Thursday, 7 July 2011

Gazette Notification on the Issue of Citizenship of Gorkhas

Gazette Notification on the Issue of Citizenship of Gorkhas


(Published in the Gazette of India Extraordinary Part - I Section 1 dated the 23rd August 1988)
No. 26011/6/88-ICI
Government of India Ministry of Home Affairs
New Delhi the 23rd August, 1988



NOTIFICATION
Whereas it has come to the notice of the Central Government that there have been some misconception about the citizenship at the commencement of the Constitution of India of certain classes of person commonly known as Gorkhas, who had settled in India at such commencement.

And whereas it is considered necessary to clear such misconception it is hereby clarified as follows:

(1) As from the commencement of the Constitution, that is as from 26-1-1950, every Gorkha who had his domicile in the territory of India, that is, in the territories which on 26-1-1950 became part of or constituted the territory of india as defined in Article-1 (2) of the Constitution of India and-(a)Who was born in the territory of India or
(b)Either of whose parents was born in the territory of India.
(c)Who had been ordinarily resident in the territory of India for not less than five years before such commencement shall be a citizen of India as provided in Article 5 of the Constitution of India

(2) No such person as is referred to in paragraph (1) above shall be a citizen of India or be deemed to be a citizen of India if he has voluntarily acquired the citizenship of any foreign State, as provided in Article 9of the Constitution of India.

(3)Every person who is citizen of India at the commencement of the Constitution as aforesaid shall continue to be such a citizen subject to the provision of any law that may be made Parliament as provided in Article 10 of the Constitution of India.

(4)The provisions of the Citizenship Act 1965 and the Rules and orders made there-under shall apply to the persons referred to in paragraph (1) after the commencement of Constitution.



Sd/-

(INDIRA MISRA)
Joint Secretary to the Government of India

1950 INDO-NEPAL TREATY

Treaty of Peace and Friendship, Kathmandu, July 31, 1950

THE government of India and the Government of Nepal, recognising the ancient ties which have happily existed between the two countries for centuries;

Desiring still further to strengthen and develop these ties and to perpetuate peace between the two countries;

Have resolved therefore to enter into a Treaty of Peace and Friendship with each other and have, for this purpose, appointed as their plenipotentiaries the following persons, namely,

His Excellency Shri Chandreshwar Prasad Narain Singh, Ambassador of India in Nepal.

The Government of Nepal:
Maharaja Mohun Shamsher Jang Bahadur Rana, Prime Minister and Supreme Commander-in-Chief of Nepal,

who, having examined each other's credentials and found them good and in due form have agreed as follows:


Article I
There shall be everlasting peace and friendship between the Government of India and the Government of Nepal. The two Governments agree mutually to acknowledge and respect the complete sovereignty, territorial integrity and independence of each other.


Article II
The two Governments hereby undertake to inform each other of any serious friction or misunderstanding with any neighbouring state likely to cause any breach in the friendly relations subsisting between the two Governments.


Article III
In order to establish and maintain the relations referred to in Article I the two Governments agree to continue diplomatic relations with each other by means of representatives with such staff as is necessary for the due performance of their functions.

The representatives and such of their staff as may be agreed upon shall enjoy such diplomatic privileges and immunities as are customarily granted by international law on a reciprocal basis:
Provided that in no case shall these be less than those granted to persons of a similar status of any other State having diplomatic relations with either Government.


Article IV
The two Governments agree to appoint Consuls-General, Consuls, Vice-Consuls and other consular agents, who shall reside in towns, ports and other places in each other's territory as may be agreed to.

Consuls-General, Consuls, Vice-Consuls and consular agents shall be provided with exequaturs or other valid authorisation of their appointment. Such exequatur or authorisation is liable to be withdrawn by the country which issued it, if considered necessary. The reasons for the withdrawal shall be indicated wherever possible.
The persons mentioned above shall enjoy on a reciprocal basis all the rights, privileges, exemptions and immunities that are accorded to persons of corresponding status of any other State.


