Friday, February 28, 2014

Voting Rights for Tibetans in India

Shuvro Prosun Sarker

According to some newspaper reports and UNHCR India’s news update, the children of Tibetan refugees who were born in India between 1950 to 1987 will now be able to vote. The decision of the Election Commission of India came after the verdict of a Karnataka High Court Judgment in August 2013.

The petitioner of the writ petition, Tenzin C. L. Rinpochae, was born in India on 1985 and got identity certificate from the concerned Indian authority as the child of a Tibetan refugee parents. He filed an application for Indian Passport to the Regional Passport Officer at Bangalore and the application was rejected on ground that he is not an Indian Citizen. On 19.02.2013 he received an official communication regarding the denial of Indian passport to him and that decision has been taken in consultation with the Foreigners Division, Ministry of Home Affairs (MHA), Government of India. The reason behind the denial of the passport per the MHA’s opinion was that the children of Tibetan refugees cannot be automatically treated as Indian citizens unless they are granted a certificate upon application under Section 9(2) of the Indian Citizenship Act, 1955. This denial resulted as the present writ petition before the High Court of Karnataka.

The counsel for the petitioner submitted before the court that children of Tibetans who were born in India between the period of 26.01.1950 to 01.07.1987 would automatically be Indian citizens as per the Section 3(1)a of the Indian Citizenship Act, 1955. Section 3 reads as follows:

“3. Citizenship by birth:
(1) Except as provided in sub- section (2), every person born in India,-
  (a) on or after the 26th day of January, 1950 , but before the commencement of the Citizenship (Amendment) Act, 1986 (51 of 1986 );
  (b) on or after such commencement and either of whose parents is a citizen of India at the time of his birth, shall be a citizen of India by birth.]
(2) A person shall not be such a citizen by virtue of this section if at the time of his birth-
  (a) his father possesses such immunity from suits and legal process as is accorded to an envoy of a foreign sovereign power accredited to the President of India and is not a citizen of India; or
  (b) his father is an enemy alien and the birth occurs in a place then under occupation by the enemy.”

The counsel for the petitioner also placed reliance of an identical matter decided by the Delhi High Court in re Namgyal Dolkar vs. Government of India, Ministry of External Affairs. While delivering the judgment, Hon’ble Justice Bopanna observed that:
“Having noticed that decision rendered by the High Court of New Delhi, I am of the opinion that if a similar circumstance arises, certainly the petitioner would be entitled to the benefit of the conclusion reached therein inasmuch as I see no reason whatsoever to take a different view from what has been stated by the Delhi High Court.”

These two judgments and the decision of the Election Commission of India can be seen as an attempt to reconcile the issue of citizenship demand of various refugee groups present in India. However, if identical matter has risen from the Chakmas of Arunachal Pradesh and in that case no one knows what would be the executive decision, given that judicial decision would be in favor of the Chakmas. There might be another reason behind this executive decision in favor of the Tibetans that the assimilation of the Tibetans with the Indian society with full citizenship rights in the near 25 years will diminish the Free Tibet movement and thus the Indo-China relationship will get a new blossom.

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