Border Police barred from referring Gorkhas to FTs in Assam

Assam gov’t reiterates commitment to protecting Gorkhas excluded from NRC

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In yet another attempt to placate Assam’s thriving Gorkha community, the Assam government has issued a notice to the Assam Border Police, directing them not to refer any cases of Gorkha community members to Assam’s Foreigners’ Tribunals.

This flows from a decision taken by the Assam state government on August 4 during a Cabinet meeting to not to prosecute any Gorkha citizen under the Citizenship Amendment Act (CAA). Moreover, all cases against Gorkhas pending before Foreigners’ Tribunals (FT) would be withdrawn. Subsequently on August 17, the decision was conveyed in an official communique from the office of Diganta Barah (IPS), who hold the post of Secretary to the Government of Assam, in the Home and Political Department, addressed to the Director General of Police and the Special Director General of the Border Police.

It says, “Border Police shall not forward any case under Foreigners Act, 1946 against members of Gorkha Community directly to Foreigners Tribunals.” It further says that the Assam Government has decided “To withdraw all cases through the concerned Assistant Government Pleader in respect of members of the Gorkha community where cases have directly been referred to Foreigners Tribunals.”

The communique may be read here:

Gauhati HC had paved the way

The communique refers to a landmark judgment where the Gauhati High Court on November 29, 2019, had overturned FT orders in cases of as many as 29 members of the Gorkha community who were declared foreigners. In that order, the court had noted, “The mother tongue of the writ petitioners is ‘Nepali’, which is the language spoken by the citizens of the neighbouring country Nepal, and which language is also specified in the Eighth Schedule to the Constitution of India. This is not to say that a Nepali speaking individual can only have his/her origin at Nepal and not at Bangladesh. However, for the purpose of initiating proceeding against a Nepali speaking person, for examination as to whether he/she is a foreigner or not, in respect of references made under sub-section (3) of Section 6-A of the Citizenship Act, 1955 to a Tribunal constituted Page No.# 50/52 under the Foreigners (Tribunals) Order, 1964 having jurisdiction over a district or part thereof in the State of Assam, in terms of Rule 21 of the Citizenship Rules, 2009, the primary and necessary ingredient or the condition precedent is that reference can only be in respect of persons who have come to Assam from the ‘specified territory’, meaning the territories included in Bangladesh immediately before the commencement of the Citizenship (Amendment) Act, 1985, and also having regard to the cut-off date of migration into Assam as prescribed under the aforesaid Section 6-A of the Citizenship Act, 1955.”

It therefore ruled, “For all the aforesaid reasons, we have no hesitation but to allow all the 29 writ petitions by setting aside the impugned opinions in all the said 29 writ petitions. As a necessary corollary, reference made against each of the writ petitioners by the respective Referral Authority are also interfered with. Office to send back the case records to the respective Tribunal forthwith.”

The entire Gauhati HC judgement may be read here:

MHA’s stand goes back to 2018

In fact, the Ministry of Home Affairs (MHA) itself had made its stand on the subject clear as far back as 2018. As per a press release dated October 10, 2018, the MHA had via an official communication to the Government of Assam (dated September 24, 2018) clarified that “members of the Gorkha community who were Indian citizens at the time of commencement of the Constitution, or those who are Indian citizens by birth, or those who have acquired Indian citizenship by registration or naturalization in accordance with the provisions of The Citizenship Act, 1955 are not “foreigners” in terms of section 2 (a) of The Foreigners Act,1946 as well as The Registration of Foreigners Act,1939, therefore, such cases will not be referred to the Foreigners Tribunals.”

The communication further emphasised that “any member of the Gorkha community holding Nepalese nationality and who has arrived in India by land or air over the Nepal border even without a passport or visa and staying in India for any length of time shall not be treated as an illegal migrant if he/she is in possession of any of the identity documents namely the Nepalese Passport, Nepalese Citizenship Certificate, voter Identification card issued by the Election Commission of Nepal, limited validity photo-identity certificate issued by Nepalese Mission in India when deemed necessary and for children between age group of 10-18 years, photo ID issued by the principal of the school, if accompanied by parents having valid travel documents. No such document is required for children below the age group of 10 years, the communication added citing provisions of India-Nepal Treaty signed in 1950.”

The entire press release may be read here:

Exclusion of Gorkhas

Gorkhas are Nepali speaking Indians. There is great diversity even within the community and each sub-group has its own language from either the Tibeto-Burman or Indo-Aryan language families. The Gorkha community is known for their valour and excellence in the battlefield, traits that led to the creation of the Gorkha Regiment by the British back in 1815. The regiment later became a part of the army of independent India and today there are 39 battalions serving under 7 Gorkha regiments in the Indian Army.

In light of the above, it was understandable that the community felt betrayed when names of over 85,000 Gorkhas were excluded from the final National Register of Citizens (NRC) that was published on August 31, 2019. SabrangIndia had previously reported on how Sarma was attempting to placate the nearly 25 lakh Gorkhas in his state with sops such as declaring them a protected class in different areas such as the Bodoland Territorial Region (BTR) and the Sadiya tribal belt of Upper Assam. While this would have enabled them to buy and sell property, it wasn’t enough to address anxiety related to citizenship issues.

Favouring one minority over others?

But there are bigger issues at play here. In an exclusive analysis dated September 19, 2019, Sabrangindia based on sources from the Intelligence Branch of the Assam government, had exposed how among the 1.9 million (19 lakh) persons excluded from the final NRC, apart from 85,000 Gorkhas, there were people hailing from several other key religious and ethnic minorities. These include 6.90 lakh Bengali Hindus, 4.86 lakh Muslims of East Bengal origin, 60,000 Assamese Hindus , 58,000 Koch Rajbongshis, 35,000 persons belonging to the Goria Moria Deshi community, 20,000 Bodos, and 9,000 Karbis. Others among the 19 lakh NRC excluded include: Rabha (8,000), Hajong (8,000), Mishing (7,000), Ahom (3,000), Garo (2,500), Matak (1,500), Dimasa (1,100), Sonowal Kachari (1,000) and Maran (900). Then a smaller number of 200 Bishnupriya Manipuris, 125 Nagas, 75 Hmars, 85 Kukis, 50 Thadous and 8 Baites are among those who find themselves excluded.

Therefore, with this much publicised decision of the Assam government that seeks to give reliefs to the 85,000 members of the Gorkha community among the NRC excluded, as well as those among them who may be facing D Voter or Declared Foreigner cases in Assam’s infamous FTs, it appears the government is spearheading a ‘divide and rule’ policy by discriminating between different minority groups, favouring one over others.



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