Article V
The Government of Nepal shall be free to import, from or through the territory of India, arms, ammunition or warlike material and equipment necessary for the security of Nepal. The procedure for giving effect to this arrangement shall be worked out by the two Governments acting in consultation.


Article VI
Each Government undertakes, in token of the neighbourly friendship between India and Nepal, to give to the nationals of the other, in its territory, national treatment with regard to participation in industrial and economic development of such territory and to the grant of concessions and contracts relating to such development.


Article VII
The Governments of India and Nepal agree to grant, on a reciprocal basis, to the nationals of one country in the territories of the other the same privileges in the matter of residence, ownership of property, participation in trade and commerce, movement and other privileges of a similar nature.


Article VIII
So far as matters dealt with herein are concerned, this Treaty cancels all previous treaties, agreements and arrangements entered into on behalf of India between the British Government and the Government of Nepal.


Article IX
This treaty shall come into force from the date of signature by both Governments.


Article X
This Treaty shall remain in force until it is terminated by either party by giving one year's notice.




(At a Press Conference in New Delhi on 3rd December 1959 Prime Minister Mr. Jawaharlal Nehru disclosed that letters were exchanged along with the signing of the Treaty which have been kept secret - Editor)

(Foreign Policy of India, Text of Documents; Lok Sabha Secretariat, New Delhi: 1966: 56-58)
 
The Government of India:

VALLABHBHAI PATEL's letter to PT.JAWAHARLAL NEHRU, the then Prime Minister of India

Sardar Patel's letter to Jawaharlal Nehru on 7-November, 1950

D.O. No. 821-DPM/50
New Delhi, 7th Nov., 1950


My dear Jawaharlal,
Ever since my return from Ahmedabad and after the Cabinet meeting the same day which I had to attend at practically fifteen minutes' notice and for which I regret I was not able to read all the papers, I have been anxiously thinking over the problem of Tibet and I thought I should share with you what is passing through my mind.

2. I have carefully gone through the correspondence between the External Affairs Ministry and our Ambassador in Peking and through him the Chinese Government. I have tried to peruse this correspondence as favourably to our Ambassador and the Chinese Government as possible, but, I regret to say that neither of them comes out well as a result of this study. The Chinese Government have tried to delude us by professions of peaceful intentions. My own feeling is that at a crucial period they managed to to instil into our Ambassador a false sense of confidence in their so-called desire to settle the Tibetan problem by peaceful means. There can be no doubt that, during the period covered by this correspondence, the Chinese must have been concentrating for an onslaught on Tibet. The final action of the Chinese, in my judgement, is little short of perfidy. The tragedy of it is that the Tibetans put faith in us; they chose to be guided by us; and we have been unable to get them out of the meshes of Chinese diplomacy or Chinese malevolence. From the latest position, it appears that we shall not be able to rescue the Dalai Lama. Our Ambassador has been at great pains to find an explanation or justification for Chinese policy and actions. As the External Affairs Ministry remarked in one of their telegrams, there was a lack of firmness and unnecessary apology in one or two representations that he made to the Chinese Government on our behalf. It is impossible to imagine any sensible person believing in the so-called threat to China from Anglo-American machination in Tibet. Therefore, if the Chinese put faith in this, they must have distrusted us so completely as to have taken us as tools or stooges of Anglo-American diplomacy or strategy. This feeling, if genuinely entertained by the Chinese in spite of your direct approaches to them, indicates that, even though we regard ourselves as the friends of China, the Chinese do not regard us as their friends. With the Communist mentality of "Whoever is not with them being against them," this is a significant pointer, of which we have to take due note. During the last several months, outside the Russian Camp, we have practically been alone in championing the cause of Chinese entry into the UNO and in securing from the Americans assurances on the question of Formosa. We have done everything we could to assuage Chinese feelings, to allay its apprehensions and to defend its legitimate claims, in our discussions and correspondence with America and Britain and in the UNO. In spite of this, China is not convinced about our disinterestedness; it continues to regard us with suspicion and the whole psychology is one, at least outwardly, of scepticism, perhaps mixed with a little hostility. I doubt if we can go any further than we have done already to convince China of our good intentions, friendliness and goodwill. In Peking we have an Ambassador who is eminently suitable for putting across the friendly point of view. Even he seems to have failed to convert the Chinese. Their last telegram to us is an ac of gross discourtesy not only in the summary way it disposes of our protest against the entry of Chinese forces into Tibet but also in wild insinuation that our attitude is determined by foreign influences. It looks as though it is not a friend speaking in that language but a potential enemy.

