COMMITTEE FOR C.R.OF C.A.P. Vs STATE OF ARUNACHAL PRADESH .
Bench: ANIL R. DAVE,ADARSH KUMAR GOEL
Case number: W.P.(C) No.-000510-000510 / 2007
Diary number: 25934 / 2007
Advocates: SANJAY KUMAR VISEN Vs
Page 1
Page 2
Page 3
Page 4
Page 5
Page 6
Page 7
Page 8
Page 9
Page 10
Page 11
Page 12
Page 13
Page 14
Page 15
Page 16
Page 17
Page 18
Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.510 OF 2007
COMMITTEE FOR C.R. OF C.A.P. & ORS. …PETITIONERS
VERSUS
STATE OF ARUNACHAL PRADESH & ORS. ...RESPONDENTS
J U D G M E N T
ADARSH KUMAR GOEL, J.
1. This petition under Article 32 of the Constitution of
India mainly seeks direction against Union of India
through Ministry of Home Affairs to grant citizenship to
the Chakma and Hajong Tribals who migrated to India in
1964-1969 and were settled in the State of Arunachal
Pradesh.
2. Petitioner No.1 has described itself as “Committee
for Citizenship Rights of the Chakmas of Arunachal
Pradesh” (“CCRC”). According to the averments in the
petition, representations were filed with the National
Human Rights Commission (“NHRC”) alleging
persecution of Chakmas and Hajongs in the State of
Page 2
Arunachal Pradesh. The NHRC approached this Court by
way of a Writ Petition (C) No.720 of 1995 titled
“National Human Rights Commission vs. State of
Arunachal Pradesh” seeking direction from this Court
to ensure that the Chakmas and Hajongs are not forcibly
ousted from the State of Arunachal Pradesh, which was
disposed of on 9th January, 19961. In the said case, the
Union of India appeared before this Court and stated that
decision to settle the Chakmas in the State of Arunachal
Pradesh was taken after discussion between the
Government of India and the North-East Frontier Agency
(“NEFA”) Administration (Predecessor of the State of
Arunachal Pradesh). The Chakmas were residing in the
State of Arunachal Pradesh for more than three decades
and had close social, religious and economic ties. As per
joint statement issued by the Prime Ministers of India
and Bangladesh in February, 1972, the Union
Government took a decision to confer citizenship on the
Chakmas under Section 5(1)(a) of the Citizenship Act,
1955 but the State of Arunachal Pradesh had
reservations on this count. The Central Government was
in favour of a dialogue between the State Government,
1
(1996) 1 SCC 742
Page 3
the Chakmas and all concerned to resolve the issue of
granting citizenship while also redressing the genuine
grievances of citizens of Arunachal Pradesh. The stand
of the State of Arunachal Pradesh was that it had
provided basic amenities to the Chakmas but the State
had a right to ask the Chakmas to quit the State. The
State could not permit outsiders to settle within its
territory as it had limited resources and the Union of
India had refused to share its responsibility. The Deputy
Commissioner of the area was to forward the
applications for citizenship after due inquiry but no such
application was pending. Further stand of the State was
that settlement of Chakmas will disturb its ethnic
balance and destroy its culture and identity. The tribals
of the State consider Chakmas as potential threat to
their tradition and culture.
