Tuesday, 19 March 2013
Sunday, 17 March 2013
Thursday, 7 February 2013
The Hon’ble Justice C.K. Prasad & Justice Khalifullar
Supreme Court of India
We the refugees, who have faced persecution in erstwhile East Pakistan & Bangladesh and were forced to leave that country and seek refuge in India desire to be a party to the case No. 562/2012 in your Court, as the subject matter of the case is connected and may affect & influence the interest of the refugees living all over the country including in Assam and we, on behalf of the Bengali Hindu, Buddhist, Chakma and Christian refugees appeal to you to direct the Government of India :
i. To declare the displaced persons from erstwhile East Pakistan & Bangladesh who are victim of partition of India & have faced persecution in that country, as refugees in India and not illegal migrants / illegal immigrants.
ii. To exempt the refugees mentioned herein above, from the clause 2(1) (b),3(1)(b) and 3(1)(c) of the Citizenship (Amendment) Act. 2003 and to grant Indian Citizenship to all the refugees, mentioned herein above, who have faced persecution in their place of origin and who are ordinarily resident in India from several years to several decades, or
iii. To repeal the clauses 2(1)(b), 3(1)(b)and 3(1)(c) of the Citizenship (Amendment) Act. 2003 for granting Citizenship to the refugees.
2. The constitution of India, in its Citizenship Act. 1955 does not, however, make any provision with respect to the acquisition of Citizenship after its commencement for the refugees who are victim of partition of India and for the others.
3. But on the contrary—
i. The father of the nation Mahatma Gandhi on 26th September, 1947 declared in a prayer assembly — ‘‘The Hindus & the Sikhs staying there can come here by all means, if, they do not wish to continue staying there. In that case, it is the first duty to the Indian government to give them jobs & make their lives comfortable.’’ [collected works of Mahatma Gandhi, vol-89, Page-246, Publication Division, Govt. of India].
ii. The Prime Minister of India Pandit Jaharlal Nehru during the declaration of Independence, declared formally on behalf of the nation — ‘‘We think also of our brothers & sisters who have been cut off from us by political boundary and who unhappily can not share at present in the freedom that has come. They are of us and will remain of us whatever may happen and we shall share in their good and ill fortune alike.’’ [India’s Foreign policy : selected speeches of J. Nehru, Page 15-16, Publication Division, Govt. of India].
Pandit Nehru told in an another speech — ‘‘Now, I have said and say again that in my opinion, the Hindu minorities in East Bengal feel insecure and therefore, can not settle down. They want to come away, even if they remain, they do not know how long they will remain.’’ [speech of J. Nehru, vol-2, Page-155, Publication Division, Govt. of India].
Pandit Nehru told in the Constituent Assembly on 9th August, 1950 — ‘‘We must apply ourselves to the task of rehabilitation of the refugees, not only because it is our duty to do so, but because, it is not the interests of the nation to leave there people where they are — doing nothing and suffering’’ [Speeches of J. Nehru, Publication Division, Govt. of India].
iii. President of India Dr. Rajendra Prasad declared in his speech on the first Republic Day of India — ‘‘We are anxious to rehabilitate all the displaced persons who have suffered and still suffering great hardship and privation.’’ [Speech of Rajendra Prasad, Publication Division, Govt. of India, Vol-I, Page-2].
iv. Home Minister Sardar Ballav Bhai Patel declared on 15th January, 1950 — ‘‘(the minorities of Pakistan) Those who are our flesh & blood, those who fought by our side in the freedom struggle can not suddenly become foreigners to us because they are on the other side of a line. There are people in south Africa, people of Indian origin, but with African Citizenship, whom we still try to help. If they have a claim on us, surely those in that part of Bengal too have a claim.’’ [Speeches of S. Patel, Publication Division, Govt. of India, Page-121].
