IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
IN
WRIT PETITION
NO.
OF 2015
IN THE MATTER OF :
1
Solidarity
committee for Bengali Refugees
Petitioners
907, Soondarhi Station
Road, Pilibhit
Dist. : Pilibhit
Uttar Pradesh, Pin Code : 262001
2 Citizens Rights Preservation Committee,
Assam ( CRPC )
( Regn.
No. 2729/1995-96 )
House No.
– 42, Beltala P.O. – Khanapara Road
Guwahati
– 781
3 All India
Namasudra Kalyan Parisad
Shanti Nagar, P.O. – Palta,
Dist. – North 24 Parganas
Kolkata – 700…………
4 Nityananda Mallick, Practicing Advocate
S/O Late Raj Kumar Mallick
Maharajpur, P.O.-
Gobiasarai
Dist. Pilibhit,UP. Pin - 262122
VERSUS
1
The Union of India and others.
Respondents
WITH
I.A no.
of 2015, An
application for ex-parte Stay
PAPER BOOK
(For Index, Kindly See Inside)
Dr.
Kailash Chand
ADVOCATE FOR THE PETITIONERS
INDEX OF
RECORDS OF PROCEDINGS
Sl.
No. Date of Record of
Proceding Remarks.
1
2
3
4
5
6
7
8
9
10
INDEX
Sl.No. PARTICULARS PAGES
1
Listing Pro forma
……………………… … A1 – A5
2
Synopsis and List of Dates …………………..
B – O
3 Writ Petition with Affidavit …………………
1 – 83
4 Annexure --- P /1 …………………………… 84
Questions
of the various Members in the
Parliament In regard to religious persecution
of the
Minorities of Bangladesh and the
answers of
the Ministers during the period
from 2001 to
2011.
5 Annexure --- P/2 , ………………………………97
Definition
of the term Refugee formulated by
United Nations and some other relevant general
provisions
of the declaration of UNO.
6 Annexure --P/3 ………………………………. 101
Introductory Note by the office of the
United
Nations High
Commission for Refugees (UNHCR)
7 Annexure---P/4 ……………………………….105
Copy
of the order of the Odisha Govt. No. PPT(P)
60/2000-15681
dated the 16th March, 2001.
8 Annexure ----P / 5
…………………………………….108
Copy
of the order of the Ministry of Home Affairs
No.
F-14011/55/09-F.VI dated the 23rd November, 2009.
9 I. A. No. ………….. /2015 ……………………….119
An application for interim order of Stay
PROFORMA FOR
FIRST LISTING
In the Supreme Court of India
1 Nature of the matter Writ Petition (Civil) under Article 32
2 Name(s) of the Petitioner(s) /Appellants : Solidarity Committee for
Bengali Refugees And Others
3 Email
Id no. of the petitioners Not Available
4 Name of the Respondents Union of India & others.
5 No. of the Case Writ Petition
(civil)………. Of 2015
6 Advocate for Petitioners Dr. Kailash Chand.
6A Email Id of the Advocate NA
7 Advocate for Respondents NA
8 Section dealing with the matter XX
9 Date of Impugned order NA
10 Names of Hon’ble Judges NA
11 In land acquisition matters NA
11A Notification/Govt. Order
No.(u/s 4,6), Dated issued NA
By centre/state of NA
11B Exact purpose of
acquisitioned
village involved NA
12 In civil matter NA
12A Suit no. Name of lower court NA
12B Date
of judgment NA
13 In Writ Petition : ‘Catchword’ of
Other similar matters Migrants of Pakistan
& Bangladesh.
14 In case of motor vehicle accident
Matters : vehicle number NA
15 In service matters NA
I) Relevant service rules, if any NA
ii) ID Reference /Award no. if
applicable NA
16 Nature of Urgency NA
17 In case it is a tax matter NA
i)
Tax amount involved in the matter
NA
ii) Whether a reference/statement of
the case was called for or rejected NA
iii) Whether similar tax matter of
same
Parties filed earlier (may be
for earlier
/other assessment year) NA
iv) Exemption notification/
circular no. NA
19. Valuation of the matter NA
20 Classification of the matter (please fill
up
The number & name of relevant
category
With subcategory as per the list
circulated. NA
21. Title of the Act. involved
(Centre/State) Constitution
of India.
21A Sub classification Indicate
section/Article of the Statute. 14,21,20(1),22(4),
Citizenship
Act.1955
21B Sub section involved 5(1)(a), 3(1)(b),
3(1)(c), 2(1)(b), 6A
21C
Title of the rules involve
(centre/state Citizenship
Rules, 1956, 2004, 2009
21D Sub
classification (indicate
Rule/sub rule of the statute) NA
22. Point of law and question
of law raised in the case. Discrimination
between the migrants of West Pakistan, East Pakistan and Bangladesh in regard
to granting Citizenship of India & rehabilitation.
23. Whether matter is not be listed
before any hon’ble judge ?
Mention the name
of the hon’ble judges. NO/NA
24. Particulars of identical/similar
case, if any.
i) Pending Cases WP (civil) 243 of 2012 & 916 of
2014.
ii) Decided cases with
Citation NA
25. Whether the petition is against
Interlocutory/final
order/decree in the case. NA
26. If it is a fresh matter, please state
name of The High Court and the corum
in the impugned judgement/order. NA
27. If the matter was already listed in this
court. NO
i) When was it listed NA
ii) What was the Coram NA
iii) What was the direction of
the Court NA
28. Whether a date has already been fixed
Either by court or on being
mentioned for
The hearing of the matters ? If
so, please
Indicate the date fixed noted. NA
29. Is there is a caveator ? If so, whether
notice has been issued to him ? NA
. Whether date entered into computer. NA
30 Nature of Urgency Ex-parte ad interim orders
31. If it is a criminal matter, please
state NO
i) Whether accused has surrender NA
ii) Nature of offence, i.e.
convicted
under section with Act. NA
i)
Sentence Awarded NA
ii)
Sentence already undergone by the
accused NA
32. FIR / RC / ETC. NA
I) Date
of registration of FIR etc. Name & place NA
II) Case
no. in trial court & date of judgement NA
III) Name
& place 1st Appellate Court NA
IV) Case
no. in 1st. Appellant
court
& date of judgement
NA
Dr. Kailash Chand.
ADVOCATE FOR THE PETITIONERS
Synposis and List
of Dates
India, as defined in
the Govt. of India Act, 1935, was partitioned on religious basis. After
partition, lakhs of people were forced to migrate from West Pakistan, East
Pakistan & Bangladesh to the territory of India for religious persecution.
The migration of the people of Indian Origin for religious persecution
and fear of such persecution, were
started during the period of independence and still going on. As & when the
communal tensions increase and riots start in Bangladesh or in Pakistan, the
rate of such migration of religious minorities of those countries to India
increase.
A
part of such migrated people entered
into India without Passport-Visa etc., were given the status of displaced
persons/refugees, even many of them recognized as full fledged citizens of
India in regard to job of the govt. of India, enlistment in the voters list,
issuance of passport etc. without fulfilling ‘statutory requirements’, whereas
other part, mostly downtrodden people, who migrated to India on or after 25th
March, 1971, were victims of discrimination. They were defined as ‘Illegal
Migrants’ u/s 2(1)(b) of ‘The Citizenship (Amendment) Act, 2003’, prohibiting
them from granting Citizenship of India and were subjected to harassment, arrest, detention &
deportation to the NO MAN’S land of the India-Bangladesh border against their
will on the gun point of the BBG-BSF. In fact, the Govt. of India has been
trying to push them back to their places of previous residence, where, they
were persecuted and were forced to flee and there are substantial grounds for
believing that, they would be again in danger of being torture in those
countries. As per the principles laid down by the United Nations in the
‘convention against torture and other cruel, inhuman or degrading treatment or
punishment’, no state party can do it. India is a signatory to the convention
and the govt. of India should honour the principles of the convention of the
United Nations.
Overriding the Article 5(1)(a) of ‘The Citizenship Act,
1955’ , the Govt. of India also issued a letter no. 26011/16/71-10 dated the 29th
November, 1971, directing all the State Governments/UTs not to grant Indian Citizenship u/s 5(1)(a)
to those Migrants, who came to India on or after 25th March,
1971, during the period of Bangladesh Liberation war. Unfortunately, the said
order of the govt. of India is still in force, yet not been declared withdrawn,
without any valid ground, as 25th March, 1971, the day of
independence of Bangladesh, does not carry any significance to the minorities
of Bangladesh. Because the country is
still a Islamic country as was the Pakistan and the minorities of that country
are subjected to religious persecution, torture and victim of injustices. Due to the order of the Govt. of India, the
Migrants of East Bengal are deprived of registering themselves as Citizens of
India for more than 40 years. As a
result of the order of the govt. of India, now, children and grandchildren of the
migrants, who have born in India, are debarred from citizenship by birth u/s 3(1)(b)
& 3(1)(c) of the Citizenship Act. 1955.
All
the Migrants of Indian Origin are hard works, intelligent, patriot & loyal
to India. They have been living in this country for several years to several
decades and have been taking part to build up India. They have no connection
with Bangladesh & Pakistan and their children & grand children were
born in India. They took part in the
freedom struggle of the country on India’s side. The then govt. of India and
the national leaders of the country also declared their commitment to the
minorities of Pakistan to grant them citizenship of India and rehabilitation
assistances in India. Now, the govt. of India cannot deny to grant them
citizenship on the simple ground, that, they have migrated to India later on.
These
Migrants are also entitled to get the status of displaced persons/
refugees in accordance with the ‘United
Nation’s Convention relating to the
status of Refugees adopted in 1951 and 1967 protocol and they cannot be defined
as ‘illegal migrants’.
India
has given shelter to the refugees from various countries like Tibet, Mayanmer,
Afganithan etc. None of the refugees has been called as illegal migrant.
Surprisingly, only the migrants of Indian origin were stamped as illegal
migrants u/s 2(1)(b) of the Citizenship (Amendment) Act. 2003. With a gazette
notification on 7th September, 2015, the govt. of India has directed
not to treat the migrants of Hindu and other minority communities of Bangladesh
and Pakistan, who faced religious persecution in those countries, as illegal
migrants. But the step of the govt. of India is not at all sufficient. The
Citizenship Act. 1955 is to be amended suitably, so that, the migrants of
Indian origin may not be called illegal migrants and they may be granted citizenship
of India.
The
Indian Parliament in the clause 2 of ‘The Immigrants (Expulsion from Assam ) Act, 1950’ also have given special protection to the
Migrants of Indian Origin, who were compelled to be migrated from the territory
now included in Bangladesh/Pakistan on account of Civil Disturbances or fear of
such Disturbances.
On
18th December, 2003, when the Citizenship (Amendment) Bill, 2003 was
introduced in the Rajya Sabha, the then leader of the opposition Dr. Manmohan
Singh and independent member Sri Shankar Roychowdhury from West Bengal appeal
and pleaded for a special provision in the bill, so that, the migrants of
Bangladesh, who were forced to leave the country for religious persecution or
fear of such persecution, may be granted citizenship of India, when, on behalf
of the govt. of India, the then Dy. Prime Minister of India and Home Minister
Sri L. K. Advani told the said migrants
as ‘bona fide refugee’ and declared his consent to the proposal of the leader
of the opposition and Sri Shankar Roychowdhury. Unfortunately, when the bill
was finalized, no such provision was included in the Act. so that, the migrants
may be granted citizenship of India.
Being
aggrieved for those injustices & discrimination against the Migrants of
Indian Origin mentioned herein above, the unfortunate Migrants & their
various Organizations, many democratic people of India have been fighting
democratically since long years for justice. They have wrote several letters to
the competent authorities, launched hunger strikes and even their
representatives discussed with the Prime Minister of India & the Home
Minister 3 / 4 times to achieve justice, but all in vain.
Therefore,
for the interest of those unfortunate Migrants of Indian Origin – the victims
of partition of India, and without finding any other alternative, the
petitioners being the Social Welfare Organizations of the intellectuals,
lawyers and workers of civil liberty movements and also the public spirited
persons are compelled to file the
instant Public Interest Litigation (PIL) by way of Writ Petition under Article
32 of the constitution of India before this Hon’ble Supreme Court for public
interest and for the interest of justice.
List of
Dates
15.08.1947
British India was partitioned on religious basis
resulting communal
riots & genocides both in India and Pakistan
following a huge number
of migration of minorities from Pakistan to India
15.08.1947 to15.1.1950
Speeches of the Prime Minister Pandit J. Nehru,
President of India
Dr.Rajendra Prasad, Home Minister Sardar Bllavbhai
Patel, Father of the
Nation Mahatma Gandhi towards the minorities of
Pakistan for granting
them Citizenship of India, rehabilitation etc.
01.03.1950
The Parliament of India enacted
‘The Immigrants ( Expulsion from Assam )
Act, 1950 ’ which extends to whole of India.
The Act. provided protection
to the Migrants, who were forced to
migrate from their place of origin for
civil disturbance etc.
08.04.1950
Nehru-Liaquat pact was signed and the
two countries – India & Pakistan
assured protection to the minorities of their
own country & some facilities
& rights to the Migrants.
10.10.1951
Dr. B. R. Ambedkar, father of the Indian
Constitution expressed his deep
concerned to the plight of the minorities of
East Bengal in explanation of
his resignation from the cabinet of Pandit J.
Nehru on 10th October, 1951.
22.04.1954
On 28th July, 1951 United
Nations Convention relating to the status of
refugees adopted & declared some policies,
which were effected from 22nd
April, 1954, where India is not a signatory,
but India have been honouring
the declaration of the UN’s from the
beginning. India has given shelter to
refugees of various countries without Bangladesh.
1955
The Parliament of India has enacted ‘The
Citizenship Act, 1955’ containing
several Articles in Part II of the Indian
Constitution & subsequent
amendments.
16.12.1966
Amendment to the Refugee Convention of
the United Nations, known as
’1967
Protocol’. Principles of the Protocol was formulated & adopted in the
General Assembly of the UNs held on 16th
December, 1966. The Protocol
got universal coverage.
29.11.1971
The Govt. of India issued an order/
letter No. 26011/16/71-10 dated the 29th
November, 1971
directing all the State Govt./UTs for not granting
Citizenship u/s 5(1)(a) of the Citizenship Act,1955, to the
Migrants of East
Bengal, the
Indian Origin, who came to India on or after 25th March,
1971.
26.06.1987
India is a signatory to the United
Nations ’Convention against Torture &
other Cruel, Inhuman or Degrading
Treatment of Punishment .‘ The United
Nations General Assembly adopted this policy
by resolution No. 39/46
dated the 10th December,1984 and was enforced on & from
26th June,
1987. The Convention embodied the principles
of ‘non-refoulement’,
where it is clearly stated that, no
state party shall expel, return (refouler )
or extradite a person to another state where
there are substantial grounds
for believing that, he would be in danger of
being subjected to torture.
01.07.1987
Parliament enacted ‘ the Citizenship (
Amendment ) Act, 1986 ‘ and placed
the right of Citizenship by Birth under
certain conditions affecting the
interests of the migrated people .
1988
– 89
SeventIeth Report of the Estimate
Committee ( 1988-89 ), Ministry of Home
Affairs (Rehabilitation Division ) was
presented to the Lok Sabha on 12th
April, 1989, which recommended to grant
Citizenship to the Migrants of
East Pakistan without formal application
& without fulfilling ‘Statutory
Requirements’ on the pattern adopted for the Migrants of West Pakistan
around 1947 and pre 1966 Migrants to Assam.
09.01.1996
In the year 1996, the Supreme Court of
India, in a judgment to the case
between National Human Rights Commission VS
State of Arunachal
Pradesh (AIR 1996 SC 1234) directed the
State Govt. to protect life &
personal liberty of the Chakma Refugees
residing in the State and not to
evict them. The Hon’ble Court also directed to
the District Magistrates to
forward the applications of the Chakmas for
Citizenship of India u/s 5(1)(a)
of the Citizenship Act, 1955 to the competent
authorities.
17.10.1996 to 17.7.1997
Only
in the State of Assam the Election
Commission of India introduced the conception of ‘D’ Voters (D for doubtful )
prohibiting lakhs of genuine voters from casting votes in the general election,
only based on doubt, that, they are not citizens of India. The list of the ‘D’
voters was prepared by the local authorities being politically motivated.
16.03.2001
The Govt. of Odisha, Home Department,
directed to the District
Magistrates/Superintendents of Police to
deport the Migrants of Indian
Origin in accordance with the order of the Govt.
No. PPT(P)60/2000-15681
dated the 16th March, 2001
without proper trial in the court of law.
18.12.2003
‘The Citizenship (Amendment) Bill, 2003’
was moved in the Rajya Sabha on 18th
December, 2003 by the Hon’ble Deputy
Prime Minister of India & Home Minister
Sri L. K. Advani, when the opposition leader
in the House Dr. Manmohan Singh &
other MPs demanded a special provision
in the Bill for granting Citizenship to the
Migrants of
Bangladesh, who have faced religious persecution in their place of
origin & were forced to flee the country
and took refuge in India. In response to
the appeal of the MPs, Sri Advani expressed
his consent to the demand.
