The Tibetan refugee's right to vote

Ninglun Hanghal *

Tibet Ladies Team visited Manipur in Feb 2014 :: Pix - Bikram Singh

The Election Commission's drive to enroll Tibetan refugees in the voter's lists, predictably enough, has elicited a mixed response.

For many Tibetans who have been living in India for decades now, it was a relief, a transition from being stateless to becoming an acknowledged citizen of a country. Many Tibetans took up the offer most enthusiastically; quite a few of them have reportedly enrolled themselves already. Of course, given their long stay in India, being part of the voter's lists indicates official acceptance of the Tibetans in India, and the chance to exercise their adult franchise is an indication of citizenship and a chance to be part of a democratic system. Their assimilation into Indian society is both comprehensive and evident. According to Karten Tsering, head of the Tibetan Residents' Welfare Association, most of the refugees already consider themselves very much a part of India and its systems and practices.

Not all think on those lines, though. For a more politically oriented and vocal group of youth, Kalsang Choedon, a student from Jawaharlal Nehru University (JNU) among them, enrolment in the Indian voter list and acquiring Indian citizenship is equal to surrendering one's Tibetan identity. Karma Yeshi, member of the Tibetan Exile Parliament, is another who does not feel the need for enrollment as he is determined to eventually go back to his own country. For him, living in India is a temporary hiatus, not a permanent state of affairs. Many Tibetans do not apply for enrolment in the voter lists due to this question of identity, which is central to citizenship and the political processes of any country.

It is estimated that about two lakh Tibetan refugees currently live in the country, mostly in Ladakh in Jammu and Kashmir, Gangtok in Sikkim, Dharamsala in Himachal Pradesh, Shillong in Meghalaya and Mysore in Karnataka.

Inclusive as it is, the Election Commission's move comes with its own procedural challenges. Refugees, as also Indian citizens, are required to produce identity proof such as residence, as the first and foremost document, in order to register for citizenship and voting rights. Many are not in a position to do so and consequently, many Tibetans cannot get themselves on the voter's lists. In constituencies like Chandni Chowk, a large number of Tibetans were not eligible for registration for the voter ID card, either.

Prior to the general election 2014, in early February, the Election Commission of India (ECI) issued notices to all state Chief Election Officers to enroll Tibetan refugees born in India between the cut-off dates of 1950 and 1987. This move comes in the aftermath of the Karnataka High Court judgment in August 2013 that ruled in favour of Tibetans born and residing in India in the stated period eligible for citizenship.

Regarding that case, a writ petition was filed by Tenzin C.L. Rinpochae, in the Karnataka High Court, under Article 226 and 227 of the Indian Constitution, with a prayer to quash the order dated 19 February 2013 issued by the third respondent in consultation with the first respondent, declaring that the petitioner is not a citizen of India and consequently refusing to issue him with a passport. The Union of India (MEA), Ministry of Home Affairs and Regional Passport Office (Bangalore) were the respondents.

The Court Order of 7 August 2013 said that the reason put forth in that regard by the respondent is that the children born to Tibetan refugees in India cannot be automatically treated as Indian citizens under the Citizenship Act 1955 and the same can be considered only if a certificate is issued in response to an application under Sec 9(2) of the Citizenship Act 1955. This said communication dated 9.02.2013 is assailed in the instant petition.

The respondent's arguments were that in the application made for issue of passport, the nationality of the petitioner was indicated as Tibetan and under those circumstances, without there being an application as contemplated under the Citizenship Act 1955 and the competent authority issuing a Citizenship Certificate, the case of the petitioner cannot be considered for issue of passport.

The court order stated that it was necessary to refer to the decision to the Delhi High Court W.P ( c) 12179/2009 22.12.2010 (upon the petitioner's counsel's plea for placing reliance on the birth certificate of the petitioner) while considering these aspects. The Delhi high court has made detailed reference to the provisions contained in Section 3 of the Citizenship Act 1955 and the amendment of the provisions.

In that light, the court order said, after referring to the debate in Parliament, it had arrived at the conclusion that the cut-off dates of 26.01.1950 and 01.07.1987 were to be taken into consideration and that any person born to parents living in India between the said two dates, was to be automatically considered a citizen of India by birth.

In that circumstance, the court was of the view that the mention of nationality as Tibetan in the application was of no consequence; the issue of identity certificate has also been referred to in the decision. While considering these aspects, the Court concluded that when a person is born in India to Tibetan nationals who are settled in India and if no passport is issued to the person for purpose of identification, an identity certificate would be issued to enable the person to stay on in India. The court also stated that the issue of a passport to such a person thereafter identified his status in India and therefore the surrender of his identity certificate in such circumstances was necessary. The court order directed respondents 2 and 3 to consider the request of the petitioner for issue of passport.

Coming back to the present, the ECI move has, not surprisingly, met with strong and adverse reactions in areas that host a huge number of Tibetans, particularly in sensitive and conflict-ridden states such as the Northeast. These communally polarised states have, over many years now, witnessed violent incidents over the issue of cross-border migration, particularly in Assam and Meghalaya. In the state of Meghalaya, students' unions such as the Khasi Students' Union (KSU) and the Federation of Khasi, Jaintia and Garo People (FKJGP), as well as members of the civil society, have strongly opposed the ECI's notice. The president of the KSU was reported to have stated that they will never allow Tibetans or any "doubtful citizens" to enroll themselves in the state's electoral rolls, while the FKJGP president observed that the move would be inviting trouble and would negatively impact the indigenous population of Meghalaya.

In Meghalaya again, the lifting of the Inner Line Permit (ILP), a permit required to be obtained from the Home Ministry by foreigners in the state as well as Indians visiting from other states, met with violent reaction. In other states like Manipur, civil societies have demanded the reinforcement of the ILP.

The most recent case relating to the election and refugees, took place in Mizoram. NGOs and students' bodies led by the Young Mizo Association (YMA), a powerful civil society body in the state, called for the boycott of elections, in protest against the ECI's decision to allow Bru refugees to vote. After an agreement was reached, the polling dates were re- scheduled for the lone Mizoram Lok Sabha seat.

The latest incidents of violence in the Bodo tribal districts of Assam, where over 30 alleged migrants, including women and children, were killed in the first week of May 2014, once again underscores the social fracture between various ethnic groups in the region. The political exploitation of such divisions by simplistic projection of the indigenous, the internal migrants and the refugees from neighbouring countries, will only make the task of defining residents and citizens more complex and contentious. As always, while the leaders try to split hairs assessing the political benefits of reordering the identities, it is the ordinary citizen who will continue to bear the cost of such machinations.