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Politics India

Did Centre direct Assam to release non-Muslims from detention centres?

MHA denies move in wake of CAA provisions, but 2016 notification says otherwise.

Sabrangindia 08 Feb 2020

detention camp

Answering Member of Parliament from Assam, Mr. Abdul Khaleque’s question on February 4, 2020, in the Lok Sabha, that whether the government has taken initiative to release those declared foreigners belonging to Hindu, Sikh, Parsi, Buddhist, Christian and Jain communities residing in detention camps, Minister of State of Home affairs Nityanand Rai replied that no specific instruction has been issued by the Central Government regarding release of such migrants from detention centres after enacting the Citizenship (Amendment) Act, 2019.

However, in January, 2016, Central Government had advised the Government of Assam to examine the cases of all persons covered by various court cases filed in Guwahati High Court and to release them from detention centres if they satisfy the conditions and requirements of the two notifications issued by the Central Government on September 7, 2015, exempting such persons by or under clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any rule or order made thereunder.

The above mentioned sections of the Passport Act and the Foreigners Act empower the Central Government to make any rules to  provide for the exemption, either absolutely or on any condition, of any person or class of persons from any provision of the Passport Act, and similarly make any orders regarding entry and departure of any class of persons under the Foreigners Act.

The rules made by the Central government in this regard on 7th September, 2015 are as follows:

Passport Act:

The Central Government hereby makes the following rules further to amend the Passport (Entry into India) Rules, 1950, namely:-

I. (I) These rules may be called the Passport (Entry into India) Amendment Rules, 2015. (2) They shall come into force on the date of their publication in the Official Gazette.

2. In the Passport (Entry into India) Rules, 1950, in rule 4, in sub-rule (I), after clause (h), the following clause shall be inserted, namely:-

"(ha) persons belonging to minority communities in Bangladesh and Pakistan, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who were compelled to seek shelter in India due to religious persecution or fear of religious persecution and entered into India on or before the 31 st December, 2014-

(i) without valid documents including passport or other travel documents; or

 (ii) with valid documents including passport or other travel document and the validity of any of such documents has expired: Provided that provision of this clause shall take effect from the date of publication of this notification in the Official Gazette."

Foreigners Act:

"3A. Exemption of certain class of foreigners-

(I) Persons belonging to minority communities in Bangladesh and Pakistan, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who were compelled to seek shelter in India due to religious persecution or fear of religious persecution and entered into India on or before the 31 st December, 2014-

(a) without valid documents including passport or other travel documents and who have been exempted under rule 4 from the provisions of rule 3 of the Passport (Entry into India) Rules, 1950, made under section 3 of the Passport (Entry into India) Act, 1920 (34 of 1920); or

(b) with valid documents including passport or other travel document and the validity of any of such documents has expired, are hereby granted exemption from the application of provisions of the Foreigners Act, 1946 and the orders made thereunder in respect of their stay in India without such documents or after the expiry of those documents, as the case may be, from the date of publication of this order in the Official Gazette."

Effectively, these rules empower the Central Government to make laws selectively excluding certain class of individuals from legal actions such as detention, even if they are found contravening the Passport Act and/or the Foreigners act, by entering India without proper documents, or entering with proper documents are staying beyond the allowed period.

As can be inferred from the above-mentioned Notifications, the government had changed the criteria for all Non-Muslim illegal immigrants in India. These notifications have been set in action in the Central Government order to Government of State of Assam to release all Non-Muslim detainees in the detention centres, who have proved that they entered India on or before the December 31, 2014.

This action of the Government will be arbitrary towards the Bangladeshi Muslims detained in these camps since the cut off date for them is March 25, 1971.

Did Centre direct Assam to release non-Muslims from detention centres?

MHA denies move in wake of CAA provisions, but 2016 notification says otherwise.

detention camp

Answering Member of Parliament from Assam, Mr. Abdul Khaleque’s question on February 4, 2020, in the Lok Sabha, that whether the government has taken initiative to release those declared foreigners belonging to Hindu, Sikh, Parsi, Buddhist, Christian and Jain communities residing in detention camps, Minister of State of Home affairs Nityanand Rai replied that no specific instruction has been issued by the Central Government regarding release of such migrants from detention centres after enacting the Citizenship (Amendment) Act, 2019.

However, in January, 2016, Central Government had advised the Government of Assam to examine the cases of all persons covered by various court cases filed in Guwahati High Court and to release them from detention centres if they satisfy the conditions and requirements of the two notifications issued by the Central Government on September 7, 2015, exempting such persons by or under clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any rule or order made thereunder.

The above mentioned sections of the Passport Act and the Foreigners Act empower the Central Government to make any rules to  provide for the exemption, either absolutely or on any condition, of any person or class of persons from any provision of the Passport Act, and similarly make any orders regarding entry and departure of any class of persons under the Foreigners Act.

The rules made by the Central government in this regard on 7th September, 2015 are as follows:

Passport Act:

The Central Government hereby makes the following rules further to amend the Passport (Entry into India) Rules, 1950, namely:-

I. (I) These rules may be called the Passport (Entry into India) Amendment Rules, 2015. (2) They shall come into force on the date of their publication in the Official Gazette.

2. In the Passport (Entry into India) Rules, 1950, in rule 4, in sub-rule (I), after clause (h), the following clause shall be inserted, namely:-

"(ha) persons belonging to minority communities in Bangladesh and Pakistan, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who were compelled to seek shelter in India due to religious persecution or fear of religious persecution and entered into India on or before the 31 st December, 2014-

(i) without valid documents including passport or other travel documents; or

 (ii) with valid documents including passport or other travel document and the validity of any of such documents has expired: Provided that provision of this clause shall take effect from the date of publication of this notification in the Official Gazette."

Foreigners Act:

"3A. Exemption of certain class of foreigners-

(I) Persons belonging to minority communities in Bangladesh and Pakistan, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who were compelled to seek shelter in India due to religious persecution or fear of religious persecution and entered into India on or before the 31 st December, 2014-

(a) without valid documents including passport or other travel documents and who have been exempted under rule 4 from the provisions of rule 3 of the Passport (Entry into India) Rules, 1950, made under section 3 of the Passport (Entry into India) Act, 1920 (34 of 1920); or

(b) with valid documents including passport or other travel document and the validity of any of such documents has expired, are hereby granted exemption from the application of provisions of the Foreigners Act, 1946 and the orders made thereunder in respect of their stay in India without such documents or after the expiry of those documents, as the case may be, from the date of publication of this order in the Official Gazette."

Effectively, these rules empower the Central Government to make laws selectively excluding certain class of individuals from legal actions such as detention, even if they are found contravening the Passport Act and/or the Foreigners act, by entering India without proper documents, or entering with proper documents are staying beyond the allowed period.

As can be inferred from the above-mentioned Notifications, the government had changed the criteria for all Non-Muslim illegal immigrants in India. These notifications have been set in action in the Central Government order to Government of State of Assam to release all Non-Muslim detainees in the detention centres, who have proved that they entered India on or before the December 31, 2014.

This action of the Government will be arbitrary towards the Bangladeshi Muslims detained in these camps since the cut off date for them is March 25, 1971.

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