Unfortunately, the Bill was finalized as an
Act. without providing any such
special provision to protect the interest of
the Hindu etc. migrants.
28.02.2004
Govt. of Odisha, Home Department, issued
1551 notices to 1551 Hindu Migrants
of Mahakalpara Block, District
Kendrapara on 28th December, 2004 & on several
subsequent dates, directing them to quit India
within 30 days from the date of
service of those notices.
01.03.2004
No fees were levied from the persons of
Indian Origin for application u/s 5(1)(a)
& 5(1)(d) as per the direction of the
Clause No. 31(1) of the Citizenship Rules,
1956.
Now, fees of Rs.5000.00 for application u/s 5(1)(a) & Rs.3000.00 for
application u/s
5(1)(d) have been fixed for the Indian Origin as per the direction
of Clause 41 of the Citizenship Rules,
2009 (schedule IV). Most of the migrants
of Indian Origin from East Bengal are poor in
BPL category and unable
to pay the fees.
The
Govt. of India made The Citizenship (Amendment) Rules, 2004 in their
application
to the states of Gujrat and Rajasthan to facilitate the process of
granting
Citizenship to the Migrants of West Pakistan, who came to India during
the
war with Pakistan in 1965 & 1971. In fact, 1971 war took place in East
Bengal,
but,
the said facilities were not extended to East Bengal Migrants.
22.11.2001 & onwards
Various
Members of Parliament from several political parties have been raising
questions since 22nd November, 2001 to till today, in the Parliament
on different dates, in regard to religious persecution inflicted upon the
minorities of Bangladesh, when on behalf of the Govt. of India, various
Ministers have admitted that, the minorities of Bangladesh are subjected to
harassment, injustice & torture. Very recently, on 7th
September, 2015, the Central Govt. in a Gazette Notification also has admitted,
that, the minorities of Bangladesh are subjected to religious persecution.
From
7th December, 2004 to till date, Members of Parliament both the Lok
Sabha
&
Rajya Sabha from various parties, have
been demanding for granting
Citizenship
of India to the Migrants of Indian Origin, who have
faced
religious
persecution
in their place of origin & were compelled to flee that country and
took
refuge in India, by way of Special
Mentions & in Zero hours. MPs also have
wrote
letters to the Prime Minister of India, Home Minister & President of India.
12.07.2005
In
the case between Sarbananda Sonowal vs Union of India (AIR 2920 ),
three
judges bench of the Supreme Court of India declared IM(DT) Act,1983
as
ultra vires to the constitution of India and upheld ‘The Immigrants
(Expulsion
from Assam ) Act, 1950’, where special protection to the forced
Migrants
for Civil disturbances etc. is embodied in its Clause No. 2.
06.02.2007
The
Convention of the United Nations General Assembly held on 20th
December,
2006 adopted the policy for protection from Enforced
Disappearance,
where India has become a signatory to the Convention. The
Convention
embodied the principles of ‘non-refoulement’ or extradite a
person
to another state, where, there are substantial grounds of believing
that,
he or she would be in danger of being tortured for enforced
disappearance.
23.11.2009
Govt.
of India, Ministry of Home Affairs (Foreigners Division) issued an
order
No. F-14011/55/09-F.VI, date 23.11.2009, which,
laid down certain
procedures
by which, on the plea of identification of Bangladeshi, the bona
fide
Migrants are being harassed and the Govt. & Police Authorities have
been
throwing the said Migrants in the NO MAN”S land of the India-Bangladesh border.
30.04.2010
The
Govt. of West Bengal, Backward Class Department, has issued a circular
No.
1465 BCW/MR-67/10 dated the 30th April, 2010 directing all the
applicants
for Caste Certificate to submit proof of residence in West Bengal /
India,
since 1950 to prove their Citizenship of India.
03.06.2010
The
Election Commission, Lucknow, issued an order No. 140/E/10-N dated
the 3rd June, 2010 to delete the names
of the Migrants of East Pakistan
who
have been given Rehabilitation
Assistances / Settlement by the govt. of India in the stateof Uttar Pradesh on
the plea that, they are not regular / registered Citizen of India.
22.12.2010
High
Court of Delhi passed the Judgement in the case between Namgyal
Dolkar
VS Govt. of India (WP-C 12179/2009) recognizing Dolkar, a Tibetian
origin,
as an Indian Citizen by Birth in accordance with the Article 3(1)(a) of
‘The
Citizenship Act,1955, since, she born in India on or after 26th
January,
1950
and before 1st July, 1987.
07.08.2013
The
High Court of Karnataka passed the judgement (No. 15437/2013) on
the
petition of Tenzin Choephag Ling Rinpoche, a Tibetian origin,
recognizing
him as an Indian Citizen by Birth, as per the Article 3(1)(a) of
‘The
Citizenship Act, 1955, as he born in India on or after 26th January,
1950
and before 1st July, 1987.
Last one decade
Since
one decade, the Migrants of East Pakistan & Bangladesh, who were
forced
to flee those countries for religious persecution and fear of such
persecution,
have been stamped as ‘Illegal migrants’ & debarred them from
granting
Indian Citizenship. The Migrants of Indian Origin are subjected to
harassment,
arrest, detention & deportation to the NO MAN’S land of the
India-Bangladesh borderagainst their will. Thus the Govt. of India has been :
A Violating
the commitment of the National Leaders of India &
declared
policy of the then Govt. of India.
B Violating
the directions of Articles 14 & 21 of the Constitution
of India by discriminating between the
Migrants of West
Pakistan
and East Pakistan, as well as Pre &
post 1971
Migrants.
C Violating
the principles of the United Nations in regard to refugees by deporting the
Migrants to NO MAN’S land of the India-Bangladesh border, where, they were
tortured and there are substantial grounds of believing that he would be in
danger of being subjected to torture again and also violating the Article 22(4) of the
Constitution by confining Migrants in
the detention camp for indefinite period.
07.09.2015
The
govt. of India has issued a Gazette Notification directing, not to call the
Hindu and other minorities of Bangladesh and Pakistan, who were forced to leave
those countries for religious persecution and fear of such persecution and
entered into India without valid documents etc.
The
petitioners have been supporting, co-operating & coordinating the
struggles
of the Bengali Migrants since long times by various ways. Now,
finding
no other alternative, for the end of justice, the instant Public
Interest
Litigation (PIL) under Article 32 of the Indian Constitution, is filed
before
the Supreme Court of India in the form of Writ Petition for Public
interest
and also for the interest of Justice as well as to complete the
Justice
upon those unfortunate Migrants of Pakistan and Bangladesh, who
are
victim of partition of India and seek refuge in India facing persecution
in
their place of origin.
17.09.2015
The
Supreme Court of India has given judgment on the case No. WP (Civil) – 510 of
2007 on 17th September, 2015 to grant Citizenship of India to the
Chakma and Hajong migrants of East Bengal within three months from 1st
September, 2015.
IN
THE SUPREME COURT OF INDIA
ORIGINAL CIVIL
JURISDICTION
WRIT PETITION (CIVIL) NO. OF 2015
(Writ Petition under Article 32 of the
Constitution of India)
IN
THE MATTER OF
1 Solidarity committee for Bengali
Refugees
Petitioners
907, Soondarhi Station Road,
Pilibhit
Dist. : Pilibhit
Uttar Pradesh, Pin Code : 262001
2 Citizens Rights Preservation Committee,
Assam ( CRPC )
( Regn. No. 2729/1995-96 )
House No. – 42, Beltala P.O. – Khanapara Road
Guwahati – 781022
3 All India Namasudra Kalyan Parisad
Shanti
Nagar, Palta, P.O. – Nona Chandanpur
Dist. – North 24
Parganas, Kolkata - 700122
4 Nityananda Mallick, Practicing Advocate
S/O Late Raj Kumar Mallick
Maharajpur, P.O.- Gobiasarai
Dist. Pilibhit,UP. Pin - 262122
VERSUS
1 The Union of India
Respondents
Through the Principal Secretary,
Office of the Hon’ble Prime Minister of India
South
Block, New Delhi – 110011
2 The Secretary, Ministry of Home Affairs,
Govt. of India, North Block, New Delhi
3
The Secretary, Ministry of
Law,
Govt. of India, New Delhi
4 The Secretary, Ministry of External
Affairs,
Govt. of India, New Delhi
5 The
Election Commission of India,
New Delhi
6 State
of Assam
Through, The Chief
Secretary, Secretariat,
Dishpur, Guwahati
7 State
of West Bengal
Through, The Chief
Secretary, Secretariat
Kolkata, West Bengal
8 State
of Odisha
Through, The Chief
Secretary, Secretariat
Bhubaneswar, Odisha
9 State
of Manipur
Through,
The Chief Secretary, Secretariat
Imphal,
Manipur
10 State
of Tripura
Through, The Chief
Secretary, Secretariat
Agartala, Tripura
11 State
of Uttaranchal
Through, The Chief
Secretary, Secretariat
Dehradun, Uttaranchal.
12
State of Uttar Pradesh,
Through, The Chief
Secretary, Secretariat
Lucknow, U.P
13 State
of Madhya Pradesh.
Through, The Chief
Secretary, Secretariat
Bhopal, M.P.
14
State of Bihar
Through, The Chief
Secretary, Secretariat
Patna, Bihar
15 State
of Chhatisgarh
Through, The Chief
Secretary, Secretariat
Raypur, Chhatisgarh
16
State of Karnataka
Through, The Chief
Secretary, Secretariat
Banglore, Karnataka.
17 State
of Andhra Pradesh
Through, The Chief
Secretary, Secretariat
Hyderabad, A.P.
18 State
of Maharastra
Through, The Chief
Secretary, Secretariat
Mumbai, Maharastra.
19 State
of Rajasthan
Through, The Chief
Secretary, Secretariat
Jaipur, Rajasthan
20 State
of Punjab
Through, The Chief
Secretary, Secretariat
Chandigarh, Punjab.
21 State
of Arunachal Pradesh
Through, The Chief
Secretary, Secretariat
Itanagar, Arunachal
Pradesh
22 State
of Meghalaya
Through, The Chief
Secretary, Secretariat
Shilong, Meghalaya
23 State
of Jharkhand
Through, The Chief
Secretary, Secretariat
Ranchi, Jharkhand
24 State
of Tamil Nad
Through,
The Chief Secretary, Secretariat
Channai, TN.
25
State of Gujrat
Through, The Chief
Secretary, Secretariat
Ahmedabad, Gujrat
26 State
of Delhi
Through, The Chief
Secretary, Secretariat
New Delhi
27 Andaman
& Nicobar Island
Through it’s
Administrator,Portblair
To
The Hon’ble
Chief Justice of India
And His
Companion Justices of
The Supreme
Court of India
New Delhi
The humble
petition of the petitioners above named.
MOST
RESPECTFULLY SHOWETH,
1 The
instant Writ Petition under Article 32 of the constitution of India by way of
Public Interest Litigation (PIL) is filed before the Hon’ble Supreme Court of
India for directions upon the Respondents that :
i) Issue a Writ in the nature of Mandamus, directing
the respondent No. 1 and other concerned Respondents not to define the Migrants
of Indian Origin, who are victim of partition of India and faced religious
persecution in their place of origin i.e. in Pakistan & Bangladesh and were
forced to flee those countries to India, pre & post 1971 periods, as
‘illegal migrants’ u/s 2(1)(b) of ‘The
Citizenship (amendment) Act, 2003 as well as the Citizenship Act, 1955.
ii) Issue a Writ in the nature of Mandamus, directing the Respondents No. 1,2 and other
concerned Respondents to declare all the Migrants, who were forced to flee
Pakistan & Bangladesh, pre & post 1971 periods, for religious
persecution & fear of such persecution and have been ordinarily
residents in the territory of India, as
Citizens of India on the pattern adopted for the Migrants of West Pakistan around 1947 and who migrated to
the state of Assam before 1st day of January, 1966.
iii) Issue a Writ in the nature of Mandamus, directing
Respondents No. 1, 2 and other concerned Respondents to repeal the Express
Letter of the Home Department, Govt. of India, No. 26011/16/71-10 dated the 29th
November, 1971, since the letter overrides the directions of the Clause
5(1)(a)’ of ‘The Citizenship Act, 1955 and also declare
the decision of Cut Off date 25th March, 1971, as illegal.
iv) Issue a Writ in the nature of Mandamus, directing
the Respondents 1,2 and other concerned Respondents to exempt the persons of
Indian Origin from levied fees for Citizenship Registration. Instead of
applying the paragraph no. 41 ( Schedule IV) of the ‘The Citizenship Rules, 2009, direct the Respondents to apply Clause No. 31(1)
of ‘The Citizenship Rules, 1956’ in this regard.
v) Issue a Writ in the nature of Mandamus, directing
the Respondent No. 5 and other concerned Respondents to repeal the conception
of ‘D’-Voter (D for doubtful) in Assam,
as the list of ‘D’ Voters has been
prepared simply based on doubts being politically motivated by the local authorities, which has prohibited
lakhs of genuine Voters from rights to cast votes & also stop the trials of
the ‘D’ Voters and detention. Also repeal the
Sub Section 4 of Article 6A of the ‘Citizenship Act,1955’, which
prohibits the Rights of Citizens to cast
votes up to 10 years even after registering themselves as Indian Citizens.
vi) Issue a Writ in the nature of Mandamus, directing
the Respondent No.8 and other concerned Respondents to Repeal the 1551 notices
issued on the Hindu Migrants of Mahakalpara Block of District Kendrapara, Odisha, by which the Migrants have been
ordered to quit India without trials and orders of the court & such other
notices.
vii) Issue a Writ in the nature of Mandamus, directing the
Respondent No. 5 and other Respondents to enlist the names of the pre &
post 1971 Migrants of Indian Origin in
the Voters List and to Issue them Ration Cards, BPL Cards, Caste Certificates,
Adhar Cards etc. & such other rights to those Migrants, who have faced
religious persecution in Pakistan and in Bangladesh, their place of Origin and were
forced to flee those country & took refuge in India.
2 That earlier, the present petitioners
never filed any such Writ Petition
/ PIL on the same-self cause of actions and such relief, as stated above,
before this Hon’ble Supreme Court of India or any other court of Law in India.
3 That the petitioners 1, 2 & 3 being the
Social Welfare Organizations and the
petitioner No. 4, being the practicing Lawyer/Advocate and a public spirited
citizen of India, are being compelled to file this PIL before this Apex Court
of India for the interest of those unfortunate Migrants, mostly illiterate,
poor, downtrodden and have been ordinarily residents in the territory of India
since long times from several years to several decades. They are all persons of
Indian Origin and victim of partition. They have come from Pakistan &
Bangladesh, facing religious persecution in those countries and fear of such persecution. They have been living
in Assam, West Bengal, Odisha, Manipur, Tripura, Uttaranchal, Uttar Pradesh,
Madhya Pradesh, Bihar, Chhatisgarh, Karnataka, Andhara Pradesh, Maharastra,
Rajasthan, Andaman Islands, Punjab, Arunachal Pradesh, Meghalaya & in some
other States/UTsof the country. Many of them, yet, are not been recognized
as citizens of India and they are not
getting any kinds of civic rights & facilities. They have been living in a
distress condition in the remote areas, along sides of the Railway Trucks,
Roads & the Canals. The Migrants are mostly Bengali Hindus. They are intelligent,
patriots & loyal to India. They have fought in the independence struggle by
India’s side. They are hard workers and have been taking part to build up this
country, particularly, for the agriculture developments in Nainital areas, Dandakaranya, Andaman Island, Assam, Tripura, & in West
Bengal. Unfortunately, instead of recognizing their great role for development
of this country, now a days, they are stamped as ‘Illegal Migrants’ u/s 2(1)(b)
of the citizenship Act. of India subject to harassment, arrest, detention &
deportation to the NO MAN’S land of the India-Bangladesh border.. Under the
circumstances, for the interest of Justice, the present petitioners have filed
this PIL for the interest of those unfortunate Migrants of Indian Origin and as
such, for fundamental rights as granted under Article
14, 21, 20(1) & 22(4) in Part III of the Constitution of India, and also for the constitutional provisions as
envisaged in the principal Articles 5, 6 & 8 in part II of the Indian
Constitution regarding Citizenship. Also for the Clause 2 of ‘The Immigrants (Expulsion from Assam ) Act,
1950 and the declaration/principles/rules of the United Nations on the status of
Refugees as well as against violation of
other National & International Human Rights
Rules / Principles of Natural Justice.
