refugee's problem in india

PIL Writ Petition drafted by Sukriti Ranjan Biswas.

2016-10-29T09:30:00.000-07:00

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION NO. OF 2015

IN THE MATTER OF :

1 Solidarity committee for Bengali Refugees Petitioners

907, Soondarhi Station Road, Pilibhit

Dist. : Pilibhit

Uttar Pradesh, Pin Code : 262001

2 Citizens Rights Preservation Committee, Assam ( CRPC )

( Regn. No. 2729/1995-96 )

House No. – 42, Beltala P.O. – Khanapara Road

Guwahati – 781

3 All India Namasudra Kalyan Parisad

Shanti Nagar, P.O. – Palta, Dist. – North 24 Parganas

Kolkata – 700…………

4 Nityananda Mallick, Practicing Advocate

S/O Late Raj Kumar Mallick

Maharajpur, P.O.- Gobiasarai

Dist. Pilibhit,UP. Pin - 262122

VERSUS

1 The Union of India and others. Respondents

WITH

I.A no. of 2015, An application for ex-parte Stay

PAPER BOOK

(For Index, Kindly See Inside)

Dr. Kailash Chand

ADVOCATE FOR THE PETITIONERS

INDEX OF RECORDS OF PROCEDINGS

Sl. No. Date of Record of Proceding Remarks.

INDEX

Sl.No. PARTICULARS PAGES

1 Listing Pro forma ……………………… … A1 – A5

2 Synopsis and List of Dates ………………….. B – O

3 Writ Petition with Affidavit ………………… 1 – 83

4 Annexure --- P /1 …………………………… 84

Questions of the various Members in the

Parliament In regard to religious persecution

of the Minorities of Bangladesh and the

answers of the Ministers during the period

from 2001 to 2011.

5 Annexure --- P/2 , ………………………………97

Definition of the term Refugee formulated by

United Nations and some other relevant general

provisions of the declaration of UNO.

6 Annexure --P/3 ………………………………. 101

Introductory Note by the office of the United

Nations High Commission for Refugees (UNHCR)

7 Annexure---P/4 ……………………………….105

Copy of the order of the Odisha Govt. No. PPT(P)

60/2000-15681 dated the 16^th March, 2001.

8 Annexure ----P / 5 …………………………………….108

Copy of the order of the Ministry of Home Affairs

No. F-14011/55/09-F.VI dated the 23^rd November, 2009.

9 I. A. No. ………….. /2015 ……………………….119

An application for interim order of Stay

PROFORMA FOR FIRST LISTING

In the Supreme Court of India

1 Nature of the matter Writ Petition (Civil) under Article 32

2 Name(s) of the Petitioner(s) /Appellants : Solidarity Committee for

Bengali Refugees And Others

3 Email Id no. of the petitioners Not Available

4 Name of the Respondents Union of India & others.

5 No. of the Case Writ Petition (civil)………. Of 2015

6 Advocate for Petitioners Dr. Kailash Chand.

6A Email Id of the Advocate NA

7 Advocate for Respondents NA

8 Section dealing with the matter XX

9 Date of Impugned order NA

10 Names of Hon’ble Judges NA

11 In land acquisition matters NA

11A Notification/Govt. Order

No.(u/s 4,6), Dated issued NA

By centre/state of NA

11B Exact purpose of

acquisitioned village involved NA

12 In civil matter NA

12A Suit no. Name of lower court NA

12B Date of judgment NA

13 In Writ Petition : ‘Catchword’ of

Other similar matters Migrants of Pakistan

& Bangladesh.

14 In case of motor vehicle accident

Matters : vehicle number NA

15 In service matters NA

I) Relevant service rules, if any NA

ii) ID Reference /Award no. if applicable NA

16 Nature of Urgency NA

17 In case it is a tax matter NA

i) Tax amount involved in the matter NA

ii) Whether a reference/statement of

the case was called for or rejected NA

iii) Whether similar tax matter of same

Parties filed earlier (may be for earlier

/other assessment year) NA

iv) Exemption notification/ circular no. NA

19. Valuation of the matter NA

20 Classification of the matter (please fill up

The number & name of relevant category

With subcategory as per the list circulated. NA

21. Title of the Act. involved (Centre/State) Constitution of India.

21A Sub classification Indicate

section/Article of the Statute. 14,21,20(1),22(4),

Citizenship Act.1955

21B Sub section involved 5(1)(a), 3(1)(b),

3(1)(c), 2(1)(b), 6A

21C Title of the rules involve

(centre/state Citizenship Rules, 1956, 2004, 2009

21D Sub classification (indicate

Rule/sub rule of the statute) NA

22. Point of law and question

of law raised in the case. Discrimination between the migrants of West Pakistan, East Pakistan and Bangladesh in regard to granting Citizenship of India & rehabilitation.

