Writ Petition in Supreme Court
Synopsis and Lists 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 the fear of such persecution were started in the year 1947 and still going on. As & when the communal tensions increase and riots start in Bangladesh or in Pakistan, the rates 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, whereas other part, mostly downtrodden people, who migrated to India on or after 25thMarch, 1971, were defined as ‘Illegal Migrants’ u/s 2(1)(b) of ‘The Citizenship (Amendment) Act, 2003’, prohibiting them from granting citizenship of India and subject to harassment, arrest, detention & deportation to the NO MAN’S land against their will. In fact, the Govt. of India has been trying to push them back to their places of origin, where, they were persecuted and there are substantial grounds for believing that, they would be again in danger in those countries.
Violating the Article 5(1)(a) of ‘The Citizenship Act, 1955’ , the Govt. of India also issued a letter directing all the State Govts. not to grant Indian Citizenship u/s 5(1)(a) to those Migrants who came to India on or after 25thMarch, 1971.
All the Migrants of Indian Origin are hard labourers , 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.
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.
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 for the fear of such Disturbances.
Being aggrieved for those injustices & discrimination against the Migrants of Indian Origin mentioned herein above, the unfortunate Migrants & their various Organizations, many of the democratic people of India have been fighting democratically since long years. 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 person 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
5.08.1947
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 to 15.01.1950
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.
01.03.1950
The Parliament of India enacted ‘ The Immigrants ( Expulsion from Assam ) Act, 1950 ’ which extends to whole of India.
08.04.1950
Nehru-Liyakat pact was signed and the two countries – India & Pakistan assured 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 28thJuly, 1951 United Nations Convention relating to the status of refugees adoted & 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.
1955
The Parliament of India has enacted ‘ The Citizenship Act, 1955 ‘ containing several Articles in Part 2 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 29thNovember, 1971 directing all the State Govts/UTs for not granting Citizenship u/s 5(1)(a) of the Citizenship Act,1955 to the Migrants of 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 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.
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
Seventh 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 from East Pakistan without formal application & without fulfilling Statutory requirements on the pattern adopted for the Migrants from 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.
17.10.1996 to 17.07.1997
Only in the State of Assam the Election Commission of India introduced the conception of ‘D’ Voters (D for doubtful ) prohibiting those genuine voters from casting votes in the general election, only based on suspicion, that, they are not citizens of India. The list of the ‘D’ voters was prepared by the local authorities.
16.03.2001
The Govt. of Odisha, Home Department, directed to the District Magistrates/Superintendent 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.
18.12.2003
‘The Citizenship (Amendment ) Bill, 2003’ was moved in the Rajya Sabha on 18thDecember, 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 Indian origin from 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 S 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 service of those notices.
01.03.2004
The Govt. of India made The Citizenship (Amendment) Rules, 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.
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.
From 7thDecember, 2004 to till date, Members of Parliament both the Lok Sabha & Rajya Sabha, 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 Mention & 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 20thDecember, 2006 adopted the policy for protection from Enforced Disappearance, where India has become a signatory to the Convention. The Convention embodied the principle of ‘non-refoulment’ or extradite a person to another state, where, there are substantial grounds of believing that, he or she would be in danger of being subjected to enforced disappearance
23.11.2009
Govt. of India, Ministry of Home Affairs (Foreigners Division) issued an order No. F-14011/55/09-F.VI dt. 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.
30.04.2010
The Govt. of West Bengal, Backward Class Depart, has issued a circular No. 1465 BCT/MR-67/10 dated the 30th April, 2010 directing all the applicants for Caste Certificate to place proof of residence since 1951 in West Bengal / India to prove their Citizenship of India.
03.06.2010
The Election Commission, Lucknow, issued an order No. 140/E/10-N dt. 3.6.2010 to delete the names of the Migrants of East Pakistan who have been given Rehabilitation Assistances / Settlement in the state 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 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 after 26thJanuary, 1950 and before 1st July, 1987.
