The cause of Indians Overseas was very dear to the heart of Mahatma Gandhi, Jawaharlal Nehru and other nationalist leaders.
by Prof. V. Suryanarayan
The competitive politics between the two major Dravidian parties, the AIADMK and the DMK, has come to the fore once again. The political atmosphere in Tamil Nadu is surcharged. The political leadership is accusing the other for betraying the Sri Lankan Tamil cause. In the famous Tamil film, Parasakti (script written by M Karunanidhi) hero Gunsekharan (actor Sivajj Ganesan) poses the question: “Why is the waters of Bay of Bengal saltish?”. After few seconds he himself provides the answer “It is because of the tears of the Overseas Tamils”.
If one distinguishes between rhetoric and reality, the record of two Dravidian parties is nothing much to write about. Let me first take the AIADMK. After the assassination of Rajiv Gandhi by the suicide squad of the LTTE then Chief Minister Jayalalitha declared that Sri Lankan Tamil refugees were no longer welcome in Tamil Nadu. The Government officials began to exert pressure on the refugees to return to Sri Lanka. The Human Rights organisations accused the Government of India and the Government of Tamil Nadu for violating the basic principle of international humanitarian refugee law, the principle of non-refoulement, which means that a refugee should not be sent out of the country against his/her wishes. They sought judicial remedy. It was a moment of great anguish for the Narasimha Rao Government. In order to save embarrassment the Government of India permitted the opening of UNHCR office in Chennai to verify the “voluntariness of repatriation”.
The DMK’s record is not without blemish. During the Fourth Eelam War when the War against the Tigers had become a War against Tamil civilians and the savage Sri Lankan army was resorting to bombing of temples, churches, mosques, orphanages and hospitals, the DMK was an alliance partner in the Man Mohan Singh Government. The DMK made feeble protests; Karunanidhi went on a hunger strike in the Marina after breakfast and concluded it before lunch. The fact remains he could do practically nothing to prevent the genocide and gross human rights violations. Till he died Karunanidhi did not even write an obituary note on Prabhakaran. For Karunanidhi and his followers sharing power with the Congress in the Centre was more important than saving the lives of the innocent Tamils in Sri Lanka
The heated debate taking place in Tamil Nadu today relates to the issue of granting dual citizenship to Sri Lankan Tamil refugees. Chief Minister Palaniswamy stated that in the Rajya Sabha AIADMK supported the Government because the Prime Minister and the Home Minister gave assurance that the Citizenship Amendment Bill will not do any harm to Indian citizens. He added that during the debate AIADMK members pleaded that dual citizenship should be conferred on Sri Lankan Tamils. Conferment of Dual Citizenship was an important item in the Party manifesto before the last general election. The DMK and other opposition parties have brought day to day life in the State to a standstill. According to media reports Union Home Minister Amit Shah is reported to have conveyed to the Tamil Nadu Chief Minister that the State Government’s proposal for conferring dual citizenship to the Sri Lankan refugees “will be examined” by the Home Ministry.
Basic Issues
The Constitution of India provides for acquisition of Indian citizenship in five ways: 1) By Birth; 2) By Descent; 3) By Registration; 4) By Naturalisation and 5) By incorporation of new territory. In 1955 the Indian Citizenship Act was enacted for acquisition and termination of Indian Citizenship. Indian citizenship was also conferred by bilateral agreements. Thus under the two Agreements between India and Sri Lanka, Sirimavo-Shastri Pact of 1964 and Indira Gandhi- Sirimavo Pact of 1974, it was agreed to confer Indian citizenship on 600,000 people of Indian origin, plus their natural increase, residing in Sri Lanka as stateless persons. Sri Lanka, in turn, agreed to confer Sri Lankan citizenship on 3, 75,000 plus their natural increase.
