http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

PETITIONER: NATIONAL HUMAN RIGHTS COMMISSION

       Vs.

RESPONDENT: STATE OF ARUNACHAL PRADESH & ANR

DATE OF JUDGMENT:       09/01/1996

BENCH: AHMADI A.M. (CJ) BENCH: AHMADI A.M. (CJ) SEN, S.C. (J)

CITATION:  1996 AIR 1234            1996 SCC  (1) 742  JT 1996 (1)   163        1996 SCALE  (1)155

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T AHMADI, CJI      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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

    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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8  

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.