Page 4
Writ Petition No.510 of 2007
3. This Court considered rival submissions and held
that the Chakmas apprehend threat on the All Arunachal
Pradesh Students’ Union (“AAPSU”) who were reported to
be enforcing economic blockades on the refugee camps,
adversely affecting supply of ration, medical and
essential facilities to the Chakmas. Some Chakmas had
died on account of blockade. This Court further noticed
that Chakmas could invoke Section 5(1)(a) of the
Citizenship Act by filing application in form prescribed by
Part II of the Citizenship Rules, 1956. The
observations in NHRC case (supra), inter alia, are as
follows :-
“18. From what we have said hereinbefore, there is no doubt that the Chakmas who migrated from East Pakistan (now Bangladesh) in 1964, first settled down in the State of Assam and then shifted to areas which now fall within the State of Arunachal Pradesh. They have settled there since the last about two and a half decades and have raised their families in the said State. Their children have married and they too have had children. Thus, a large number of them were born in the State itself. Now it is proposed to uproot them by force. The AAPSU has been giving out threats to forcibly drive them out to the neighbouring State which in turn is unwilling to accept them. The residents of the neighbouring State have also threatened to kill them if they try to enter their State. They are thus sandwiched between two forces, each pushing in opposite direction which can only hurt them. Faced with the prospect of annihilation the NHRC was moved, which, finding it impossible to extend protection to them, moved this Court for certain reliefs. 19. By virtue of their long and prolonged stay in the State, the Chakmas who migrated to, and those born in
Page 4 of 18
Page 5
Writ Petition No.510 of 2007
the State, seek citizenship under the Constitution read with Section 5 of the Act. We have already indicated earlier that if a person satisfies the requirements of Section 5 of the Act, he/she can be registered as a citizen of India. The procedure to be followed in processing such requests has been outlined in Part II of the Rules. We have adverted to the relevant rules hereinbefore. According to these Rules, the application for registration has to be made in the prescribed form, duly affirmed, to the Collector within whose jurisdiction he resides. After the application is so received, the authority to register a person as a citizen of India, is vested in the officer named under Rule 8 of the Rules. Under Rule 9, the Collector is expected to transmit every application under Section 5(1)(a) of the Act to the Central Government. On a conjoint reading of Rules 8 and 9 it becomes clear that the Collector has merely to receive the application and forward it to the Central Government. It is only the authority constituted under Rule 8 which is empowered to register a person as a citizen of India. It follows that only that authority can refuse to entertain an application made under Section 5 of the Act. Yet it is an admitted fact that after receipt of the application, the Deputy Collector (DC) makes an enquiry and if the report is adverse, the DC refuses to forward the application; in other words, he rejects the application at the threshold and does not forward it to the Central Government. The grievance of the Central Government is that since the DC does not forward the applications, it is not in a position to take a decision whether or not to register the person as a citizen of India. That is why it is said that the DC or Collector, who receives the application should be directed to forward the same to the Central Government to enable it to decide the request on merits. It is obvious that by refusing to forward the applications of the Chakmas to the Central Government, the DC is failing in his duty and is also preventing the Central Government from performing its duty under the Act and the Rules. 20. We are a country governed by the Rule of Law. Our Constitution confers certain rights on every human being and certain other rights on citizens. Every person is entitled to equality before the law and equal protection of the laws. So also, no person can be deprived of his life or personal liberty except according to procedure established by law. Thus the State is bound to protect the life and liberty of every human being, be he a citizen or otherwise, and it cannot permit any body or group of persons, e.g., the
Page 5 of 18
Page 6
Writ Petition No.510 of 2007
AAPSU, to threaten the Chakmas to leave the State, failing which they would be forced to do so. No State Government worth the name can tolerate such threats by one group of persons to another group of persons; it is duty-bound to protect the threatened group from such assaults and if it fails to do so, it will fail to perform its constitutional as well as statutory obligations. Those giving such threats would be liable to be dealt with in accordance with law. The State Government must act impartially and carry out its legal obligations to safeguard the life, health and well-being of Chakmas residing in the State without being inhibited by local politics. Besides, by refusing to forward their applications, the Chakmas are denied rights, constitutional and statutory, to be considered for being registered as citizens of India.”
4. Accordingly, direction was issued to the State of
Arunachal Pradesh to ensure that life and liberty of
Chakmas residing in the State was protected against any
attempt to evict them by organized groups such as
AAPSU and their applications could be forwarded to the
Central Government.
5. Case of the petitioners, further is that the
application of the State of Arunachal Pradesh for
modification and Writ Petition (C) No.593 of 1997 filed by
an organization of tribals of Arunachal Pradesh against
the judgment of this Court was also dismissed. Another
writ petition being Writ Petition No.13 of 1998 against
the judgment of this Court was dismissed on 9th
December, 2002. Thereafter applications were filed for
citizenship but the same were not acted upon. The
Page 6 of 18
Page 7
Writ Petition No.510 of 2007
Election Commission of India in the light of judgment of
this Court passed orders dated 3rd March, 2004 declaring
the resolution dated 14th May, 2003 passed by the State
of Arunachal Pradesh against facilities to the petitioners
to be unconstitutional but the authorities of the State of
Arunachal Pradesh had not forwarded the applications as
required under Rule 9 of the Citizenship Rules to the
Central Government.
6. Counter affidavit has been filed by the Union of
India stating that the applications directly received by
the Ministry of Home Affairs were forwarded to the
Government of Arunachal Pradesh which had not been
returned except few applications with negative
recommendations. The said applications were returned
back to the Government of Arunachal Pradesh. Ministry
of Home Affairs had advised the Government of
Arunachal Pradesh to act in compliance with the
judgment of this Court.