23. Whether matter is not be listed

before any hon’ble judge ?

Mention the name

of the hon’ble judges. NO/NA

24. Particulars of identical/similar

case, if any.

i) Pending Cases WP (civil) 243 of 2012 & 916 of 2014.

ii) Decided cases with Citation NA

25. Whether the petition is against

Interlocutory/final

order/decree in the case. NA

26. If it is a fresh matter, please state

name of The High Court and the corum

in the impugned judgement/order. NA

27. If the matter was already listed in this court. NO

i) When was it listed NA

ii) What was the Coram NA

iii) What was the direction of the Court NA

28. Whether a date has already been fixed

Either by court or on being mentioned for

The hearing of the matters ? If so, please

Indicate the date fixed noted. NA

29. Is there is a caveator ? If so, whether

notice has been issued to him ? NA

. Whether date entered into computer. NA

30 Nature of Urgency Ex-parte ad interim orders

31. If it is a criminal matter, please state NO

i) Whether accused has surrender NA

ii) Nature of offence, i.e. convicted

under section with Act. NA

i) Sentence Awarded NA

ii) Sentence already undergone by the accused NA

32. FIR / RC / ETC. NA

I) Date of registration of FIR etc. Name & place NA

II) Case no. in trial court & date of judgement NA

III) Name & place 1^st Appellate Court NA

IV) Case no. in 1^st. Appellant

court & date of judgement NA

Dr. Kailash Chand.

ADVOCATE FOR THE PETITIONERS

Synposis and List of Dates

India, as defined in the Govt. of India Act, 1935, was partitioned on religious basis. After partition, lakhs of people were forced to migrate from West Pakistan, East Pakistan & Bangladesh to the territory of India for religious persecution. The migration of the people of Indian Origin for religious persecution and fear of such persecution, were started during the period of independence and still going on. As & when the communal tensions increase and riots start in Bangladesh or in Pakistan, the rate of such migration of religious minorities of those countries to India increase.

A part of such migrated people entered into India without Passport-Visa etc., were given the status of displaced persons/refugees, even many of them recognized as full fledged citizens of India in regard to job of the govt. of India, enlistment in the voters list, issuance of passport etc. without fulfilling ‘statutory requirements’, whereas other part, mostly downtrodden people, who migrated to India on or after 25^th March, 1971, were victims of discrimination. They were defined as ‘Illegal Migrants’ u/s 2(1)(b) of ‘The Citizenship (Amendment) Act, 2003’, prohibiting them from granting Citizenship of India and were subjected to harassment, arrest, detention & deportation to the NO MAN’S land of the India-Bangladesh border against their will on the gun point of the BBG-BSF. In fact, the Govt. of India has been trying to push them back to their places of previous residence, where, they were persecuted and were forced to flee and there are substantial grounds for believing that, they would be again in danger of being torture in those countries. As per the principles laid down by the United Nations in the ‘convention against torture and other cruel, inhuman or degrading treatment or punishment’, no state party can do it. India is a signatory to the convention and the govt. of India should honour the principles of the convention of the United Nations.

Overriding the Article 5(1)(a) of ‘The Citizenship Act, 1955’ , the Govt. of India also issued a letter no. 26011/16/71-10 dated the 29^th November, 1971, directing all the State Governments/UTs not to grant Indian Citizenship u/s 5(1)(a) to those Migrants, who came to India on or after 25^th March, 1971, during the period of Bangladesh Liberation war. Unfortunately, the said order of the govt. of India is still in force, yet not been declared withdrawn, without any valid ground, as 25^th March, 1971, the day of independence of Bangladesh, does not carry any significance to the minorities of Bangladesh. Because the country is still a Islamic country as was the Pakistan and the minorities of that country are subjected to religious persecution, torture and victim of injustices. Due to the order of the Govt. of India, the Migrants of East Bengal are deprived of registering themselves as Citizens of India for more than 40 years. As a result of the order of the govt. of India, now, children and grandchildren of the migrants, who have born in India, are debarred from citizenship by birth u/s 3(1)(b) & 3(1)(c) of the Citizenship Act. 1955.