Two important points should be highlighted. During the debate which took place in the Constituent Assembly both Dr. Ambedkar and Jawaharlal Nehru emphatically maintained that the Constitution will not provide for dual citizenship. Second was the incorporation of provisions which enabled the Indians living outside India to acquire citizenship by registration. This provision was included due to the vision, commitment and far sightedness of Y D Gundevia, distinguished Indian diplomat, who was, at that time, Indian Ambassador in Burma. In his book, Outside the Archives, Gundevia has given a detailed account of the issues involved. Dr. Ambedkar, Law Minister, emphatically maintained that Indian citizenship should go strictly by domicile. Article 5 of the Constitution lays down an overarching provision for deciding who should be the citizen of India at the commencement of the Constitution. It provides that any person, who was or either whose parents was, born in the territory of India, or who has been ordinarily resident in India for at least five years before the commencement of the Constitution, shall be deemed to be a citizen of India, if he had domicile in the territory of India at such commencement. The article, it must be pointed out, is silent about the definition of domicile and left the matter to the Supreme Court to interpret. According to the Supreme Court, in the case of K Mohammad V The State of Kerala and Others, by domicile “is meant a permanent home. Domicile means the place in which a person is fixed as a habitation for himself and his family, not for a mere social and temporary purpose, but with a present intention of making it his permanent home”.
The article originally did not provide for Indian citizenship to the people of Indian origin who were living in Burma at that time. Burma was part of British India till 1937 and large number of Indians migrated from India to Burma, that is, from one province to another province. Gundevia felt that they must be given an opportunity to acquire Indian citizenship. He came to India and spoke to Jawaharlal Nehru. Nehru also felt that such a provision was essential to safeguard the interests of the people of Indian origin who were living outside India. Nehru told Gundevia that Dr. Ambedkar was adamant that citizenship should strictly go by domicile. Nehru, however, added that Pandit Hridaynath Kunzru was one person who could influence Dr. Ambedkat on the subject. Gundevia met H N Kunzru and persuaded him to raise the matter in the Constituent Assembly. As a result the Constitution incorporated provisions by which people of Indian origin could register themselves as Indian citizens in the Indian Embassies of the countries in which they settled. Once they acquired Indian citizenship they will not be eligible for citizenship of the countries in which they have settled.
Statelessness –Legacy of the Past
Statelessness among the people of Indian origin, who live outside India, is closely interlinked with the migration of Indian workers to different parts of the British Empire in the colonial period. The development of the colonial economy, especially starting of plantation industry, required docile, cheap labour and India fulfilled the need. Large number of Indian workers migrated to Ceylon, Malaya, South Africa, Mauritius, Fiji and other countries. The British Government maintained that the Indian workers enjoyed the same rights and privileges like the indigenous people, because all were British subjects; but, in actual practice, they were exploited to the hilt and were subjected to varying forms of discrimination. Women workers were subjected to gender discrimination, physical violence and sexual abuse
The cause of Indians Overseas was very dear to the heart of Mahatma Gandhi, Jawaharlal Nehru and other nationalist leaders. Before independence the final day of the annual session of the Indian National Congress was devoted to discussion on the challenges facing Indian communities living abroad. The Indian nationalist leaders visited various countries, where there was an Indian element in the population. In 1939 Nehru visited Ceylon to study the problems of the Indian workers who were retrenched by the Colombo Municipality. He came face to face with the deplorable conditions in which the Indians lived, and, what is more, he was shocked by the chauvinist stance of Sinhalese political leaders. On his return to India he persuaded C Rajagopalachari, Prime Minister of Madras Presidency, to terminate the recruitment of labour for work in Ceylon. In the course of a visit to Malaya in 1945, Jawaharlal Nehru said that “today India is helpless, but a day would come soon when the strong arm of India would protect the interests of Indians Overseas”.
The hope that New Delhi would pursue an enlightened policy towards Indians Overseas, once India became independent, was soon shattered. The British Government let the future of Indians Overseas at the mercy of the chauvinist leaders in Ceylon and Burma who assumed power after independence. They took shelter under the concept of sovereignty and domestic jurisdiction and enacted citizenship legislations which excluded majority of the Indian population. New Delhi could not do anything and began to detach itself from the Indian communities living abroad.