7. The stand of the State of Arunachal Pradesh is that
there was no threat to the life and liberty of the Chakmas
and Hajong refugees. After receiving the judgment of
this Court, the judgment was circulated to Inspector
General of Police, Deputy Commissioners of the
Page 7 of 18
Page 8
Writ Petition No.510 of 2007
concerned Districts and Principal Chief Conservator of
Forests. The State Government was fully bound by the
direction of this Court and had taken all necessary steps
to comply with the same. The State of Arunachal
Pradesh had received 4382 applications. Though the
popular sentiment of the indigenous tribals was different,
the State of Arunachal Pradesh was honouring the order
of this Court. It is further stated that Chakmas and
Hajong tribes were settled in NEFA from 1964 to 1969
when there were no elected bodies in the State of
Arunachal Pradesh. The laws applicable in the State of
Arunachal Pradesh like the Government of India Act,
1870, the Bengal Eastern Frontier Regulation, 1873, the
Scheduled District Act, 1874, the Assam Frontier Tract
Regulation, 1880, the Assam Frontier Forest Regulation,
1891, the Chin Hills Regulations, 1896 and the Assam
Frontier (Administration of Justice) Regulation, 1945 (1 of
1945) were not taken into account. One thousand four
hundred ninety seven Chakmas have been included in
the electoral rolls.
8. The petitioners have filed a rejoinder affidavit
alleging that children of Chakmas and Hajongs are
denied educational facilities. They were not being
Page 8 of 18
Page 9
Writ Petition No.510 of 2007
covered by the public distribution system. They
presented a petition to the 10th Lok Sabha and also to
Rajya Sabha Committee on Petitions. The said
Committee in its 105th Report published on 14th August,
1997 made recommendation to grant Indian Citizenship
to the Chakmas but the said recommendation has not
been acted upon. The recommendation is as follows :
“42. The Committee, therefore, recommends that the Chakmas of Arunachal Pradesh who came there prior to 25.3.1971 be granted Indian citizenship. The Committee also recommends that those Chakmas who have been born in India should also be considered for Indian citizenship. The Committee further recommends that the fate of those Chakmas who came to the State after 25.3.1971 be discussed and decided by the Central Government and State Government Jointly. The Committees also recommends that all the old applications of Chakmas for citizenship which have either been rejected or withheld by Deputy Commissioners or the State Deputy Commissioner or the State Government continue to block the forwarding of such applications to Central Government, the Central Government may consider to incorporate necessary provision in the Rules (or the Act it so required) whereby it could directly receive, consider and decide the application for citizenship in the 23 case of Chakmas of Arunachal Pradesh. The Committee also recommends that Chakmas be also considered for granting them the status of Scheduled Tribes at the time of granting the citizenship. The Committee would like to earnestly urge upon the Central Government and State Government to ensure that until amicable solution is arrived at, the Chakmas are allowed to stay
Page 9 of 18
Page 10
Writ Petition No.510 of 2007
in Arunachal Pradesh with full protection and safety, honour and dignity”.
9. When the matter came up for hearing before this
Court on 1st August, 2012, the following order was
passed :-
“Mr. B. Bhattacharyya, learned Additional Solicitor General for respondent No. 5, and Mr. Anil Shrivastav, learned counsel for respondent Nos. 1 to 4, pray for some time to seek instructions and also to ensure that the controversy raised in the Writ Petition is resolved at the hands of the Central Government and the State Government at the earliest.”
10. Again on 28th August, 2012, following order was
passed :
“Mr. B. Bhattacharyya, learned Additional Solicitor General appearing for the respondent No. 5 - Union of India, submits that all 4637 applications for grant of citizenship in respect of Chakmas received in the Ministry of Home Affairs, Government of India have been returned to the State Government as the applications were not made to the appropriate authority in prescribed form and were also not accompanied with the recommendations of the State Government as per statutory requirement.
Having regard to the decision of this Court in National Human Rights Commission Vs. State of Arunachal Pradesh and Another, (1996) 1 SCC 742, and the directions contained therein, we direct the State of Arunachal Pradesh to submit a comprehensive report/affidavit to this Court in respect of 4637 applications returned by the
Page 10 of 18
Page 11
Writ Petition No.510 of 2007
Central Government to the State Government on the following aspects in respect of each application :-
(i) Whether the conditions laid down in the relevant clauses of Section 5 of the Citizenship Act, 1955 (for short, 'Act') are satisfied;
(ii) Whether the applicant has an intention to make India his permanent home;
(iii) Whether the applicant has signed oath of allegiance as specified in the Second Schedule to the Act; and
(iv) Whether the applicant is of good character and is otherwise a fit and proper person to be registered as a citizen of India.