In the situation, during the communal disturbances in 1950, at the aim to help & for the benefit of the minorities of both the countries — Pakistan & India:--
i. A pact was signed on 8th April, 1950, which is known as Nehru–Liyakat pact. In this historical pact, both India & Pakistan assured the migrated people from East Bengal, West Bengal, Assam & Tripura, for freedom of movement, protection in transit & guarantee to their personal properties etc.[ Nehru-Liyakat Pact page no.1&2, clause i, ii, iii ]
ii. And the government of India also made the Citizenship Rules, 1956 for granting citizenship of India to the refugees and others. The Bengali bonafide refugees also have got citizenship of India with the application for registration under section 5(1)(a), 5(1)(c) etc. The enlightened families & persons among the refugees have registered their names as Indian citizens and others have been absorbed in the Indian society. Some of them have been rehabilitated in different States of the country and others have managed at their own. Names of a section of them gradually have been enlisted in the voters list. They have been issued ration cards, BPL cards etc. and they have been enjoying all kinds of citizen rights. All this have been done, because, the proposal of population exchange did not materialized. Their children & grand children have born in India. They have been taking part in building up this country. They are intelligent, hard workers and loyal to India. They have no connection with Bangladesh. They are Indian at all respect.
These refugees of East Bengal belong to militant communities & most of them have been residing in India along side the border with Bangladesh, which helps security & safety of our country.
Most of the refugees are good farmers & fishermen, They have been playing important role for the growth of agriculture in West Bengal, Andaman, Dandakaranya, Nainital & in other parts of the country, where they have been living.
They are also leading in the field of education, culture, administration, science etc. particularly in the state of West Bengal.
4. During the period of Bangladesh freedom movement in 1971, a huge number of Bengali people — both Hindus, Muslims, etc. took shelter temporarily in India. At that situation Mr. C.L. Goyal, under secretary to the Govt. of India, vide a express letter No. 26011/16/71-10 dated New Delhi, the 29th November, 1971 instructed the State Govt. for not granting citizenship under section 5(1)(a) to the people who have come to India after 25th march, 1971 & those are not ordinarily resident of India. The Bangladesh freedom struggle was over and the Bangladesh become a independent sovereign country. The people of East Bengal who came to India during the Bangladesh freedom movement also went back to Bangladesh, but still the letter under reference of the Central Government is in force & the govt. has been following the cut off date 25th march, 1971 for identifying the ‘illegal migrants’ without any legal sanction, and the state governments are also imposing the cut off date on the bona fide refugees, which is not justified.
5. The erstwhile East Pakistan, now Bangladesh is still a Islamic country like Pakistan and the Hindus & other minorities of that country have been suffering from discrimination, injustices etc. and are forced to leave the country facing persecution in that country and seek refuge in India.
6. In the case of Assam, the ultra nationalist forces opposing the Bangalis, including Hindus, living in that state since before the independence of our country. They compelled the central & state governments to frame Act & to sign Accord in their favour. ‘The immigrant (Expulsion from Assam) Act. 1950 was framed and in the clause 2 of the said Act. the Hindu refugees were given protection, so that, the Hindus may not be deported from India. It was mentioned in the Act. of 1950 as follows :- “
‘Privded that, nothing in this section shall apply to any person who on account of civil disturbances or the fear of such disturbances in area now forming part of Pakistan has been displaced from or has left his place or residence in such area and who has been subsequently residing in Assam.’[copy enclosed].
7. In 1983, the IM(DT) was framed. Due to overriding power of the clause 4 of this Act, it repealed the clause 2 of the Immigrant (Expulsion from Assam ) Act, 1950. i.e. it repealed the protection of the Hindus or refugees from being expelled from Assam & India. In the case between Sarbananda Sonowal vs Union of India, the supreme court struck down the IM(DT) as the provisions of the Act. are ultra vires the constitution of India & it upheld the ‘The Immigrant (Expulsion from Assam) Act. 1950 including the clause no. 2 in the year 2005 [AIR 2005, sc-2958 para 57]. Thus the said Act .protect the Hindus or the bona fide refugees in India from East Bengal.
