The Gauhati High Court has set aside an order of a Foreigners’ Tribunal (FT) in Assam declaring a person, who entered India in 1964, to be a foreigner and has directed him to file an application under the Citizenship Amendment Act, 2019 (CAA). The bench of Justices Malasri Nandi and N Kotiswar Singh were unable to consider the petitioner, Bablu Paul, to be a citizen under section 6(A) of the Citizenship Act and which ahs specific provisions for citizenship of a person who has entered Assam within a specific time period and at the same time could not declare him to be illegal migrant because he was given refuge by the Indian government after fleeing from Bangladesh. Thus, the bench after having explored the rest of the provisions of the Citizenship Act, felt compelled to give directions as per CAA.
Background of the case
The petitioner challenged order of the Foreigners’ Tribunal-II, Karimganj, Assam by which he was declared a foreigner who came to India illegally from Bangladesh on or after March 25, 1971. He contended that when he was 2-years-old, he entered India with his father and grandfather on September 30, 1964, they and were given refugee status in India as evident from the certificate issued by government of West Bengal to members of minority community from erstwhile East Pakistan. His grandfather settled in Assam and thus his name appeared in the 1966 voter’s list.
The Tribunal, however, took the view that even if he entered india in 1964, he was born in East Pakistan, and had remained in Calcutta where his father also purchased land in 1976 and where he himself studied till Class 5. The Tribunal noted that he came to Assam only in 1984 where he started his jewelery business. The Tribunal also found certain discrepancies in the records regarding his grandfather, his father as well as his mother and took the view that these documents were collusively obtained by the petitioner and declared him an illegal immigrant.
The court after going through the certificate issued by West Bengal government, the court held that the petitioner entered India from East Pakistan sometime in the year 1964 along with his father and grandfather and thus there was no need to examine other documents like the Tribunal did. The court held thus,
“Even if a person claims to be a deemed citizen of this country by virtue of Section 6A(2) of the Citizenship Act, 1955, who had come from East Pakistan and who is of Indian origin, the following conditions must be also fulfilled, namely, (i) he came to Assam before 01.01.1966 from the specified territory and (ii) he had been ordinarily residing in Assam since the date of the entry in Assam.”
The court said, “From the reading of Section 6A(2), in order to claim to be a deemed citizenship, firstly, the person must be of Indian origin, secondly, he must come before 01.01.1966 to Assam, thirdly, he must come to Assam from the specified territory and fourthly, he must have been ordinarily resident of Assam since the date of entry in Assam.”
In this case, the court held that even if the petitioner came to West Bengal in 1964, he cannot avail the benefit of deemed citizenship under Section 6A(2) of the Citizenship Act, 1955 as he does not fulfills all the conditions stipulated in the said Section.
The question raised by the court was that:
·What will be the status of the petitioner, who had entered India in the year 1964 from East Pakistan and continued to stay in India?
·Is he to be declared a foreigner?
The court held that there was no doubt that the petitioner entered India in 1964 and settled in Assam since 1984 and hence, it did not concur with the Tribunal where it held that the petitioner had obtained the documents collusively and neither with the declaration that the petitioner is a foreigner who came to India illegally from Bangladesh.
However, the court said,
“Even though we are not in agreement with the aforesaid finding and conclusion of the learned Tribunal that he is a foreigner of post 1971 stream, we are also unable to declare him as Indian citizen as claimed by him, for the fact remains that he was not born in this country but was born in East Pakistan, now Bangladesh and entered India in 1964. As to whether a person who enters India in 1964 from East Pakistan can be considered to be an Indian or not, there is no provision under the Citizenship Act, 1955 except for Section 6A(2) and (3) of the Act.”
The section 6(A) if the Citizenship Act is very specific that if one has entered from Bangladesh and ordinarily resided in Assam before January 1, 1966 only then benefit of citizenship may be granted. As regards persons who entered India (Assam) between January 1, 1966 and March 25, 1971, such persons can get the benefit of citizenship, if they register themselves before the competent registering authority and those who entered after 25.03.1971, they will be declared as foreigners.
The court held that “since the petitioner did not enter from the specified territory in Assam, but West Bengal, and also as he has not been shown to be a resident of Assam ordinarily after his date of entry in 1964, he cannot get the benefit of deemed citizenship conferred under Section 6A(2) of the Citizenship Act, 1955.”
Reference to CAA
The court then made a reference to sub-section (1) to clause (b) of Section 2 of the Citizenship Act, 1955 inserted through the Citizenship (Amendment) Act, 2019 which states:
“Any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December, 2014 and who has been exempted by the Central Government by or under clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any rule or order made thereunder, shall not be treated as illegal migrant for the purposes of this Act.”
The court noted that this provision gives a window of opportunity for any person of Indian origin and who belongs to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community, to get the advantage of not being treated as an illegal migrant to get registration as citizenship under Section 5 of the Act.
Whether petitioner is foreigner
The court considered the facts of the case and held that when he entered in 1964 he was given shelter by the country.It said, “Merely because he was given shelter does not mean that he is a legal migrant as he did not possess any valid document/passport to enter India. Thus, he remains an illegal migrant, in which event he could not get the benefit of citizenship by way of registration as provided under Section 5 of the Act as it originally stood.”
The court deemed the petitioner to be entitled to be considered for grant of citizenship under section 5 of the Act and held that he cannot be considered to be an illegal migrant by virtue of the CAA 2019 and that the provisions of Section 6A(2) of the Citizenship Act, 1955 has to be interpreted in a manner which serves the purpose of CAA, 2019.
The court thus set aside the order passed by the Foriegners’ Tribunal declaring the petitioner to be a foreigner and directed him to make an application for registration as citizen of India under Section 5 of the Citizenship Act, 1955 immediately, before the competent authority. The court added, “the competent authority on receipt of the such an application will pass appropriate orders regarding citizenship of the petitioner.”
The court also directed that until the consideration of his application by the competent authority, he shall not be subjected to any coercive action by the State/authorities.
Whether CAA is truly in operation
While the court has directed that the petitioner should file application under the new amendment of 2019 to the Citizenship Act, the question remains whether the competent authority is able to deal with such application.
The truth of the matter is the Ministry of Home Affairs (MHA) has been deferring the formulation of rules under CAA ever since the Act was passed and even notified in the gazette. The Central government has already made it clear that the Indian citizenship to the eligible beneficiaries of the CAA will be given only after rules under the legislation are notified. The MHA has been seeking extension from the Committee on Subordinate Legislation as rules are to be notified within 6 months of passing the law. Hence, CAA despite having been notified as a law has not become operational in a bureaucratic sense, as no rules have been laid out to set out the procedure on how these applications for citizenship are to be considered and how are they to be handled procedurally.
The complete judgement may be read here:
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