The State of Arunachal Pradesh is currently facing a crisis as illegal Chakma immigrants from Bangladesh continue to arrive surreptiously in the state. The situation is complicated by the imprecise language of the Supreme Court decision in National Human Rights Commission v. State of Arunachal Pradesh[1], which is often mistakenly interpreted as granting citizenship to all Chakma migrants. 

 

Background Facts

 

Driven by political instability and the promise of economic opportunity, a few million Bangladeshi citizens, Muslim, Hindu and Buddhist, have illegally crossed the border with India in hopes of finding better lives.[2] Nowhere has the influx of illegal immigrants been more pronounced than India’s tense Northeastern region. The growth rate of over 400% has been a source of alarm for the indigenous citizens of Arunachal Pradesh.[3] If the rate of migration does not slow, the original inhabitants of Arunachal Pradesh fear they will become minorities in their own state, as has already happened in the state of Tripura and some districts in Assam and Mizoram.

 

The then administration of North East Frontier Agency (NEFA) had agreed to take the initial refugees, never anticipating the successor Arunachal Pradesh state would be swamped by a continuous influx of Chakma “refugees” in subsequent decades. In 1996, the Supreme Court of India ruled that certain Chakma residents and their descendants had a legal right to stay in India and gain citizenship.[4] An imprecise Supreme Court decision granting citizenship to certain longstanding Chakma refugees has fed the confusion in recent years, leading to even greater numbers of illegal Chakma immigrants arriving in Arunachal Pradesh hoping to take advantage of the offer of Indian citizenship.

 

NHRC decision not intended as a blanket grant of citizenship

 

The National Human Rights Commission judgment of 1996 did little more than further obscure the immigration debate. While the text of the decision implies that the holding does not uniformly grant citizenship to all Chakma residents, the holding does not contain any specific constraints on the criteria necessary for citizenship. The Government of Arunachal Pradesh can argue that only the initial Chakma residents of Arunachal Pradesh are eligible to register for citizenship under Section 5(1) (a) of the Citizenship Act of 1955 and later illegal arrivals are deliberately excluded.

 

The National Human Rights Commission judgment came against the backdrop of rising tensions between the Chakmas and local indigenous peoples, causing the Court to worry that the Arunachal Pradesh government was deliberately trying to prevent legal Chakma residents from obtaining citizenship. The Court affirmed the right of certain Chakma residents of Arunachal Pradesh to apply for citizenship, demanding that the state forward legitimate applications to the Union government under the procedures listed in Sections 8 and 9 of the Citizenship Act of 1955.[5] Although the Court never explicitly stated that arrival in 1964 was a criterion for citizenship, the length of the Chakmas’ habitation in India was employed as a justification for the decision several times.

 

Because much of the language in the National Human Rights Commission case is potentially more helpful to the advocates for the state of Arunachal Pradesh and the local indigenous citizens than the Chakma advocates, it would not be necessary to seek to overrule the judgment. Instead, the Supreme Court should be asked to clarify their decision and add language to limit its application. Given the current level of tensions in Arunachal Pradesh, if the state asks for the reversal of the entire decision, the Court may be suspicious that the Arunachal State government it is trying to shirk its duty to accord protections to legal Chakma residents. 

 

Apply Section (5)(1)(a) of the Citizenship Act stringently

 

Section (5)(1)(a) of the Citizenship Act under which the Chakmas would be eligible to register under, clearly excludes arrivals to Arunachal Pradesh who arrived in later decades without the explicit approval of the Union government.[6] By stating that Chakma immigrants who entered the country after 1969 entered illegally and are henceforth excluded from registering under Section 5(1)(a), the Supreme Court could easily give clarity to its decision. However, it is important to note that not a single Chakma refugee — legal or illegal — seems to have obtained citizenship under the decision in National Human Rights Commission and Section (5)(1)(a) though a few hundred applications have been received.