All the Migrants of Indian Origin are hard works, intelligent, patriot & loyal to India. They have been living in this country for several years to several decades and have been taking part to build up India. They have no connection with Bangladesh & Pakistan and their children & grand children were born in India. They took part in the freedom struggle of the country on India’s side. The then govt. of India and the national leaders of the country also declared their commitment to the minorities of Pakistan to grant them citizenship of India and rehabilitation assistances in India. Now, the govt. of India cannot deny to grant them citizenship on the simple ground, that, they have migrated to India later on.

These Migrants are also entitled to get the status of displaced persons/ refugees in accordance with the ‘United Nation’s Convention relating to the status of Refugees adopted in 1951 and 1967 protocol and they cannot be defined as ‘illegal migrants’.

India has given shelter to the refugees from various countries like Tibet, Mayanmer, Afganithan etc. None of the refugees has been called as illegal migrant. Surprisingly, only the migrants of Indian origin were stamped as illegal migrants u/s 2(1)(b) of the Citizenship (Amendment) Act. 2003. With a gazette notification on 7^th September, 2015, the govt. of India has directed not to treat the migrants of Hindu and other minority communities of Bangladesh and Pakistan, who faced religious persecution in those countries, as illegal migrants. But the step of the govt. of India is not at all sufficient. The Citizenship Act. 1955 is to be amended suitably, so that, the migrants of Indian origin may not be called illegal migrants and they may be granted citizenship of India.

The Indian Parliament in the clause 2 of ‘The Immigrants (Expulsion from Assam ) Act, 1950’ also have given special protection to the Migrants of Indian Origin, who were compelled to be migrated from the territory now included in Bangladesh/Pakistan on account of Civil Disturbances or fear of such Disturbances.

On 18^th December, 2003, when the Citizenship (Amendment) Bill, 2003 was introduced in the Rajya Sabha, the then leader of the opposition Dr. Manmohan Singh and independent member Sri Shankar Roychowdhury from West Bengal appeal and pleaded for a special provision in the bill, so that, the migrants of Bangladesh, who were forced to leave the country for religious persecution or fear of such persecution, may be granted citizenship of India, when, on behalf of the govt. of India, the then Dy. Prime Minister of India and Home Minister Sri L. K. Advani told the said migrants as ‘bona fide refugee’ and declared his consent to the proposal of the leader of the opposition and Sri Shankar Roychowdhury. Unfortunately, when the bill was finalized, no such provision was included in the Act. so that, the migrants may be granted citizenship of India.

Being aggrieved for those injustices & discrimination against the Migrants of Indian Origin mentioned herein above, the unfortunate Migrants & their various Organizations, many democratic people of India have been fighting democratically since long years for justice. They have wrote several letters to the competent authorities, launched hunger strikes and even their representatives discussed with the Prime Minister of India & the Home Minister 3 / 4 times to achieve justice, but all in vain.

Therefore, for the interest of those unfortunate Migrants of Indian Origin – the victims of partition of India, and without finding any other alternative, the petitioners being the Social Welfare Organizations of the intellectuals, lawyers and workers of civil liberty movements and also the public spirited persons are compelled to file the instant Public Interest Litigation (PIL) by way of Writ Petition under Article 32 of the constitution of India before this Hon’ble Supreme Court for public interest and for the interest of justice.

List of Dates

15.08.1947

British India was partitioned on religious basis resulting communal

riots & genocides both in India and Pakistan following a huge number

of migration of minorities from Pakistan to India

15.08.1947 to15.1.1950

Speeches of the Prime Minister Pandit J. Nehru, President of India

Dr.Rajendra Prasad, Home Minister Sardar Bllavbhai Patel, Father of the

Nation Mahatma Gandhi towards the minorities of Pakistan for granting

them Citizenship of India, rehabilitation etc.