Developments in Sri Lanka
We have to keep in mind the distinction between Sri Lankan Tamils and Indian Origin Tamils in the island. The Sri Lankan Tamils are as indigenous to the island as the Sinhalese are; all of them are citizens of Sri Lanka by descent, whereas the Indian Origin Tamils or Malaiaha Tamils as they would like to call themselves today are the descendants of those who went to Ceylon under the protective umbrella of the British Government in the 19th and 20th centuries. Their main problem was to remove the stigma of statelessness. They struggled for long, using both parliamentary and extra-parliamentary methods. The problem was finally resolved in 2003 when the Government of Sri Lanka enacted legislation to confer citizenship on all Indian Tamils living in Sri Lanka. It should be pointed out that if the refugees of Indian Tamil origin, who today live in Tamil Nadu, decide to return to Sri Lanka they are legally entitled for Sri Lankan citizenship.
Two other points should be highlighted. First the wide social disparities between the two Tamil groups. The Sri Lankan Tamil politics was dominated by the Vellalas, who were also the majority community. They looked down on the Indian Tamils, who were either Dalits or most Backward castes. Except for a brief period in the 1970’s when the two Tamil political streams came together to oppose the discriminatory policies of the Sri Lankan Government, they have followed parallel and occasionally even contradictory paths. Very early Thondaman and other leaders realized that Living as they are in the midst of Sinhalese population, a separate State of Tamil Eelam will not solve their problems. They must live harmoniously with the Sinhalese and, therefore, they have been part of successive Governments from 1978.
However, disassociation from the demand for Tamil Eelam did not mean security for them. They were subjected to violent attacks in 1977, 1981 and 1983. After the 1977 riots sections of Indian Tamils began to migrate to the Northern Province in search of physical security. They felt that in a Tamil dominated area their lives will not be in jeopardy. What is more, organisations like Gandhyam, under the leadership of Dr. Rajasundaram, were committed to bridge the divide between Sri Lankan Tamils and Indian Tamils and began to champion the cause of integrated living. The migrant Indian Tamil workers became landless labourers and worked for Sri Lankan Tamil landlords, who were eager to bring more land under the plough. Soon Gandhiyam was infiltrated by Tamil militants and came under the Government’s search operations. Dr. Rajasundaram was detained; he was later killed by Sinhalese goons in the Wellikade jail. The end result was Indian Tamils were caught between the Sinhalese Lions and the Tamil Tigers and became innocent victims in the savage conflict between the two. Fearing for their lives they were one of the first to come to India as refugees.
The 1983 riots affected Colombo and plantation areas in a big way. Many Indian Tamils sold all their belongings and came to India as refugees. After the lapse of nearly three and a half decades, it should be highlighted that most of them have no links with Sri Lanka. Their children, born and educated in India, are not familiar with any country, except India. And, what is more, they hope and pray they will be conferred Indian citizenship.
India’s Refugee Policy
India has not enacted a national refugee law nor has it ratified the UNHCR Conventions on the refugees. Even then its record of treatment of the refugees had been commendable. Since the dawn of independence, India has received refugees from Pakistan, Tibet, Bangladesh, Sri Lanka, Afghanistan, Nepal, Bhutan, Myanmar and other countries. It has been estimated that India has successfully tackled the problems associated with the influx of 28 million refugees i.e., equivalent to the population of Canada.
India’s refugee policy was based on three premises. Jawaharlal Nehru explained the three premises with specific reference to Tibetan refugees in Parliament in 1959. The three premises are: 1) India wants to maintain cordial relations with China; 2) Protection of the security and territorial integrity of India and 3) India’s deep sympathy to the people of Tibet.