3. In the background of this, we have to consider what new situation now faces us as a result of the disappearance of Tibet, as we know it, and the expansion of China almost up to our gates. Throughout history, we have seldom been worried about our north-east frontier. The Himalaya has been regarded as an impenetrable barrier against any threat from the north. We had a friendly Tibet which gave us no trouble. The Chinese were divided. They had their own domestic problems and never bothered us about our frontier. In 1914, we entered into a convention with Tibet which was not endorsed by the Chinese. We seem to have regarded Tibetan autonomy as extending to independent treaty relationship. Presumably, all that we required was Chinese counter-signature. The Chinese interpretation of suzerainty seems to be different. We can, therefore, safely assume that very soon they will disown all the stipulations which Tibet has entered into with us in the past. That throws into the melting pot all frontier and commercial settlements with Tibet on which we have been functioning and acting during the last half a century. China is no longer divided. It is united and strong. All along the Himalayas in the north and north-east, we have, on our side of the frontier, a population ethnologically and culturally not different from Tibetans or Mongoloids. The undefined state of the frontier and the existence on our side of a population with its affinities to Tibetans or Chinese have all the elements of potential trouble between China and ourselves. Recent and bitter history also tells us that Communism is no shield against imperialism and that Communists are as good or as bad as imperialists as any other. Chinese ambitions in this respect not only cover the Himalayan slopes on our side but also include important parts of Assam. They have their ambitions in Burma also. Burma has the added difficulty that it has no McMahon Line round which to build up even the semblance of an agreement. Chinese irredentism and Communist imperialism are different from the expansionism or imperialism of the Western Powers. The former has a cloak of ideology which makes it ten times more dangerous. In the guise of ideological expansion lie concealed racial, national and historical claims. The danger from the north and north-east, therefore, becomes both communist and imperialist. While our western and north-eastern threats to security are still as prominent as before, a new threat has developed from the north and north-east. Thus, for the first time, after centuries, India's defence has to concentrate itself on tow fronts simultaneously. Our defence measures have so far been based on the calculations of a superiority over Pakistan. In our calculations we shall now have to reckon with Communist China in the north and north-east-a communist China which has definite ambitions and aims and which does not, in any way, seem friendly towards us.

4. Let me also consider the political considerations on this potentially troublesome frontier. Our northern or north-eastern approaches consist of Nepal, Bhutan, Sikkim, Darjeeling and the Tribal Areas in Assam. From the point of view of communications they are weak spots. Continuous defensive lines do not exist. There is almost an unlimited scope for infiltration. Police protection is limited to a very small number of passes. There too, our outposts do not seem to be fully manned. The contact of these areas with us, is, by no means, close and intimate. The people inhabiting these portions have no established loyalty or devotion to India. Even Darjeeling and Kalimpong areas are not free from pro-Mongoloid prejudices. During the last three years, we have not been able to make any appreciable approaches to the Nagas and to the hill tribes in Assam. European missionaries and other visitors had been in touch with them, but their influence was, in no way, friendly to India or Indians. In Sikkim, there was political ferment some time ago. It is quite possible that discontent is smouldering there. Bhutan is comparatively quite, but its affinity with Tibetans would be a handicap. Nepal has a weak oligarchic regime based almost entirely on force; it is in conflict with a turbulent element of the population as well as with enlightened ideas of the modern age. In these circumstances, to make people alive to the new danger or to make them defensively strong is a very difficult task indeed, and that difficulty can be got over only by enlightened firmness, strength and a clear line of policy. I am sure the Chinese and their source of inspirations, Soviet Russia, would not miss any opportunity of exploiting these weak spots, partly in support of their ideology and partly in support of their ambitions. In my judgement, therefore, the situation is one in which we cannot afford either to be complacent or to be vacillating. We must have a clear idea of what we wish to achieve and also of the methods by which we should achieve it. Any faltering or lack of decisiveness in formulating out objectives or in pursuing our policy to attain those objectives is bound to weaken us and increase the threats which are so evident.

