dated 3rd March, 2004declaring the resolution dated 14th May, 2003 passed by the State ofArunachal Pradesh against facilities to the petitioners to beunconstitutional but the authorities of the State of Arunachal Pradesh hadnot forwarded the applications as required under Rule 9 of the CitizenshipRules to the Central Government.6. Counter affidavit has been filed by the Union of India stating thatthe applications directly received by the Ministry of Home Affairs wereforwarded to the Government of Arunachal Pradesh which had not beenreturned except few applications with negative recommendations. The saidapplications were returned back to the Government of Arunachal Pradesh.Ministry of Home Affairs had advised the Government of Arunachal Pradesh toact in compliance with the judgment of this Court.7. The stand of the State of Arunachal Pradesh is that there was nothreat to the life and liberty of the Chakmas and Hajong refugees. Afterreceiving the judgment of this Court, the judgment was circulated toInspector General of Police, Deputy Commissioners of the concernedDistricts and Principal Chief Conservator of Forests. The State Governmentwas fully bound by the direction of this Court and had taken all necessarysteps to comply with the same. The State of Arunachal Pradesh had received4382 applications. Though the popular sentiment of the indigenous tribalswas different, the State of Arunachal Pradesh was honouring the order ofthis Court. It is further stated that Chakmas and Hajong tribes weresettled in NEFA from 1964 to 1969 when there were no elected bodies in theState of Arunachal Pradesh. The laws applicable in the State of ArunachalPradesh like the Government of India Act, 1870, the Bengal Eastern FrontierRegulation, 1873, the Scheduled District Act, 1874, the Assam FrontierTract Regulation, 1880, the Assam Frontier Forest Regulation, 1891, theChin Hills Regulations, 1896 and the Assam Frontier (Administration ofJustice) Regulation, 1945 (1 of 1945) were not taken into account. Onethousand four hundred ninety seven Chakmas have been included in theelectoral rolls.8. The petitioners have filed a rejoinder affidavit alleging thatchildren of Chakmas and Hajongs are denied educational facilities. Theywere not being covered by the public distribution system. They presented apetition to the 10th Lok Sabha and also to Rajya Sabha Committee onPetitions. The said Committee in its 105th Report published on 14thAugust, 1997 made recommendation to grant Indian Citizenship to the Chakmasbut the said recommendation has not been acted upon. The recommendation isas follows :“42. The Committee, therefore, recommends that the Chakmas of ArunachalPradesh who came there prior to 25.3.1971 be granted Indian citizenship.The Committee also recommends that those Chakmas who have been born inIndia should also be considered for Indian citizenship. The Committeefurther recommends that the fate of those Chakmas who came to the Stateafter 25.3.1971 be discussed and decided by the Central Government andState Government Jointly. The Committees also recommends that all the oldapplications of Chakmas for citizenship which have either been rejected orwithheld by Deputy Commissioners or the State Deputy Commissioner or theState Government continue to block the forwarding of such applications toCentral Government, the Central Government may consider to incorporatenecessary provision in the Rules (or the Act it so required) whereby itcould directly receive, consider and decide the application for citizenshipin the 23 case of Chakmas of Arunachal Pradesh. The Committee alsorecommends that Chakmas be also considered for granting them the status ofScheduled Tribes at the time of granting the citizenship. The Committeewould like to earnestly urge upon the Central Government and StateGovernment to ensure that until amicable solution is arrived at, theChakmas are allowed to stay in Arunachal Pradesh with full protection andsafety, honour and dignity”.9. When the matter came up for hearing before this Court on 1st August,2012, the following order was passed :-“Mr. B. Bhattacharyya, learned Additional Solicitor General forrespondent No. 5, and Mr. Anil Shrivastav, learned counsel for respondentNos. 1 to 4, pray for some time to seek instructions and also to ensurethat the controversy raised in the Writ Petition is resolved at the handsof the Central Government and the State Government at the earliest.”10. Again on 28th August, 2012, following order was passed :“Mr. B. Bhattacharyya, learned Additional Solicitor General appearingfor the respondent No. 5 - Union of India, submits that all 4637applications for grant of citizenship in respect of Chakmas received inthe Ministry of Home Affairs, Government of India have beenreturned to the State Government as the applications were notmade to the appropriate authority in prescribed form and werealso not accompanied with the recommendations of the StateGovernment as per statutory requirement. Having regard to the decision of this Court in NationalHuman Rights Commission Vs. State of Arunachal Pradesh and Another,(1996) 1 SCC 