01.03.1950

The Parliament of India enacted ‘The Immigrants ( Expulsion from Assam )

Act, 1950 ’ which extends to whole of India. The Act. provided protection

to the Migrants, who were forced to migrate from their place of origin for

civil disturbance etc.

08.04.1950

Nehru-Liaquat pact was signed and the two countries – India & Pakistan

assured protection to the minorities of their own country & some facilities

& rights to the Migrants.

10.10.1951

Dr. B. R. Ambedkar, father of the Indian Constitution expressed his deep

concerned to the plight of the minorities of East Bengal in explanation of

his resignation from the cabinet of Pandit J. Nehru on 10^th October, 1951.

22.04.1954

On 28^th July, 1951 United Nations Convention relating to the status of

refugees adopted & declared some policies, which were effected from 22^nd

April, 1954, where India is not a signatory, but India have been honouring

the declaration of the UN’s from the beginning. India has given shelter to

refugees of various countries without Bangladesh.

1955

The Parliament of India has enacted ‘The Citizenship Act, 1955’ containing

several Articles in Part II of the Indian Constitution & subsequent

amendments.

16.12.1966

Amendment to the Refugee Convention of the United Nations, known as

’1967 Protocol’. Principles of the Protocol was formulated & adopted in the

General Assembly of the UNs held on 16^th December, 1966. The Protocol

got universal coverage.

29.11.1971

The Govt. of India issued an order/ letter No. 26011/16/71-10 dated the 29^th

November, 1971 directing all the State Govt./UTs for not granting

Citizenship u/s 5(1)(a) of the Citizenship Act,1955, to the Migrants of East

Bengal, the Indian Origin, who came to India on or after 25^th March, 1971.

26.06.1987

India is a signatory to the United Nations ’Convention against Torture &

other Cruel, Inhuman or Degrading Treatment of Punishment .‘ The United

Nations General Assembly adopted this policy by resolution No. 39/46

dated the 10^th December,1984 and was enforced on & from 26^th June,

1987. The Convention embodied the principles of ‘non-refoulement’,

where it is clearly stated that, no state party shall expel, return (refouler )

or extradite a person to another state where there are substantial grounds

for believing that, he would be in danger of being subjected to torture.

01.07.1987

Parliament enacted ‘ the Citizenship ( Amendment ) Act, 1986 ‘ and placed

the right of Citizenship by Birth under certain conditions affecting the

interests of the migrated people .

1988 – 89

SeventIeth Report of the Estimate Committee ( 1988-89 ), Ministry of Home

Affairs (Rehabilitation Division ) was presented to the Lok Sabha on 12^th

April, 1989, which recommended to grant Citizenship to the Migrants of

East Pakistan without formal application & without fulfilling ‘Statutory

Requirements’ on the pattern adopted for the Migrants of West Pakistan

around 1947 and pre 1966 Migrants to Assam.

09.01.1996

In the year 1996, the Supreme Court of India, in a judgment to the case

between National Human Rights Commission VS State of Arunachal

Pradesh (AIR 1996 SC 1234) directed the State Govt. to protect life &

personal liberty of the Chakma Refugees residing in the State and not to

evict them. The Hon’ble Court also directed to the District Magistrates to

forward the applications of the Chakmas for Citizenship of India u/s 5(1)(a)

of the Citizenship Act, 1955 to the competent authorities.

17.10.1996 to 17.7.1997

Only in the State of Assam the Election Commission of India introduced the conception of ‘D’ Voters (D for doubtful ) prohibiting lakhs of genuine voters from casting votes in the general election, only based on doubt, that, they are not citizens of India. The list of the ‘D’ voters was prepared by the local authorities being politically motivated.

16.03.2001

The Govt. of Odisha, Home Department, directed to the District

Magistrates/Superintendents of Police to deport the Migrants of Indian

Origin in accordance with the order of the Govt. No. PPT(P)60/2000-15681

dated the 16^th March, 2001 without proper trial in the court of law.

18.12.2003

‘The Citizenship (Amendment) Bill, 2003’ was moved in the Rajya Sabha on 18^th

December, 2003 by the Hon’ble Deputy Prime Minister of India & Home Minister

Sri L. K. Advani, when the opposition leader in the House Dr. Manmohan Singh &

other MPs demanded a special provision in the Bill for granting Citizenship to the

Migrants of Bangladesh, who have faced religious persecution in their place of

origin & were forced to flee the country and took refuge in India. In response to

the appeal of the MPs, Sri Advani expressed his consent to the demand.