Since there is no refugee law in India, refugees are treated as aliens. They are covered by the Registration of Foreigners Act (Central Act 16 of 1939), which is applicable to all foreigners. The Foreigners Act 1946 (Central Act 31 of 1946) empowers the State to regulate the entry, presence and departure of aliens in India. The Passport (entry into India) Act 1920 (Central Act 34 of 1920) and the Passport Act 1967 (Central Act 15 of 1967) govern the entry and departure of persons. Further, under the Constitution of India, certain fundamental rights – right to equality (Article 14); right to personal life and liberty (Article 21) and freedom to practice and propagate their religion (Article 25) are guaranteed to citizens and non-citizens alike. These provisions, it must be pointed out, are in contrast to certain other rights such as the right to move freely throughout the territory of India, reside and settle in any part of India, practice any profession in India etc. (Article 19) are available only to citizens. It should also be pointed out that judiciary has played a commendable role in protecting the rights of the refugees. In the famous case of NHRC V The State of Arunachal Pradesh the Supreme Court held that: “The State is bound to protect the life and liberty of every being, be it a citizen or non-citizen”. The National Human Rights Commission also acts as a watchdog as far as refugee rights are concerned.
Revival of Interest in the Diaspora
The liberalization of the Indian economy and the efforts made by the Government of India to attract investments from the people of Indian origin have given encouragement to sections of Indian communities living abroad to demand that New Delhi should introduce Dual Citizenship. To many of them Dual Citizenship means an affirmation of Indian nationality and identity. They also feel that dual citizenship would facilitate their free movement into India and back, enable them to acquire movable and immovable property without the clearance of the Reserve Bank and further promote their participation in trade, industry, investment and philanthropy.
In March 1999 The Government of India introduced the PIO card to meet the aspirations of the people of Indian Origin in selected countries. On a payment of US Dollars 1000 the PIOs could acquire the PIO card. The card would enable them to enjoy parity with NRIs in respect of all facilities in economic, financial and educational fields. According to the Singhvi Committee Report the scheme turned out to be a failure. Only 1000 persons of Indian Origin were able to acquire the PIO card.
The second positive step was the introduction of Overseas Citizenship of India (OIC). It is an immigration status permitting a foreign citizen of Indian Origin to live and work in India. The OCI was introduced in response to the demand for dual citizenship by the Indian Diaspora, particularly in the developed countries. It was introduced by the Citizenship Amendment Act, 2005 and was launched during the Pravasi Bharatiya Divas convention held in Hyderabad in 2005. The Constitution of India prevents Indian citizens from holding Dual Citizenship. As such the OCI is not actual Indian citizenship. It has many limitations, they do not have the right to vote, no right to hold constitutional offices and no right to buy agricultural properties.
Citizenship and Nationality
In order to understand the hesitation to confer Dual Citizenship on People of Indian Origin, who have taken citizenship of the host countries, one must keep in mind the difference between citizenship and nationality. First and foremost citizenship implies loyalty to the country of which you are a citizen. Nationality means the cultural group to which you belong. I belong to the Tamil nationality; I speak Tamil language and follow Tamil culture. In the ideal situation there should be no contradiction between the two. If I am a US citizen my political loyalty is to the United States, being a Tamil I stick to Tamil culture and follow Tamil traditions. Dual citizenship means dual loyalty and if there is a clash of interests between India and the country in which you are a citizen your loyalty to the host country will be suspect. May I give two illustrations? During the Second World War there were 40,000 Japanese living in the United States as US citizens. When the war broke out, the United States detained them suspecting their loyalty to the United States. Similarly following the Sino-Indian war the Government of India detained many Chinese who were living in Northeastern India. In many newly independent countries the process of nation building is extremely difficult. If the Government of India resolves to confer dual citizenship their loyalty to the host country would be suspect. That is why Prime Minister Narasimha Rao, in the course of a visit to Thailand, told the Indian community, “I shall give you all facilities that you want but not dual citizenship”.
