caselaws
Supreme Court of India
Committee For C.R.Of C.A.P. & Ors vs State Of Arunachal Pradesh & Ors on 17 September, 2015Author: .…………………………….J.
Bench: Anil R. Dave, Adarsh Kumar Goel
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 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,
1996[1]. 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, 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.
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 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
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 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 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 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 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 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.”
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 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
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.
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.”
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 Chakma[2], 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.”
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 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
———————–
[1]
(1996) 1 SCC 742
[2]
(1994) Supp. 1 SCC 615
———————–
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