Last one decade
Since one decade, the Migrants from East Pakistan & Bangladesh, who were forced to flee those countries for religious persecution and for the fear of such persecution, have been stamped as ‘Illegal migrants’ & debarred them from granting Indian Citizenship. The Migrants of Indian Origin are subject to harassment, arrest, detention & deport to NO MAN’S land against 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 & 15(1) of the Constitution of India by discriminating between the Migrants came from West Pakistan And East Pakistan, as well as between Pre & post 1971 Migrants.
c) Violating the declaration and protocol of the United Nations in regard to Migrants/refugees by deporting the Migrants to the state/NO MAN’S land where they were subject torture/persecution and also violating Article 22(4) by confining them in the detention camp for infinite period.
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, who are victim of partition of India and seek refuge in India facing persecution in their place of origin.
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. Soldarity committee for Bengali Refugees Petitions
2. Civil Rights Preservation Committee, Assam ( CRPC )
( Regn. No. 2729/1995-96 )
House No. – 42, Beltala P.O. – Khanapara Road
Guwahati – 781222, Assam
3. Sri Agha Jeelani ( Advocate )
VERSUS
1 The Union of India
Through the Principal Secretary
to the 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
Assam,
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 Nadu
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 :
a) 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.
b) Issue a Writ in the nature of Mandamus by directing the Respondents to declare all the Migrants, who were forced to flee Pakistan & Bangladesh pre & post 1971 periods for religious persecution & for the fear of such persecution and have been ordinarily resident in the territory of India, as Citizens of India – the pattern adopted for the Migrants from West Pakistan to India around 1947 and who migrated to the state of Assam before 1st day of January, 1966.
c) Issue a Writ in the nature of Mandamus directing Respondents to repeal the Express Letter of the Home Department, Govt. of India No. 26011/16/71-10 dated the 29thNovember, 1971, since the letter contradicts 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.
d) Issue a Writ in the nature of Mandamus directing the Respondents to exempt the persons of Indian Origin from levied fees for Citizenship by way of Registration (Scheduled 4 of the ‘The Citizenship Rules, 2009). And direct to Apply Clause No. 31 of ‘The Citizenship Rules, 1956’.
e) Issue a Writ in the nature of Mandamus directing the Respondents to Stay the conception of ‘D’-Voters (D for doubtful) in Assam, as the list of ‘D’ Voters has been prepared simply based on doubts by the local authorities, which has prohibited lakhs of genuine Voters from rights to cast votes. & also Stay the trials of the ‘D’ Voters and detention. Also Stay the Sub Section 4 of Article 6A of the ‘Citizenship Act,1955’, which may prohibit the Rights of Citizens up to 10 years even after Registering names as Indian Citizens.
f) Issue a Writ in the nature of Mandamus directing the Respondent No.----------- (Odisha Govt.) 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 & such other notices.
g) Issue a Writ in the nature of Mandamus directing 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 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, being the Social Welfare Organizations and the petitioner No. 3, 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 or for the fear of such persecution. They have been living in Assam, West Bengal, Odhisha, Manipur, Tripura, Uttaranchal, Uttar Pradesh, Madhya Pradesh, Bihar, Chhatisgarh, Karnataka, Andhara Pradesh, Maharastra, Rajasthan, Andaman Islands, Punjab, Arunachal Pradesh, Meghalaya & in some other states of 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 conditions 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 labourers 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’ subject to harassment, arrest, detention & deportation to the NO MAN’S land. 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 3 of the Constitution of India, S and also for the constitutional provisions as envisaged in the principal Articles 5 & 6 in part 2 of the Indian Constitution regarding Citizenship. Also for the Clause 2 of ‘The Immigrants (Expulsion from Assam ) Act, 1950 as well as against violation of National & International Human Right 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 relious minorities of Pakistan were forced to leave that country for religious persecution and the fear of such persecution. The migration of religious minorities of Pakistan were started at 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 legal permission to cross the border at that abnormal situations.
5. All the Migrants of Indian Origin are victim 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 –
5(a) the Migrants came from West Pakistan to India around 1947, were deemed to be fullfledged Citizen of India in respect of enlistment in Voters list, appointment in Govt. service etc. without fulfilling the ‘statutory requirements’. They were given compensation and better rehabilitation than the Migrants from East Pakistan.