4 Undivided India (as defined in the Govt.
India Act. 1935) was partitioned on religious basis resulting communal riots
& genocides both in Pakistan and India, following by a huge number of
migration of minority people from Pakistan to India. The religious minorities
of Pakistan were forced to leave that country for religious persecution and
fear of such persecution. The migration
of religious minorities of Pakistan were started during the time of partition
and still going on. As & when the communal tension and riots start in
Pakistan & Bangladesh, the rate of migration of religious minorities from
those countries to India increase. By this way lakhs of Migrants have entered
into India during the period from 1947 to till date. Some of these Migrants
have enter into India with Passport-Visa etc. , but most of them entered into
India illegally, as it was almost impossible for them to collect Passport-Visa
or any such other legal permission to cross the border at that abnormal
situations.
5 All the Migrants of Indian Origin are
victims of partition of India and liable to equal treatment by the Govt. of
India in respect of grant of Citizenship of India, compensation &
rehabilitation. But unfortunately, the Govt. of India has divided those
Migrants into four different categories and has been treating them in different
ways, namely – i) those migrated from West Pakistan around 1947, ii) those migrated to Assam on or before 31st
December, 1965, iii) those migrated from East Bengal prior to 25th
March, 1971 and iv) those migrated from Bangladesh on or after 25th
March, 1971.
6 The migrants came from West Pakistan to India
around 1947, were deemed to be full fledged Citizens of India in respect of
enlistment in Voters list, appointment in
Govt. services etc. without
fulfilling the ‘statutory requirements’. They were given
compensations and better rehabilitation assistances than the Migrants from East Pakistan.
The 70th Report (seventieth
report) of the Estimates Committee (1988-89), Ministry of Home Affairs
(Rehabilitation Division) in regard to Rehabilitation of Migrants from East
Bengal, presented to the Lok Sabha on 12th
April, 1989 stated as follows :
“Paragraph
1.25 -- The Committee are pained to note that, people
who migrated to India from former East Pakistan prior to 25-3-1971 are still
treated by Government as ‘Displaced Persons’ and are only eligible to be
considered for grant of Indian Citizenship by registration u/s 5(1)(a) of the
Act., provided fulfill the ‘Statutory Requirements’ with the result that, in
effect, they live in India as ‘Stateless’ people, many of whom have failed to
acquire Indian Citizenship for one reason or
another and have been either denied employment or even thrown out of
jobs on the ground of Citizenship. The status of these Migrants from former
East Pakistan appears to be in stark contrast with the position of
displaced persons from West Pakistan who migrated in India around 1947 and for
all practical purposes, namely, employment etc. are deemed to be full fledged Citizens of India. The
representatives of the Ministry of Home Affairs have admitted during evidence,
that, those persons who migrated to India from former East Pakistan prior to 25th
March, 1971, specially old & new migrants have come to settle in India
permanently and have been provided rehabilitation assistance in one form or
another. In view of this, the Committee are of the view that, these Migrants,
specially old and new Migrants should not be required to undergo the cumbersome
formalities of Registering themselves under the Citizenship Act. in order to
get a Citizenship Certificate and consequent right to vote etc. The Committee
strongly recommend that, as matter of policy of Old and New Migrants should
also be deemed to be Citizens of India on the pattern of ‘pre 1961 (now 1966)
Migrants to Assam’ and displaced persons from West Pakistan, so that, they do
not have to hanker after the various authorities to get their Citizenship
Certificates to earn their livelihood and be able to vote etc. They are of the view that, if necessary,
suitable legislative measures with regard to the status, Citizenship and
rehabilitation and monitoring of rehabilitation schemes etc. should be enacted
with due expedition”.
The Report also stated
that :
“Paragraph
1.6 -- To meet all the multifarious obligations in
this regard the following legislative enactments had been provided by the
Government –
A
Administration of Evacuee Property Act. 1950
B Displaced
Persons Claims Act.1950.
C Evacuee
Interest (Separation) Act. 1951.
D Displaced
Persons Debt Adjustment Act. 1951.
E Displaced
Persons (Compensation & Rehabilitation ) Act.1954.
F Displaced
Persons Claims Supplementary Act. 1954”.
“Paragraph 1.9 Asked why was Parliament never taken into
confidence directly with regard to the policy, form and content of Rehabilitation Assistance provided to Migrants from former
East Pakistan, even though relief and rehabilitation of displaced persons
consequent to partition was the concurrent responsibility of both the Centre as
well as State Government concerned, the Ministry has stated in a written
answer, that, in the case of East Pakistan
Migrants, no compensation for the properties left behind in Pakistan was to be
paid as they retained proprietary rights in their properties. These they could exchange, sell
or disposed of in any manner they pleased till the outbreak of hostilities
between India & Pakistan in 1965, when Pakistan seized the properties of
Indian nationals. According to the Ministry, no separate legislation was
considered necessary for mere grant of rehabilitation assistance.”
7 The persons of Indian Origin who have migrated
from the territory now included in
Bangladesh to Assam up to 31st December, 1965, they were deemed to
be Citizens of India without fulfilling ‘Statutory Requirements’, but the
Migrants were not provided with Compensation and proper rehabilitation
assistance.
The Citizenship
Act,1955 provides the Special Provision as follows:
“6A
(2) – Special provisions as
to Citizenship of persons covered by the Assam Accord -- Subject to the provisions (6) and (7) , all
persons of Indian Origin who came before the 1st day of January,
1966 to Assam from the specified territory (including such of those whose names
were included in the electoral rolls used for the purposes of the General Election to the House of the People
held in 1967) and who have been ordinarily residents in Assam since the dates
of their entry into Assam shall be deemed to be Citizens of India as from the 1st
day of January, 1966.”
8 The
Migrants of East Pakistan who came to India before 25th March, 1971 : A small section of the Migrants of East Pakistan
who came before 25th March, 1971 were given rehabilitation with
less facilities than the Migrants of
West Pakistan , but they were not deemed to be Indian Citizen. Most of them
could not fulfill the statutory requirements, hence, they are ‘Stateless
People’ in India. Most of those Migrants
are illiterate, poor & they did not
know the necessity and importance of Citizenship.
Most of these Bengali Migrants are
downtrodden farmers & fishermen. Amongst
them, those got settlement
assistance to the hardship areas out of
West Bengal , in the early stage of their settlement, they fought only to
survive and they had no scope to approach for Citizenship by way of registration u/s 5(1)(a) of the Citizenship Act, 1955.
Most of them were settled in the Dandakaranya, Andaman Islands, Nainital areas & in some other States,
mostly Jungle Areas, where no civic facilities were available.
Many of these families could not
tolerate the pains suffered in those early days and flee from the camps & from
place of their settlement. Those absconded families used to move from one camp
to another camps and even from one state camps to another state camps, where
their villagers, relatives & known persons were settled. In this way many
families lost their enlistment as Migrants. Some of the family members &
relatives of the Migrants also joined later on with their families and they
also could not enlist their names as Migrants.
In fact, 3 / 4th of the total Bengali
Migrants did not agree to go out of West Bengal for relief & rehabilitation
assistance. It is also clear from the report of the Estimates Committee
(1988-89) of the Ministry of home Affairs
(Rehabilitation Division) that, the West
Bengal Govt. did not rehabilitated to the Migrants properly . As a result, a
huge number of Migrants, both old Migrants (up to March 1958) & new Migrants (1.1.1964 to 25th
March, 1971) and the Migrants came during the period from 1959 to 31.12.1963
lost interests to rehabilitation assistance and did not enlisted themselves in
the camps. They managed at their own
and gradually assimilated themselves with the people of West Bengal. The
Committee report also mentioned about the huge numbers of ‘missing families’, it means, those did not move for
rehabilitation assistance.
These lakhs of unlisted & ‘missing
persons’ have been living in India for several decades as ‘Stateless People’, since, they could not registered themselves
as Citizen of India u/s 5(1)(a) of the
Citizenship Act,1955
Now, all these unlisted & missing
persons have no such valid/legal documents to satisfy the ‘Statutory
Requirements’’to register their names as Indian Citizens. Apart from those
mentioned herein above, since 1st
April, 1986, the Govt. of India, Home Department, is the competent authority to issue the Citizenship Certificates in place of District Collectors of the
Districts. In the past, no fees were
levied from the applicants of Indian Origin as per ‘The Citizenship
Rules. 1956, paragraph 31 (1) for registration as Citizens, but now, in the
Citizenship Rules, 2009 (Scheduled IV) Rs.5000/- fees have been fixed for such
applications u/s 5(1)(a) of the Citizenship Act.
Most of the religious minorities of East
Pakistan and Bangladesh have migrated at the time of abnormal situations of
riots or fear of such riots and naturally could not collect Passport-Visa
or any such legal permission to cross the border. Border slips were also not
available in most of the points of the border. Thus, they arrived in India
without any kinds of document/evidence to prove the dates & times of their entry into India. Among the
Migrants, who had some documents, they have lost it at the time of moving from
one camp to another camps. They also did not know the importance of those
documents, if, they had any document.
For all these reasons of non-availability of documents for crossing the
border, it is also not possible for the Govt. authorities to identify the pre
1971 Migrants & the post 1971 Migrants. Those Migrants came to India before
1971, now, they are not in a position to prove their claims.
As a result, lakhs of Migrants, who came
to India before 1971, are not in a position to acquire the
Indian Citizenship by fulfilling the ‘Statutory Requirements’. Thus, in
accordance with the clause 2(1)(b) of the Citizenship Act in force, these
unfortunate Migrants of Indian Origin, are
declared as ‘illegal migrants’ and subject to harassment, arrest,
detention & deportation to the NO MAN’S land of the India-Bangladesh
border, which is very unjust &
injustice .
9 The Migrants of Bangladesh, have come to India on or
after 25th March, 1971
-- Govt. of India
Issued an order No. 26011/16/71-10 dated the 29th November,
1971 for not to grant Citizenship of India to the Migrants of East Bengal
u/s 5(1)(a) of ‘The Citizenship Act, 1955 expecting that the
Migrants shall be returned back to their
place of origin when the conditions permit. The Bangladesh was liberated and
most of the Migrants returned back with the hope, that, they will be able to
stay there with peace & harmony. But it was not happened.
In the early stage of independence, Bangladesh Govt. declared its
state character as Secularism. They declared to treat the minorities of the
country equally with the religious majority citizens and to protect them from
religious persecution etc. Unfortunately, they did not stand strict to their
commitment. In the year 1977, for the first time, they replaced the word secularism by the word
‘absolute trust and faith in Almighty Allah shall be the basis of all actions’.
Ultimately, in 1988 with the Eighth Amendment to the Constitution of Bangladesh ,
they declared that the ‘Islam will be the State Religion of Bangladesh’. In this way the Govt. of Bangladesh eliminated
all the sign of differences with the former East Pakistan, except changing the
name of the country.
With such changes in principles of the
State, various kinds of repressions, particularly, during the period of
Emergency in Bangladesh in 1975-76 and communal riots in 1992, 2001 & in
several other occasions and grabbing of lands of the religious minorities by
the Muslims in various ways continued.
As a result, the religious minorities of Bangladesh being demoralized, tortured
and for such other religious persecution, were forced to flee and took refuge in India.
When India was partitioned, the
percentage of Hindus in East Pakistan was approximately 30%. During the period
of Pakistan it reduced to nearly 18% in 1970 and now, in the period of
Bangladesh Hindu populations have been further reduced to 9.2% in 2001, because
the Hindus & other religious minority people faced religious persecution in
the country and did not feel the country safe for them. At the time of
answering the questions to the various Members of Parliament, whether, the
religious minorities of Bangladesh
are subject to torture or not? In
reply, on behalf of the
Govt. of India has been admitted, that , they are subject to religious
persecution. Very recently on 7th September, 2015, the Central Govt.
of India, in a Gazette Notification also have admitted that the minorities of
Bangladesh are subjected to religious persecution. Considering all the facts
& circumstances , it is crystal clear, that, the decision of cut-off date
25th March,1971, imposed by
the Govt. of India is baseless, wrong & unjust, hence, the Migrants
, who have come to India after 25th
March, 1971 should not be called & treated as ‘illegal migrants’ u/s
2(1)(b) of the Citizenship Act..
The said
Order of the Govt. of India, Home Depart imposing cut off date 25th
March, 1971 is as follows:-
“Govt. of India’s Express letter regarding grant of Citizenship
to the people who came from Bangladesh after the 25th March, 1971.
(Express letter no.
26011/16/71-10
Dated, New Delhi, the
29th November, 1971)
To : The Chief Secretaries to all State Governments and Union Territories,
Administration.
Sub : Grant of Indian Citizenship to
refugees from East Bengal who have crossed over to India after 25th
March, 1971 .
Instruction
that applications from such refugees for Indian Citizenship should not be
entertained.
Refugees who have crossed over to India
from East Bengal since the 25th March, 1971 on account of the
situation in the area cannot be treated as ordinarily resident of India. They
are expected to return to their native places when the conditions permit. They should not be considered for
registration as Indian Citizenship under section 5(1)(a) of the citizenship
Act, 1955 read with the citizenship rules, 1956. If such refugees make
applications to the Collectors who are the prescribed authorities for purpose
of registration as Indian citizenship under the section 5(1)(a) of the
citizenship Act., such applications
should be rejected. Enquiries on application for registration under section
5(1)(a)of the Act. should be made carefully to ensure that no refugee
who has come after 25th March, 1971 from East Bengal gets registered
as Indian citizen by giving any false declaration claiming to be resident in
India for long and from date prior to the 25th March, 1971. Suitable
Instructions may kindly be issued in the matter to all registering authorities
under your control immediately.
C. L. Goyal
Under
Secretary to the Govt. Of India
10 The Oder of the Govt. of India No. 26011/16/71-10 is
clear cut over ridding of the Article 5(1)(a) of the Citizenship Act, 1955,
hence, the petitioners appeal to the Hon’ble Supreme Court to repeal the Order of the Govt.
The Article 5(1)(a) of
the Citizenship Act, 1955 is as follows :
“
5. Citizenship by registration --- (1) Subject
to the provisions of this section and such conditions and restriction as may be
prescribed , the prescribed authority may , on application made in this behalf
, registered as a citizen of India any person who is not already such citizen
by virtue of the Constitution or by virtue of any of the other provisions of
this Act. and belongs to any of the
following categories –
–
a) Persons
of Indian origin who are ordinarily resident in India have been resident for
five years (w.e.f 1.7.1987) immediately
before making an application for registration.”
11 In the Parliament of India, many
Members of Parliament have expressed their concerned and raised several
questions in various dates in regard to religious persecutions of the
minorities of Bangladesh.
The Hon’ble Members of Parliament Smt. Jayaprada Nahata, Sri Kapil Sibal, Sri
K. Kalavenkata Rao, Sri Adityanath Yogi, Sri Vijay Kr. Malhotra, Sri Pyarilal
Khandelwal , Sri Sanjoy Rout, Sri B. J. Panda, Pramila Bohidar, Sri Sreegopal
Vyas & other Members of Parliament have raised questions in the Parliament
in regard to Torture & injustices inflicted upon the religious minorities
of Bangladesh.
In reply, the following Ministers have admitted in various
times , that, the religious minorities of Bangladesh are subject to injustices
& religious persecution – copies of the questions and replies of the
Hon’ble Ministers Sri Jaswant Sungh, Sri Digvijay Singh, Sri Vinod Khanna, Sri
E Ahmed, Sri Pranab Kr. Mukherjee are annexed
herewith as ANNEXURE
No.P/ 1, Page No. 84)
12 Very recently, on 7th
September, 2015, the Govt. of India, Ministry
of Home Affairs has issued a press information in regard to Gazette
Notification where the Govt. of India has admitted that the Hindus and other
minorities of Bangladesh and Pakistan were compelled to flee that country due
to religious persecution and fear of such persecution and seek refuge in India.
According to the official Gazette
Notification, the Migrants of Bangladesh and Pakistan are exempted from being
identified as illegal migrants. The Press Release of the Ministry of Home
Affairs are as follows :
“Date :07 September,2015
Exemptions to minority community
nationals from Bangladesh and Pakistan in regularization of their entry and
stay in India.
The Central Government has decided, on
humanitarian consideration, to exempt Bangladeshi and Pakistani nationals
belonging to minority communities who have entered into India on or before 31st
December, 2014 from the relevant provisions of rules and order made under the
Passport (Entry into India) Act. 1920and the Foreigners Act, 1946 in respect of
their entry and stay in India without such documents or after the expiry of
those documents, as the case may be. The Central Government has accordingly
issued two notifications in the official gazette today under the Passport
(Entry into India) Act, 1920 and the Foreigners Act, 1946.
There are reports that a number of
Bangladeshi and Pakistani nationals belonging to minority communities in those
countries, such as Hindus, Sikhs, Christians, Jains, Parsis and Buddhists, were compelled to seek shelter
in India due to religious persecution and fear of religious persecution. They have entered into India
either without any valid document including Passport /other travel document or
with valid documents but the validity of such document has expired.
The issue of regularization of entry and
stay of such Bangladeshi and Pakistani nationals in India has been under
consideration of the Central Government”.
