Gauhati High Court
Menuka Devi vs The Union Of India And 5 Ors on 25 November, 2022
Author: Sanjay Kumar Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/7
GAHC010016202022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/542/2022
MENUKA DEVI
W/O- LATE KRISHNA LAL SARMAH,
R/O- VILL.- AMSING JORABAT, P.O. AND P.S. SATGAON,
DIST.- KAMRUP(M), ASSAM, PIN- 781027.
VERSUS
THE UNION OF INDIA AND 5 ORS
REP. BY THE SECRETARY, MINISTRY OF HOME AFFAIRS,
NEW DELHI, PIN- 110001.
WP(C) No. 3648/2016
LAKSHMI PRASAD SHARMA @ LAKHI PRASAD SHARMA and 7 ORS
S/O- DHARAMLAL SHARMA @ DHARMALAL SHARMA @ DHARMAL JOSHI.
VERSUS
ELECTION COMMISSION OF INDIA and 6 ORS
THROUGH ITS SECY.
NIRBACHAN BHAWAN
NEW DELHI- 1.
WP(C) No. 1722/2020
KHARGAMAYA DEVI
W/O- SRI PARSURAM GAUTAM
R/O- VILL.- GARHPARA PATHAR
P.O. DARRANG PANBARI
P.S. DHEKIAJULI, DIST.- SONITPUR
ASSAM, PIN- 784111.
Page No.# 2/7
VERSUS
THE UNION OF INDIA AND 5 ORS.
REP. BY THE SECRETARY
MINISTRY OF HOME AFFAIRS
NEW DELHI- 110001.
WP(C) No. 3583/2020
SUSILA GIRI
D/O- SRI JAGAN GIRI
R/O- VILL- BIRKUCHI (NEAR NAMGHAR) P.O. FOREST GATE
P.S. NOONMATI
DIST.- KAMRUP (M)
PIN-
ASSAM
VERSUS
THE UNION OF INDIA AND 5 ORS.
REP. BY THE SECY.
MINISTRY OF HOME AFFAIRS
NEW DELHI, PIN- 110001
WP(C) No. 505/2019
DALBAHADUR CHETRY AND 81 ORS.
SON OF LALBAHADUR
RESIDENT OF HOUSE NO. 109
RESIDENT OF VILLAGE HASTINAPUR
P.S.- TAMULPUR, DIST.- BAKSA
ASSAM, PIN- 781368.
VERSUS
THE UNION OF INDIA AND 5 ORS.
REP. BY THE UNION HOME SECRETARY
MINISTRY OF HOME AFFAIRS
NEW DELHI. PIN NO. 110001.
WP(C) No. 6785/2019
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MAYA DEVI
D/O- LT CHITRA PRASAD KHATIWARA @ CHITRAKHAR
W/O- BHANU BHAKTA DAHAL
R/O- H.NO.8
LALMATI BHETAPARA ROAD
P.O. BELTOLA
P.S. BASISTHA
DIST- KAMRUP (M)
ASSAM, GHY-28
VERSUS
THE UNION OF INDIA AND 5 ORS.
REP. BY THE SECY.
MINISTRY OF HOME AFFAIRS
NEW DELHI-1
Advocate for Petitioners: MR. S. Upadhyay, Advocate.
Advocate for Respondents: Mr. A. I. Ali, Advocate, Election Commission,
Mr. G. Sarma, SC, FT, Ms. L. Devi, SC, NRC and Mr. J. Handique, GA.
Date of Hearing and Judgment : 25.11.2022 BEFORE HON'BLE MR. JUSTICE SANJAY KUMAR MEDHI Heard Shri S. Upadhaya, learned counsel for the petitioners.
2. The Election Commission of India is represented by Shri A. I. Ali whereas Shri G. Sarma, learned Standing Counsel, Foreigners Tribunal, Ms. L. Devi, learned Standing Counsel, NRC and Shri J. Handique, learned State Counsel.
3. All these five writ petitions have been filed with a common grievance are taken up together for disposal. The petitioners belong to the Gorkha Community and in the Voters List, their names have been pre-fixed with "D". Various voters list pertaining to the Constituency of the petitioners have been annexed to the writ petition to substantiate the submission that "D" has been pre-fixed against their respective names.
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4. The antecedents of the petitioners have been given in details whereby it has been stated that their parents were all along residing in the State of Assam and even after change in marital status, the petitioners are staying in Assam and casting their votes alongwith the other family members. However, suddenly they could find that the "D" has been pre-fixed in their names in the Voters Lists of recent origin starting from the year 2005.
5. The learned counsel submits that they belonging to the Gorkha Community, pre-fixing their names with "D" in the voters list is wholly unwarranted and liable to be interfered with.
6. The learned counsel has also placed before this Court a recent notification of 28 th July, 2021 whereby the Revenue Department has incorporated the Gorkha Community as a part of Chapter X of the Assam Land and Revenue Regulation, 1886.
7. Shri A. I. Ali, learned Standing Counsel, Election Commission of India however submits that the notification dated 28th July, 2021 placed before this Court pertains to only the Sadiya Tribal Belt and is not applicable in the other parts of Assam. He, however, fairly submits that a Division Bench of this Court in a bunch of connected matters reported in 2020 (1) GLT 413 (Indira Newar & Ors. Vs Union of India & Ors.) vide judgment and order dated 29.11.2019 has laid down as follows:-
"4. We have undertaken the rigorous exercise to look into the facts appearing in each individual writ petition to find out whether in any way any of the writ petitioners are shown to have any connection or origin or traceable to any territories included in Bangladesh, within the meaning of 'specified territory' under Section 6-A (1) (c) of the Citizenship Act, 1955. In the case of each of the writ petitioners they are shown to belong to places within the State of Assam, as variously recorded in the Reports of the Local Verification Officer. 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 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 Page No.# 5/7 the aforesaid Section 6-A of the Citizenship Act, 1955.