The above report/affidavit shall be submitted by the State of Arunachal Pradesh to this Court through the Secretary (Political), Government of Arunachal Pradesh within two months from today.
A copy of the report/affidavit shall be given to the Advocate-on-Record for the petitioners well in advance.”
11. On 20th January, 2014, this Court passed the following Order:
“List the matter on 5th May, 2014, so as to enable the Joint High Powered Committee constituted vide Government of India's Order No.13/2/2010-NE-II dated 10/08/2010. to place on record the progress made in the matter.
We are sure that the Committee would make all efforts so that the work entrusted to it is concluded preferably before the next date of hearing.”
Page 11 of 18
Page 12
Writ Petition No.510 of 2007
12. Additional Affidavit dated 2nd January, 2013 was
filed by the State of Arunachal Pradesh stating that the
Government of India, Ministry of Home Affairs (N.E.
Division) has constituted a committee under the
Chairmanship of Joint Secretary (N.E.), Ministry of Home
Affairs on 10th August, 2010 to examine various issues
relating to settlement of Chakmas/Hajongs in Arunachal
Pradesh including the possibility of granting Indian
citizenship to eligible Chakmas/ Hajongs. The Committee
has held its sitting on 9th January, 2012 and taken certain
decisions. Thus, the issue was not being ignored though
there was no delay in the matter.
13. We have heard learned counsel for the parties
and perused the record.
14. Learned counsel for the petitioners submitted that
their rights have been duly acknowledged by this Court
in NHRC case (supra). Still, their legitimate right of
citizenship has not so far materialized. They have been
settled after a conscious decision at the highest level of
the Government of India. They could not be treated as
foreigners. He has placed reliance on a judgment of the
Gauhati High Court dated 19th March, 2013 in PIL
No.52 of 2010 titled “All Arunachal Pradesh
Page 12 of 18
Page 13
Writ Petition No.510 of 2007
Students Union (AAPSU) vs. The Election
Commission of India” dismissing a petition filed by
AAPSU against the guidelines issued by the Election
Commission of India for revision of electoral rolls in
respect of areas where there is substantial presence of
Chakmas and Hajongs. In the said judgment, the
Memorandum dated 23rd March, 2005 issued by the
Election Commission of India and further guidelines
dated 3rd October, 2007 for revision of electoral rolls with
reference to 1st January, 2007 as qualifying date are also
referred to. The objection against the Chakmas being
treated as ordinary residents of Arunachal Pradesh in
absence of possession of valid Inner Line Passes was
also considered. The Election Commission of India
supported its guidelines with guidelines with reference to
a judgment of the Delhi High Court dated 28th
September, 2000 in W.P. No.886 of 2000 (Peoples
Union for Civil Liberties vs. Election Commission of
India & Ors.)
15. In the judgment of the Gauhati High Court, it was
noted that in contradiction to those unwanted illegal
migrants who sneak into the country, the Chakmas
migrated to India on account of their displacement and
Page 13 of 18
Page 14
Writ Petition No.510 of 2007
the Government of India agreed to grant them
citizenship. In these circumstances, the guidelines of the
Government of India were held to be justified and did not
warrant any requirement of Inner Line permit. The
relevant observations are :
“[18] ………. Having regard to the facts and circumstances which have been also highlighted by the Hon'ble Supreme Court as referred to above in NRHC case, we are of the view that these additional guidelines, having been issued in the peculiar circumstances obtaining, cannot be held to be discriminatory.
Further, in view of the policy decision taken by the Government of India to settle the Chakma refugees in different States and also in Arunachal Pradesh in consultation with the authorities of the Arunachal Pradesh, and also to confer Indian citizenship, the contention of the petitioners that the aforesaid guidelines have the effect of violating the provisions of law in terms of lack of Inner Line Permit or violation of provisions of section 13 of the Registration of Births and Deaths Act, 1969 does not hold water. We are of the view that once a decision had been taken to settle these Chakma refugees in Arunachal Pradesh in consultation with the authorities of Arunachal Pradesh, they would become residents of Arunachal Pradesh and would not require the Inner Line Permit/Pass. Otherwise also, once they have been allowed to settle in Arunachal Pradesh, it would be deemed that such permits had been granted to them and in our considered opinion, any other view would negate and defeat the policy decision taken by the Government of India in consultation with the Arunachal Pradesh authorities to settle these Chakmas in Arunachal Pradesh.