5. Side by side with these external dangers we shall now have to face serious internal problems as well. I have already asked Iengar to send to the External Affairs Ministry a copy of the Intelligence Bureau's appreciation of these matters. Hitherto, the Communist Party of India has found some difficulty in contacting Communists abroad, our in getting supplies of arms, literature, etc., from them. They had to contend with difficult Burmese and Pakistan frontiers on the east or with the long seaboard. They shall now have a comparatively easy means of access to Chinese Communists, and through them to other foreign Communists. Infiltration of spies, fifth columnists and Communists would not be easier. Instead of having to deal with isolated communist pockets in Telengana and Warrangal we may have to deal with Communist threats to our security along our northern and north-eastern frontiers where, for supplies of arms and ammunition, they can safely depend on Communist arsenals in China. The whole situation thus raises a number of problems on which we must come to an early decision os that we can as said earlier, formulate the objectives of our policy and decide the methods by which those actions will have to be fairly comprehensive involving not only our defence strategy and state of preparation but also problems of internal security to deal with which we have not a moment to lose. We shall also have to deal with administrative and political problems in the weak spots along the frontier to which I have already referred.

6. It is, of course, impossible for me to be exhaustive in setting out all these problems. am, however, giving below some of the problems, which in my opinion, require early solution and round which we have to build our administrative or military policies and measures to implement them:

a.    A military and intelligence appreciation of the Chinese threat to India both on the frontier and to internal security.

b.    An examination of our military position and such redisposition of our force as might be necessary, particularly with the idea of guarding important routes or areas which are likely to be the subject of dispute.

c.    The question of Chinese entry into U.N.O. In view of the rebuff which China has given us and the method which it has followed in dealing with Tibet, I am doubtful whether we can advocate its claims any longer.

d.    There would probably be a threat in the U.N.O. virtually to outlaw China, in view of its active participation in the Korean War. We must determine our attitude on this question also.

e.    The political and administrative steps which we should take to strengthen our northern and north-eastern frontiers. This would include the whole of the border i.e. Nepal, Bhutan, Sikkim, Darjeeling and the Tribal Territory in Assam.

f.     Measures of internal security in the border areas as well as the States flanking those areas such as U.P., Bihar Bengal and Assam.

g.    Improvement of our communications, road rail, air and wireless in these areas, and intelligence of frontier outposts.

h.    Policing and intelligence of frontier posts.

i.     The future of our mission at Lhasa and the trade posts at Gyangtse and Yatung and the force which we have in operation in Tibet to guard the trade routes.

j.     The policy in regard to McMahon line.


7. These are some of the questions which occur to my mind. It is possible that a consideration of these matters may lead us into wider questions of our relationship with China, Russia, America, Britain and Burma. This, however, would be of a general nature, though some might be basically very important, e.g., we might have to consider whether we should not enter into closer association with Burma in order to strengthen the latter in this dealings with China. I do not rule out the possibility that, before applying pressure on us , China might apply pressure on Burma. With Burma, the frontier is entirely undefined and the Chinese territorial claims are more substantial. In its present position, Burma might offer an easier problem for China, and therefore, might claim its first attention.
8. I suggest that we meet early to have a general discussion on these problems and decide on such steps as we might thinks to be immediately necessary and direct quick examination of other problems with a view to taking early measures to deal with them.