Unfortunately, the Bill was finalized as an Act. without providing any such

special provision to protect the interest of the Hindu etc. migrants.

28.02.2004

Govt. of Odisha, Home Department, issued 1551 notices to 1551 Hindu Migrants

of Mahakalpara Block, District Kendrapara on 28^th December, 2004 & on several

subsequent dates, directing them to quit India within 30 days from the date of

service of those notices.

01.03.2004

No fees were levied from the persons of Indian Origin for application u/s 5(1)(a)

& 5(1)(d) as per the direction of the Clause No. 31(1) of the Citizenship Rules,

1956. Now, fees of Rs.5000.00 for application u/s 5(1)(a) & Rs.3000.00 for

application u/s 5(1)(d) have been fixed for the Indian Origin as per the direction

of Clause 41 of the Citizenship Rules, 2009 (schedule IV). Most of the migrants

of Indian Origin from East Bengal are poor in BPL category and unable

to pay the fees.

The Govt. of India made The Citizenship (Amendment) Rules, 2004 in their

application to the states of Gujrat and Rajasthan to facilitate the process of

granting Citizenship to the Migrants of West Pakistan, who came to India during

the war with Pakistan in 1965 & 1971. In fact, 1971 war took place in East Bengal,

but, the said facilities were not extended to East Bengal Migrants.

22.11.2001 & onwards

Various Members of Parliament from several political parties have been raising questions since 22^nd November, 2001 to till today, in the Parliament on different dates, in regard to religious persecution inflicted upon the minorities of Bangladesh, when on behalf of the Govt. of India, various Ministers have admitted that, the minorities of Bangladesh are subjected to harassment, injustice & torture. Very recently, on 7^th September, 2015, the Central Govt. in a Gazette Notification also has admitted, that, the minorities of Bangladesh are subjected to religious persecution.

From 7^th December, 2004 to till date, Members of Parliament both the Lok Sabha

& Rajya Sabha from various parties, have been demanding for granting

Citizenship of India to the Migrants of Indian Origin, who have faced religious

persecution in their place of origin & were compelled to flee that country and

took refuge in India, by way of Special Mentions & in Zero hours. MPs also have

wrote letters to the Prime Minister of India, Home Minister & President of India.

12.07.2005

In the case between Sarbananda Sonowal vs Union of India (AIR 2920 ),

three judges bench of the Supreme Court of India declared IM(DT) Act,1983

as ultra vires to the constitution of India and upheld ‘The Immigrants

(Expulsion from Assam ) Act, 1950’, where special protection to the forced

Migrants for Civil disturbances etc. is embodied in its Clause No. 2.

06.02.2007

The Convention of the United Nations General Assembly held on 20^th

December, 2006 adopted the policy for protection from Enforced

Disappearance, where India has become a signatory to the Convention. The

Convention embodied the principles of ‘non-refoulement’ or extradite a

person to another state, where, there are substantial grounds of believing

that, he or she would be in danger of being tortured for enforced

disappearance.

23.11.2009

Govt. of India, Ministry of Home Affairs (Foreigners Division) issued an

order No. F-14011/55/09-F.VI, date 23.11.2009, which, laid down certain

procedures by which, on the plea of identification of Bangladeshi, the bona

fide Migrants are being harassed and the Govt. & Police Authorities have

been throwing the said Migrants in the NO MAN”S land of the India-Bangladesh border.

30.04.2010

The Govt. of West Bengal, Backward Class Department, has issued a circular

No. 1465 BCW/MR-67/10 dated the 30^th April, 2010 directing all the

applicants for Caste Certificate to submit proof of residence in West Bengal /

India, since 1950 to prove their Citizenship of India.

03.06.2010

The Election Commission, Lucknow, issued an order No. 140/E/10-N dated

the 3^rd June, 2010 to delete the names of the Migrants of East Pakistan

who have been given Rehabilitation Assistances / Settlement by the govt. of India in the stateof Uttar Pradesh on the plea that, they are not regular / registered Citizen of India.