Congress and the BJP share the Same Ideals
On the question of conferring Indian citizenship on Hindus who have sought asylum in India as a result of religious persecution there is no difference between the policies and programmes of the BJP and the Congress. As Subramanyam Swamy has pointed out in an article in The Hindu the first to express concern for these people was the Working Committee of the Indian National Congress which passed a resolution in November 1947 urging citizenship and “full protection to all those non-Muslims from Pakistan who have come over to India or may do so to save their life and honour”. Man Mohan Singh, former Prime Minister, who himself is a refugee from Pakistan, stated in Parliament on December 18, 2003: “After the partition of our country minorities in countries like Bangladesh have faced persecution and it is our moral obligation that if circumstances force people … these unfortunate people to seek refuge in our country our approach for granting citizenship to these unfortunate persons should be more liberal”. Narendra Modi and Amit Shah are echoing the same feelings expressed by Man Mohan Singh. But the bad blood that flows in the Congress veins today has prompted the Party to take a negative stance on Citizenship Amendment Act leading to political polarization in our country.
Implications for Tamil Nadu and Sri Lankan Refugees
On 19 December 2019, I spoke to a group of Sri Lankan refugees and NGOs working among them in a Workshop organized by the Chennai office of the UNHCR. There were 70 of them and I was surprised that most of them were not aware of their rights and responsibilities and also the implications of the Citizenship Amendment Act. Let me spell out some facts and figures and try to remove the cobweb of ignorance.
- According to the Policy Note, 2018-19, issued by the Department of Public, Government of Tamil Nadu, as on May 1, 2918, 18,968 families consisting of 61,422 persons are staying in 107 refugee camps (including one special camp for Tamil militants in Thiruchirapalli). In addition 35,316 Sri Lankan Tamil refugees are staying outside the camps as on April 30, 2018.
- The Policy Note does not provide the break-up of refugees. There are two types of refugees 1) Sri Lankan Tamil refugees. All of them are citizens of Sri Lanka by descent. They do not consider themselves as Indian origin Tamils. They claim that they are of Tamil origin. They do not participate in the Pravasi Bharatiya Divas, which Government of India organizes once in two years
- According to NGOs working among the refugees 29,500 in the camps are of Indian origin.
- The distinction between Sri Lankan Tamils and Indian Tamils is of crucial importance. The census statistics in Sri Lanka from 1911 divides the Tamil community in the island into Sri Lankan Tamils and Indian Tamils. The division is accepted and upheld not only by the Government of Sri Lanka but also by the Government of India. In fact, as mentioned earlier, the Government of India signed two agreements with Sri Lanka in 1964 and 1974 as a result of which large number of Indian Tamils were conferred Indian citizenship and repatriated to India as Indian citizens.
- The political parties in Tamil Nadu, including the Government of Tamil Nadu, do not make a distinction between the Sri Lankan Tamils and Indian Tamils. They club the two together and are today demanding dual citizenship for all of them.
- As far as legal status of the Indian Tamil refugees is concerned, we do not have the details. However it can be assumed that many of them are stateless, some have acquired Sri Lankan Citizenship, some were conferred Indian Citizenship, but they have lost the legal documents and are staying in refugee camps. Whatever may be the legal status of the Indian Tamil refugees if they return to Sri Lanka, according to the citizenship laws of the Sri Lankan Government, they are entitled for Sri Lankan Citizenship.
- The statistics relating to non-camp refugees is based on registration in the police stations. I know of few Sri Lankan Tamils who live outside the camps who have not registered in the police stations. Therefore, the number mentioned in the Policy Note may not accurate.