742, and the directions contained therein, we direct theState of Arunachal Pradesh to submit a comprehensive report/affidavit tothis Court in respect of 4637 applications returned by the CentralGovernment to the State Government on the following aspects in respectof each application :- (i) Whether the conditions laid down in the relevant clauses ofSection 5 of the Citizenship Act, 1955 (for short, 'Act') aresatisfied;(ii) Whether the applicant has an intention to make India hispermanent home;(iii) Whether the applicant has signed oath of allegiance asspecified in the Second Schedule to the Act; and(iv) Whether the applicant is of good character and is otherwise afit and proper person to be registered as a citizen of India. The above report/affidavit shall be submitted by the State ofArunachal Pradesh to this Court through the Secretary(Political), Government of Arunachal Pradesh within two months from today. A copy of the report/affidavit shall be given to the Advocate-on-Record for the petitioners well in advance.”11. On 20th January, 2014, this Court passed the following Order:“List the matter on 5th May, 2014, so as to enable the Joint HighPowered Committee constituted vide Government of India's OrderNo.13/2/2010-NE-II dated 10/08/2010. to place on record the progress madein the matter. We are sure that the Committee would make all efforts so that thework entrusted to it is concluded preferably before the next date ofhearing.”12. Additional Affidavit dated 2nd January, 2013 was filed by the Stateof Arunachal Pradesh stating that the Government of India, Ministry of HomeAffairs (N.E. Division) has constituted a committee under the Chairmanshipof Joint Secretary (N.E.), Ministry of Home Affairs on 10th August, 2010 toexamine various issues relating to settlement of Chakmas/Hajongs inArunachal Pradesh including the possibility of granting Indian citizenshipto eligible Chakmas/ Hajongs. The Committee has held its sitting on 9thJanuary, 2012 and taken certain decisions. Thus, the issue was not beingignored though there was no delay in the matter.13. We have heard learned counsel for the parties and perused the record.14. Learned counsel for the petitioners submitted that their rights havebeen duly acknowledged by this Court in NHRC case (supra). Still, theirlegitimate right of citizenship has not so far materialized. They havebeen settled after a conscious decision at the highest level of theGovernment of India. They could not be treated as foreigners. He hasplaced reliance on a judgment of the Gauhati High Court dated 19th March,2013 in PIL No.52 of 2010 titled “All Arunachal Pradesh Students Union(AAPSU) vs. The Election Commission of India” dismissing a petition filedby AAPSU against the guidelines issued by the Election Commission of Indiafor revision of electoral rolls in respect of areas where there issubstantial presence of Chakmas and Hajongs. In the said judgment, theMemorandum dated 23rd March, 2005 issued by the Election Commission ofIndia and further guidelines dated 3rd October, 2007 for revision ofelectoral rolls with reference to 1st January, 2007 as qualifying date arealso referred to. The objection against the Chakmas being treated asordinary residents of Arunachal Pradesh in absence of possession of validInner Line Passes was also considered. The Election Commission of Indiasupported its guidelines with guidelines with reference to a judgment ofthe Delhi High Court dated 28th September, 2000 in W.P. No.886 of 2000(Peoples Union for Civil Liberties vs. Election Commission of India & Ors.)15. In the judgment of the Gauhati High Court, it was noted that incontradiction to those unwanted illegal migrants who sneak into thecountry, the Chakmas migrated to India on account of their displacement andthe Government of India agreed to grant them citizenship. In thesecircumstances, the guidelines of the Government of India were held to bejustified and did not warrant any requirement of Inner Line permit. Therelevant observations are :“[18] ………. Having regard to the facts and circumstances which have beenalso highlighted by the Hon'ble Supreme Court as referred to above in NRHCcase, we are of the view that these additional guidelines, having beenissued in the peculiar circumstances obtaining, cannot be held to bediscriminatory.Further, in view of the policy decision taken by the Government of India tosettle the Chakma refugees in different States and also in ArunachalPradesh in consultation with the authorities of the Arunachal Pradesh, andalso to confer Indian citizenship, the contention of the petitioners thatthe aforesaid guidelines have the effect of violating the provisions of lawin terms of lack of Inner Line Permit or violation of provisions of section13 of the Registration of Births and Deaths Act, 1969 does not hold water.We are of the view that once a decision had been taken to settle theseChakma refugees in Arunachal Pradesh in consultation with the authoritiesof Arunachal Pradesh, they would become residents of Arunachal Pradesh andwould not require the Inner Line Permit/Pass. Otherwise also, once theyhave been allowed