22.12.2010

High Court of Delhi passed the Judgement in the case between Namgyal

Dolkar VS Govt. of India (WP-C 12179/2009) recognizing Dolkar, a Tibetian

origin, as an Indian Citizen by Birth in accordance with the Article 3(1)(a) of

‘The Citizenship Act,1955, since, she born in India on or after 26^th January,

1950 and before 1^st July, 1987.

07.08.2013

The High Court of Karnataka passed the judgement (No. 15437/2013) on

the petition of Tenzin Choephag Ling Rinpoche, a Tibetian origin,

recognizing him as an Indian Citizen by Birth, as per the Article 3(1)(a) of

‘The Citizenship Act, 1955, as he born in India on or after 26^th January,

1950 and before 1^st July, 1987.

Last one decade

Since one decade, the Migrants of East Pakistan & Bangladesh, who were

forced to flee those countries for religious persecution and fear of such

persecution, have been stamped as ‘Illegal migrants’ & debarred them from

granting Indian Citizenship. The Migrants of Indian Origin are subjected to

harassment, arrest, detention & deportation to the NO MAN’S land of the India-Bangladesh borderagainst their will. Thus the Govt. of India has been :

A Violating the commitment of the National Leaders of India &

declared policy of the then Govt. of India.

B Violating the directions of Articles 14 & 21 of the Constitution

of India by discriminating between the Migrants of West

Pakistan and East Pakistan, as well as Pre & post 1971

Migrants.

C Violating the principles of the United Nations in regard to refugees by deporting the Migrants to NO MAN’S land of the India-Bangladesh border, where, they were tortured and there are substantial grounds of believing that he would be in danger of being subjected to torture again and also violating the Article 22(4) of the Constitution by confining Migrants in the detention camp for indefinite period.

07.09.2015

The govt. of India has issued a Gazette Notification directing, not to call the Hindu and other minorities of Bangladesh and Pakistan, who were forced to leave those countries for religious persecution and fear of such persecution and entered into India without valid documents etc.

The petitioners have been supporting, co-operating & coordinating the

struggles of the Bengali Migrants since long times by various ways. Now,

finding no other alternative, for the end of justice, the instant Public

Interest Litigation (PIL) under Article 32 of the Indian Constitution, is filed

before the Supreme Court of India in the form of Writ Petition for Public

interest and also for the interest of Justice as well as to complete the

Justice upon those unfortunate Migrants of Pakistan and Bangladesh, who

are victim of partition of India and seek refuge in India facing persecution

in their place of origin.

17.09.2015

The Supreme Court of India has given judgment on the case No. WP (Civil) – 510 of 2007 on 17^th September, 2015 to grant Citizenship of India to the Chakma and Hajong migrants of East Bengal within three months from 1^st September, 2015.

IN THE SUPREME COURT OF INDIA

ORIGINAL CIVIL JURISDICTION

WRIT PETITION (CIVIL) NO. OF 2015

(Writ Petition under Article 32 of the Constitution of India)

IN THE MATTER OF

1 Solidarity committee for Bengali Refugees Petitioners

907, Soondarhi Station Road, Pilibhit

Dist. : Pilibhit

Uttar Pradesh, Pin Code : 262001

2 Citizens Rights Preservation Committee, Assam ( CRPC )

( Regn. No. 2729/1995-96 )

House No. – 42, Beltala P.O. – Khanapara Road

Guwahati – 781022

3 All India Namasudra Kalyan Parisad

Shanti Nagar, Palta, P.O. – Nona Chandanpur

Dist. – North 24 Parganas, Kolkata - 700122

4 Nityananda Mallick, Practicing Advocate

S/O Late Raj Kumar Mallick

Maharajpur, P.O.- Gobiasarai

Dist. Pilibhit,UP. Pin - 262122

VERSUS

1 The Union of India Respondents

Through the Principal Secretary,

Office of the Hon’ble Prime Minister of India

South Block, New Delhi – 110011

2 The Secretary, Ministry of Home Affairs,

Govt. of India, North Block, New Delhi

3 The Secretary, Ministry of Law,

Govt. of India, New Delhi

4 The Secretary, Ministry of External Affairs,

Govt. of India, New Delhi

5 The Election Commission of India,

New Delhi

6 State of Assam

Through, The Chief Secretary, Secretariat,

Dishpur, Guwahati

7 State of West Bengal