The 7th Report (seventh 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 fullfledged 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 Certified 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.
(Copy of the Report is annexed as ANNEXURE P - !, Page No. ------ )
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 –
1. Administration of Evacuee Property Act. 1950
2. Displaced Persons Claims Act.1950.
3. Evacuee Interest (Separation) Act. 1951.
4. Displaced Persons Debt Adjustment Act. 1951.
5. Displaced Persons (Compensation & Rehabilitation ) Act.1954.
6. 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.”
(Copy annexed as ANNEXURE P – 2, Page No. ------ )
5(b) The Migrants of 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 resident in Assam since the dates of their entry into Assam shall be deemed to be Citizens of India as from the 1stday of January, 1966.”
(Copy annexed as ANNEXURE P - 3, Page No. )
5(c) 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 25thMarch, 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. Among 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 & 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 / 4 th of the total Bengali Migrants did not agreed 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 (upto March 1958) & new Migrants (1.1.1964 to 25thMarch, 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 did 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’’
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. 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 4) Rs.5000/- fees have been fixed for such application.
Most of the religious minorities of East Pakistan and Bangladesh have migrated at the time of abnormal situations of riots or for the 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. For all these reasons, it is not possible for the Govt. authorities to identify the pre 1971 Migrants & post 1971 Migrants. Those Migrants came to India before 1971, now, they are not in a position to prove their claim.
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 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, which is very unjust & injustice .
5(d) 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 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 ‘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 Pakistan except the name of the country.
With such changes in principles, 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. During the period of Bangladesh Hindu populations have been further reduced to 9.2% in 2001, because the Hindus & other religious minority people did not feel the country safe for them. At the time of answering the questions , whether, the religious minorities of Bangladesh are subject to torture or not? In reply, the Govt. of India has admitted that , they are subject 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’.
The Order of the Govt. of India, Home Depart 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 25thMarch, 1971 on account of the situation in the area can not be treated as ordinarily resident of India. They are expected to return to their native places when the conditions permits. 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 Secretaryto the Govt. Of India
(Copy annexed as ANNEXURE P 4 Page No. )
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 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.”
? 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 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 -5, Page No. ----
6.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 26thSeptember, 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 privatios”.
(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 can not share at present in the freedom that has come . They are of us and will remain of us whatever may happen , and we shall be sharer in their good & ill fortune alike “.
(India’s froreign 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)
(Copy annexed as ANNEXURE P—6, Page No. )
7. 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 1950. 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 Auguse, 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.”
8 On 1stMarch, ‘The Immigrants (Expulsion from Assam ), Bill, 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.”
(Copy of the relevant potion of the Act is annexed as ANNEXURE P - 7, Page No. )
9. Thus, the clause No. 2 of the Act has given protection to the religious minorities of East Pakistan & Bangladesh who on account of religious persecution were forced to flee that country and took refuge in India/Assam.
10.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. Such Migrants, who have been staying in the state of Assam, are also entitle to certain protection. But, unfortunately, lakhs of names of the Hindu Migrants have been included in the D – voters list and subject to harassment, arrest, detention & deportation to NO MAN’S land, which is unjust and illegal. Therefore, imposition of the concept of D – Voters upon the Hindu Migrants be stopped with immediate effect.
10. The conceot 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 Electuon 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 allow 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. Till date the Tribunals have taken up a sizable numbers of cases of the D – Voters and among the cases examined by the Tribunals only 1/2% ( 0.50 % ) D- Voters were detected as foreigners.
Thus, it is beyond doubt that more than 95% of the total D-Voters are genuine Citizen of India who have been debarred from casting votes and other fundamental rights of a Citizen and subjected to harassment, arrest, trial & detention. It is a clear case of violation of the Articles 20(1), 14 & 21 of the Indian Constitution.
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11 In Assam , the Tribunals have declared some of the D –Voters as foreigners ex parte. In fact, many of those D – Voters did not got the notices in regard to the trials. They are victims conspiracy. Many such incidents of non-issuance of notices found.
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12. 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. Even very recently an old man (D Voter ) of 102 years 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.