Yours
(Sd/-)
Vallabhbhai Patel


The Hon'ble Pt. Jawaharlal Nehru,
Prime Minister of India,
New Delhi India's Ambassador in Peking at the time was K. M. Pannikar

Letters to ELECTION COMMISSION OF INDIA

March 26, 2009

To
The Chief Election Commissioner
Nirvachan Sadan
Ashoka Road, New Delhi 110001


Subject:  Our demand for measures against violation of Article 326 of the Constitution of India

Sir,

          We desire to draw your attention to continuous and unrestrained violation of Article 326 of the Constitution of India, in all the elections in the northern region of West Bengal in particular, obviously due to participation of Indo-Nepal Treaty beneficiary Nepali Nationals in India, whose presence is so conspicuous in the linguistic break up of census reports from 1951.


          We drew your attention to this legal anomaly many a times in the past, but we are yet to receive any response.


          This time again with the Loksabha Elections knocking at the door, we remind you to take measures so that violation of constitution can be prevented.


          Thanking you in anticipation.

                                                         Yours faithfully
                                                                Sd/-
                                                             President
                                                     JANA CHETANA
Copy to:-
1.    Chief Electoral Officer
        21 N.S. Road, Kolkata 700001


2.    District Magistrate
        Darjeeling


3.    District Magistrate
        Jalpaiguri


4.    Sub-Divisional Officer
        Siliguri

________________________________________________________________


April 02, 2009

To
The Chief Election Commissioner
Nirvachan Sadan
Ashoka Road, New Delhi 110001

Subject:  Violation of Article 326 of the Constitution of India in the elections at Terai, Dooars and Darjeeling

Dear Sir,
          We desire to draw your attention to the fact that we had been time and again trying to apprise you about flagrant violation of Article 326 of the Constitution of India in all the elections at Darjeeling, Terai and Dooars of the state of West Bengal, obviously due to participation of Indo-Nepal Treaty (1950) beneficiary foreigner Nepali Nationals in the state elections.
          Just after the announcement of present parliamentary election, we wrote a letter to you on the same issue (dated March 26, 2009), observing your rehectance to take measures we can not but apprise you that in the court of law the Election Commission and the Chief Election Commissioner will remain answerable in future for not acting against violation of Constitution.

          Thanking you,
                                                                        Yours faithfully
                                                                                Sd/-
                                                                       
     
President
                                                                      JANA CHETANA
Copy to:-
1.       Chief Electoral Officer
            21 N. S. Road, Kolkata 700001


2.         District Magistrate
            Darjeeling


3.         District Magistrate
            Jalpaiguri


4.         Sub-Divisional Officer
            Siliguri

________________________________________________________________

April 4, 2009
To
The Chief Election Commissioner
The Election Commission of India
Ashoka Road
New Delhi-110001

Subject:- Violation of Article 326 of the constitution of India in Parliament,  Assembly and Panchayat Elections of India in general and Darjeeling and Jalpaiguri Districts in particular.

Dear Sir,
Further to our discussion with Shri Sarat Mishra representative of Election Commission, Siliguri on 2nd April 2009, we take the opportunity of furnishing following informations for your kind perusal and action.

