National
Human Rights Commission Vs. State of Arunachal Pradesh & Anr [1996] INSC 36 (9 January 1996)
Ahmadi
A.M. (Cj) Ahmadi A.M. (Cj) Sen, S.C. (J) Ahmadi, Cji
CITATION:
1996 AIR 1234 1996 SCC (1) 742 JT 1996 (1) 163 1996 SCALE (1)155
ACT:
HEAD NOTE:
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. Out 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 setteled 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 humanbeing 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.
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