8. In the Assam Accord 1985, no such protection to the Hindu Refugees have been given. For the reason, the Hindu Refugees, who are victim of partition of India, have been facing the problem of D voters, trial, detention & deportation in Assam. The Assam Accord now has been inserted in the Citizenship Act, 1955 as ‘special provisions as to citizenship of persons covered by the Assam Accord.’ Here the cut off date of 25th March, 1971 has been mentioned to identify the ‘illegal migrants’. It is also applicable to Hindus in Assam, which is not justified. Hindu refugees may not be identified as ‘illegal migrants’ in India, because of the Judgement of the Supreme Court in Sarbananda Sonowal case in 2005 and for other reasons mentioned herein above.
9. The citizenship (Amendment) Act. 2003 has been enacted. The 2(1)(b) clause of the said Act has defined ‘illegal migrants’. Those Hindu & other minority refugees were forced to leave Bagladesh facing persecution and have come to India without Passport etc. They also have been stamped as ‘illegal migrants’ and they are debarred from granting citizenship of India.
10. This clause of the Act. is ultra violation of the commitment of the national leaders of our country & declaration of the then Prime Minister of India & the other Central Government authorities. And it is betrayal to the Bengali refugees. It also contradict with the judgement of the Supreme Court in Sarbananda Sonowal case & The Illegal Immigrants (Expulsion from Assam) Act. 1950.
11. It is to be mentioned here that the Bengali Hindu & other minority refugees were forced to cross the border facing persecution at the time of abnormal situations — civil disturbances and riots etc. and it was not possible for them to collect passport etc. to cross the border.Therefore the clause 2(1)(b) of the Citizenship (Amendment) Act. 2003 should not be applicable to Hindu refugees.
12. Although, except in the case of Assam State, there is no mention of any cut off date in the citizenship (Amendment) Act. 2003 for identifying illegal migrants, so, it can be assumed that it will be effected from the date of effect of the Act i.e. since 3rd December, 2004. But all the state governments, without any valid ground, maintaining the cut off date 25th March, 1971 for the Hindu refugees also, which should be stopped immediately.
13. The refugees, who have come to India prior to 25th March, 1971 or after 25th March, 1971, most of the both groups have crossed the border facing persecution in abnormal situations without passport or any other valid documents etc. Therefore, it is not possible for the administration to bifurcate the refugees after their long stay in India. After 1971, 42 years have been passed. An Act enacted and effected from 3rd December, 2004 and it should not be implemented with the retrospective effect since 1971 or 1951, particularly in the case of refugees.
14. When the citizenship (Amendment) Bill, 2003 was introduced in the Rajya Sabha by the then Dy-Prime Minister of India & Home Minister Sri L.K. Advani on 18th December 2003, the then leader of the opposition in the House and present Prime Minister Dr. Manmohan Singh told — ‘‘‘while I am on this subject, Madam, I would like to point out thing with regard to the treatment of refugees after the partition of our country, the minorities in countries like Bangladesh, have faced persecution, and it is our moral obligation, that, if circumstances force people, these unfortunate people, to seek refuge in our country, approach to grating citizenship to these unfortunate persons should be more liberal. I sincerely hope that the Hon’ble Deputy Prime Minister bears this in mind in charting out the future course of action with regard to the Citizenship Act.’’ [Uncorrected page No. 681 of the parliament proceedings].
15. Sri Shankar Roy Chowdhury Member of Parliament, Rajya Sabha, independent member from West Bengal told — ‘Madam, I would like to convey further what Dr. Manmohan Singh has spoken about refugees. And it is an issue I had taken up with the Hon’ble Deputy Prime Minister. From Bangladesh, we are getting a wide varieties of people who are entering into our country illegally, all of them. Some are economic migrants whom you see all over the country, be it Mumbai, Delhi or Calcutta. Some are infiltrators, terrorists. But a large number of them are religious minorities facing persecution, Chakmas, Hindus, Buddhists, many of them. I earnestly urge the government....... minorities fleeing Bangladesh for the fear of persecution should be given citizenship and should be treated in a supportive and kind manner’’. [Uncorrected page No. 682 of the parliament proceedings].
