Path to Citizenship for Tamils ​​of Indian Origin

The Supreme Court of India has now posted 232 petitions challenging the Citizenship (Amendment) Act (CAA) for hearing on December 6, 2022. However, there is another issue related to this topic, that is, the unresolved status of Indian origin. Tamils ​​who returned home from Sri Lanka. For more than four decades, about 30,000 Indian-origin Tamils ​​have been classified as stateless persons on technical grounds. In view of their genealogical link with India, the Government of India needs to consider Indian bilateral obligations and grant of citizenship benefits to them in accordance with international humanitarian principles and international conventions.

The plight of Tamils ​​of Indian origin

Under the British colonial government, Tamils ​​of Indian origin were brought in to work in the plantations as indentured labourers. They originally remained legally undocumented and socially isolated from the Sri Lankan Tamil and Sinhalese communities due to British policies. After 1947, Sinhalese nationalism emerged in Sri Lanka, leaving no room for their political and civic participation. They were denied citizenship rights and by 1960 existed as a ‘stateless’ population of close to one million. As an ethno-linguistic minority without voting rights, it suffered a double whammy until the issue was addressed by the two national governments.

Subsequently, under the bilateral Sirimavo-Shastri Treaty (1964) and Sirimavo-Gandhi Treaty (1974), six lakh people would be granted Indian citizenship upon their repatriation with their natural growth. Thus, the process of granting Indian-origin Tamils ​​(who returned to India around 1982) began. However, as a result of the Sri Lankan Civil War, Sri Lankan Tamils ​​and Tamils ​​of Indian origin together sought refuge in India. As a result, the Union Home Ministry directed a ban on granting citizenship to those who came to India after July 1983.

In addition, the Indian and Tamil Nadu governments focused on refugee welfare and resettlement. Over the next 40 years, the legal destiny of Indian-origin Tamils ​​largely coincided with that of Sri Lankan Tamil refugees, and both groups were accorded ‘refugee’ status. This is because Tamils ​​of Indian origin, who came after 1983, came through unauthorized channels or without proper documentation, and were classified as ‘illegal migrants’ as per CAA 2003. This classification has resulted in their statelessness and potentially blocked legal avenues. Citizenship.

overcoming statelessness

While Constitutional Courts have not had the opportunity to deal with the question of statelessness, two recent judgments (Madurai Bench of the Madras High Court, Justice GR Swaminathan) have taken these issues to prominence. In P. Ulaganathan Vs. Government of India (2019), considered the citizenship status of Tamils ​​of Indian origin in the Kottapattu and Mandapam camps.

The court recognized the difference between Tamils ​​of Indian origin and Sri Lankan Tamils ​​and held that the continued period of Tamils ​​of Indian origin violates their fundamental right under Article 21 of the Indian Constitution. The court further observed that the central government has vested powers to grant exemptions in grant of citizenship and has determined that a humane approach should be adopted away from the rigors of law.

Held in court on 11 October Abirami S Vs The Union Of India 2022, that statelessness must be avoided. The court further said that the principles of the CAA, 2019, which relaxes the citizenship conditions for Hindus from Afghanistan, Pakistan and Bangladesh, will also apply to Sri Lankan Tamil refugees. Thus, these judgments have provided clear judicial guidance to the Union of India on how to use the expanded and liberal interpretation of the CAA, 2019 to overcome statelessness.

The state of statelessness of Indian-origin Tamils ​​is ‘de jure’, created by the failure to implement the treaties of 1964 and 1974. Legally Statelessness is recognized in international customary law. Therefore, India has an obligation to rectify the situation. In the case of Chakma refugees, the Supreme Court ( Committee for CR of CAP and others. vs State of Arunachal Pradesh 2015) held that an undertaking by the Government of India in relation to the grant of citizenship is the right of a stateless or refugee population. As such, India has made repeated undertakings through the 1964 and 1974 agreements, which have created a legitimate expectation among Tamils ​​of Indian origin and that they will have the right to be granted citizenship.

Removal of statelessness is not a new process in law. Dealing with a similar situation, in 1994, the United States enacted the Immigration and Nationality Technological Improvement Act to grant citizenship to all children born to a foreign father and civilian mother. Similarly, Brazil retroactively granted citizenship to children through Constitutional Amendment No. 54 of 2007. jus sanguinisWhich was earlier omitted by an earlier amendment, i.e. Constitutional Amendment No. 3 of 1994. Therefore, any corrective legislative action by the Indian government to eliminate statelessness must include retrospective citizenship for Tamils ​​of Indian origin.

According to a recent report by the United Nations High Commission for Refugees, “Comprehensive Solution Strategy for Sri Lankan Refugees”, there are currently about 29,500 Indian-origin Tamils ​​living in India. As such, when the central government makes its case before the Supreme Court for granting citizenship to persons of Indian origin from Pakistan, Afghanistan and Bangladesh seeking asylum in India, it does not deprive Indian-origin Tamils ​​of their rightful path to citizenship. can.

Manuraj Shunmugasundaram is an advocate practicing before the Madras High Court and spokesperson, Dravida Munnetra Kazhagam. Inputs from Sheeba Devi L, Advocate