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Even though the law and courts say that all persons, including children born between 1950 and 1987 to Tibetan refugees, are citizens of India by birth, MHA refuses to recognize them as such

By Nayantara Roy

The law may identify them as Indians but the Ministry of Home Affairs (MHA) sees them as foreigners. In July and August the Delhi High Court will be hearing several petitions filed by persons of Tibetan origin, who claim that they are citizens of India by birth in accordance with the law. MHA, however, feels that it is above the law, and the decisions of the Delhi High Court as also decisions of the High Courts of Karnataka, Sikkim and Uttarakhand do not apply to it.

The ministry has clearly said it in writing that even though the law may recognize such persons as citizens of India by birth, they…

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Even though the law and courts say that all persons, including children born between 1950 and 1987 to Tibetan refugees, are citizens of India by birth, MHA refuses to recognize them as such

By Nayantara Roy

The law may identify them as Indians but the Ministry of Home Affairs (MHA) sees them as foreigners. In July and August the Delhi High Court will be hearing several petitions filed by persons of Tibetan origin, who claim that they are citizens of India by birth in accordance with the law. MHA, however, feels that it is above the law, and the decisions of the Delhi High Court as also decisions of the High Courts of Karnataka, Sikkim and Uttarakhand do not apply to it.

The ministry has clearly said it in writing that even though the law may recognize such persons as citizens of India by birth, they will not be issued a passport until they have proven that they are citizens of India.

 CITIZENSHIP BY BIRTH

Between 1950 and 1987 it was sufficient to be born within the territory of India, to be a citizen of India.  Of course, this right of being a citizen of India did not extend to children of enemy aliens, or accredited diplomatic envoys.

With citizenship come a whole host of rights, the most important of which are the fundamental rights, guaranteed to all citizens. Other rights, include the right to own property, vote in elections, etc. One such right is also the right to be issued a passport, to enable a citizen to travel abroad as a citizen of India.

On July 1, 1987, the law relating to citizenship by birth was changed. A person, born in India would be considered as a citizen by birth if at least one parent was a citizen of India. Another amendment in 2003, required that in order to be a citizen of India by birth, a person born in India had to have either both parents who were citizens of India, or, if only one parent was a citizen of India, then the other should not be an illegal migrant.

The amendments of 1987 and 2003, being applicable only prospectively, did not affect the citizenship rights of all persons born within the territory of India between January 26, 1950 and June 30, 1987.

THE TIBETAN INFLUX

In 1959, the Dalai Lama fled Tibet and took refuge in India. A large number of Tibetans followed their leader into India, and settled here. These Tibetan refugees were required to register as foreigners in India, and were issued registration certificates. Using a provision in the Passports Act, they were also issued Identity Certificates, which also served as travel documents in lieu of a passport. 

Dalai Lama fleeing to India with his supporters
Dalai Lama fleeing to India with his supporters

Over time, these Tibetan refugees had children in India. 

The problem arose when these refugees had children, especially in the period 1959 to 1987. According to the law, the children of these Tibetan refugees were, by law, automatically citizens of India by birth. However, without any application of mind, or heed to the law, these children were also issued registration certificates and identity cards which recorded their nationality as Tibetan. These citizens of India were treated as foreigners in their own country, and the laws applicable to foreigners and refugees were applied to them!

Tenzin Tselha, was born on May 17, 1987 in Dharamshala. Her birth was recorded in the municipality records and she studied till her graduation in India. Yet when she applied for a passport, she was told that she was not an Indian citizen. Undeterred, she applied for grant of Indian citizenship under the law, only to be told two years later that she cannot be granted Indian citizenship, as she is already an India citizen by birth. She once again applied for a passport, and was told that she is not a citizen of India.

Caught in this Kafkaesque nightmare, she filed a petition in the Delhi High Court. Jayant Tripathi, who is Tselha’s lawyer, says that this is a classic case of the left hand not knowing what the right is doing. He elaborates, “The law is clear. Tselha is a citizen of India by birth, just like you and me.  That citizenship cannot be taken away by the government. She and Tibetans like her are being discriminated against solely because of their ethnicity and race, which is a clear violation of Article 14 of the Constitution.”

 The government on the other hand has taken a stand that children of Tibetan refugees, upon reaching the age of majority, had to apply for their separate registration and identity certificates.  According to the government, they filled the forms stating their nationality to be Tibetan.  Hence they cannot be treated as Indian citizens.