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 to those deported Migrants. 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 on the Gun Point of the BGR & BSF violating the Articles 22(4), 14 & 21 of the Indian Constitution and the Declaration on status of refugee of the United Nations.
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13. The people of Indian Origin , who have migrated to Assam on or after 1st January, 1966 and before 25 th 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). Among those applicants, who subsequently recognized as Citizens of India by the competent Authorities should be entitled to all the rights as a Citizen of India as per Article 15 of the Indian Constitution. Thus, they should not be debarred from cast 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 , are debarred from cast votes for 10 years from the date of detection as a foreigners. These Clauses contradicts to the fundamental rights of a Citizen.
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.”
(Copy of the relevant portion of the Article is annexed as ANNEXURE P -- Page No. )
14. 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. Liyakat Ali signed a pact , fomous as Nehru – Liyakat Pact on 8thApril, 1950 thereby binding the two countries to protect their respective minorities and intern 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 subject 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 India Govt. 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 enmasse and to make them understand about the Nehru-Liyakat 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 for the 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 decision of the Govt. to migrate earlier.
Some of the relevant portion of the Nehru – Liyakat Pact are as follows ;
A. “The Governments of India and Pakistan solemnly 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 declare 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 :
1. That there shall be freedom of movement and protection in transit
2. 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.---------------------------- “
(Copy of the Nehru-Liyakat Pact is annexed as ANNEXURE P Page No. )
15. 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 28thJanuary, 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 were forced to migrate later on. The Govt. of India cannot define the forced Migrants of Indian Origin by law as ‘illegal migrants’ subject to harassment, arrest, detention & deportation to the NO MAN’S.
16. 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 1940 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 from 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 1950 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, the problems & plight of the unfortunate Migrants of Indian Origin, the historical background and the circumstances should be considered sympathetically, but on the contrary, the Govt. of India have been treating them as enemy --illegal migrants. Their only crime –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 has 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.” 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.
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17.On 28th July, 1951 United Nations Convention relating to the status of refugees adopted and declared some policies, which were effected from 22nd April, !9%4. 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 a 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 Pakistan and 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’ subjected to harassment , arrest, detention and deportation to the NO MAN’S land.
18 On 16thDecember, 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 of 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, arefugee 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. “
(copy of the relevant portion on the declaration of refugees of UNs is annexed as ANNEXURE P-- Page No. )
19. 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.
Unfortunately, the Govt. of India has been treating the Migrants of Indian Origin in different ways. The Parliament of India has amended the Citizenship Act. of India 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 (Amendment ) Act, 2003, 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)(b) & 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 World Community as a whole.
The clauses3(1)(b) &3(1)(c) of ‘The Citizenship (Amendment ) Act. 2003 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 –
1) Both of his parents are citizens of India, or
2) 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.”
The clause 2(1)(b) of ‘The Citizenship (Amendment ) Act,2003’ has defined, who are the ‘illegal migrants’ as follow :
“ illegal migrant means a foreigner who has enter into India –
1) 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
2) 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 “
(Copy of the said Act. is annexed as ANNEXURE P Page No. )
20. That original mended of Article 5 of the Constitution of India regarding Citizenship as made in Part 2 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.”
( Xerox copy is annexed as ANNEXURE P No. )
21. That original mended of Article 6 of The Constitution of India regarding Citizenship as made in Part 2 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
b) 1) 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
2 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.”
(Xerox copy is annexed as ANNEXURE P Page No. )
22. . 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. “
(Xerox copy is annexed as ANNEXURE P Page No. )
23. . 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.”
(Xerox copy is annexed as ANNEXURE P Page No. )
24. 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\ /mandate as /an/ envisaged in Articles 5, 6 and 8 of the Constitution of India , Government of India made a cut off 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 29thNovember, 1971, which is mentioned herein above and copy of the order is enclosed. 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.
25. That in view of the Govt. Of India order No. 26011/16/71-10 dated the 29thNovember,1971, Order of the Odisha Govt. No. PPT(P)-60/ 2000-15601 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 have been applying against them, the Foreigners Act, 1946 subjected to harassment, arrest, detention and deportation to the NO MAN’S land.
