PETITIONER:
NATIONAL HUMAN
RIGHTS COMMISSION
Vs.
RESPONDENT:
STATE OF
ARUNACHAL PRADESH & ANR
DATE OF
JUDGMENT: 09/01/1996
BENCH:
AHMADI A.M.
(CJ)
BENCH:
AHMADI A.M.
(CJ)
SEN, S.C. (J)
CITATION:
1996 AIR 1234 1996 SCC
(1) 742
JT
1996 (1) 163 1996 SCALE
(1)155
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N
T
AHMADI,
CJI
This public
interest petition, being a writ petition under Article 32 of the Constitution,
has been filed by the National Human Rights Commission (hereinafter called
"NHRC") and seeks to
enforce the rights, under Article
21 of the Constitution, of about 65,000
Chakma/Hajong tribals (hereinafter called "Chakmas"). It is alleged that
these Chakmas, settled mainly in the State of Arunachal Pradesh, are being
persecuted by sections of the citizens of Arunachal Pradesh. The first
respondent is the State of Arunachal Pradesh and the second respondent is the
State of Arunachal Pradesh and the second respondent is the Union of India.
The NHRC has
been set up under the Protection of Human Rights Act, 1993 (No.10 of 1994).
Section 18 of this Act empowers the NHRC to approach this Court in appropriate
cases.
The factual
matrix of the case may now be referred to. A large number of Chakmas from
erstwhile East Pakistan (now Bangladesh) were displaced by the Kaptai Hydel
Power Project in 1964. They had taken shelter in Assam and Tripura. Most of
them were settled in these States and became Indian citizens in due course of
time. Since a large number of refugees had taken shelter in Assam, the State
Government had expressed its inability to rehabilitate all of them and
requested assistance in this regard from
certain other States. Thereafter, in consultation with the erstwhile NEFA
administration (North East Frontier Agency - now Arunachal Pradesh), about
4,012 Chakmas were settled in parts of NEFA. They were also allotted some land
in consultation with local tribals. The Government of India had also sanctioned
rehabilitation assistance @ Rs.4,200/- per family. The present population of Chakmas
in Arunachal Pradesh is estimated to be around 65,000.
The issue of
conferring citizenship on the Chakmas was considered by the second respondent
from time to time. The Minister of State for Home Affairs has on several
occasions expressed the intention of the second respondent in this regard.
Groups of Chakmas have represented to the petitioner that they have made
representations for the grant of citizenship under Section 5(1)(a) of the Citizenship
Act, 1955 (hereinafter called "The Act")
before their local Deputy Commissioners but no decision has been communicated to
them. In recent years, relations between citizens of them. In recent years,
relations between citizens of Arunachal Pradesh and the Chakmas have
deteriorated, and the latter have complained that they are being subjected to repressive
measures with a view to forcibly expelling them from the State of Arunachal
Pradesh.
On
September 9,1994, the People's Union
for Civil Liberties, Delhi brought this issue to the attention of the NHRC
which issued letters to the Chief Secretary, Arunachal Pradesh and the Home
Secretary, Government of India making enquiries in this regard. On September 30, 1994, the Chief
Secretary, of Arunachal Pradesh faxed a
reply stating that the situation was totally under control and adequate police protection
had been given to the Chakmas.
On October 15, 1994, the Committee for Citizenship Rights
of the Chakmas (hereinafter called "The CCRC") filed a representation
with the NHRC complaining of the persecution of the Chakmas. The petition contained a press report carried
in "The Telegraph dated August 26, 1994
stating that the All Arunachal Pradesh Students Union (hereinafter called
"AAPSU") had issued "quit notices"
to all alleged foreigners, including the Chakmas, to leave the State by
September 30, 1995. The AAPSU had threatened to use force if its demand was not
acceded to. The matter was treated as a formal complaint by the NHRC and on
October 28, 1994, it issued notices to the first and the second respondents calling
for their reports on the issue.
On November
22, 1994, the Ministry of Home Affairs sent a note to the petitioner reaffirming
its intention of granting citizenship to the Chakmas. It also pointed out that
Central Reserve Forces had been deployed in response to the threat of the AAPSU
and that the State Administration had been directed to ensure the protection of
the Chakmas. On December 7, 1994, the NHRC directed the first and second respondents
to appraise it of the steps taken to protect the Chakmas. This direction was
ignored till September, 1995 despite the sending of reminders. On September 25,
1995, the first respondent filed an interim reply and asked for time of four weeks'
duration to file a supplementary report. The first respondent did not, however,
comply with its own deadline.