 

Arunachal Pradesh can deport illegal immigrants

 

Nothing in the Supreme Court’s judgment in the National Human Rights Commission case constrains the right of Arunachal Pradesh to deport illegal immigrants. However, the state government must be careful to only deport Chakma immigrants who are truly illegal immigrants, and not covered by the language of the Supreme Court judgment. Obviously, this is easier said than done. Because of the scant documentation and lack of an official verification process, the government cannot easily discern between legal refugees and illegal migrants in many circumstances. The first step in any immigration reform should include a census, or other documentation proceedings to determine how many Chakmas legally reside in Arunachal Pradesh.

 

No right to settle on land without permission

 

In the case of the State of Arunachal Pradesh v. Khudiram Chakma[7], the Supreme Court ruled that Chakma immigrants were not allowed to acquire their own land in Arunachal Pradesh. The original Chakma refugees had been settled in special areas and allotted plots of land by the state government. Instead of residing in the allotted areas, certain Chakma families negotiated with a local Raja and obtained other land[8]. The Supreme Court found that the citizens did not have the right to acquire land in Arunachal Pradesh without permission, emphasizing that foreigners do not have the same fundamental rights as Indian citizens. In particular, foreigners do not have the right to reside and settle in India.[9] Based on this decision in Khudiram Chakma, Chakma residents in Arunachal Pradesh – whether or not they are legally residing within the State — do not have the right to acquire and reside on land that the government has not granted to them.

 

Need for new immigration law

 

In addition to seeking a judicial solution to the Chakma immigration problem, the state of Arunachal Pradesh should lobby for a cohesive, over-arching framework to handle both legal and illegal migration. Currently, immigration is dealt with only under the outdated Foreigners Act of 1946. It simultaneously fails to protect refugees who have legally valid claims to stay in India and shelters illegal immigrants by making their detection and deportation difficult.

A case that lends much support to the Arunachal Pradesh position is Sarbananda Sonowal v. Union of India[10], which clearly supports the ejection of illegal migrants from the country. Sarbananda overturned the Illegal Migrants (Determination by Tribunal) [IMDT] Act[11] and emphasized the dangers of the increasing influx of illegal immigrants.[12]

 

Despite the language in Sarbananda, there is scant evidence of any effort to stem the tide of illegal immigration or deport Bangladeshis who enter the country illegally. It is imperative that the union government introduce new legislation that would establish a clear national system for dealing with immigration. It should consider introducing special immigration courts or tribunals staffed by specially trained immigration judges to hear and decide immigration cases. Short of that, it should at least introduce legislation that sends immigration cases through the judicial system on a fast-track basis with a clear set of statutory guidelines for judges to arbitrate by. Additional statutory procedures for administration and law enforcement would bring even more clarity to the system.

 

Conclusion

 

Although many indigenous peoples of Arunachal Pradesh view the decision in National Human Rights Commission v. State of Arunachal Pradesh as the keystone of the immigration debate, it seems doubtful that overturning the decision will be effective. At this point in time, the decision is not being enforced. Chakma citizens are not being granted citizenship; their smallest victory was getting a few thousand residents on the voting rolls. There is an urgent need to protect the ethnically diverse region of Arunachal Pradesh, both the indigenous peoples and the environment.

 

In addition to recognizing the rights of the original Chakma refugees to remain in Arunachal Pradesh, the government should work to protect the legal Chakma refugees’ rights and help them apply for and receive citizenship under the terms of the Supreme Court judgment in National Human Rights Commission. They have a duty to “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 . . . shall be repelled.”[13]

 

Just as importantly, the Union government and the ruling alliance led by the Congress must act to stem the flow of illegal immigration and prevent further Bangladeshi Chakma migrants from overwhelming Arunachal Pradesh. The Northeast is a volatile region and the people have traditionally been distrustful of the Union government. If the Union government fails to address their legitimate concerns, it might feed into a further feeling of disenfranchisement and distrust.

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