Tselha’s lawyer rubbishes this argument by pointing out that “there is a specific procedure that is laid out for a person to renounce their Indian citizenship.  No one bothered to think about the fact that Indian citizens do not need to register as foreigners and obtain registration certificates or obtain Identity certificates, which are issued only to Tibetan refugees and stateless persons.  These people should not have been asked to fill out these forms in the first place.”

The central question to the conundrum is what is the stand of the Government of India on the issue of Tibet as an independent nation?

TIBET AS A NATION

The Dalai Lama’s website clearly states that independence for Tibet is not the goal, the aim being to secure genuine autonomy for Tibet within the framework of the People’s Republic of China.   This is also stated to be the official policy of the Tibetan Government in Exile.

The Government of India also recognizes Tibet as an integral part of the People’s Republic of China.  In fact, the 1954 Agreement between India and the People’s Republic of China on “Trade and Intercourse between the Tibet Region of China and India” clearly shows that India recognized the territorial claim of China over Tibet.

Therefore, as far as India is concerned, Tibet does not exist as a sovereign nation in the comity of nations. Tselha’s lawyer, who has raised these points in the petition says that a claim by a person that he or she is a citizen of Tibet would be at par with a person claiming citizenship of Khalistan – ie, a claim not recognized by the Government of India.

 NO AMBIGUITY IN LAW

 The law is very clear.  If a person was born in India between 26 January 1950 and 01 July 1986, then that person is a citizen of India by birth.  If this person wishes to renounce Indian citizenship, then specified procedures set out in the Act are required to be followed.  A mere declaration of renunciation is not sufficient.

The scene at Tibetan Children's Village near Dal Lake in Dharamshala
The scene at Tibetan Children’s Village near Dal Lake in Dharamshala

The Delhi High Court, in a judgment delivered as far back as 2010 in the case of Namgyal Dolkar had said that The Petitioner was born in India on 13th April 1986, i.e. after 26th January 1950 and before 1st July 1987, and is an Indian citizen by birth in terms of Section 3(1)(a) CA. She cannot therefore be denied a passport.” This judgment has been followed subsequently by the Karnataka High Court, and also by the Sikkim and Uttarakhand High Courts.

The Ministry of Home Affairs, aware of the judgment of the Delhi High Court, does not agree with the judgment.  Neither does it feel that it needs to follow the law. On 30th March, 2010 the Ministry of Home Affairs issued a circular stating that, “the children born to a Tibetan Refugee in India will not be treated as Indian citizen automatically based on their birth in India before 01.07.1987 under section 3(1)(a) of the Citizenship Act, 1955.”

CHINA CONUNDRUM

 One issue of concern, which the government does not appear to have given any thought to is that if it insists that the children born to Tibetan refugees are to be recognized as citizens / nationals of Tibet, how will China react? 

While on the one hand, the Government of India recognizes Tibet as an integral part of China, on the other hand, Ministry of Home Affairs wants to declare the children born to Tibetan refugee parents as Tibetan nationals. 

If India does not recognize the existence of Tibet as a nation, it would therefore follow that it cannot give any credence to a person who claims his nationality to be Tibetan.  Tselha’s lawyer points out that these persons, who according to the MHA are Tibetan nationals, should actually then be registered as Chinese nationals!

A decision of the Karnataka High Court, in the case of Tenzin Ling Rimpoche, which followed the judgment of the Delhi High Court, was accepted by the Election Commission of India.  The Election Commission issued a letter on February 7, 2014 to all the Chief Electoral Officers of all States and Union Territories that “the ERO’s concerned should not deny enrolment to the children of Tibetan Refugees where they are satisfied that (1) the applicant was born in India, (2) he/she was born on or after 26th January, 1950, but before 1st July, 1987, and (3) he/she is ordinarily resident in the constituency where the application for enrolment has been made.”As a result, these Indian citizens of Tibetan origin voted, for the first time, in the general elections of 2014.

However, the issuance of passports is still controlled by the Ministry of Home Affairs, and this section of the citizenry is still deprived of one of their fundamental rights—the right to be issued a passport and be acknowledged as a citizen of India.  Hopefully, the Delhi High Court will come to the rescue of these citizens, who are being treated as second class citizens by a department of their own government.

 

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