5. Law being clear, as above, there are neither any suspicion expressed by the Referral Authority nor any findings recorded by the concerned Tribunals that any of the writ petitioners are persons who have come into Assam from the 'specified territory'. In Section 6-A, particularly at sub-sections (2) and (3), the expression 'specified territory' is predominant.
6. It would be apposite to make reference to the Notification dated 23.08.1988 of the Government of India in the Ministry of Home Affairs, whereby the misconception noticed by the Central Government about the citizenship at the commencement of the Constitution of India, of certain classes of persons commonly known as Gorkhas, who had settled in India at such commencement, was clarified. Clarification made was that as from the commencement of the Constitution i.e. from 26.01.1950, every Gorkha who had his domicile in the territory of India and who was born in the territory of India or either of whose parents was born in the territory of India or who had been ordinarily been a resident in the territory of India for not less than five years before such commencement, shall be a citizen of India as provided in Article 5 of the Constitution of India. There is yet another Notification dated 24.09.2018 of the Government of India in the Ministry of Home Affairs (Foreigners Division), perhaps as a guidance while making future references in respect of individuals claiming to belong to the Gorkha community of Nepali origin, on the subject of a Memorandum dated 30.07.2018 submitted by the All Assam Gorkha Students' Union to the Hon'ble Home Minister. It is seen that the issues raised in the Memorandum had been examined by the Ministry of Home Affairs and decision thereof was also taken, with approval of the competent authority. While reiterating the conditions of citizenship of classes of persons known as Gorkhas, as specified in the earlier Notification dated 23.08.1988, the later Notification dated 24.09.2018 clearly laid down that " Since the members of the Gorkha community originally hail from Nepal, it may not be appropriate to declare all of them as from the 'specified territory' as defined under Section 6-A (1) (c) of the Citizenship Act, 1955. Only those who have come from Bangladesh and living in the State of Assam can be treated as from the 'specified territory' in accordance with Section 6-A of the Citizenship Act, 1955." Further, "Only cases of members of Gorkha community living in Assam who do not fall in any of the categories mentioned above may be referred to the Foreigners' Tribunal for its opinion as to whether the person is or is not a 'foreigner' within the meaning of the Foreigners Act, 1946." The categories are duly mentioned in the said Notification dated 24.09.2018.
7. We may also take notice of the provisions of Section 8 of the Foreigners Act, 1946, which relates to determination of nationality. A reading of said Section 8 in the context of the present bunch of cases, it is seen that where for any reason it is uncertain what nationality, if any is to be ascribed to a foreigner, in such cases that foreigner may be treated as the national of the country with which he appears to the prescribed authority to be most closely connected for the time being in interest or sympathy or if he is of uncertain nationality, of the country with which he was last so connected. This provision would be relevant to the extent that even if the most extreme view is taken that the petitioners can never claim to be citizens of India, however, having regard to the status of the petitioners as recorded in the Verification Reports to be persons having their mother tongue and spoken dialect as 'Nepali', they can only be treated as the national of the country to which they appear to be closely connected i.e. Nepal. Under no circumstances, that too, in the absence of any reports Page No.# 6/7 of being persons coming into Assam from the 'specified territory', the provisions of Section 6-A of the Citizenship Act, 1955 cannot be made applicable to the petitioners.
8. 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."
The said observations/findings were made after recording the facts of the cases.
8. The learned Standing Counsel however submits that the aforesaid judgments were rendered in matters where opinion were already rendered by different Foreigners Tribunals declaring the incumbents as foreigners. However, in the instant case the stage is much prior to that and the grievance is only with regard to pre-fixing the names of the petitioners with "D". The learned Standing Counsel accordingly submits that since the issue has been substantially settled by this Court, the only activity which is to be fulfilled is that the petitioners have to demonstrate that they have not come from the "specified territory" under the meaning of Section 6A(1)(c) of the Citizenship Act, 1955. The other Counsel have endorsed the submission of Shri Ali, learned counsel and have submitted that appropriate direction may be issued in that regard.
9. After hearing the parties and after going through the decision rendered by the Division Bench of this Court in the case of Indira Newar (supra), all these writ petitions are disposed of by directing the petitioners to approach the Electoral Representation Officer (ERO) in their respective districts by way of a representation annexing all materials to demonstrate that they have not come from the "specified territory".
10. In this connection, Shri Ali, the learned counsel has also placed before this Court a recent communication dated 2nd of June, 2022 issued by the Home and Political Department to the Joint Chief Electoral Officer, Assam on the subject of marking of "D" voter against people belong in the Gorkha Community not belonging to the specified territory. In that communication, certain guidelines have been laid down as to how the respective cases are to be dealt with and the said guidelines are found in a notification dated 24 th September, 2018 which is annexed to the aforesaid communication. It is accordingly directed that such representation may be filed within a period of 15 days from today before the Electoral Page No.# 7/7 Representation Officer (ERO) who would take on board and consider the same and pass appropriate orders expeditiously and in any case within an outer limit of 2 (two) months from the date of receipt of the representation.
11. The authority is also directed to give a personal hearing to the petitioners before taking a final decision on the representation which is required to be submitted alongwith the supporting documents and a certified copy of this order.
12. All the writ petitions stand disposed of in terms of the aforesaid directions.
JUDGE Aparna