to settle in Arunachal Pradesh, it would be deemed thatsuch permits had been granted to them and in our considered opinion, anyother view would negate and defeat the policy decision taken by theGovernment of India in consultation with the Arunachal Pradesh authoritiesto settle these Chakmas in Arunachal Pradesh.Similarly, as regards, the other contention of the petitioners that theguidelines would contravene the provisions of section 13 of theRegistration of Births and Deaths Act, 1969 also cannot be accepted. It maybe noted that the Chakmas had taken refuge in this country under distressand trying circumstances after having been uprooted from their hearth andhomes and made to flee to avoid persecution. Further, later on, afterhaving allowed to settle in Arunachal Pradesh, they had faced difficultiesand harassments from the neighbouring local populace which had been takennote of by the Supreme Court in NHRC case as mentioned above. Therefore,issuing of the additional guidelines for the purpose of verification of thebirth of the claimants on the basis of other credible materials for thepurpose of enrolment in the electoral rolls where these Chakmas had beenofficially settled cannot be interfered with merely on the technical groundthat certain provisions of Registration of Births and Deaths Act, 1969 havenot been strictly complied with, if the evidences are otherwise credibleand trustworthy.We are of the view that the additional guidelines which had been issued bythe Election Commission of India are merely to enable those Chakmas toenjoy such benefits as a citizen of this Country including the right tovote by having their names enrolled in the electoral rolls of the concernedconstituency where they have been settled. Once, these Chakma refugeeshave been granted citizenship, they are entitled to enjoy all the rightsand privileges that flow on becoming a citizen of this country and further, they are entitled to have their rights as citizens of this countryprotected and safeguarded.”16. We find merit in the contention of the petitioners. It standsacknowledged by this Court on the basis of stand of the Government of Indiathat the Chakmas have a right to be granted citizenship subject to theprocedure being followed. It also stands recognized by judicial decisionsthat they cannot be required to obtain any Inner Line permit as they aresettled in the State of Arunachal Pradesh.17. In State of Arunachal Pradesh vs. Khudiram Chakma [(1994) Supp. 1 SCC 615],this Court noted the ancient history of Arunachal Pradesh as follows :“41. The history of the mountainous and multitribal north-east frontierregion which is now known as Arunachal Pradesh ascends for hundreds ofyears into the mists of tradition and mythology. According to Pauraniclegend, Rukmini, the daughter of King Bhishmak, was carried away on the eveof her marriage by Lord Krishna himself. The ruins of the fort atBhalukpung are claimed by the Akas as the original home of their ancestorBhaluka, the grandson of Bana Raja, who was defeated by Lord Krishna atTezpur (Assam). A Kalita King, Ramachandra, driven from his kingdom in theplains of Assam, fled to the Dafla (now Nishang) foothills and establishedthere his capital of Mayapore, which is identified with the ruins on theIta hill. A place of great sanctity in the beautiful lower reaches of theLohit River, the Brahmakund, where Parasuram opened a passage through thehills with a single blow of his mighty axe, still attracts the Hindupilgrims from all over the country.”18. The above history shows the integral link of the State of ArunachalPradesh with the rest of the country since ancient times. It is well knownthat the Chakmas and Hajongs were displaced from the area which became partof East Pakistan (now in Bangladesh) on construction of Kaptai Dam and wereallowed to be rehabilitated under the decision of the Government of India.As earlier held by this Court, the Delhi High Court and Gauhati High Court,they need to be protected and their claims of citizenship need to beconsidered as per applicable procedure. They could not be discriminatedagainst in any manner pending formal conferment of rights of citizenship.Their status also stands duly acknowledged in the guidelines of theElection Commission of India.19. Learned Additional Solicitor General fairly stated that theGovernment of India will earnestly take appropriate measures in the matter, granted some more time.20. Accordingly, we allow this petition and direct the Government ofIndia and the State of Arunachal Pradesh to finalise the conferment ofcitizenship rights on eligible Chakmas and Hajongs and also to ensurecompliance of directions in judicial decisions referred to in earlier partof this order for protection of their life and liberty and against theirdiscrimination in any manner. The exercise may be completed at theearliest preferably within three months from today.Justice Anil R DaveJustice Adarsh Kumar Goel17 September 2015
Mohit Singh

Mohit Singh

Mohit Singh is an advocate at the Supreme Court of India.

Mohit Singh

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