16. Only the two Hon’ble Members mentioned herein above participated in the discussion on the bill. Then in reply to the appeal of the leaders of the opposition Dr. Manmohan Singh and Sri Shankar Roy Chowdhury, M.P., Sri L.K. Advani declared in the house of the parliament saying that — ‘‘Madam, I have taken note of what the leader of the opposition and Sri Shankar Roy Chowdhury have said, and I am fully in agreement with the views that they have expressed. Very often, in the past, we have faced this kind of situation when we have adopted an approach of that kind. There were various kinds of allegations made that are making discrimination between this and that, which we do not propose to do. We always say that the person who has to flee because of religious persecution is a refugee, a bonafide refugee, and he can not be regarded on par with the illegal immigrants who may have come for any reasons, even for economic reasons. If he is an illegal immigrant, he is an illegal immigrant. So, I take note of what has been said and endorse it.’’ [Uncorrected page No. 682 of the parliament proceedings].
17. The leader of the opposition Dr. Singh & Mr. Roy Chowdhury demanded a special provision for granting citizenship to the minorities of Bangladesh who have took refuge in India and the Dy. Prime Minister Sri L.K. Advani on behalf of the govt. of India accepted and approved the proposal. No member of the House of the parliament raised any objection. It means, there were consensus on the issue of granting citizenship to the refugees, defined in the house. Unfortunately, when the Act was finalised, there were no reflection of the discussion in the House. The bona fide Bengali refugees, according to Dy- Prime Minister & Home Minister of India which was defined in the House of the Parliament, were denied of granting citizenship of India.
18. After enactment of the Citizenship (Amendment) Act. 2003, during this 8/9 years many members of the parliament of various political parties have demanded for granting citizenship to the Bengali Hindu, Buddhist, Chakma & Christian refugees who are ordinarily resident in India for several years to several decades.
19(i). Mr. R.S. Gavai, MP (RS) of RPI party raised the issue through special mention on 7th December, 2004 as follows:-
“The Citizenship Act. 1955 was amended in last December,03. The Act. has described all the foreigners who have entered into India without a valid passport etc. as illegal migrants.
The minorities of East Pakistan ( now Bangladesh) are victims of partition of India. They were forced to come to India due to communal riots and communal tensions and naturally, it was not possible for them to collect passport etc. to come to India. As per the amendment of the said Act. the crores of refugees are also called illegal migrants which is not justified.
In fact, during the time of partition, our National Leaders also made commitment to rehabilitate the refugees and now we can not deny it.
Therefore, my appeal through this house to the govt. of India is to make a special clause in the Citizenship Act. in favour of the refugees so that they may get citizenship of India and to rehabilitate them properly.” [ copy enclosed].
(ii) Mr. Kabindra Purkayastha, MP (LS) of BJP party raised the issue through special mention on 19th December 2011 as follows :-
“Re : Need to provide citizenship to the Hindu and other minority community of Pakistani refugees who took shelter in India after partition in 1947.
Our country was partitioned on the basis of two nations’ theory. Muslim League demanded partition and got it . Hindus and other minority communities of Pakistan had to leave their ancestral homes being persecuted due to civil disturbance, looting, torturing and harassment and took shelter in India including Assam as the victims of partition. As per the UNO definition, they are refugees and deserve shelter, rehabilitation and citizenship observing formalities. This is not the case with the Bangladeshi Muslims. They have infiltrated particularly in Assam and other bordering states with ulterior motives. So, both should not be treated at par. The Central Govt. and the State Govt of Assam should make distinction between the two in providing facilities to the needy ones. The Bangali Hindus of East Pakistan ( present Bangladesh ) who are the victims of the partition should not be subjected to severe harassment by making as ‘D’ voters. Their voting right should not be ceased and those who have been sent to detention camp should be settled properly.
I demand that the refugees should be given Citizenship right as was done in the case of Hindus who came from West Pakistan and setelled in Rajasthan and Gujrat. All sorts of harassment on the Bengali should be stopped.” [ copy enclosed].
(iii) Mr. Basudeb Acharia, MP (LS) of CPI (M) party, Mr. P.L. Punia, MP (LS) of INC & Mr. Khagen Das, MP (LS) of CPI (M) raised the issue through special mention on 25th April, 2012 as follows:-
“Mr. chairman, Sir, I am raising an issue pertaining to lakhs of people who came as refugees to our country from erstwhile East Pakistan & Bangladesh because of their persecution as minorities.