26. Those unfortunate Migrants of Indian Origin were deported from Assam State to the NO MAN’S land, 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. 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.
27. Thousands of warrants were issued under Foreigners Act, 1946 against Hindu Migrants of Indian Origin among them many were arrested and confined to 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.
28. Tn 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. 55215 /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. 418/56(1)(FI) dt. 19.4.1958 of the Government of India, Ministry of Home Affairs, New Delhi, the State Government do hereby direct that Bhabesh Biswas,son of Sudhir, 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 - Ramnagar Sd/- 04.12.04
Tehsil - Mahakalpara, Deputy Secretary to
Dist - Kendrapara Government
“(Xerox copy is annexed as ANNEXURE P/ Page No. )
29. Notices also served on the Migrants of Indian Origin ordinarily residents of Navrangpur District, Odisha 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 Officer
Nabarangpur Xerox copy is annexed as ANNEXURE P/ Page No. )
30. 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).
Xerox copy is annexed as ANNEXURE P/ Page No. )
31. That Sri Sankar Roychowdhury, independent Member of Parliament from West Bengal participated in the debate on ‘ The Citizenship (Amendment ), Bill, 2003. He told,
Sri Shankar Roy Chowdhury, independent member from West Bengal told, ‘‘Madam, I would like to convey further what Dr. Manmohan Singh has spoken about refugees. And it is an issue I had taken up with the Hon’ble Deputy Prime Minister. From Bangladesh, we are getting a wide varieties of people who are entering into our country illegally, all of them. Some are economic migrants whom you see all over the country, be it Mumbai, Delhi or Calcutta. Some are infiltrators, terrorists. But a large number of them are religious minorities facing persecution, Chakmas, Hindus, Buddhists, many of them. I earnestly urge the government....... minorities fleeing Bangladesh for the fear of persecution should be given citizenship and should be treated in a supportive and kind manner’’. (Uncorrected page No. 682)
Xerox copy is annexed as ANNEXURE P/ Page No. )
32. Only the two Members of Parliament Participated in the debate on the Bill. In reply to the speeches /proposal / demand of the MPs , on behalf of the Govt. Sri L. K. Advani told,
In reply to the appeal of the said Hon’ble Members of Parliament, Sri L.K. Advani declared in the house of the Parliament saying that, ‘‘Madam, I have taken note of what the leader of the opposition and Sri Shankar Roy Chowdhury have said, and I am fully in agreement with the views that they have expressed. Very often, in the past, we have faced this kind of situation when we have adopted an approach of that kind. There were various kinds of allegations made that are making discrimination between this and that, which we do not propose to do. We always say that the person who has to flee because of religious persecution is a refugee, a bonafide refugee, and he can not be regarded on par with the illegal immigrants who may have come for any reasons, even for economic reasons. If he is an illegal immigrant, he is an illegal immigrant. So, I take note of what has been said and endorse it.’’ (Uncorrected page No. 682)
Xerox copy is annexed as ANNEXURE P/ Page No. )
33. 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 clause was included In the said Act., in the light of the discussion held in the House of the Parliament.
34. 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 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 Hon’ble Member of Parliament, Sri Ramdas Athawale (LS) is as follows :
To
The
Hon’ble Prime Minister of India Date: 26.08.2004
South Block
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 fulfil 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 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 can not 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 once again and one special provision to be framed in favour of the refugees from East Bengal, So that they are recognised as the citizen of India.
With regards Sd/Ramdas Athawale
Member of Parliament (L.S.)’
35. 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 can not deny it.
Therefore, my appeal through this house to the Govt. of India is to make a special clause in the Citizenship Act in favour of the refugees, so that, they may get citizenship of India and get rehabilitated.’’
R. S. Gavai
Member of Parlia( Xerox (Copy is annexed as ANNEXURE P/ Page No. )
36. 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 :
D. O 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 to 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 not 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.’’
( Xerox copy is annexed as ANNEXURE P/ Page No. )
37. 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 follow :
Our country was partitioned on the basis to two nations theory. Muslim league demanded partition and got it. Hindus and other minority communities of Pakistan had to leave their ancestral homes being persecuted due to civil disturbance, looting, torturing and harassment and took shelter in India including Assam as the victims of Partition. As per the 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 particulary 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 who 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.