On October 12, 1995 and again on October 28, 1995, the CCRC
sent urgent petitions to the NHRC alleging immediate threats to the lives of
the Chakmas. On October 29, 1995, the NHRC recorded a prima facie conclusion
that the officers of the officers of the first respondent were acting in coordination
with the AAPSU with a view to expelling the Chakmas from the State of Arunachal
Pradesh. The NHRC stated that since the first respondent was delaying the
matter, and since it had doubts as to whether its own efforts would be sufficient
to sustain the Chakmas in their own habitat, it had decided to approach this Court
to seek appropriate reliefs.
On November 2,
1995, this Court issued an interim order directing the first respondent to ensure that the Chakmas situated in
its territory are not ousted by any coercive action, not in accordance with
law.
We may now
refer to the stance of the Union of India, the second respondent, on the issue.
It has been pointed out that, in 1964, pursuant to extensive discussions
between the Government of India and the NEFA administration. It was decided to send the Chakmas for the purposes
of their resettlement to the territory of the present day Arunachal Pradesh.
The Chakmas have been residing in Arunachal Pradesh for more than three
decades, having developed close social, religious and economic ties. To uproot
them at this stage would be both impracticable and inhuman. Our attention has been
drawn to a Joint Statement issued by the Prime Ministers of India and
Bangladesh at New Delhi in February, 1972, pursuant to which the Union
Government had conveyed to all the States concerned. It's decision to confer citizenship
on the Chakmas, in accordance with Section 5(1)(a) of the Act. The second
respondent further states that the children of the Chakmas, who where born in
India prior to the amendment of the Act in 1987, would have legitimate claims to citizenship.
According to the Union of India, the first respondent has been expressing
reservations on this account. By not forwarding the applications submitted by
the Chakmas along with their reports for grant of citizenship as required by
Rule 9 of the Citizenship Rules, 1955, the officers of the first respondent are
preventing the Union of India from considering the issue of citizenship of the
Chakmas. We are further informed that the Union of India is actively
considering the issue of citizenship and has recommended to the first
respondent that it take all necessary steps for providing security to the Chakmas.
To this end, Central para-military forces have been made available for
deployment in the strife-ridden areas. The Union Government favours a dialogue
between the State Government, the Chakmas and all concerned within the State to
amicably resolve the issue of granting citizenship to the Chakmas while also
redressing the genuine grievances of the citizens of Arunachal Pradesh.
The first respondent,
in its counter to the petition, has contended before us that the allegations of
violation of human rights are incorrect; that it has taken bona fide and sincere
steps towards providing the Chakmas with basic amenities and has, to the best
of its ability, protected their lives and properties. It is further contended
that the issue of citizenship of the Chakmas has been conclusively determined
by the decision of this Court in State of Arunachal Pradesh v. Khudiram Chakmas
(1994 Supp. (1) SCC 615 - hereinafter called "Khudiram Chakma's
case"). It is therefore contended that since the Chakmas are foreigners, they
are not entitled to the protection of fundamental rights except Article 21.
This being so, the authorities may, at any time, ask the Chakmas to move. They
also have the right to ask the Chakmas to quit the state, if they so desire.
According to the first respondent, having lost their case in this Court, the
Chakmas have "raised a bogey of violation of human rights."
The first respondent
has filed a counter to the stand taken by the Union of India. The first respondent denies that the Union of India had sent the CRPF Battalions
of its own accord; according to it, they
were sent pursuant to its letter dated
20.9.1994 asking for assistance. It
has also denied that certain Chakmas were killed on account of economic
blockades effected by the AAPSU; according to it, these casualties were the
result of a malarial epidemic. The first respondent reiterates that the sue queriers
Constitutional position of the State debars it from permitting outsiders to be
settled within its territory, that it has limited resources and that its
economy is mainly dependent on the vagaries of nature; and that it has no financial
resources to tend to the needs of the Chakmas having already spent
approximately Rs.100 crores on their upkeep. It has also been stated that the
Union of India has refused to share its financial responsibility for the upkeep
of the Chakmas.
Referring to the
issue of grant of citizenship it is submitted as follows:
"It is
submitted that under the Citizenship Act, 1955 and the Rules made thereunder a
specific procedure is provided for forwarding the application for grant of
citizenship. According to that after receiving the application, the DC of the
area makes necessary enquiries about the antecedents of the applicant and after
getting a satisfactory report forwards the case to the State Government which
in turn forwards it to the Central Government.
It is
submitted that on enquiry if the report is adverse the DC would not forward it
further. It is submitted that the applications, if any, made in this regard
have already been disposed of after necessary enquiry. There is no application
pending before the DC."