These refugees have settled and are staying in different parts of the country and in different States like Uttarakhand, Uttar Pradesh, Madhya Pradesh, Chhatisgarh and Orissa. They are staying in these states for years together. These refugees have not been granted citizenship in our country.
Sir, an assurance was given by no less a person than the Prime Minister himself that the granting of citizenship of these refugees would be considered favourably but the Central Government, till today, have not considered granting citizenship to lakhs of Bengali refugees.
Sir, when the Citizenship Act. was brought before this House in 2003, an amendment was moved and that amendment was supported by all political parties. In spite of the support from the political spectrum of this House, the amendment was not accepted by the Government to grant citizenship to these hapless people. As a result of this, there are Namasudra living in Uttar Pradesh, Chhatisgarh & Uttarakhand. They are recognized as Scheduled Caste in the state of West Bengal but they are not recognized as Scheduled Caste in Uttarakhand, Uttar Pradesh and Chhatisgarh. I have already introduced a Private Members’ Bill in this regard……(Interruptions)
MR. CHAIRMAN: That another issue. Please speak about the refugees.
SHRI BASU DEB ACHARIA(BANKURA): Sir, it is the same issue pertaining to the refugees. They are belonging to the Namasudras who are recognized as Scheduled Caste in the state of West Bengal. Although the Government of Uttar Pradesh recommended them for inclusion under Scheduled Caste, that has not been considered. The problem has been accentuated when these people are being excluded by other identification. Now, uncertainty is prevailing in the country.
I demand that Citizenship Act. should be suitably amended. Sub-Section 1(b) of Clause 2 of the Act. should be amended accordingly to recognize and grant citizenship to the Bengali refugees who migrated from erstwhile Pakistan even after Indira- Mujib Agreement. They have been staying in the country for years together without having a right of citizenship. This uncertainty should be ended. The persecution of lakhs of Bengali refugees should be ended.
I demand that Citizenship Act. should be amended to grant citizenship to these Bengali refugees.
MR. CHAIRMAN : Shri P. L. Punia and Shri Khagen Das are allowed to associate with the issue raised by Shri Basudeb Acharia”.(copy enclosed).
(iv) Sri Shyamal Chakraborty, MP & Sri Prasanta Chatterjee, MP (RS) of CPI (M) raised the issue through special manetion on 27th April, 2012 as follows :-
“The Citiuzenship (Amendment ) Act,2003 has declared all the foreigners who have entered into India without a valid passport etc. , as illegal migrants. No cut off date for the purpose is mentioned in the said Act., 2003 and naturally the cut off date becomes 19th July,1948.
The minorities of the erstwhile East Pakistan were victims of partition and compelled to leave that country for the fear of persecution. A huge number of minorities of Bangladesh were forced to seek refuge in India. The Citizenship (Amendment ) Act., 2003 has declared lakhs of refugees as illegal migrants which is not justified. It is also to be noted that overwhelming majority of those people belong to the dalit community.
Considering the fact when the Citizenship (Amendment) Bill, 2003 was moved in the Rajya Sabha on 18th December, 2003 by the then Home Minister Shri L. K. Advani, the then Leader of the opposition Dr. Manmohan Singh appealed for a special provision in the proposed Act. so that the refugees who have come from Bangladesh may be granted citizenship of India., and the hon’ble Home Minister agreed to that. But unfortunately there has been no positive amendment of the clause.
Therefore, my appeal to the hon’ble Prime Minister of India to convene an all party meeting to arrive at a consensus to pave the way for making a special clause in the Citizenship Act, 1955 in favour of those refugees so that they may be granted citizenship and proper rehabilitation
SHRI PRASANTA CHATTERJEE (WEST BENGAL) : Mr. Vice- Chairman, Sir, I associate myself with the Special Mention made by my colleague.” [copy enclosed].
Apart from those MPs, many other MPs of various parties have raised the issue in the zero hour and demanded for granting citizenship to the bonafide refugees.