13 India, as defined in the Govt. of India Act. 1935,
was partitioned without the consent of the people of India i.e. without any
plebiscite. The British Rulers, Congress & the Muslim League sat together
and decided to partition the country. This partition created severe communal
riots & causes great harms to the religious minorities of both the
countries – India & Pakistan, forcing them to be migrated from their place
of origin. Considering the plight of the Hindus, Sikhs & other minorities of West and East Pakistan, the
national leaders of India and on behalf of the Govt. of India , the President
of India, Prime Minister of India, Home Minister and Mahatma Gandhi made
some commitment towards the religious minorities of Pakistan as follows :
Father of the nation Mahatma Gandhi
declared in a prayer meeting on 26th September, 1947 that “The
Hindus and the Sikhs staying in Pakistan, can come to India by all means, if,
they do not wish to continue there. In that case , it is the first duty of the
Indian Govt. to give them job and make their lives comfortable.”
(Collected works of Mahatma Gandhi, Vol. 89, Page 246, Publication Division, Govt.
of India )
Dr. Rajendra Prasad, President of India
declared in the Oath taking ceremony told that, “We are anxious to rehabilitate
displaced persons who have suffered and still suffering great hardships and
privations”.
(Speech of Rajendra Prasad , , Publication Division, Govt. of India, Vol.
1, Page 2 )
Prime Minister of India Pandit J. Nehru
stated during the declaration of Independence
that “ We also think of our brothers & sisters cut off from us by
political boundaries and who unhappily
cannot share at present in the freedom that has come. They are of us and will remain of us whatever
may happen and we shall be sharer in their good &ill fortune alike”.
(India’s
foreign policy : Selected speeches of Mr. Nehru, Pages 15-16,
‘Publication Division, Govt. of India)
In another speech Pandit Nehru Declared,
“Now, I have said & say again that, in my opinion the Hindu minority in East Bengal feels insecure and therefore
cannot settle down. They want to come away , even if they remain, they do not
know how long they will remain “.
( Speeches of Mr. Nehru, Vol. 2, Pages 155, ‘Publication Division,
Govt. of India)
Pandit Nehru told in the Constituent Assembly
on 9th August, 1950 as follow ; “We must apply ourselves to the task
of rehabilitation, not only because it
is our duty to do so, but because it is not in the interest of the nation to
leave these people where they are , doing nothing and suffering”.
( Speeches of Mr. Nehru, vol. 2, Page No. 176, Publication Division, Govt. of
India)
Sardar Ballavbhai Patel declared on the
15th January, 1950 about the minorities of the then East Pakistan, “
Those who are our flesh & blood , those who
fought by our side in the freedom struggle, cannot suddenly become
foreigners to us because they are on the other side of a line. There are people
in South Africa, peoples of Indian
origin, but with African Citizen, 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 Mr. Patel,, Pages 121,
‘Publication Division, Govt. of India)
14 After partition of our country a large
number of Migrants of East Pakistan entered into Assam. The rate of entry of
Migrants into Assam increased due to communal tensions and riots break out in
East Pakistan in 1950s. For the interest of Assam and its economy from
degenerating under the pressure of influx ‘The Immigrants (Expulsion from Assam
) Bill,1950 was introduced in the Parliament on 20th December, 1949.
Taking part in the debate on the Bill in
the Parliament Hon’ble Member of Parliament from Punjab, Sardar Bhopinder Singh
Mann told – “Not only now, but at any future date, if, due to civil
disturbances there in East Pakistan or if they find that , their stay is so
uncomfortable And political conditions are such that , no person with honour
could stay on, they should be permitted to come over here and in no way should
it be conditioned by any clause that their stay should not be detrimental to
the interest of India and then only they would be permitted to stay on.
Therefore, I want a proviso to be added in order that the Assam Govt. may not
be permitted to eject Hindu refugees, that is those refugees who have come and
sought refuge in India because they found Pakistan to be an unworthy place for
living”.
Hon’ble Member of Parliament Smt.
Sucheta Kripalini from Uttar Pradesh pleaded as follows : “We cannot deny our responsibility towards
those people ( Hindus of East Pakistan ). They are citizens of India. They
fought for the freedom of India. But today unfortunately they have been left beyond the limit of India. We know that
, Pakistan has been following a systematic policy by which Hindus have been
gradually pushed out., they will have to find shelter………… We cannot close our
eyes to that fact. Even if, it is difficult for our economy to support it, we
have to give shelter to those shelter less people. It is a moral obligation.”
Sri A. C. Guha, Hon’ble Member of
Parliament from West Bengal told, “ to
allay this suspicion of the Bengali settlers and refugees there in Assam , I
wish something like a proviso be added at the end of clause 2 to the effect that
the provisions of this Bill will not be applied to anybody who is a refugee or
displaced persons…… “.
In reply to the debate in the Parliament
and accepting the proposal of the Members of Parliament , the then Minister of
Transport & Railways , Sri Gopal Swamy submitted as follows : “those who subsequent to the partition of
India on 15th August, 1947 , have migrated in fear to Assam ,
because of disturbances in Pakistan or the fear of their being badly dealt with
Pakistan, with regard to that category of people also,…… we could , by executive
action , effectively prevent this measure from being applied to such persons.
But, I see that, there is a very large volume of feeling in the House in this
matter , that, this matter should be made perfectly clear in the Bill itself,
and I propose to accept the proposed proviso
…. . The idea is to make the Bill itself
prevent the application of this enactment to such People.”
15 On 1st March, ‘The Immigrants
(Expulsion from Assam), Act. 1950 was
passed . It extends to whole of India. The clause 2 of the said Act is as
follows : “Power to Order expulsion of certain immigrants ---
If the central Govt. is of opinion that any person or class of persons,
having been ordinarily in any place outside India, has or have , whether before
or after the commencement of this Act. , come into Assam is detrimental to the
interests of the general public of India or any section or of any scheduled
Tribe in Assam, the Central Govt. may by order ---
a) Direct such person or class of persons to
remove himself or themselves from India or Assam with such time and by such
route as may be specified in the order
and removal from India or Assam as it may consider necessary or
expedient.
Provided that,
nothing in this section shall apply to any person , who on account of civil
disturbances or the fear of such disturbances in any 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.”
16 Thus, the clause No. 2 of the Act
mentioned herein above has given protection in India to the religious
minorities of East Pakistan & Bangladesh who on account of civil
disturbances /religious persecution were forced to flee that country and took
refuge in India/Assam. In fact, this Act. may be called the statutory arrange
of the declaration of the then govt. of India and the national leaders to the
minorities migrants of Pakistan.
17 It is a well known fact, that ,the Hindus
and other minorities of East Bengal have been facing religious persecution in
their place of origin forcing them to migrate to Assam, West Bengal & in
other states of India. Among Such
Migrants, those have migrated to Assam up to 31st December, 1965 and
staying in the state of Assam, are
entitled to certain protection
and Citizenship without fulfilling ‘statutory requirements’ But, unfortunately,
in the same state, lakhs of Hindu
Migrants have been declared as D –
voters and are subjected to harassment, arrest, detention &
deportation to NO MAN’S land of the India-Bangladesh border who migrated to the
state later on. This decision is unjust and illegal. Therefore, imposition of
the concept of D – Voters upon the Hindu
Migrants be stopped with immediate effect.
18 The concept of D – Voters implemented in
Assam in the year 1997. Around 3.5 lakh voters were marked as D – Voters and
the cases were referred to the appropriate
tribunals. The Election Commission of India vide letter No. 23/AS/96-VOL 3
dated the 5th January, 1998, had directed that the D – Voters would
not be allowed to cast their votes in General Elections to the House of People
etc. , so long as , their Citizenship status will not be determined by
appropriate tribunal.
In Assam, around 3.5 lakh voters were
marked as D – Voters, based only on doubt by the local verification officers.
The marking was done being politically motivated and mostly, the names of the poor & illiterate Bengali speaking Hindus,
were enlisted in the D – voters list i.e. the Bengali Hindu Migrants are
the main sufferers. From 1998 to 2012 the
Tribunals have given verdict on 88192 cases of the D – Voters and amongst the
cases only 6590 were declared as foreigners by the Tribunals i.e. only 7.4 % D- Voters were detected as foreigners.
Thus, it is beyond doubt that more than
92% of the total D-Voters are genuine Citizens of India, who have been debarred
from casting votes and other fundamental rights of a Citizen and were subjected
to harassment, arrest, trial & under detention for indefinite period. It is
a clear case of violation of the Articles 14,21 & 20(1) of the Indian Constitution. Articles 14,21
& 20(1) are as follows:
“Article 14 – Equality before law :- The state shall not deny to any person equality
before the law or the equal protection of the laws within the territory of
India”.
”Article
21 – Protection
of life and personal liberty :- No
person shall be deprived of his life or personal liberty except according to
procedure established by law”.
“Article 20(1) –
Protection in respect of conviction for offences
:-
No person shall be convicted of any offence except for violation of a law in
force at the time of the commission of the act charged as an offence, nor be
subjected to a penalty greater than that which might have been inflicted under
the law in force at the time of the commission of the offence”.
19 In Assam ,
the Tribunals have declared some
of the D –Voters as foreigners ex parte and confined them in the detention
camps. In fact, many of those D – Voters did not got the notices in regard to the trials. They
are victims of conspiracy. Many of such
incidents of non-issuance of notices, Smt. Anita Chakraborty, Smt Niyati Biswas are amongst them, were
declared as foreigners ex parte.
20 In Assam, many D - Voter Migrants of East Bengal have been confined in
the detention camps/ jails for long times, even for several years. They have
been detained for indefinite periods. Many of them are children & women.
Among others Smt. Pranati Das, Smt. Titibala Das are under detention. Very
recently an old man (D Voter) of 102 years Sri Repati Das were arrested and
detained on the plea that he is a foreigner. These Migrants are not criminals.
Most of them were arrested & detained as a precautionary measure , so that,
they may not be able to flee /vanished . The D Voters are generally detained without
any specific confinement order of the court of law i.e. detained for indefinite
periods. Also those Migrants / persons
are detected to be foreigners, are confined in the detention camps for
indefinite periods as there is no such pact / treaty between India &
Bangladesh in respect of repatriation / rehabilitation. Nayurally, Bangladesh Govt. also has been denying to
accept those Migrants / persons. As a
result, the Govt. of India Authorities have been either detaining the
unfortunate Migrants of Indian Origin for indefinite periods or deporting them
to the NO MAN’S land of the India-Bangladesh border on the Gun Point of the BBG
& BSF violating the Articles 22(4),
14 & 21 of the Indian Constitution and it is also violation of the ‘convention
against torture and other cruel, inhuman or degrading treatment or punishment’
adopted in the general assembly of the United Nations on 10th
December, 1984.
21 The
Article No. 22(4) of the Constitution of India is as follows :
“Article 22(4) – Protection against arrest and
detention in certain cases :- No law providing
for
preventive detention shall authorize the detention of a person for a longer
period than three months unless :-
a) an
advisory board consisting of persons who are or have been, or are qualified to be appointed as, Judges of a
High Court has reported before the expiration of the said period of three
months that there is in its opinion sufficient cause for such detention :
Provided
that nothing in this sub-clause shall authorize the detention of any person
beyond the maximum period prescribed by any law made by Parliament under
sub-clause (b) of clause (7); or
b) such
person is detained in accordance with the provisions of any law made by
Parliament under sub-clauses (a) and (b) of clause (7)”.
22 The people of Indian Origin , who have
migrated to Assam on or after 1st January, 1966 and before 25th
March, 1971 from the territory now included in Bangladesh and ordinarily
residents of Assam and who have been detected as a foreigner, are entitled to apply
for Indian Citizenship u/s 5(1)(a).
Amongst those applicants, who subsequently recognized as Citizens of
India by the competent Authorities, they should be entitled to all the rights
as a Citizen of India as per the Indian Constitution. They should not be
debarred from casting votes to the
General Election to the House of the
people etc.
Unfortunately, Article
6A (3) and 6A (4) of the Citizenship Act, 1955 have imposed certain
conditions upon the Migrants who came to Assam on & after 1st
January, 1966 and before 25th March, 1971 and subsequently
registered as a Citizen of India by the competent Authority, they are debarred from
casting votes for 10 years from the date of detection as a
foreigners. These Clauses contradicts to the fundamental rights of a Citizen of
India.
Article 6A(3) and 6A(4)
are as follows :
“6A (3) Subject to the provisions of
sub-sections (6) and (7), every persons of Indian Origin who –
a) came to Assam on or after the1st day of
January, 1966 but before 25th March, 1971 from the specified
territory; and
b) has, since the date of his entry into
Assam, been ordinarily resident in
Assam ; and
c) has been detected to be a foreigner.
Shall register himself in accordance
with the rules made by the Central Government in this behalf under section 18
with such authority (thereafter) in this sub-section referred to as the
registering authority as may be
specified in such rules and his name is included in any electoral roll for any
Assembly or Parliamentary Constituency in force on the date of such detection ,
his name shall be deleted therefrom. …………”
“6A(4) A person registered under
sub-section (3) shall have as from
the date on which he has been detected to be a foreigner and till the expiry of
a period of 10 years from that date , the same rights and obligations as a
citizen of India (including the right to obtain a passport under the passport Act, 1967 (15
of 1967) and the obligation connected therewith), shall not be entitled to have
his name included in any electoral roll for any Assembly or Parliamentary
Constituency at any time before the expiry of the said period of ten tears.”
23 Contemporaneous to ‘The Immigrants
(Expulsion from Assam) Act, 1950’ passed by the Parliament of India , the Prime
Minister of India Pandit J. Nehru and the Prime Minister of Pakistan Md.
Liaquat Ali signed a pact , Known as
Nehru – Liaquat Pact on 8th
April, 1950 thereby binding the two countries to protect their respective
minorities and inter alia, give them
security in respect of life, property ,
personal honour and culture. The pact also allowed freedom of migration of
minorities and protection in transit without any cut off date. But the Govt. of
Pakistan did not able to give protection to the minorities of their country and
the minorities were subjected to religious persecution, time and again
resulting huge number of migration from Pakistan to India. Although the Govt.
of India assured the Migrants of Pakistan , that, they will take responsibility
of the Migrants , but the fact was that , it was very difficult to tackle the
situation for the newly independent
Govt. of India. Therefore, the
Govt. led by Pandit Nehru sent two Cabinet Ministers Sri C. C. Biswas and Sri
A.K. Chanda to East Pakistan for restraining the minorities of East Pakistan,
so that, they may not migrate en masse and to make them understand about the
Nehru-Liaquat Pact --- the commitment of the Govt. of India towards the
Migrants of East Pakistan.
The minorities of East Pakistan believed
in the assurances of the Govt. of India and tried to stay there. Many of them are still living in Bangladesh.
Some of them could not stay there for various reasons --- they flee East Bengal
facing religious persecution or fear of such persecution and took refuge in
India.
After partition, both the India &
Pakistan Govt. declared the opportunity to the Govt. Employees for giving options, to which of the countries
they are willing to serve. Naturally the enlighten sections of the society got
the benefit of the option facility provided by the Govt., for migrating
earlier. Some of the relevant portion of the Nehru – Liaquat Pact is as follows
:-
“A. The Governments of India and Pakistan
solemnly agree that each shall ensure to the minorities through out its
territory complete equality of citizenship, irrespective of religion. A full
sense of security in respect of life , culture, property and personal honour.
Freedom of movement within each country and
freedom of occupation, speech and worship subject to law and morality. Members
of the minority shall have equal opportunity
with members of the majority community to participate in the public life of
their country, to hold political and other office, and to serve in their
country’s civil and armed forces. Both Governments declared these rights to be fundamental and
undertake to enforce them effectively. The Prime Minister of India has drawn
attention to the fact that these rights are guaranteed to all minorities of
India by its constitution. The Prime Minister of Pakistan has pointed out that
similar provisions exists in the objectives Resolution adopted by the
constituent Assembly of Pakistan. It is the policy of both Governments that the
enjoyment of these democratic rights shall be assured to all their nationals
without distinction.
Both Governments wish to emphasize that
the allegiance and loyalty of the minorities is to the state of which they are
citizens. And that it is the Government of their own state that they should
look for the redress of their grievances.
B.In respect of migration from East
Bengal, West Bengal, Assam and Tripura, where communal disturbances have recently
occurred, it is agreed between the two Governments:-
i) That there shall be freedom of
movement and protection in transit
ii) That there shall be freedom to
remove as much of his movable personal effects and household goods as a migrane
may wish to take with him. Movable property shall include personal jewellery.
The maximum cash allowed to each adult Migrant will be Rs. 150.00 and to each
Migrant child Rs.75.00.”
24 In the first week of January, 1964 , the Govt. of
India took the decision to seal the India–East Pakistan border, so that, the
Migrants of East Pakistan cannot enter into India. The total Bengali people of
India raised voice against the decision of the Govt. of India. One historical
convention was held in the University Institute Hall, Kolkata on 27th
th January, 1964 protesting the Govt. of India’s border seal decision. In the
convention, among many other distinguished personalities, Forward Block leader Hemanta Basu, RSP leader Tridip Chowdhury,
Jana Sangha leader Haripada Bharati, N,
C. Chatterjee, CPI (M) leader Jyoti Basu
were present. The convention unanimously opposed the decision of sealing border
and demanded for withdraw the same order. It was decided there that , those
Migrants already have come to India and those will come to India in future from
East Pakistan, the Govt. of India have
to take responsibility for their rehabilitation and to grant them Citizenship
of India.