( Xerox copy is annexed as ANNEXURE P/ Page No. )
38 The Hon’ble Member of Parliament (LS) from West Bengal CPI-M), Sri Basudeb Acharya demanded in the Parliament for Citizenship to the Migrants of East Bengal on 25th April, 2012 as follow :
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 Schedules 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.
( Xerox copy is annexed as ANNEXURE P/ Page No. )
39. 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 follow :
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 cut off date for the purpose is mentioned in the said Act, 2003, and naturally the cut off date becomes 19th July, 1948.
The minorities of the erstwhile East Pakistan were victims of partition and compelled to leave that country for the fear of persecution. A huge number of minorities of Bangladesh were forced to seek refuge in India. The Citizenship (Amendment) Act, 2003 has declared lakhs of refuges 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.
( Xerox copy is annexed as ANNEXURE P/ Page No. )
40. 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 Hindu Migrants of West Pakistan. It was directed that, those Hindu Migrants were ordinarily residing in the districts of Kutch, Patan, Banaskantha & in Ahmedabad of Gujrat state and Badmer and 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 states , registering authority shall be the Secretary, Home Department of the states for a specific period. Certain 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.
41 . In a judgement 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 dinied 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 judgement stated as follows :
Paragraph 21. In view of the above. Weallow 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, shell 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 of drive them our of the State by organized groups, Such as the AAPSU, shall be repelled, 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 in 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.
( Xerox copy is annexed as ANNEXURE P/ Page No. )
42 The Election Commission, Lucknow, issued an order No. 140/E/10-N dt. 3.6.2010 to delete the names of the Migrants of East Pakistan who have been given Rehabilitation Assistances / Settlement in the state on the plea that, they are not regular / registered Citizen of India.
( Xerox copy is annexed as ANNEXURE P/ Page No. )
43 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 ‘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.
( Xerox copy of the judgement is annexed as ANNEXURE P/ Page No. )
44. The High Court of Karnataka passed the judgement (No. 15437/2013) on the petition of Tenzin Choephag Ling Rinpoche, a Tibetian origin, recognizing him a 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.
( Xerox copy of the judgement is annexed as ANNEXURE P/ Page No. )
45. The Supreme Court of India passed a historical judgement 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 judgement, 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 judgement stated as follows :
Paragraph 57. To sum up our conclusions, the provisions of the Illegal Migrants (Determination by Tribunals) Act. 1983 are untra vires the Constitution of India and are accoringly 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. 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. 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 and declared to be such authority are declared to be void and non est in the eye of law. It will be open to the authorities of the Central Government of Sate 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 acco???? 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.
( Xerox copy of the judgement is annexed as ANNEXURE P/ Page No. )
46. 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 ’ The Joint Action Committee for Bengali Refugees’ through Advocate Mrs. Sarla Chanda for effective adjudication of the subject.
47. 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 origin 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 India. They should not be called ‘illegal migrants’ subjected to harassment, arrest, detention and deportation.
48. 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 ---
GROUNDS
1. Because the Migrants of Indian Origin (as defined in the Govt. of India Act. 1935) are the victim 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.
2. 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 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.
3. 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’.
4. 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 cut off date.
5. Because the Nehru-Liyakat 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.
6. Because the decision of the Govt. of India to impose the cut off 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. 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 deprived of the Migrants of Bangladesh.
7. Because the Parliament of India provided a special provision to protect 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, in clause 2 of ‘The Immigrants (Expulsion from Assam) Act. 1950, 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. of 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-Liyakat pact. Thus, the Migrants of Indian Origin are entitled to favourable treatment in India and they cannot be stamped as ‘illegal migrants’ as per clause 2(1)(b) of the ‘The Citizenship (Amendment) Act, 2003.
8. 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.
9. 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. should not be applied to victimized the Migrants of Indian Origin. The Migrants are not at all criminals, they are the 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.