And many other MPs, have written letters to the govt. of India for granting citizenship of India to the refugees mentioned herein above.
The refugees have been demanding & struggling for granting them Citizenship of India & to repeal the clauses 2(1)(b), 3(1)(b) & 3(1)(c) or to exempt the refugees from the clauses but not been done anything in their favour. They have met with the Prime Minister of India on 11th March,2005, 21st December,2005 etc. & with the Home Minister of India on 9th March, 2005, 1st November,2011 etc. they have made commitment to do in favour of the refugees, but not yet been done. At the time of Hunger Strike of the refugees at Jantar Mantar, New Delhi, during the period from 28th November to 1st December, 2011, the Prime Minister of India sent one of his State Minister Sri V. Narayan Swamy to the vanue of the Hunger Strike at New Delhi & assured to initiate steps for granting citizenship to the refugees.
20. In the clause 3(c) of the Citizenship (Amendment) Act. 2003, it is directed that, to be entitled for citizenship by birth on or after commencement of this Act. : —
i. Both of his/her parents are to be citizen of India, or
ii. One of whose parents is a citizen of India and the other is not an illegal migrant at the time of his/her birth.
21. This clause of the said Act. is defective and to be repealed. Those refugees have come to India without passport etc. facing persecution in Bangladesh and have been residing in India for long time, if, they are called ‘illegal migrants’, then their children will not be granted citizenship by birth. Naturally, generation to generation they will no be granted citizenship of India. As they have born in India & residing in India, no other country of this world will grant them citizenship. It means, for the said Act, a stateless group of people will be created, which is not desirable.
22. Sir, the refugees come from West Pakistan to India, their problems of citizenship & rehabilitation are almost solved. Yet, in the citizenship Rules, 2004, the refugees residing in Rajasthan & Gujrat have been given some concessions for achieving citizenship of India.
23. The problems of the Bengali Hindu etc. refugees still a burning problem. Vast number of them still living along side the Canals, Railway truck & Roads under inhuman condition. They have not got any kind of help & co-operation from the government. Many of them still not getting any kind of civic facilities & amenities. Their names have not been included in the voters list. They have not been issued ration cards & BPL cards, although they are ordinarily resident in India for several years to several decades.
24. The Bangladesh government will not take them back. Refugees are also not ready to go back to Bangladesh. They have not any kind of connection with Bangladesh. Those people once have left the country for the fear of life & prestige, they should not be push back to Bangladesh against their will. It is a matter of humanity.
25. The Refugees presence in India, have created good for the country, fact is that, they have been living in this country since long and they will continue in this country, because there is no way to deport them to their place oforigin Now, the question is to regularize their de facto living existence in India.
26. So, considering the history of partition of India, assurances of our national leaders and government of India, Nehru-Liyakat pact, The Immigrant (Expulsion from Assam) Act. 1950, Judgement of the Supreme Court on Sarvananda Sonowal case, debates in the Parliament on 18th December, 2003 in this regard, appeal of the several MPs in the parliament and taking into consideration on humanitarian ground of the pathetic condition of the Bengali Hundu, Chakma, Bhuddist and Christians refugees, please direct the government of India : —
i. To declare the displaced persons from erstwhile East Pakistan & Bangladesh who are victim of partition of India & have faced persecution in that country, as refugees in India And not illegal migrants / illegal immigrants.
ii. To exempt the refugees mentioned herein above from the clause 2(1) (b), 3(1)(b) and 3(1)(c) of the Citizenship (Amendment) Act. 2003 and grant Indian Citizenship to all the refugees mentioned herein above who have faced persecution in their place of origin and who are ordinarily resident in India from several years to several decades, or
iii. To repeal the clause 2(1)(b),3(1)(b) and 3(1)(c) clause of the Citizenship (Amendment) Act. 2003 for granting Citizenship to the refugees.
[NB—Bold letters do not indicate any more importance]
It is notes for the Advocates of the Supreme Court. If any more
Suggestions, please send.
Sukriti Ranjan Biswas
Date : 02.02.2013 Joint Action Committee for Bangali Refugees