Next day of the convention, i.e. on 28th
January, 1964, the then Central Ministers Mr. Guljarilal Nanda. Mr. T. T.
Krisnamachari and Mr. Meher Chand Khanna, on behalf of the Govt. of India gave
a joint statement admitting the
proposals of the convention.
Therefore, now, the Govt. of India
cannot deny to grant Citizenship, rehabilitation and other such facilities to
the migrated Hindus and other minorities of East Bengal on the simple ground
that they migrated later on. The Govt. of India cannot define
the forced Migrants of Indian Origin by law as ‘illegal migrants’ subjected to harassment, arrest, detention & deportation
to the NO MAN’S land of the India-Bangladesh border.
25 Great philosopher, thinker and father of the Indian
Constitution Dr. B. R. Ambedkar placed his proposal through his book ‘Pakistan
or Partition of India’ in 1940s, in regard to solution of problems of the
religious minorities, if, India is partitioned on religious basis. He wrote –
if, ultimately partition of the country may not be avoided, then Hindu majority
districts of Punjab and Bengal, should be included into India , so that, the
minimum number of Hindus are compelled to stay in Pakistan against their will.
He also proposed for total exchange of minority population, if possible, to
maintain peace and harmony in both the countries. The policy of exchange of
population was not adopted, but, due to severe riots in Punjab immediately
after the declaration of partition in 1947, within a short time, almost all the
Hindus and Sikhs of West Pakistan as well as the Muslims of East Punjab & near
by areas, were forced to migrate from
their place of origin. Thus, the problems of the Migrants of the Western Part
of the country are more or less solved.
In Eastern part of the country, no such
severe communal riots break out during the period of partition. In East
Pakistan, for the first time, communal
riots break out in 1950s and since then a series of riots occurred in East
Pakistan and Bangladesh and all along communal tension exists in Bangladesh. As a result, the migration of minorities of that country
has become a continuous process. As and when riots start or communal tensions
are increased in the country, the
minorities of that country are forced to flee Bangladesh to India. So, in the
case of East Bengal -- the problems & plight of the unfortunate Migrants,
the historical background and the
circumstances, should be considered sympathetically. But on the contrary, the
Govt. of India have been treating them as enemies -- as illegal migrants. Their
only crime, that, they have come to India later on!
Dr. Ambedkar was also very much anxious
for the problems of the religious minorities, who were living in East Pakistan (now
Bangladesh). In 1951 he wrote in
explanation of his resignation from the Nehru cabinet, that, ” there are two
grounds which have disturbed our relation with Pakistan – one is Kashmir and
the other is the condition of our people
in East Bengal. I felt that, we should be more deeply concerned with East
Bengal where the condition of our people seems from all the news papers
intolerable than with Kashmir.” (Ambedkar writtings & speeches, Volume 14,
Part II, page no. 1322). The leaders of our country did not give proper
attention to Dr. Ambedkar’s concerned in this regard and yet, it stands burning
problem for the country and for the humanity.
26 On
28th July, 1951 United Nations Convention relating to the status of
refugees adopted and declared some policies, which were effected from 22nd
April, !954. Although India is not a signatory to the declaration, but India
has been co-operating with the ’United Nations High Commission for Refugees
(UNHCR) since long period.
The
UNHCR has an office in New Delhi and they have been doing their job in India
with the co-operation of the Govt. of
India. The Tibetian, Afgan & some other refugees have been given shelter in
India. But the Migrants of Indian Origin i.e. the Migrants of Bangladesh have
not been given the same status with the others. Some of the Migrants of Indian
Origin are ‘Stateless people’ and the others, who came to India after 25th March, 1971 have been
declared as ‘illegal migrants’ are subjected
to harassment , arrest, detention and deportation to the NO MAN’S land of the
India-Bangladesh border.
27 On
16th December, 1966 one amendment to the declaration on the United Nations
Refugee Convention was passed, which is known as ‘1967 Protocol’. It removed
the geographical and temporal limits of the 1951 convention and thus the
convention relating to status of the refugees got Universal coverage. The
Refugee Convention of the United Nations held in the year 1951 and for the
first time, codified the definition of ‘Refugee’ based on the Article 14 of the
Universal Declaration of Human Rights 1948, which recognizes the rights of
persons to seek asylum being persecuted in other countries.
According
to the United Nations Refugee Convention, a refugee is “a person who owing to well-founded fear of being
persecuted for reasons of race, religion, nationality, membership of a
particular social group or political opinion, is outside the country of his
nationality and is unable or, owing to such fear , is unwilling to avail
himself of the protection of that country, or who, not having a nationality and being
outside the country of his former habitual residence as a result of such
events, is unable or, owing to such fear, is unwilling to return to it” (UN
convention relating to the status of refugees, chapter 1 : general provisions,
paragraph 2 of the Article 1 )
(Copy
of the Article 1 of the UN convention relating to the status of refugees is
annexed as ANNEXURE P / 2, Page No. 97)
28
India is a signatory to the United Nations ’Convention against Torture &
other Cruel, Inhuman or Degrading Treatment of Punishment. ‘ The United Nations General Assembly adopted
the policy by resolution No. 39/46 dated the 10th December,1984 and was enforced on & from
26th June, 1987. The Convention embodied the principles of
‘non-refoulment’, where it is clearly stated that :-
“No
state party shall expel, return (refouler ) or extradite a person to another
state where there are substantial grounds for believing that, he would be in
danger of being subjected to torture.
For
the purpose of determining whether there are such grounds, the competent
authorities shall take into account all relevant considerations including,
where applicable, the existence in the state concerned of a consistent pattern
of gross, flagrant or mass violations of human rights” (Article 3 of the
Convention against Torture….. document).
(Copy
of the introductory note by the office of the United Nations High Commissioner
for Refugees (UNHCR) is annexed as ANNEXURE
P / 3 , Page No.101)
29 Unfortunately,
the Govt. of India has been treating the Migrants of Indian Origin in different
ways. The Parliament of India has amended the Indian Citizenship Act. 1955
several times contrary to the Principle of the United Nations and against the
law of Natural Justice. Particularly, the clauses 2(1)(b) and 3(1)(b),3(1) (c)
of ‘The Citizenship Act, 1955, are
contradictory to the Principles of the United Nations.
For
the first time, The Citizenship (Amendment) Act,
1986 imposed certain conditions for having the rights of Citizenship by Birth. With
the clauses 3(1)(c) of ‘The
Citizenship (Amendment ) Act, 2003’, the conditions for achieving
rights of Citizenship by Birth were further tighten
pushing the Migrants of Indian Origin in deep sea. These clauses of the Act. are defective,
because, if, India does not grant Indian Citizenship by Birth to the Migrants
of Indian Origin who have born in India,
then naturally, they will be ‘Stateless’, which is not desirable and
detrimental to the interest of India and for the nation as a whole.
The
clauses 3(1)(a), 3(1)(b) & 3(1)(c)
of ‘The Citizenship Act. 1955 are as follows:-
“Citizenship
by Birth --- (1) Except as provided in sub-section (2), every person born in
India, ---
a) On
or after the 26th day of January, 1950 but before the 1st
day of July, 1987’
b) On
or after the 1st day of July, 1987 but before the commencement of
‘The Citizenship (Amendment ) Act. 2003 and either of whose parents is a
citizen of India at the time of his birth,
c) On
or after the commencement of The Citizenship (Amendment ) Act. 2003, where –
i)
Both of his parents are citizens 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 birth
Shall be a citizen of India by birth.”
30 The
clause 2(1)(b) of ‘The Citizenship (Amendment ) Act,2003’ has defined the ‘illegal migrants’ as follows :-
“illegal migrant means a foreigner who has entered
into India–
I)
without a valid passport or other travel
documents and such other document or authority as may be prescribed by or under
any law in that behalf, or
ii) with a valid passport or other travel documents and such
other document or authority as may be prescribed by or under any law in that
behalf, but remains therein beyond the permitted period of time “
31 That the original mended of Article 5 of the Constitution
of India regarding Citizenship as made in Part II of the Constitution of India
stated as follows :
“Article
5. Citizenship
at the commencement of the Constitution
--- At the commencement of this constitution,
every person who has his domicile in the territory of India and
a) Who
has born in the territory of India, or
b) Either
of whose parents was born in the territory of India, or
c) who
has been ordinarily resident in the territory of India for not less than five
years immediately preceding such commencement,
Shall be a citizen of India.”
32 That
original mended of Article 6 of The Constitution of India regarding Citizenship
as made in Part II of The Constitution of India stated as follows :
“Article
6 Rights
of Citizenship of certain persons who have migrated to India from Pakistan --- Notwithstanding anything in Article 5 , a person who has migrated
to the territory of India from the territory now included in Pakistan shall be
deemed to be a citizen of India at the commencement of this constitution if ---
a) he
or either of his parents or any of his grand-parents born in India as defined
in the Government of India Act, 1935 ( as originally enacted), and
i) in
the case where such person has so migrated before the nineteenth day of July,
1948, he has been ordinarily resident in the territory of India since the date
of his migration, or
Ii) in the case where such person has so
migrated on or after the nineteenth day of July, 1948, he has been registered
as a citizen of India by an officer appointed in that behalf by the Government
of the Dominion of India on an application made by him trerefor to such officer
before the commencement of this Constitution in the form and manner prescribed
by that Government :
Provided
that no person shall be so registered unless he has been resident in the
territory of India for at least six months immediately preceding the date of
his application.”
33 That
original mended/mandate of Article 8 of
The Constitution of India regarding Citizenship as made in Part 2 of The
Constitution of India stated as follows :
“Article 8,
Rights
of citizenship of certain persons of Indian Origin residing outside India : Notwithstanding anything in Article 5, any person who or either of whose parents or
any of whose grand-parents was born in India as defined in the Government of
India Act, 1935 (as originally enacted ) and who is ordinarily residing in any
country outside India as so defined shall be deemed to be a citizen of India if
he has been registered as citizen of India by a diplomatic or consular
representative of India in the country where he is for the time being residing
on an application made by him therefor
to such diplomatic or consular representative, whether before or after
the commencement of this constitution, in the form and manner prescribed by the
Government of the Dominion of India or the Government of India. “
34 That
original mended of Article 11 of The Constitution of India regarding
Citizenship as made in Part 2 of The Constitution of India stated as follows :
“Article
11 – Parliament to regulate the right of
citizenship by law : Nothing in the foregoing provisions of
this Part shall derogate from the power of Parliament to make any provision
with respect to the acquisition and termination of citizenship and all other
matters relating to citizenship.”
35 That
thereupon the petitioners also state and humbly submit before this Hon’ble Apex
Court of India that overriding of the aforesaid Constitutional and Legal
position and also overriding the original constitution mended as envisaged in Articles 5, 6 and 8 of the
Constitution of India , Government of India made a cutoff date 25th
March, 1971 for the Migrants of Indian Origin regarding grant of Citizenship to them, vide a letter
No. 26011/16/71-10 dated the 29th November, 1971, which is mentioned
herein above in paragraph no. 9. Those Migrants were forced to flee East Bengal
for religious persecution and fear of such persecution i.e. the Migrants of
Hindu, Buddhist etc. communities are also debarred from granting Citizenship of
India at the instruction of the said
Circular/Order.
36 That
in view of the Govt. Of India order No.
26011/16/71-10 dated the 29th November,1971, Order of the Odisha Govt. No. PPT(P)-60/ 2000-15681 dated the 16th
March,2001 & the Order of the Govt. of India No. F-14011/55/09 dated the 23rd
November, 2009 , the Govt. of various states have been dealing with the
thousands of Migrants of Indian Origin from East Bengal, who are victim of partition and religious
persecution and are ordinarily residents in India for several decades to
several years , as foreigners and the Foreigners Act, 1946 has been applying against them and
they are subjected to harassment, arrest, detention and deportation to the NO
MAN’S land of the India-Bangladesh border on the gun point of BBG & BSF.
(Copy
of the order of Odisha Govt. No. 15681, dated the 16th March, 2001
is annexed as ANNEXURE P/4, Page No. 105 and Govt. of India, Home
Ministry, order no. F-14011/55/09-F.VI, dated the 23rd November,
2009 is annexed as ANNEXURE P/5, Page
No. 108 )
37 Those
unfortunate Migrants of Indian Origin were deported from Assam State to the NO
MAN’S land of the India-Bangladesh border,
some of them are :Smt. Kamana
Acharya of Goalpara district, Smt. Parul
Das & Sri Gauranga Das of Darang
district, Sri Sisir Das of Nowgaon
district, Sri ramal Biswas of Morigaon
district, Smi Mihir Biswas of Paltan
Bazar.
From
Odisha, in a batch 21 Hindu Migrants were deported to the NO MAN’S land of the
India-Bangladesh border. Some of the
unfortunate Migrants are : Sri Ashok Kharati & Sri Khokon Chowdhury of
Navrangpur district, Sri Anil Ch. Roy
of Amarkote district, Sri Anil Mistry of
Raygarh district.
38 Thousands
of warrants were issued under Foreigners Act, 1946 against Hindu Migrants of
Indian Origin amongst them many were arrested and confined to the detention camps/jails.
In
West Bengal, those were arrested & sent to jail, some of them are:- Sri Manoranjan Bapari & Sri Santosh
Golder of Hoogly district, Sri Ananth
Debnath, Sri Madheb Mondal, Sri Radhika Ranjan Biswas & Sri Manick Debnath of Nadia disdtict, Sri
Sudhansu Biswas , Sri Harakanta Barui & Sri Keshablal Sana of Burdwan
district, Sri Kamal Saha ,Sri Bablu Saha
& Sri Tusar Saha of West Midnapore district.
In
Assam hundreds of Migrants of Indian Origin have been confined to detention
camps. Some of them are : Sri Sukumar Sarkar, Smt. Kalyani Rani Chowdhury & Sri Pran Krishna Debnath of Kaprup district, Sri Satyaban Das, Smt. Malati Das of Goalpara
district, Smt Malati Nath of Nowgaon
district, Smt. Uma Biswas, Smt Sandharani Biswas , Sri Ganesh Dey & sri
Balai Biswas of Lakhimper district, Sri
Amrita Das of Karbilong district, Smt.
Karuna Debnath of Tinsukia, Sri Surendra
Nath Debnath & Sri Phanindra Mondal
of Nalbari district.
39 In
Odisha, notices were issued to the Migrants of Indian Origin ordering to quit
India within 30 days from the service of those notices. The Migrants were not
given any opportunity for self defence.
1551 such notices were served on 1551 Hindu Migrants , ordinarily residents
in Mahakalpara Block of Kendrapara District, for more than 50 years. The
notices are as follows :--
“Government
of Orissa, Home Department
ORDER
Dated, Bhubaneswar,the 28.12.2004
No. 54898 /PPT. In exercise of power conferred by
clause (C) of Sub-Clause (2) of Section-3 of the Foreigners Act-1946 (Act No.
31 of 1946) read with Notification No. 413/56(1)(FI) dt. 19.4.1958 of the
Government of India, Ministry of Home Affairs, New Delhi, the State Government
do hereby direct that Sasadhar Sarkar, son of Lalita, a
Bangladeshi National at present residing in the district of Kendrapara should
quit India within 30 (thirty) days from
the date of service of this order on him/her failing which steps will be taken
to deport him/her from India.
Address
:
Vill
- Kharinashi Sd/- 25.11.04 Tehsil
Mahakalpara, Deputy
Secretary to Govt.”
Dist - Kendrapara
40 Notices also served on the Migrants of Indian
Origin ordinarily residents of
Navrangpur District, Odisha. The notices are as follows :-
“COLLECTORATE : NABARANGPER
JUDICIAL SECTION
No. 162/VII2/2005 Judl. Date : 27.01.2005
NOTICE
Sri Anil Chandra Roy
S/o. Narendra,Village :
Dongrigoda
P.S.
Umerkote,Dist. Nabarangpur
During enumeration of Bangladeshis staying in India, it
has been found that, you have arrived from Bangladesh & staying in India
from the year 1975. As per Govt. instructions, Bangladeshis who came to India
after 16.12.1971 with valid documents or without valid documents but have
stayed unauthorisedly should be deported immediately.
You are therefore directed to appear before the
undersigned in his office room at Collectorate, Nabarangpur on 11.02.05 at
11.00 A.M. with all relevant documents in support of your stay for a detailed
enquiry.
Sd/-
Additional District Magistrate
&
Inquiring Office,Nabarangpur”
41 That ‘The Citizenship (Amendment ) Bill,
2003’ was moved in the Rajya Sabha on 18th December, 2003 by the
then Deputy Prime Minister of India and Home Minister Sri L. K. Advani.