It may be
pointed out that this stand of the first respondent is in direct contravention
of the stand adopted by it in the representation dated September 25,1995, submitted
by it to the NHRC where it had stated:
"The
question of grant of citizenship is entirely governed by the Citizenship Act, 1955
and the Central Government is the sole authority to grant citizenship. The
State Government has no jurisdiction in the matter."
It is further
submitted by the first respondent that under the Constitution, the State of
Arunachal Pradesh enjoys a special status and, bearing in mind its ethnicity, it
has been declared that it would be administered under Part X of the Constitution. That is the reason why
laws and regulations applicable during the British Regime continue to apply
even today. The settlement of Chakmas in large numbers in the State would
disturb its ethnic balance and destroy its culture and identity. The special
provisions made in the Constitution would be set at naught if the State's
tribal population is allowed to be invaded by people from outside. The tribals,
therefore, consider Chakmas as a potential threat to their tradition and culture
and are therefore, keen that the latter do not entrench themselves in the State.
Besides, the financial resources of the State without Central assistance, which
is ordinarily not forthcoming, would throw a heavy burden on the State which it
would find well nigh impossible to bear. In the circumstances, contends the
first respondent, it is unfair and unconstitutional to throw the burden of such
a large number of Chakmas on the State.
We are unable
to accept the contention of the first respondent that no threat Exists to the
life and liberty of the Chakmas guaranteed by Article 21 of the Constitution, and
that it has taken adequate steps to ensure the protection of the Chakmas. After
handling the present matter for more than a year, the NHRC recorded a prima facie finding that the service of
quit notices and their admitted enforcement appeared to be supported by the
officers of the first respondent. The NHRC further held that the first respondent
had, on the one hand, delayed the disposal of the matter by not furnishing the
required response and had, on the other hand, sought to enforce the eviction of
the Chakmas through its agencies. It is to be noted that, at no time, has the first
respondent sought to condemn the activities of the AAPSU. However, the most
damning facts against the first respondent are to be found in the counter affidavit
of the second respondent. In the assessment of the Union of India, the threat
posed by the AAPSU was grave enough to warrant the placing of two additional
battalions of CRPF at the disposal of the State Administration. Whether it was done
at the behest of the State Government or by the Union on its own is of on consequence;
the fact that it had become necessary speaks for itself. The second respondent further
notes that after the expiry of the deadline of October 30, 1994, the AAPSU and
other tribal student organisations continued to agitate and press for the expulsion
of all foreigners including the Chakmas. It was reported that the AAPSU had
started enforcing of economic blockades on the refugee camps, which adversely
affected the supply of rations, medical and essential facilities, etc., to the Chakmas.
Of course the State Government has denied the allegation, but the independent inquiry of the NHRC
shows otherwise. The fact that the Chakmas were dying on account of the blockade
for want of medicines is an established fact. After reports regarding lack of
medical facilities and the spread of malaria and dysentery in Chakma settlements
were received, the Union Government advised the first respondent to ensure
normal supplies of essential commodities to the Chakma settlement. On September
20, 1995 the AAPSU, once again, issued an ultimatum citing December 31, 1995 as
the fresh deadline for the ousting of Chakmas. This is yet another threat which
the first respondent has not indicated how it proposes to counter.
It is,
therefore, clear that there exists a clear and present danger to the lives and
personal liberty of the Chakmas. In Louis De Raedt v. Union of India [(1991) 3
SCC 554] and Khudiram Chakma's case this court held that foreigners are entitled
to the protection of Article 21 of the Constitution.