Page 14 of 18
Page 15
Writ Petition No.510 of 2007
Similarly, as regards, the other contention of the petitioners that the guidelines would contravene the provisions of section 13 of the Registration of Births and Deaths Act, 1969 also cannot be accepted. It may be noted that the Chakmas had taken refuge in this country under distress and trying circumstances after having been uprooted from their hearth and homes and made to flee to avoid persecution. Further, later on, after having allowed to settle in Arunachal Pradesh, they had faced difficulties and harassments from the neighbouring local populace which had been taken note of by the Supreme Court in NHRC case as mentioned above. Therefore, issuing of the additional guidelines for the purpose of verification of the birth of the claimants on the basis of other credible materials for the purpose of enrolment in the electoral rolls where these Chakmas had been officially settled cannot be interfered with merely on the technical ground that certain provisions of Registration of Births and Deaths Act, 1969 have not been strictly complied with, if the evidences are otherwise credible and trustworthy.
We are of the view that the additional guidelines which had been issued by the Election Commission of India are merely to enable those Chakmas to enjoy such benefits as a citizen of this Country including the right to vote by having their names enrolled in the electoral rolls of the concerned constituency where they have been settled. Once, these Chakma refugees have been granted citizenship, they are entitled to enjoy all the rights and privileges that flow on becoming a citizen of this country and further, they are entitled to have their rights as citizens of this country protected and safeguarded.”
Page 15 of 18
Page 16
Writ Petition No.510 of 2007
16. We find merit in the contention of the petitioners. It
stands acknowledged by this Court on the basis of stand
of the Government of India that the Chakmas have a
right to be granted citizenship subject to the procedure
being followed. It also stands recognized by judicial
decisions that they cannot be required to obtain any
Inner Line permit as they are settled in the State of
Arunachal Pradesh.
17. In State of Arunachal Pradesh vs. Khudiram
Chakma2, this Court noted the ancient history of
Arunachal Pradesh as follows :
“41. The history of the mountainous and multitribal north-east frontier region which is now known as Arunachal Pradesh ascends for hundreds of years into the mists of tradition and mythology. According to Pauranic legend, Rukmini, the daughter of King Bhishmak, was carried away on the eve of her marriage by Lord Krishna himself. The ruins of the fort at Bhalukpung are claimed by the Akas as the original home of their ancestor Bhaluka, the grandson of Bana Raja, who was defeated by Lord Krishna at Tezpur (Assam). A Kalita King, Ramachandra, driven from his kingdom in the plains of Assam, fled to the Dafla (now Nishang) foothills and established there his capital of Mayapore, which is identified with the ruins on the Ita hill. A place of great sanctity in the beautiful lower reaches of the Lohit River, the Brahmakund, where Parasuram opened a passage through the hills with a single blow of his mighty axe, still attracts the Hindu pilgrims from all over the country.”
2
(1994) Supp. 1 SCC 615
Page 16 of 18
Page 17
Writ Petition No.510 of 2007
18. The above history shows the integral link of the
State of Arunachal Pradesh with the rest of the country
since ancient times. It is well known that the Chakmas
and Hajongs were displaced from the area which became
part of East Pakistan (now in Bangladesh) on construction
of Kaptai Dam and were allowed to be rehabilitated under
the decision of the Government of India. As earlier held
by this Court, the Delhi High Court and Gauhati High
Court, they need to be protected and their claims of
citizenship need to be considered as per applicable
procedure. They could not be discriminated against in
any manner pending formal conferment of rights of
citizenship. Their status also stands duly acknowledged
in the guidelines of the Election Commission of India.
19. Learned Additional Solicitor General fairly stated
that the Government of India will earnestly take
appropriate measures in the matter, granted some more
time.
20. Accordingly, we allow this petition and direct the
Government of India and the State of Arunachal Pradesh
to finalise the conferment of citizenship rights on eligible
Chakmas and Hajongs and also to ensure compliance of
directions in judicial decisions referred to in earlier part of
Page 17 of 18
Page 18
Writ Petition No.510 of 2007
this order for protection of their life and liberty and
against their discrimination in any manner. The exercise
may be completed at the earliest preferably within three
months from today.
.…………………………….J. [ ANIL R. DAVE ]
……………………………..J. [ ADARSH KUMAR GOEL ]
NEW DELHI SEPTEMBER 17, 2015
Page 18 of 18