Participating in the debate on the Bill, Dr.Manmohan Singh, Hon’ble Member of Parliament and Leader of
the Opposition told,
“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).
42 That
Sri Sankar Roychowdhury, independent Member of Parliament from West Bengal
participated in the debate on ‘The Citizenship (Amendment ), Bill, 2003. He
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)
43 Only
the two Members of the Parliament Participated in the debate on the Bill. In
reply to the speeches /proposal / demand of the MPs , on behalf of the Govt. Hon’ble
Deputy Prime Minister and Home Minister 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 bona fide refugee,
and he cannot 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)
44 That
it was discussed & accepted in the Parliament , that, a special
provision will be inserted into ‘The Citizenship (Amendment ), Bill, 2003’
before finalization of the Bill, so that, the Migrants of Indian Origin from
the territory now included in Bangladesh and who were forced to flee Bangladesh
facing persecution or fear of such persecution and took refuge in India i.e. the ‘bona-fide’ refugees may be granted
Citizenship of India . Unfortunately, no such special provisions were included
In the said Act., in the light of the
discussion, held in the House of the Parliament.
45 That
the petitioners approached to many Members of Parliament of various Parties
since enactment of ’The Citizenship
(Amendment) Act, 2003’. As a result, many of the Members of the Parliament,
both Rajya Sabha and Lok Sabha, have written letters on various dates to the
Prime Minister of India and Home Minister requesting them to initiate steps for
granting Citizenship to those unfortunate Migrants of Indian Origin. Such a
letter of the Hon’ble Member of Parliament, Sri Ramdas Athawale (LS) is as
follows :
“To
The Hon’ble Prime Minister of India
South Block Date : 26.08.2004
New Delhi
Subject : Problems of the refugees from East Bengal
Respected Sir,
With regards, I want to state that, some refugee
organizations and prominent personalities of West Bengal met me in the recent
past and expressed their concern in regard to the amendment of the Citizenship
Act. 2003, where no special provision has been inserted for the refugees of
East Bengal who are displaced from their mother land due to partition of India
and subsequent political disturbances.
Most of the refugees are down trodden, illiterate, poor,
innocent and are not in a position to fulfill the conditions for being citizen
of India as directed in the recent amendment, though the one crore displaced
persons are real refugees from East Bengal and are entitled to be the citizen
of India as declared by our National Leaders at the time of partition of India
and signed pact.
If we see the problem from the eye of humanity, we
cannot refuse them citizenship, as they have no root in East Bengal since long.
In fact, the refugees are in this country for three generations.
Therefore, my humble request to you to reconsider the
Citizenship Act, 1955 once again and one special provision to be framed in
favour of the refugees from East Bengal, So that, they are recognized as the
citizen of India.
With regards Sd/Ramdas Athawale
Member of Parliament (LS)”
46 That
the Hon’ble Member of Parliament (RS), Sri R. S. Gavai from Maharastra, in a ‘Special Mention” on 7th
December, 2004 demanded a special provision in ’The Citizenship (Amendment) Act, 2003, so that, the Migrants of
Bangladesh may be granted Citizenship of India. The Special Mention stated 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 Pakistan and 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 crore 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 cannot
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 get rehabilitated.
R. S. Gavai, Member of
Parliament (RS)”
47 In reply to the Special Mention in the
Rajya Sabha by Sri Gavai, The Hon’ble Minister of Home Affairs Mr.Shivraj Patil wrote the following letter :-
“DO
No.27018/06/04-IC.I Date-10th January, 2005
Dear Sri Gavai,
Kindly refer to your notice over a matter of Urgent
Public Importance (Special Mention) raised in the Rajya Sabha on 7th Dec.’04
regarding grant of Indian Citizenship to the refugees from East Pakistan (now
Bangladesh) who are in India.
2 The matter has been looked into. With
the Citizenship (Amendment) Act, 2003, a new clause 2(1)(b) has been inserted
which defines ‘illegal migrants’. These illegal migrants are not eligible for
Indian Citizenship.
3 However, I would like bring to your
notice that a decision was taken earlier to grant citizenship to the refugees
from East Pakistan (now Bangladesh) who came to India before the cut off date
of 25.03.71. Hence, the amendment to the Citizenship Act. has no bearing on
granting citizenship to the refugees from East Pakistan who came to India at
the time of partition.
With regards, Sd/ Shivraj V. Patil
Minister of Home Affairs”.
48 That
the Hon’ble Member of Parliament (LS) from Assam (BJP), Sri Kabindra
Purkayautha demanded in the Parliament for granting Citizenship to the Hindu
Migrants of Bangladesh, who have faced persecution in that country, on 19th
December, 2011 as follows :
“Our
country was partitioned on the basis to two nation 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 U.N.O. 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 Government and the State Government of Assam should
make distinction between the two in providing facilities to the needy ones. The
Bengali Hindus of East Pakistan (Present Bangladesh) who are the victims of the
partition should not be subjected to severe harassment by making them 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 settled in Rajasthan and
Gujarat. All sorts of harassment on the Bengali Hindus should be stopped”.
49 The Hon’ble Member of Parliament (LS) from
West Bengal (CPI-M), Sri Basudeb Acharia
demanded in the Parliament for Citizenship to the Migrants of East Bengal 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 and Bangladesh because of
their persecution as minorities.
These
refugees have settled and are staying different parts of the country and in
different States like Uttarakhand, Uttar Pradesh, Madhya Pradesh, Chattisgarh
and Orissa. They are staying in these States for years together. In spite of
staying here for many years, 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, and 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 of grant citizenship to these hapless people. As a
result of this, there are Namashudras
living in Uttar Pradesh, Chattisgarh and Uttarakhand, they are recognize
as Scheduled Caste in the State of West Bengal but they are not recognized as
Scheduled Caste in Uttarakhand, Uttar Pradesh and Chhattisgarh. I have already
introduced a Private Member’s Bill in this regard … (Interruptions)
MR. CHAIRMAN : That is
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 Namashudras who are recognized as Scheduled Castes 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 peoples are being
excluded by other indentification. 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
before 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 the 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”.
50 The
Hon’ble Member of Parliament (RS) from West Bengal (CPI-M), Sri Shyamal Kr.
Chakraborty demanded in the Parliament for Citizenship to the Migrants of East
Bengal on 27th April, 2012 as follows :
“CITIZENSHIP OF BANGLADESH REFUGEES
The
Citizenship (Amendment) Act, 2003 has declared all the foreigners who have
entered into India without a valid passport etc., as illegal migrants. No cutoff
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. Home Minister agreed to that. but,
unfortunately there has been no positive amendment of the clause.
Therefore,
my appeal to the Hon. 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”.
51 No
fees were levied from the persons of Indian Origin for application for Indian
Citizenship u/s 5(1)(a) & 5(1)(d) as per the direction of the Clause No.
31(1) of the Citizenship Rules, 1956.
Now, fees of Rs.5000.00 for application
for Citizenship of India u/s
5(1)(a) & Rs.3000.00 for application
u/s 5(1)(d) have been fixed for
the Indian Origin as per the direction of Clause 41 of the Citizenship Rules,
2009. Most of the migrants of Indian Origin from East Bengal are poor and BPL
category and unable to pay the fees.
Moreover,
many applications for citizenship of India are pending with the Home Ministry
for long time. Now, the govt. of India demanding fees at the rate prescribed in
the Citizenship Rules, 2009 for those
pending applications also, which is not justified. Letters of the Home Ministry
to such pending applicants are as follows :-
“SPEED
POST/REMINDER
No. 26013/1110/99-IC-III
GOVERNMENT OF
INDIA / BHARAT SARKAR
MINISTRY OF HOME AFFAIRS /
GRIH MANTRALAYA
NDCC-II
Building, Jai Singh Road,
New Delhi-110001, Dated the 16th
December,2014
To,
The
Secretary,
Govt.
of Uttar Pradesh,
Home
(Visa-2) Department,
Lucknow – 226001
Subject
: Special Task Force to dispose of
pending cases of Citizenship – Grant of Indian Citizenship by registration
under section 5(1)(a) of the Citizenship Act. 1955 – case of Mr. Haran Mondal,
B.D. National.
Sir,
I am directed to refer to this
Ministry’s letter of even number dated 27-1- 2000, and State Government’s
letter No. 2281/T/6-V-2-99-60/T/99 dated
31-7-99, on the subject noted above and
to say that the required documents to process the case has not been received so
far.
i)
The Original Renunciation Certificate
ii)
Bank Challanof Rs. 5000/-
iii)
Three coloured recent photographs (duly
attested on the reverse by a Magistrate /Gazetted Officer)
iv)
Personal Particulars indicated in Form X
and three specimen signature (or left thumb impression) of the applicant on a
plain paper.
2. The
State Govt. is requested that the requisite information/documents may please be
obtained from the applicant(s) and be sent to this Ministry for processing the
case further within 30 days.
3. This
Ministry’s file number given above may invariably be cited in all future
correspondence.
Yours
faithfully
(M. R.
Meena)
Section Officer
Copy
to : Mr. Haran Mondal, S/O Shri Ballabhpada Mondal
Vill
: Gabhia Sehrai, PS : Madhotanda, Dist. : Pilibhit, UP.
With
the request to forward the above documents to this Ministry through the State
Govt. for further necessary action urgently.
Sd/-
(M.
R. Meena)
Section Officer”
Mr.
Haran Mondal is a BPL category applicant. Total members of his family are 5.
Per application fees for Citizenship is
Rs. 5000/-. Citizenship of India is needed for all of his family
members. For that, he has to pay Rs. 25000/- which is not possible for such
families. His application is pending with the Ministry for more than 15 years,
when he applied no fees were required for such applications. Now the Ministry
has wrote the letter mentioned herein above asking fees of Rs. 5000/-within a
month, is not justified. Not only Mr. Mondal, most of the migrants of East
Bengal are poor and under BPL category and unable to pay such big amount of
fees for application for Citizenship.
52 The
Govt. of India made ‘The Citizenship (Amendment) Rules, 2004 in their
application to the states of Gujrat and Rajasthan’ (paragraph 3(2)(a), 3(2)(b)
and 3(2)(1) to facilitate the process of granting Citizenship to the Hindu
Migrants of West Pakistan. It was directed that those Pakistani Hindus migrated
to India during the period of war with the Pakistan in 1965 and 1971 and
amongst those Hindu Migrants of West
Pakistan ordinarily residing in the districts of Kutch, Patan, Banaskantha & in Ahmedabad of Gujrat state and Badmer
& Jaisalmer districts of Rajasthan , their registering authority shall be
the concerned District Collectors. And those Hindu Migrants of West Pakistan
ordinarily residents in other districts of the
two states , their registering authority shall be the Secretary, Home
Department of the states for a specific period.
Many Hindu Migrants of West Pakistan were benefited by
the Rules, for registering their names as a Citizen of India, but, no such
facilities were provided to the Hindu Migrants of East Bengal. Thus, the Hindu
Migrants of East Bengal also were
discriminated in this regard. It is to be noted that the war of 1971 was
actually held in the Eastern Part of the
country.
53 In
a judgment between the case National Human Rights Commission VS State of Arunachal Pradesh (AIR SC-1234), the
Supreme Court of India directed the Govt. of Arunachal Pradesh to protect the
lives and liberty of the Chakmas , residing in the state and not to evict them
from their homes and shall not be denied
domestic life and comfort therein.
Concerned District Collectors also directed to forward the applications
for Citizenship of the Chakmas to the Central Govt. for consideration. The
relevant portion of the judgment stated as follows :
“Paragraph
21. In view of the above. We allow this petition and direct the first and
second respondents, by way of a writ of mandamus, as under –
(1) the first
respondent. the state of Arunachal Pradesh, shall ensure that the life and
personal liberty of each and every chakma residing within the State shall be
protected and any attempt to forcibly evict or drive them out of the State by
organized groups, Such as the AAPSU,
shall be repealed, if necessary by requisitioning the service of paramilitary
or police force, and if additional forces are considered necessary to carry out
this direction, the first respondent will request the second respondent, the
Union of India, to provide such additional force, and the second respondent
shall provide such additional force as is necessary to protect the lives and
liberty of the Chakmas;
(2) except in accordance with law, the Chakmas
shall not be evicted from their homes and shall not be denied domestic life and
comfort therein;
(3) the quit notices and ultimatums issued by the
AAPSU and any other group which tantamount to threats to the life and liberty
of each and every Chakma should dealt with by the first respondent in
accordance with law;
(4) the application made for registration as
citizen of India by the Chakmas under
Section 5 of the Act, shall be entered in the register maintained for the
purpose and shall be forwarded by the Collector or the DC who receives them
under the relevant rule, with without enquiry, as the case may be, to the
Central Government for its consideration in accordance with law: even returned
application shall be called back or fresh ones shall be obtained from the
concerned persons and shall be processed and forwarded to the Central
Government for consideration;
(5) while the application of any individual Chakma
is pending consideration, the first respondent shall not evict or remove the
concerned person from this occupation on the ground that he is not a citizen of
India until the competent authority has taken a decision in the behalf; and
(6) the first respondent will pay to the petitioner
cost of this petition which we quantify at Rs.10,000/- within six weeks from
today by deporting the same in the office of the NHRC, New Delhi”.
Again the Supreme Court of India has
given judgment on the case No. WP (Civil) – 510 of 2007 on 17th
September, 2015 to grant Citizenship of India to the Chakma and Hajong migrants
of East Bengal within three months from 1st September, 2015.
54 The
Election Commission, Lucknow, issued an order No.140/E/10N, dated the 3rd June, 2010 to
delete the names of the Migrants of East Pakistan who have been given Rehabilitation Assistances/Settlement in the
state of UP on the plea, that, they are not regular/registered Citizen of
India. The Order of the Election Commission was issued in Hindu. The English
translation of the order of the Election Commission is as follows :-
“
Office of the SDO Sadar, Electoral Registration Officer, 210, Bithur Bidhan
Sabha, Letter No. 140/R. K. Election – 10, dated 03.06.2010
ORDER
Lok
Sabha Area provisional question No. 925 and Chief Election Officer, UP,
Lucknow, Letter no. 6223/ CEO-4-2009 dated 27th November, 2009,
reference - 210 Bithur Bidhan Sabha, Part No. 70 and 151 Bhouti Pratap Pur,
Part No. 77, the names of 43 Bangladeshi migrant families has been struck off from the electoral roll. The said migrants
were served with notice dated 16-01-2010 to that effect that they should
produce their citizenship certificates by 21-01-2010, otherwise, their names
from the electoral roll will be struck off. In reply to the said notices, none
of the answering migrant could submit necessary papers i.e. citizenship
certificate, except the papers of their rehabilitation at Bhouti Pratappur,
District – Kanpur. They were settled in that place with the govt. order no.
343, dated 11.06.1976, was submitted by them. None of the migrated people could
submit the birth certificate of their children that, they have born in India
after 26th January, 1950 and before 1st July, 1987.
Migrants
in question, whether they were born before 26th January, 1950
outside India or those born after 26th January, 1950 in India, but their
parents are not the citizens of India. For the reason, u/s 3(2) of the
Citizenship Act. 1955, none of the migrants are eligible for Indian
Citizenship. They also have not been registered themselves as Indian Citizens
by the President of India. The Chief Election Officer, Up, Lucknow issued
direction to the observers and others, in a letter dated 01.01.2003, in paragraph 7, page no. 4, for not to include
their names in the electoral rolls those are not Citizens of India.
According
to the legal position, no migrants of Bangladesh were granted Citizenship of
India by the President of India and according to Citizenship Act, 1955, they
did not obtain Citizenship of India and their names should not be in the
electoral rolls.
Apart
from these, there are various orders of the govt. exists, where clearly
directed that, the migrants of Bangladesh are not to be recognized as Indian Citizens, so, their
names will not be included in the electoral rolls”.
55 The
Govt. of W.B. has issued guidelines for issuance of SC/ST certificate vide no.
1465-BCW/MR-67/10, dated the 30th April, 2010. In paragraph 9 of the
order of the govt. five criteria have been made, required to be fulfilled for
disposal of an application for SC/ST caste certificate. Amongst the five
criteria, 2nd criteria is the
proof of permanent resident of West Bengal since 1950. There is no relaxation
for the migrated SC/ST people. It is an order of discrimination against the
SC/ST migrants residing in West Bengal as nowhere in India, the migrants of
ST/ST category are required to submit such proof for a caste certificate. In
fact, the residential proof of prior to 1950, is asked for, as a proof of their
Citizenship in that way. As most of the migrants from East Bengal have come to
India after 1950, it is not possible for them to submit such kind of proof.
56 High
Court of Delhi passed the Judgment in the case between Namgyal Dolkar VS Govt.
of India ( WP-C 12179/2009) recognizing Dolkar, a Tibetian origin, as an Indian
Citizen by Birth in accordance with ‘3(1)(a) of The Citizenship Act, 1955,
since she born in India on or after 26th of January, 1950 but before 1st July, 1987. The
relevant portion of the judgment is as flollows :-
“Paragraph
31 – The petitioner was born in India on 13th April, 1986, i.e.
after 26th January, 1950 and before 1st July, 1987 and is
an Indian by birth in term of section 3(1)(a) of the Citizenship Act. She
cannot therefore be denied a passport on the ground that she is not an Indian
citizen in terms of section 6(2)(a)of the Citizenship Act.