The contention of the first respondent
that the ruling of this Court in Khudiram Chakma's case has foreclosed the consideration of the
citizenship of Chakmas is misconceived. The facts of that case reveal that the appellant
and 56 families migrated to India in 1964 from erstwhile East
Pakistan and were lodged in the Government Refugee Camp at Ledo. They were
later shifted to another camp at Miao. In 1966, the State Government drew up
the Chakma Resettlement Scheme for refugees and the Chakmas were allotted lands
in two villages. The appellant, however, strayed out and secured land in
another area by private negotiations. The State questioned the legality of the
said transaction since under the Regulations then in force, no person other
than a native of that District could acquire land in it. Since there were complaints against the appellant and others who had settled on
this land, the State, by order dated February
15, 1984, directed that they shift to
the area earmarked for them. This
order was challenged on the ground that Chakmas
who had settled there were citizens of India and by seeking their forcible
eviction, the State was violating their fundamental rights and, in
any case, the order was arbitrary and illegal as violative of the principles of natural justice. On the question of citizenship, they
invoked section 6-A of the Act which, inter alia, provides that all persons of
Indian origin who came before January 1, 1966 to Assam from territories included
in Bangladesh immediately before the commencement of the Citizenship
(Amendment) Act, 1985, and who had been ordinarily resident in Assam since
their entry into Assam shall be deemed to be citizens of India as from January
1, 1966. Others who had come to Assam after that date and before March 25, 1971,
and had been detected to be foreigners, could register themselves. It will thus
be seen that the appellant and others claimed citizenship under this special
provision made pursuant to the Assam Accord. The High Court held that the appellant and others did not fall under
the said category as they
had stayed in Assam for a short period
in 1964 and had strayed away
therefrom in the area now within the
State of Arunachal Pradesh. On appeal, this Court affirmed that view. It
is, therefore, clear that in that case, the Court was required to consider the
claim of citizenship based on the language of Section 6-A of the Act. Thus, in
Khudiram Chakma's case, this Court was seized of a matter where 57 Chakma families
were seeking to challenge an order requiring them to vacate land bought by them
in direct contravention of clause 7 of the Bengal Eastern Frontier Regulation,
1873. The issue of citizenship was raised in a narrower context and was limited
to Section 6-A(2) of the Act. The Court observed
that the Chakmas in that case, who were resident in Arunachal Pradesh, could
not avail of the benefit of Section 6A of the Act which is a special
provision for the citizenship of persons
covered by the Assam Accord. In the
present case, the Chakmas are seeking to obtain citizenship under Section
5(1)(a) of the Act, where the
considerations are entirely different. That section provides for citizenship by
registration. It says that the prescribed authority may, on receipt of an application
in that behalf, register a person who is not a citizen of India, as a citizen
of India if he/she satisfies the conditions set out therein. This provision is
of general application and is not limited to persons belonging to a certain
group only as in the case of Section 6-A. Section 5, therefore, can be invoked
by persons who are not citizens of India but are seeking citizenship by registration.
Such applications would have to be in the form prescribed by part II of the
Citizenship Rules, 1956 (hereinafter called "The Rules"). Under Rule
7, such application has to be made to the Collector within whose jurisdiction
the applicant is ordinarily resident. Rule 8 describes the authority to register
a person as a citizen of India under Section 5(1) of the Act. It says that the
authority to register a person as a citizen of India shall be an officer not
below the rank of a Deputy Secretary to the Government of India in the Ministry
of Home Affairs, and also includes such
officer as the Central Government
may, by a notification
in the Official Gazette, appoint
and in any other case falling under the Rules, any officer not below the rank
of a Joint Secretary to the Government of India in the Ministry of Home Affairs,
and also includes such other officer as the Central Government may, by notification
in the Official Gazette, appoint. Rule 9
next enjoins the Collector to transmit every application received by him under
Section 5(1)(a) to the Central Government through the State Government or the
Union Territory administration, as the case may be, along with a report on matters
set out in clauses (a) to (e) thereof. Rule 10 provides for issuance of a
certificate to be granted to persons registered as citizens and Rules 11 and 12
provide for maintenance of registers. These are the relevant rules in regard to
registration of persons as citizens of India.
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 neighboring State which in turn is unwilling to accept them. The
residents of the neighboring 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. 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 a and 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.
We are a
country governed by the Rule of Law. Our
Constitution confers contains 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.
In view of the
above, we allow this petition and direct the first and second respondents, by way
of a writ of mandamus, as under:-
(1)
the first respondent, the State of
Arunachal Pradesh, shall ensure that the
life and personal liberty of each and every Chakma residing within the State
shall be protected and any attempt to
forcibly evict or drive them out of the State by organised groups, such as
the AAPSU, shall be repelled,
if necessary by requisitioning the service
of para-military 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 be dealt with by the first
respondent in accordance with law;
(4)
the application made for registration as citizen of India by
the Chakma or 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 or without enquiry,
as the case may be, to the Central Government for its
consideration in accordance with law;
even returned applications shall be called back or fresh ones shall be processed and forwarded to the Central Government for consideration;
(5)
while the application of any individual Chakma is pending consideration, the
first respondent shall not evict or remove the concerned person from his occupation on the ground that he is not a
citizen of India until the competent authority has taken a decision in that
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
depositing the same in the office of the NHRC, New Delhi.
The
petition shall stand so disposed of.
Source: http://judis.nic.in/supremecourt/imgst.aspx?filename=16222 The judgment is also available at:http://indiankanoon.org/doc/767216/
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