- The Policy Note has given statistics of those refugees who have gone back to Sri Lanka with UNHCR assistance. In 2014, 396 refugees left for Sri Lanka, in 2015, 452 refugees returned, 852 refugees in 2016, 1520 refugees in 2017 and 557 refugees in 2018 (upto May 2018). The statistics show it is only a trickle. My interviews with the refugees returning to Sri Lanka clearly points out that those who have property, jobs and other means of livelihood are returning. But most of the refugees are landless labourers and they feel that without job opportunities there is no sense in going back to Sri Lanka. According to media reports, few refugees who got repatriated to Sri Lanka have returned to Tamil Nadu and are working with their former employers. The silver lining in the situation is the fact that there is no pressure on them to leave the shores of India.
- The Indian Constitution has no provisions for dual citizenship. I am surprised why the Government of Tamil Nadu and the opposition parties have put forward such a demand
- It should be noted that the Citizenship Amendment Act, 2019 is intended to provide Indian Citizenship for Hindus, Christians, Sikhs, Buddhists, Jains and Parsees who have come from Pakistan, Afghanistan and Bangladesh and have sought asylum in India. If Sri Lanka is also added to the list of three countries Malaiaha Tamil refugees will be entitled for Indian citizenship, because they are of Indian origin. As far as Sri Lankan Tamil refugees are concerned they are not of Indian origin and therefore, they will not be entitled for Indian citizenship.
- The refugees, whether Sri Lankan Tamils or Indian Tamils, can apply for Indian citizenship under naturalization. All of them fulfill the prescribed residential and other qualifications. It may be noted that the Citizenship Amendment Act has reduced the residential qualification from 11 years to 6 years. It will be a noble gesture if the Government of India prescribes the same rule to the refugees living in Tamil Nadu. But the most important condition is that they should surrender their Sri Lankan citizenship. In the workshop when I asked how many of them are prepared to surrender their Sri Lankan citizenship there was no satisfactory answer The NGOs should immediately generate a debate among the refugees on this subject.
- The most important impediment in the way of refugees applying for Indian citizenship under naturalization is the circular issued by the Government of India to the Government of Tamil Nadu that the refugees are not entitled for Indian citizenship. In a communication dated November 21, 2007 to the Special Commissioner for Rehabilitation, the Secretary to the Government of Tamil Nadu mentioned that there are strict instructions from the Government of India “not to entertain applications of Sri Lankan refugees for the grant of Indian citizenship”. I submit that in the light of recent developments the Government of Tamil Nadu should immediately demand the withdrawal of the circular.
- In a landmark judgment delivered on June 17, 2019 by Justice Swaminathan of the Madurai Bench of the Madras High Court the Honourable Judge has instructed the Government of India to consider applications for citizenship made by the Malaiaha Tamil refugees living in the Kottapattu camp in Trichy district. Six months have elapsed but no progress has been made in the direction of granting of citizenship. When will the Kumbakarnas in Government of India wake up to the call for justice?
- My interaction with the refugees in the Workshop enabled me to have a better appreciation of their hopes and aspirations. Many of the younger generation are well qualified - graduates and post graduates, but jobs commensurate to their qualification are not available for them because they are refugees. Many of them are working as painters earning about Rs. 700/ per day. If they acquire Indian citizenship they can apply for jobs commensurate to their qualifications. And if they are also issued caste certificates they will be entitled for the benefits which Scheduled Castes, Most Backward Classes and Backward Classes are entitled to in Tamil Nadu. Within one generation there will be upward mobility among them and they will become productive citizens of our country.
Conclusion
I had the good fortune to interact with the Malaiaha Tamil refugees living in the Kottapattu camp on number of occasions. They live between fear and hope. We in Tamil Nadu can understand their predicament only if we realize that we can also become refugees As Benjamin Zephaniah, the refugee poet, has written:
We can all be refugees. Nobody is safe
All it takes is a mad leader. Or no rain
to bring forth food. We can all be refugees.
We can all be told to go. We can be hated
by someone for being someone.
Dr. V. Suryanarayan is Founding Director and Senior Professor (Retired), Centre for South and Southeast Asian Studies, University of Madras, Chennai. His e mail id: suryageeth@gmail.com
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