Paragraph 32 – For all the aforesaid reasons, the
decision of the Ministry of External Affairs (MEA) communicated to the
petitioner by the impugned letter dated 1st September, 2009 of the
PRO is erroneous and is hereby quashed.
The petitioner’s prayer to be declared an Indian Citizen is allowed. The PRO
will now process the WP (Civil) 12179 /2009, page 16 of 17 Petitioner’s
application for issuance of a passport
once again and take a decision thereon in terms of this judgment within
a period of eight weeks from today.
Paragraph
33 – The Writ Petition is allowed in the above terms with costs of Rs. 5000/-
which will be paid by the Respondent to the petitioner within a period of four
weeks from today.
S. MURALIDHAR,J. DECEMBER, 22, 2010.”
57 The
Supreme Court of India passed a historical judgment in the case between
Sarvananda Sonowal VS Union of India
(AIR SC-2920) in the year of 2005, where
the IM(DT) Act,1983 was struck down declaring as ultra vires with the
Constitution of India and upheld ‘The Immigrants (Expulsion from Assam) Act,
1950 . For the judgment, as per the Clause 2 of the said 1950 Act, the Hindu
& other religious minority Migrants of East Bengal in Assam/India are
entitled to special protection/treatment in India . The relevant portion of the
judgment stated as follows :
“Paragraph 57. To
sum up our conclusions, the provisions of the Illegal Migrants (Determination
by Tribunals) Act. 1983 are ultra vires the Constitution of India and are
accordingly struck down. The Illegal Migrants (Determination by Tribunals)
Rules, 1984 are also ultra vires and are struck down. As a result the Tribunals
and the Appellate Tribunals constituted under the Illegal Migrants
(Determination by Tribunals) Act. 1983, shall cease to function. The Pass port
(Entry into India)Act,1920, the Foreigners Act. 1946, the Immigrants (Expulsion
from Assam) Act. 1950 and the Passport Act. 1967 shall apply to the State of
Assam. All cases pending before the Tribunals under the Illegal Migrants
(Determination by Tribunals) Act. 1983 shall stand transferred to the Tribunals
constituted under the Foreigners (Tribunals) Order, 1964 and shall be decided
in the manner provided in the Foreigners Act. the rules made thereunder and the
procedure prescribed under the Foreigners (tribunal) Order, 1964. In view of
the finding that, the competent authority and the Screening Committee had no
authority or jurisdiction to reject any proceedings initiated against and
alleged illegal migrant, the order of rejection passed by such authorities are declared to be void and non est in the eye
of law. It will be open to the authorities of the Central Government or State
Government to initiate fresh proceedings under the Foreigners Act against all
such persons whose cases were not referred to the Tribunals constituted under
the Illegal Migrants (Determination by Tribunals) Act, 1983, the competent
authority whether on account of the recommendation of the Screening Committee
or any other reason whatsoever the appeals pending before the Appellate
Tribunals shall be deemed to have abated”.
58 That
the subject matter of the instant PIL, the petitioners came to knowledge in the
month of July, 2015 through internet communication that similar PILs are
pending for adjudication before the
Supreme Court of India, filed by ‘Swajan’ through Advocate Shuvodeep Roy and by
‘The Joint Action Committee for Bengali Refugees’ through Advocate Mrs. Sarla
Chanda for effective adjudication of the
subject.
59 That
the petitioners humbly submit that, the Migrants of East Bengal (both East
Pakistan & Bangladesh) are Indian
Origin (as defined in the Govt. of India Act, 1935) and victim of partition.
They were forced to flee facing
religious persecution in their place of residence and took refuge in India.
They are ordinarily residents in India for several decades to several years,
therefore, for the ends of justice, they should be granted Citizenship of India
and be rehabilitated in India. They should not be called ‘illegal migrants’ and
not to be subjected to harassment, arrest, detention and deportation.
60 That
on being aggrieved, the petitioners being Social Welfare Organizations and the
public spirited persons have brought this Public Interest Litigation (PIL)
before this Hon’ble Apex Court of India by way of Writ Petition under Article
32 of the Constitution of India on the following amongst others :---
61 GROUNDS
i) Because the Migrants of
Indian Origin (as defined in the Govt.
of India Act. 1935) are the victims of partition of India. They have
faced religious persecution in their place of residence. They were forced to
flee Pakistan and Bangladesh and took refuge in India. Therefore, as per
Article 14 of the Indian Constitution, both the Migrants from West Pakistan and
East Bengal, also those have migrated earlier and later on, should be treated
equally in respect of grant of Citizenship of India and Rehabilitation Assistance etc. in India.
ii) Because
the Migrants of West Pakistan who came to India around 1947 and who migrated to
Assam before 1st day of
January, 1966, were recognized as
full-fledged Citizen of India in regard to voting right, jobs of the govt. of
India and other jobs issuance of passport etc. without fulfilling the
‘statutory requirements’, therefore, the same pattern of granting Citizenship should be adopted in the case of the Migrants
of East Bengal and Migrants of West Pakistan, who came to India later on, even
after 25th March, 1971.
iii) Because
those persons of Indian Origin migrated before the 25th
March, 1971, the Govt. of India has recognized them as displaced
persons/refugees, therefore, those
Migrants of Indian Origin were forced to flee their place of residence for the
same ground i.e. for religious persecution and fear of such persecution after 25th March, 1971, should
also be recognized as displaced persons / refugees, and not as ‘illegal
migrants’ u/s 2(1)(b) of the Citizenship Act.
iv) Because
the national leaders of our country and the Govt. of India declared commitment
to the minorities of Pakistan (East
& West), who are victim of partition to give them shelter and
rehabilitation in India without any cutoff dateor any other conditions.
v) Because
the Nehru-Liaquat pact was signed to ensure security and safety to the
minorities of Pakistan, so that, the minorities of Pakistan may not be tortured
and compel them to migrate to India. But, the fact was that, the minorities of
Pakistan and Bangladesh were subjected to religious persecution, communal riots
etc. and were forced to flee that country.
The Govt. of India tried to restrain the minorities from migrating to
India and at least delaying such migration by various ways, therefore, the
Govt. of India cannot deny responsibility to the Migrants of Indian Origin on
the simple ground, that, they have come later on.
vi) Because
the decision of the Govt. of India to impose the cutoff date 25th
March, 1971 is baseless and unjust. The state character of Bangladesh was
changed from ‘secularism’ to ‘Islam’ within few years of independence of the
country and the minorities of the country, particularly, the Hindus were subjected to
similar harassment, torture and injustices , they used to face in the Pakistan regime. Several times
the matter has been discussed in the house of the Parliament of India, when
Members of the Parliament have raised questions in regard to the plight of the
minorities of that country and torture on them, on various dates. The Govt. of
India has admitted, that, the religious minorities of
Bangladesh are subjected to religious persecution. Govt. of India, Department
of Home Affairs, very recently on 7th September, 2015 in a Press
Information also has admitted that, the religious minorities of Bangladesh are
subjected to religious persecution and has issued a Notification to give the
Migrants shelter and not to treat them as ‘illegal migrants’ who have come to
India on or before 31st December, 2014. The fact is that, the name
‘East Pakistan’ has been just changed to ‘Bangladesh’ ,nothing more than that,
so, the 25th March, 1971, the birth day Bangladesh, does not carry
any kind of significance to the minorities of Bangladesh, so that, a cut off
date can be imposed to deprive of the Migrants of Bangladesh from granting
Citizenship of India.
vii) Because
with the clause 2 of ‘The Immigrants
(Expulsion from Assam) Act. 1950, the Parliament of India provided a special protection to the Migrants of Indian Origin, who were forced
to migrate from Pakistan to India/Assam
for civil disturbances or fear of such disturbances i.e. the protection
was provided mainly to the Hindus and
other religious minorities who faced religious persecution in that
country, which was again upheld by the Supreme Court of India in
the judgement of the case between Sarvananda Sonowal VS Union of India (AIR SC-2920). The clause 2 of the said Act. 1950, is the
reflection of the declaration of the national leaders and the Govt. of India during the period of
independence of India and the Nehru-Liaquat pact. Thus, the Migrants of Indian
Origin are entitled to favourable treatment in India and they cannot be stamped
as ‘illegal migrants’ u/s 2(1)(b) of the ‘The Citizenship (Amendment) Act, 2003
as well as the Citizenship Act, 1955.
i) Because
‘The Citizenship (Amendment) Bill, 2003’was introduced in the Rajya Sabha on 18th
December, 2003, when the Hon’ble opposition leader Dr. Manmohan Singh and other
MPs demanded a special provision for granting Citizenship of India to the
Migrants of Bangladesh who have faced
persecution in their place of residence and were forced to flee and seek refuge
in India, in reply , on behalf of the Govt. of India , Hon’ble Deputy Prime
Minister of India and Home Minister Sri L. K. Advani defined the unfortunate
Migrants as ‘bona-fide refugees’ and agreed to insert such a special provision
into the Bill, so that, the Migrants of Bangladesh may be granted Indian
Citizenship.
ii) Because
the Foreigners Act. 1946 was enacted by the British on the context of 2nd
world war to combat the enemies of India. The said Act. may not be applied to victimized the Migrants of
Indian Origin. The Migrants are not at all criminal, they are victims of
partition of India. They are loyal to
India, they fought in the freedom struggle on India’s side and have been taking
part to build up this country since long period.
iii) Because
the govt. of Odisha issued the 1551 notices and such other notices to the
migrants of Hindu community to quit India within 30 days from the date of
service of those notices without proper investigation and without the trial in
the court of law. All the migrants are victim of partition of India and faced
religious persecution in their place of residence and were forced to flee from
the country and took refuge in India. They have not been given any opportunity
for self defence. They have been living in the area of Mahakalpara Block of
Kendrapara district for more than 60 years and in other districts also.
xi) Because
the original mended of the Constitution of India, part II, Article 5(a) &
5(b) provided unconditional rights of Citizenship by Birth to those, who or
either of whose parents born in India. Some amendments were passed in the
Citizenship Act, 1955 in the year of 1986 and 2003 by which certain conditions
were imposed for achieving the rights of Citizenship of India by Birth. The
children and grandchildren of the Migrants of Indian origin are the worst
sufferers for those amendments. Since most of
their parents and grandparents
are victims of religious persecution
and were forced to cross the border in abnormal situations, at the time
of riots etc. without passport-visa and thus, they could not registered
themselves as Citizens of India by fulfilling the ‘statutory requirements’. For
the reason, the children and grandchildren of such Migrants, who born in India,
now, are not entitled to Indian Citizenship by Birth u/s 3(1)(b) and 3(1)(c)of
the Citizenship Act of India. The Articles 3(1)(b) and 3(1)(c) are defective, because due
to these Articles huge numbers of ‘stateless’ people will be created in India,
which may cause harms to the country and
the nation as a whole.
xii) Because
the Article 5(1)(a) of the Citizenship Act, 1955 provided the scope to the
Foreigners to be Citizen of India by registering themselves, fulfilling
‘statutory requirements’ in this regard.
Overriding the said Article, the Govt. of India, Ministry of Home
Affairs, issued the order no. 26011/16/71-10 dated the 29th
November, 1971 directing all the State/UT governments for not granting Citizenship
of India u/s 5(1)(a) to the Migrants of East Bengal. Due to the unjust and illegal order of the
Govt. of India, the Migrants of East Bengal had suffered for more than 40
years, they were deprived of from granting Citizenship of India. Now, their children
and grandchildren, who have born in India , are also debarred from Citizenship
by Birth on the plea that their parents
have not registered themselves as a Citizen of India.
xiii) Delhi
High Court in a judgement on the case between Namgyal Dolkar VS Union of India
and Karnataka High Court in a judgement between Tenzin Choephag Ling Rinpoche VS Union of India, have
directed that the petitioners, the Tibetian Origin, are Citizens of India by
Birth, as they born in India on or after 26th January, 1950, but
before the 1st day of July, 1987.
Unfortunately, the children of Indian Origin from East Bengal, who born
in India after 1st day of July, 1987 were debarred from granting
Citizenship of India by Birth on the ground that, their parents are not regular/registered
Citizen of India. The parents could not register themselves due to the order of
the Govt. No. 26011/16/71-10, mentioned herein above.
Article 2(1)(b) of ‘The Citizenship
(Amendment) Act. 2003’ has defined the Migrants/foreigners as ‘illegal
migrants’ who have entered into India without passport-visa and such any other
legal travel documents etc. and debarred them from Citizenship of India. But,
it is well known to all concerned, that, most of the partition victims were forced
to migrate from Pakistan and Bangladesh for religious persecution or fear of
such persecution at the time of riots or in such abnormal situations,
therefore, it was not possible for the Migrants to collect passport-visa or
such other travel documents to cross the border to come to India. Therefore,
the Article 2(1)(b) of ‘The Citizenship (Amendment) Act, 2003’ should not be
applicable to the Hindu & other religious minority Migrants of Pakistan and
Bangladesh. Those Migrants should be exempted from the Article 2(1)(b) by inserting therein a
special provision, in the pattern of the clause 2 of ‘The Immigrants (Expulsion
from Assam) Act, 1950’ as they were compelled to leave their place of residence
being tortured therein.
xiv) Because
the Govt. of India has been giving shelters to the refugees of various
countries and co-operating with the officials of the United Nations High
Commission for Refugees (UNHCR). Tibatian, Chainese, Afgan, Burmese and
refugees of various countries have come to India. They were not treated as
‘illegal migrants’ and the ‘Foreigners
Act,1946’ had not been applied on them. But, the Govt. of India have been
treating the Migrants of Indian Origin, the victims of partition, the Hindus
and other minorities of Pakistan & Bangladesh, who have faced religious
persecution in those countries, as ‘illegal migrants’ subjected to harassment,
arrest, under detention for indefinite period and deportation to the NO MAN’S land
of the India-Bangladesh border on the gun point of the BBG & BSF, which is
unjust and violation of the Articles 21
& 22(4) of the constitution of India
and principles/declaration of the United Nations as well as natural
justice.
xv) Because the Refugee Convention of the United
Nations held in the year of 1956, for the first time codified the definition of
Refugee, which is mentioned herein above. In terms of the definition of the
United Nations Refugee Convention, the Migrants of Pakistan and Bangladesh
staying in India are certainly Refugees
and not ‘illegal migrants’. They deserve more favourable treatment in
India than the Refugees of various other countries.
Migrants of Indian Origin also should be granted Indian Citizenship.
xvi) Because
India is a signatory to the United Nations ‘Convention against Torture and
other Cruel, Inhuman or Degrading Treatment of Punishment’, held on 10th
December, 1984 which was implemented on and from 26th June, 1987.
The convention embodied the principles of ‘non-refoulement’, where it is
clearly stated that, no state party shall expel, return (refouler) or extradite
a person to another state, where there are substantial grounds of believing
that, he would be in danger of being subjected to torture. In the light of the
declaration of the United Nations, the Migrants of Pakistan and Bangladesh
deserve shelter and other facilities in India and in no way can be harassed ,
tortured and they cannot be deported to the NO MAN’S land of the
India-Bangladesh border or to Pakistan
and Bangladesh from where they were forced to flee for religious persecution
and the migrants are unwilling to return back to their place of origin.
xvii) Because
there is no treaty/pact between India and Bangladesh for repatriation &
rehabilitation of the Migrants. Bangladesh also do not agree to accept the Migrants. In
such a situation, deportation of the Migrants to the NO MAN’S land of the
India-Bangladesh border on the gun point of BBG & BSF, not only violation
of the United Nation’s declared principles in this regard, also violation of
the Article 21 of the Constitution of India and violation of the
principles of humanity.
xviii) Because the Govt. of Bangladesh do not agree to
accept the Migrants who are staying in India. For the reason, various State/ UT
Governments, particularly, the Assam State Govt. has been confining the
Migrants of Indian Origin in Detention Camps without any specific order of the
court of law, in regard to period of confinement. As a result the innocent Migrants,
even the children & women are under indefinite detention for long time, far
more period than 3 months. Thus the Govt. have been violating the Article 22(4) of the
constitution of India.
xix) Because
the Migrants of East Bengal who came to Assam on or after 1st day of
July, 1986 and before 25th March, 1971 and who have been
detected by the tribunal as foreigners and subsequently registered themselves
as Indian Citizens u/s 5(1)(a), are
debarred from casting votes and some
other rights of Citizens for 10 years from the date of such detection. This
provision is unjust and discrimination amongst the Citizens of India and thus
violation of the fundamental principles of the Constitution of India.
xx) Because
the list of D-Voters list were prepared by the Local Authorities simply based
on doubt and being politically motivated. It is now proved that more than 92 % of the
D-Voters are genuine voters and Citizens of India.
xxi) Because
most of the migrated SC/ST people are unable to collect and submit proofs of residence in West Bengal/India since 1950,
as a sizable numbers of the SC/ST families are landless having no deeds of land
and most of them migrated to India later
on. Many of those families used to move
from one place to another places for their survival and for such other various
reasons, thus, they have lost such papers if they had. Now they are unable to
produce all such documents as the proof
of their residence/Citizenship.
xxii) Because
no
fees were levied from the persons of Indian Origin for application for Indian
Citizenship u/s 5(1)(a) & 5(1)(d) as
per the direction of the Clause No. 31(1) of the Citizenship Rules, 1956. Now, fees of Rs.5000.00 for application for Citizenship of India u/s 5(1)(a) & Rs.3000.00 for application u/s
5(1)(d) have been fixed for the Indian Origin as per the direction of
Clause 41 of the Citizenship Rules, 2009 (schedule IV). Most of the migrants of
Indian Origin from East Bengal are poor and BPL category and unable to pay the
fees at this high rates. Also the migrants of Indian origin are entitled to
certain such privileges.
xxiii) Because
the facts and circumstances as narrated in the instant PIL, there are clear-
cut violation of human Rights and thereby
Fundamental Rights as granted under the Articles 14,21,20(1) & 22(4)
of the Constitution of India and the Rules/Principles of Natural Justice. The group of unfortunate Migrants of Indian Origin who
are victim of partition of India, are entitled to get complete justice from
this Hon.ble Apex Court of India and also therefore, for the ends of justice,
which is necessitated in the facts and circumstances of the present case for interests
of the public as well as interests of justice.
