Bablu Paul @ Sujit Paul v. UOI, WP(C) No. 7229/2017
Read the judgement here.
Date of decision: 14.12.21
Court: Gauhati High Court
Justices: Justice N. Kotiswar Singh
Summary: The Gauhati High Court set aside the Foreigners’ Tribunal order that declared the Petitioner to be a foreigner and held that he was qualified as per the Citizenship Amendment Act to avail of citizenship through registration. It also observed that the application of S.6(A) of the Citizenship Act, 1955 would be restricted to include people who entered Assam after residing in another state only temporarily.
Facts: The Petitioner challenged the Foreigners Tribunal’s (FT) order declaring the Petitioner to be a ‘foreigner’ on the grounds that he had entered India with his father and grandfather on 30.09.1964 (i.e. before the cut-off date of 25.3.1971 as per Section 6A of the Citizenship Act, 1955) from erstwhile East Pakistan and that they were also given refugee status by the Government of India. The FT found discrepancies with the evidentiary documents used by the Petitioner and his father to prove their citizenship, concluding them to have been obtained collusively. It observed that even if the Petitioner along with his father had come in the year 1964, they had settled in Calcutta, and not in Assam after arriving in India, and therefore did not come under the scope of S.6A. The FT, thus, declared them to be ‘illegal migrants’ having entered India after 25.03.1971.
Holding: The Gauhati High Court found the evidentiary material (refugee certificate given by the Government of West Bengal) on record to be credible and on that basis held that the Petitioner did in fact enter India in 1964. But, the Petitioner had not been ordinarily residing in Assam since his arrival, which is a necessary condition for being an Indian citizen under Section 6A(2). The said section provides that people who are of Indian origin, came from Bangladesh before 1.01.1966 to Assam and have been ordinary residents of Assam since then are deemed to be citizens of India from 1.01.1966.
The Court tried to determine the citizenship status of people who had entered India prior to 1966 from East Pakistan and continued to stay in India in a state other than Assam. It stated that Section 6A(2) has to be interpreted to subserve the purpose of the Act. Thus, even if one came to India from the specified territory, i.e. Bangladesh and entered through a state other than Assam, they would be eligible under the said section if they ultimately resided in Assam and entering through another state was merely transitory in nature. This did not apply to the present case since the Petitioner had been living in Kolkata till 1984 and shifted to Assam only in 1984.
However, the High Court disagreed with the FT’s order to the extent of declaring the Petitioner to be an illegal immigrant of the post-1971 stream and finding the evidentiary documents to be collusively obtained. But the court said that he cannot be categorised as an Indian citizen either as the Petitioner does not satisfy the criteria under Section 6A(2).
The High Court then relied on the amendment to sub-section (1) to clause (b) of Section 2 of the Citizenship Act, 1955 by the Government of India through the Citizenship (Amendment) Act, 2019, which provides that any person from Bangladesh, Afghanistan and Pakistan and who belongs to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community who entered India before 31.12.2014 and, who has been exempted by the Central Government by or under relevant provisions of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946, shall not be treated as an illegal migrant for the purposes of this Act. The Court, however, restricted its analysis to the Citizenship (Amendment) Act, 2019 and did not enquire whether the Petitioner would fall in the exemptions provided by the Central government under the other Acts.
Section 5 of the Citizenship Act empowers the Central Government to register a person, who is not an ‘illegal migrant’ as a citizen of India if they meet certain criteria. The Court noted that since the Petitioner is a Hindu who had entered India before 31.12.2014 and was given permission to settle in India, the said amendment is applicable to him and the disability imposed of being an ‘illegal migrant’ by Section 5 was lifted.
Accordingly, the High Court set aside the FT order and directed the petitioner to make an application for registration as a citizen of India under Section 5 of the Citizenship Act, 1955 immediately before the competent authority, which would pass appropriate orders regarding citizenship of the Petitioner.
Significance: This judgement is significant since it alludes to the Citizenship (Amendment) Act, 2019 and allows non-Muslim illegal immigrants to seek Indian citizenship. It is important to note that even though the rules to the said Act have not been framed yet, this judgement implies that the Act is already in operation. In a previous case, the Court did not rely on the amended Act but simply cited the 2015 Gazette notification to provide citizenship to persecuted religious minorities. But the current case has clearly invoked the Act and set an important precedent for non-Muslim foreigners/illegal migrants to seek citizenship. This implies that the categories of people who are covered by the Citizenship (Amendment) Act, 2019 cannot be declared illegal migrants by Foreigners’ Tribunals. It carves out a new way of gaining citizenship, albeit only for non-Muslims.
This judgement also clarified the position of the people from specified territories who entered India from a state other than Assam and brings them within the ambit of Section 6(A)(2) of the Citizenship Act, 1955. It expands the scope of the Act to a limited extent and will be beneficial for such people to make a case for their citizenship.
The case also brings to fore the complexities and peculiarity of the Indian citizenship regime as it operates as per Section 6(A)(2). Due to the Assam Accord, Bangladeshi migrants are distinguished on the basis of their point of entry into India which in turn affects their citizenship status. In another case, the Court held that a Chakma family of Indian origin who entered Assam before 1966 could not be regarded as Indian citizens because they did not ordinarily reside in Assam but in Arunachal Pradesh, which shows the pedantic approach of the judiciary in interpreting the law. The complexity of the issue is demonstrated by the fact that on one hand, a special provision exists for Bangladeshi migrants, who entered India through Assam, to get Indian citizenship; on the other hand, it is because of their residence in Assam that their citizenship status has come under fire.
Refer to a more detailed note on the CAA 2019 and its continuing implementation here.
Resources:
Parichay Team, CAA revisited: How the May 2021 order of the MHA furthers a discriminatory citizenship regime (Parichay- The Blog, August 2021)
Anupama Roy, CAA 2019 and the Spectre of National Citizenship (The Leaflet, January 2021)
Parichay Team, Mangla Das v. Union of India, Review.Pet./73/2021 (Parichay - The Blog, September 2021)
Centre gets 6th extension to frame rules for Citizenship Act (The Times of India, January 2022)
Parichay Team, Section 6A and Assam, (Parichay - The Blog, July 2021)
This case note is part of Parichay’s ongoing project to study, track, and publish key propositions and latest developments in citizenship law and adjudication in India. This note was prepared by Rhydhi Gupta.