10. Because the original mended of the Constitution of India, in part 2, Articles 5(a) & 5(b) provided unconditional rights of Citizenship by Birth to those, who born in India. Some amendments were passed in the Citizenship Act. 1955 in the years of 1986 and 2003 by which certain conditions were imposed for achieving the rights of Citizenship of India by Birth. The children of the Migrants of Indian Origin are the worst sufferers for the amendments. Since most of their parents 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’. Naturally, the children & grand children of such Migrants, now, are not entitled to Indian Citizenship by Birth u/s 3(1)(b) and 3(1)(c) of the Citizenship Act of India. These Articles 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 nation as a while.
11. 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, Home Department, issued an 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 & illegal order of the Govt. of India, the Migrants of East Bengal have been suffering for more than 40 years, they were deprived of from granting Citizenship of India. Now,their children and grandchildren, who have born in India also debarred from Citizenship by Birth as their parents could not registered themselves as a Citizen of India.
12 Delhi High Court in a judgement on the case between Namgyal Dolkar vs Union of India and Karnataka High Court in a judgemenr between Tenzin Choephag LingRinpoche vs Union of India, have directed that the concerned petitioners, the Tibetian Origin, are Citizen of India by Birth as they born in India on or after 26thJanuary, 1950 ,but before the 1st day of July,1987. Unfortunately, the children of Indian Origin from East Bengal, who born in India after 1stday of July, 1987 were debarred from granting Citizenship 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.
13. 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 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.
14. 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, detention for indefinite period and deportation to the NO MAN’S land on the gun point of the BGR & BSF., which is unjust and violation of the Articles 21 & 22(4) of the constitution of India as well as natural justice.
15 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 ‘illagal migrants’. They deserve favourable treatment in India than the Refugees of various other countries. Migrants of Indian Origin also should be granted Indian Citizenship.
16 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 26thJune, 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 or to Pakistan and Bangladesh from where they were forced to flee for religious persecution.
17 Because there is no treaty/pact between India and Bangladesh for repatriation & rehabilitation of the Migrants. Bangladesh also not agree to accept the Migrants. In such a situation, deportation of the Migrants to the NO MAN’S land on the gun point of BGR & BSF not only violation of the United Nations declaration in this regard, also violation of the Article 21 of the Constitution of India and violation of the principles of humanity.
18. Because the Govt. of Bangladesh 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 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.
19. Because the Migrants of East Bengal who came to Assam on or after 1stday 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 by the Clause 5(1)(a), will be 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 among Citizens of India and thus violation of Article 15 of the Constitution of India.
20. 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 14,21,15 & 22(4) of the Constitution of India and the Rules/Principles of Natural Justice. Those group of unfortunate Migrants of Indian Origin 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 the interests of the public as well as interests of justice.
Therefore, the actions/inactions of the Respondents are, otherwise bad in law.
21. 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.
PRAYERS
1. Issue a Writ in the nature of Mandamus directing the respondents No. 1,2 and other concerned Respondents not to define the Migrants of Indian Origin, who are victims 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.
2. Issue a Writ in the nature of Mandamus by 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 & for the 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 from West Pakistan to India 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 is overriding the directions of the Article 5(1)(a) of ‘The Citizenship Act, 1955 and also declare the decision of Cut Off date 25th March, 1971 as illegal.
4. Issue a Writ in the nature of Mandamus directing the Respondents to exempt the persons of Indian Origin from levied fees for Citizenship by way of Registration (Scheduled 4 of the ‘The Citizenship Rules, 2009) and direct to apply Clause No. 31 of ‘The Citizenship Rules, 1956’, where Migrants 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 Stay 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 Stay the trials of the ‘D’ Voters and detention. Also Stay on application of the Sub Section 4 of Article 6A of the ‘Citizenship Act,1955’, which prohibits the Rights of Citizens up to 10 years even after Registering themselves 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 of Mahakalpara Block of District Kendrapara, Odisha, by which the Migrants have been ordered to quit India without trials & to repeal such other notices.
7 Issue a Writ in the nature of Mandamus directing concerned 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 forced to flee those country & took refuge in India.
8. 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 matter , so that, conscionable justice may be done.
9. 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
------------------------------- Advocate on record
Advocate for the petitioners
New Delhi
Drawn on :
Filed on :
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