Therefore,
the actions/inactions of the Respondents are, otherwise bad in law.
xxiv) That,
the petition is bona-fide and petitioners have not filed any similar
petition before this Hon’ble Supreme
Court as well as any other court of India.
PRAYERS
1 Issue a Writ
in the nature of Mandamus, directing the respondents No. 1, 2 and other
concerned Respondents to amend section 2(1)(b) of the Citizenship Act 1955, so
as to exclude the migrants of Indian origin representing religious minorities
from the definition of illegal migrants, as they are victims of partition of
India and faced religious persecution
in their place of origin i.e. in Pakistan & in Bangladesh and were
forced to flee those countries to India, pre & post 1971 periods. The
Foreigners Act, 1946 and Passport (Entry into India) Act,1920 are also to be
amended for the purpose, if necessary.
2 Issue a Writ in the nature of
Mandamus, directing the Respondents No. 1, 2 and concerned other Respondents to
declare all the Migrants, who were forced to flee Pakistan & Bangladesh,
pre & post 1971 periods, for religious persecution & fear of such
persecution and have been ordinarily residents in the territory of India, as
Citizens of India in the pattern adopted for the Migrants of West Pakistan around 1947 and who migrated to the state of
Assam before 1st day of January, 1966.
3 Issue a Writ in the nature of Mandamus,
directing the Respondents No. 1, 2 and concerned other Respondents to repeal
the Express Letter of the Home Department, Govt. of India, No. 26011/16/71-10
dated the 29th November, 1971, since the order overrides the
directions of the Article 5(1)(a) of
‘The Citizenship Act, 1955 and also declare the decision of Cutoff date
25th March, 1971 as illegal.
4 Issue a Writ in the nature of Mandamus,
directing the Respondents 1, 2 and other concerned Respondents to exempt the
persons of Indian Origin from levied fees for Citizenship Registration and
direct, instead of Clause 41 &
Scheduled IV of the ‘The Citizenship Rules, 2009, to apply Clause No. 31(1)
of ‘The Citizenship Rules, 1956’, where, Migrant of Indian Origin were exempted from levied any such fees.
5 Issue a Writ in the nature of Mandamus,
directing the Respondent No. 5 and other concerned Respondents to repeal the
conception of ‘D’-Voters (D for doubtful) in Assam, as the list of ‘D’ Voters has been prepared being
politically motivated and simply based on doubts by the local authorities,
which has prohibited lakhs of genuine Voters from rights to cast votes &
also repeal the process of the trials of the ‘D’ Voters and detention orders.
Also repeal the application of the Sub Section 4 of Article 6A of the
‘Citizenship Act,1955’, which prohibits the right to cast vote up to 10 years even
after Registering as Indian Citizens.
6 Issue a Writ in the nature of Mandamus,
directing the Respondent No. 8 and other concerned Respondents to repeal the
1551 notices issued on the Hindu Migrants residing in Mahakalpara Block of
District Kendrapara, Odisha, by which the Migrants have been ordered to quit
India without trials & orders of the
court and repeal such other notices.
7 Issue a Writ in the nature of
Mandamus, directing the Respondent No. 5
and other concerned Respondents to enlist the names of both the pre & post
1971 Migrants of Indian Origin, in the Voters List and to Issue them Ration
Cards, BPL Cards, Caste Certificates, Adhar Cards etc. & such other rights
to those Migrants, who have faced religious persecution in Pakistan and in
Bangladesh --- their place of Origin and
were forced to flee those country & took refuge in India.
8 Issue a Writ in the nature of
Mandamus, directing the Respondent No 7 and other concerned Respondents to
repeal the Order of the Govt. of West Bengal No. 1465 BCW/MR-67/10 dated the 30th
April, 2010, asking residential proof since 1950 as an evidence of Citizenship
of India for issuing a Caste Certificate.
9 Issue
a Writ of Certiorari by commanding the Respondents to transmit all the relevant
records of the instant case before this Hon’ble Apex Court for effective adjudication
of the instant matters, so that,
conscionable justice may be done.
10 To pass
such others or further orders as your Lordships may deem fit and proper.
AND YOUR PETITIONERS, AS IN DUTY BOUND, AHALL EVER
PRAY.
Drawn by Filed by
Sri Naveen Kumar
Dr. Kailash Chand
Advocate Advocate
on record for the petitioners
Supreme Court
Drawn on ………………
Filed on………………….
IN
THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION
NO.
OF 2015
IN THE MATTER OF :
1 Solidarity committee for Bengali Refugees Petitioners
And Others.
VERSUS
1 The Union of
India Others And Others Respondents
AFFIDAVIT
I, Sri Gour Chandra Biswas, S/o Late
Rashik Lal Biswas, aged about 70 years, of Shanti Nagar, Palta, P.O. Nona
Chandan Pukur, Dist. – North 24 Parganas, West Bengal, at present in New Delhi,do
hereby solemnly affirm and declare as under :
1 That, I am the
President, All India Namasudra Kalyan Parisad
and the petitioner no. 3 in the
above matter and am well conversant with facts of the case and therefore
competent to swear the present affidavit.
2 I say that
the contents of the accompanying Writ Petition at page 1 to , And paragraph 1 to 61, And synopsis,
List of Dates at pages B to , And I.A. And
I say that the contents thereof are true and correct to the best of my
knowledge and belief and nothing has been concealed therefrom.
3 The annexures filed with the
Writ Petition are true and correct copies of their respective originals.
DEPONENT
VERIFICATION
Verified at New Delhi on this …………….,
day of ……………….,2015 that the contents of the above affidavit are true to my
knowledge and nothing material has been concealed therefrom.
DEPONENT
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
I.A NO OF 2015
IN
WRIT PETITION
NO.
OF 2015
IN THE MATTER OF :
1
Solidarity
committee for Bengali Refugees
and
Others
Petitioners
VERSUS
1 The Union of India and Others Respondents
APPLICATION FOR INTERIM ORDER OF STAY
To
The Hon’ble
Chief Justice of India
And His
Companion Justices of
The Supreme
Court of India
New Delhi
The humble petition of the petitioners above named.
MOST
RESPECTFULLY SHOWETH,
1 That the instant Writ Petition by way
of PIL has been filed before this
Hon’ble Supreme Court of India for the interest of group of unfortunate people
of Indian Origin, who are victim of partition of India and faced religious
persecution in their place of origin.
2 That the facts and circumstances of
the instant Writ Petition by way of PIL have been stated in details in the said
Writ Petition and therefore, for the brevity of the instant case, which are not
to be repeated herein.
3 That the Election Commission of India
has formulated and implemented the
conception of D-Voters only in the State of Assam, purely based on doubt by the
local authorities. The list of D-Voters are prepared, being politically
motivated and mostly genuine voters who are downtrodden, poor and illiterate,
are included in the D-Voters list. Till date, those amongst the D-Voters have
been placed before the tribunal for trial, only 7.4 % have been detected as
foreigners. In the name of D-Voters, the genuine Citizens of India are
subjected to harassment, arrest, detention and facing trials in the court of
law. Lakhs of genuine voters are debarred from cast their votes.
4 That the Odisha Govt. issued 1551
notices on the Hindu Migrants of East Bengal residing in
Mahakalpara Block of District Kendrapara and such notices in Navrangpur
District etc., directing the Migrants to quit India without trial in the court
of law. The notices are still in force
and the said Migrants are debarred from various Rights of Citizen.
5 That the migrants of Indian origin
were exempted from levied any fees for application for Citizenship of India. In
the clause 31(1) of the Citizenship Rules, 1956 were given the direction for
the exemption of fees. Considering the economic crisis of the migrants, the
Rules were formulated. At present also, the migrants, particularly the migrants
of East Bengal are not at all economically sound. Most of them are still under
the BPL category and unable to pay such a big amount of fees for Citizenship
Registration.
The Citizenship Rules, 2009, in
paragraph no. 41 (schedule IV) has directed to collect fees from the applicants
of Indian origin also. It has fixed fees of Rs. 5000/- for application u/s
5(1)(a), Rs. 3000/- for application u/s 5(1)(d) etc. at a flat rate for all the
applicants and no relaxation is given for the Indian origin, as was given
earlier. Rate of fees is Rs. 5000/- per head, it means, five members are in a
family, the family have to pay a total sum of Rs.25000/- for application for
Citizenship of India, which is not possible for poor migrants of Indian
origin.The decision of the govt. is not justified and gross injustice to the
migrants of Indian origin.
6 That the Govt. of West Bengal has
issued an order No. 1465 BCW/MR-67/10 dated the 30th April, 2010,
asking residential proof since 1950 as an evidence of Citizenship for which
many of the SC/ST people are not getting the Caste Certificates.
7 That the Govt. of India, Home
Department, issued the Express letter no. 26011/16/71-10 dated the 29th
November, 1971 on account of the situation of Bangladesh Liberation War, when
lakhs of people of East Bengal, both Hindus, Muslims & others took shelter
in India and expected that they will return back to their native places when
the situation permits, directing all the State Governments/Union Territories
for not granting Citizenship of India to those migrants u/s 5(1)(a) of the
Citizenship Act, 1955. Due to above mentioned order of the Govt. of India,
thousands of Migrants of East Bengal who have faced religious persecution in
their place of residence in East Bengal for 44 years during the period from
1971 to 2015 and took refuge in India, have been suffering. They have not been
granted Citizenship of India u/s 5(1)(a) of the Citizenship Act, 1955. The
order of the Govt. was issued overriding the Article 5(1)(a) of the Citizenship
Act. 1955.
8 That the petition is bona-fide and
made for interest of justice as well as for the interest of public of those
group of Indian origin, who are victim of partition and faced religious
persecution in their place of original residence.
PRAYERS
i ) Ad-interim orders directing the
Respondents no 5 and other concerned Respondents for not deprived of the
D-Voters from casting votes in the general election to the House of People etc.
and not to arrest and detain the D-Voters and to stop placing D-Voters before
the tribunal for trial, till the disposal of the instant Writ Petition.
Ii) Ad-interim orders directing the
Respondents no. 8 and other concerned Respondents for not to apply the Order of
the Odisha Govt., Home Department, no 55215/PPT, dated the 28th
December, 2004 and such other 1550 orders, till the disposal of the instant
Writ Petition.
Iii) Ad- interim orders directing the
Respondents no. 1 and 2 and other concerned Respondents for not to levied any
fees from the applicants of Indian origin for applications for Citizenship of
India as per the clause no. 41, schedule IV of the Citizenship Rules 2009.
Issue Order to implement the clause 31(1) of the Citizenship Rules 1956, where,
directions were given for not to levied any fees from the applicants of Indian
origin.
Iv) Ad-interim
order directing the Respondents no 7 and other concerned Respondents for not to
implement the order of the Govt. of West Bengal, Backward Classes Welfare
Department, No. 1465 BCW/MR-67/10 dated the 30th April, 2010 till
the disposal of the instant Writ Petition.
v) Ad-interim orders directing the
Respondents no. 1 and 2 and other concerned Respondents for not to apply the
Order of the Govt. of India, Home Department, no. 26011/16/71-10 dated the 29th
November, 1971, till the disposal of the instant Writ Petition.
vi) To pass such other or further
order/orders as this Hon’ble Supreme Court may deem fit and proper.
AND YOUR PETITIONERS, AS IN DUTY BOUND, SHALL EVER PRAY.
Drawn by
Filed by
Sri Naveen Kumar Dr. Kailash Chand.
Advocate Advocate on
record for petitioners
Supreme Court
of India.
New
Delhi
Dated
the………………..
CIRCULAR, SECRET
F. 14011/55/09-F.VI
Government
of India
Ministry of Home Affairs
(Foreigners Division)
New Delhi, the 23rd
November, 2009.
To
(1) The
Chief Secretaries of all State Governments and Union Territories,
(2) Director
General, Border Security Force, New Delhi.
Subject
: Procedure of deportation of
Bangladeshi nationals –
Revised instructions
regarding.
Sir / Madam,
I
am directed to say that Bangladeshi nationals, who came to India illegally on
or after 25th March, 1971 are treated as illegal immigrants.
Bangladesh infiltrators and those overstaying unauthorisedly after the expiry
of their visa are to be deported back to Bangladesh. Deportation of such
Bangladeshi nationals is at present carried out in accordance with the
procedure laid down in the instructions issued by the
Ministry of Home Affairs, vide
2 Citizens Rights Preservation Committee, Assam ( CRPC )
( Regn. No. 2729/1995-96 )
House No. – 42, Beltala P.O. – Khanapara Road
Guwahati – 781
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT
PETITION NO. OF 2015
IN THE MATTER OF :
1 Soldarity committee for Bengali Refugees Petitioners
2 Citizens Rights Preservation
Committee, Assam ( CRPC )
3 All India Namasudra Kalyan Parisad
4 Sri
Nityananda Mallick, Practicing Advocate
VERSUS
1 The Union of
India & Others Respondents
AFFIDAVIT
I, Sri
Sadhan Purkayastha, S/o Late Jatindra Nath Purkayastha, aged about 56 years,
having office at Beltala Khanapara Road,
P.O. Khanapara, Guwahati, Assam - 781022, at present in New Delhi, do
hereby solemnly affirm and declare as under :
1 That, I am the Secretary
General, Citizens Rights Preservation Committee, Assam, a registered
Organization under Societies Registration Act of the petitioner no. 2 in the above matter and
am well conversant with facts of the case and therefore competent to swear the
present affidavit.
2 I say that
the contents of the accompanying Writ Petition at page 1 to 83, And paragraph 1
to 50, And synopsis, List of Dates at pages B to F, And I.A. And I say that the contents thereof are true and
correct to the best of my knowledge and belief and nothing has been concealed
therefrom.
3 The annexures filed with the
Writ Petition are true and correct copies of their respective originals.
DEPONENT
VERIFICATION
Verified at New Delhi on this …………….,
day of ……………….,2015 that the contents of the above affidavit are true to my
knowledge and nothing material has been concealed therefrom.
DEPONENT
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT
PETITION NO. OF 2015
IN THE MATTER OF :
1 Solidarity committee for Bengali Refugees Petitioners
2 Citizens
Rights Preservation Committee, Assam (CRPC)
3 All
India Namasudra Kalyan Parisad
4 Sri
Nityananda Mallick, Practicing Advocate
VERSUS
1 The Union of
India & Others Respondents
AFFIDAVIT
I, Sri
Dipankar Mukherjee, S/O Late Manoj Mohan Mukherjee, 11/9, Kishan Garh, Flat No.
P/6, 2nd Floor Basant Kunj, New Delhi – 110070, aged about 57 years,
do hereby solemnly affirm and declare as under :
1 That, I am the President
of Solidarity Committee for Bengali Refugees, Petitioner no. 1, in the above
matter and am well conversant with facts of the case and therefore competent to
swear the present affidavit.
2 I say that
the contents of the accompanying Writ Petition at page 1 to 83, And paragraph 1
to 50, And synopsis, List of Dates at pages B to F, And I.A. And I
say that the contents thereof are true and correct to the best of my knowledge
and belief and nothing has been concealed therefrom.
3 The annexures
filed with the Writ Petition are true and correct copies of their respective
originals.
DEPONENT
VERIFICATION
Verified at New Delhi on this …………….,
day of ……………….,2015 that the contents of the above affidavit are true to my
knowledge and nothing material has been concealed therefrom.
DEPONENT
