"Benefit Of CAA Available": Gauhati HC Asks East-Pakistan Immigrant To Apply For Citizenship, Sets Aside Order Declaring Him 'Foreigner'

Setting aside an order of a Foreigner's Tribunal which had declared a Hindu Man, who had migrated from erstwhile East Pakistan (now Bangladesh) as a Foreigner, the Gauhati High Court recently directed him to apply for citizenship by taking benefit of the Citizenship (Amendment) Act, 2019.

This order came from the Bench of Justice N. Kotiswar Singh and Justice Malasri Nandi which was hearing the plea of one Bablu Paul who had moved the Court challenging the 2017 order of the Foreigners' Tribunal-II of declaring him as a foreigner.

The case in brief

Essentially, Paul had come to India from East Pakistan (now Bangladesh) sometime in the year 1964 along with his father and grandfather and he stayed in Calcutta till 1984, when he shifted to Assam thereafter and settled there.

Paul's family were given refugee status by the Government of India and a certificate in this regard was issued by the Government of West Bengal to them, which was meant for the members of the minority community in East Pakistan desiring to stay in India.

It was the case of the petitioner that since the petitioner's grandfather was an Indian citizen who was casting vote since 1966, the petitioner is to be treated as an Indian.

The Tribunal found certain discrepancies in the records regarding his grandfather, his father as well as his mother and took the view that these documents were collusively obtained by the petitioner and declared him to be an illegal immigrant from Bangladesh who entered India after 25.03.1971.

Court's observations 

At the outset, the Court noted that even if Paul is able to prove that he had entered India from East Pakistan on 30.09.1964, he cannot avail the benefit of deemed citizenship under Section 6A(2) of the Citizenship Act, 1955 as he did not fulfill all the conditions stipulated in the said Section.

Significantly, it may be noted that as per Section 6A(2) of the Citizenship Act, unless a person entered Assam before 01.01.1966 and he has been an ordinarily resident of Assam after his/her entry, he/she cannot get the benefit of deemed citizenship and since the petitioner entered Assam only in the year 1984, he couldn't have sought the benefit of this Section.

It is equally important to note that the petitioner could not have availed the benefit of the Assam Accord, which provides for citizenship to the foreigners entering Assam on or before March 25, 1971, if they register themselves before the competent authority, as he entered Assam only in 1984.

However, taking into account subsection (1) to clause (b) of Section 2 of the Citizenship Act, 1955 added through the Citizenship (Amendment) Act, 2019, the Court opined that the petitioner can avail the citizenship under CAA as he is a Hindu who entered into India before 31.12.2014 and he was given permission to settle in India.

"In the present case, the petitioner admittedly entered India along with his parents in 1964 but that was without any valid documents but was given shelter by this country. Merely because he was given shelter does not mean that he is a legal migrant as he did not possess any valid document/passport to enter India. Thus, he remains an illegal migrant, in which event he could not get the benefit of citizenship by way of registration as provided under Section 5 of the Act as it originally stood. However, the said bar to get citizenship by registration has been lifted by the aforesaid Citizenship (Amendment) Act, 2019, as it provides that any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December, 2014 and who has been exempted by the Central Government by or under clause (c) of subsection (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any rule or order made thereunder, shall not be treated as illegal migrant for the purposes of this Act," the Court held.

Therefore, the Court held that he can get the benefit of citizenship if he applies for citizenship by way of registration under Section 5 of the Citizenship Act, 1955 as he fulfills the conditions mentioned under Section 5.

"Since the petitioner cannot be considered to be an illegal migrant by virtue of the Citizenship (Amendment) Act, 2019 and since he had been staying in India for more than seven years from now having entered in 1964, in our view, he will be entitled to be considered for grant of citizenship by registration under Section 5 of the Citizenship Act, 1955," the Court held as it set aside the impugned order passed by the Foreigners' Tribunal-II, Karimganj, Assam.

With this, the petitioner was directed to make an application for registration as a citizen of India under Section 5 of the Citizenship Act, 1955 immediately, before the competent authority, and the competent authority has been directed that on receipt of such an application, it shall pass appropriate orders regarding citizenship of the petitioner.

CAA Rules not in force: Implementation of the HC order possible?

It may be noted that the order of the Gauhati High Court can't be implemented unless the Ministry of Home Affairs (MHA) notifies the Citizenship (Amendment) Act, 2019 rules, because, in its absence, the persons who are eligible for citizenship by virtue of CAA won't be able to apply for Indian citizenship.

Last year, the Minister of State for Home Nityanand Rai had informed Rajya Sabha that the Eligible persons covered by this Amendment Act may submit applications for a grant of citizenship after appropriate rules are notified by the Central government.

Significantly, the law was passed by the Parliament in December 2019, and in January 2020, the Ministry had notified that the Act will come into force from January 10, 2020, however, despite seeking several extensions to frame appropriate rules, the Ministery has not notified the rules as of now. 

It may be noted that the Ministry of Home Affairs (MHA) today sought 6th extension from parliamentary committees in the Rajya Sabha and the Lok Sabha to frame the rules of the Citizenship (Amendment) Act (CAA), 2019, a senior government official said on Monday, as per the report of The Hindu.

Case title - Bablu Paul @ Sujit Paul v. The Union of India
Case Citation: 2022 LiveLaw (Gau) 1

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