1)    That after commencement of constitution of India (26.1.1950) the same defines Indian citizens at the commencement of constitution (vide part II, Article (5)). We understand there remains no ambiguity in defining a citizen and non citizen. [Annexure I]

2)    That the Indo Nepal Treaty was signed (July 31, 1950) as an agreement advocating an open border policy toward good neighboring relations but limited to civic and economic rights of migrated Nepali national in India. and certainly not conferring political rights to such migrants. [Annexure II]

3)    That every  soldier recruited in 1st, 3rd, 4th,5th,8th, and 9th Gurkha Regiment under Nepal- India-Britain tripartite agreement (1947) is a Nepali citizen and hence they and their progeny can not have voting right in India. [Annexure III]

4)    The Gazette Notification of Govt. Of India, Dated 23rd August 1988, No 2600 11/6/88 I.C.I clarifies citizenship of a class of people known as Gorkhas at the commencement of constitution (26.1.1950). [Annexure IV]

5)    According to 1951 census report the number of Nepali speakers in Darjeeling district was 88,958. [Annexure V]

6)    According to 1961 census report number of Nepali speakers in Darjeeling district rose to 3,59130. (314.95% growth in a decade). [Annexure V]

7)    That the abnormally high rate of growth amongst the Nepali speakers in India is by migration of Nepali national from Nepal to India (Exogenous growth). [Annexure VI, VII, VIII]

8)    Recent All India growth of Nepali speakers were as high as 52.62% (1981-1991), 38.29% (1991-2001). [Annexure IX]

9)    Article 326 of the constitution of India expressly mentions that the right to be registered as voter shall be with the citizens of India only. [Annexure X]

10) The facts stated in the foregoing paragraphs leave no reasonable doubt that the migrants from Nepal by virtue of Indo-Nepal Treaty have resorted to means foul and unfair to clandestinely enroll themselves as voters in many constituencies in the region. This is a clear violation of the constitutionals  provisions under article 326, in which not only the migrants and also the administration and Election Commission should bear the guilt. Mr. Subhash Ghising, President Gorkha National Liberation Front in a letter addressed to the Chief Election Commissioner dated 18.7.91 clearly corroborated the above statements. [Annexure XI]

We are surprised that neither the administration nor the Election Commission is aware of this silent invasion of foreign nationals violating the whole electoral process. Time and again we have been trying to apprise you about these discrepancies and asked for taking remedial measures to prevent such violation of constitutional provision.

This time again we are ending up with the hope the Election Commission being a constitutional body will take immediate measures to prevent this violation of electoral process. Thanking You.

                                         Yours faithfully
                                                 Sd/-
                                     President, Siliguri Unit

                              For Jana Chetana


Enclosed Annexure as stated (11 numbers)

________________________________________________________________

January 07, 2011
To
The Chief Election Commissioner
Nirvachan Sadan,
Ashoka Road,
New Delhi 110001


Subject:  Violation of Article 326 of the Constitution of India


Dear Sir,

            We desire to draw your attention to the fact that an uncountable number of Nepalese and Bhutanese citizens had been included in the electoral roll of India. In this regard, you may be aware of, citizenship by birth is not applicable for the above mentioned citizens as per the Extra Ordinary Gazette Notification of 23rd August, 1988 of Govt. of India.

In addition to the above, it has also came to our notice (from unofficial source) that a very large number of the said foreigners had included their names as son or daughter of such person whose name is already in the electoral roll. After few years they are applying for rectification and changing their parents name.

We had been again trying to apprise you about flagrant violation of Article 326 of the Constitution of India in all the elections at Darjeeling, Terai and Dooars of the state of West Bengal, obviously due to participation of Indo-Nepal Treaty (1950) beneficiary foreigner Nepali Nationals in the state elections.

            In past few years, we wrote you several letters to you on the same issue, observing your rehectance to take measures we can not but apprise you that in the court of law the Election Commission and the Chief Election Commissioner will remain answerable in future for not acting against violation of Constitution.

            Thanking you,
                                                                               Yours faithfully
                                                                     Sd/-
                                            
                   Gen.Secretary

                                                               
For -    
JANA CHETANA

Copy to:-
1.         Chief Electoral Officer
            21 N. S. Road, Kolkata 700001

2.         District Magistrate
            Darjeeling

3.         District Magistrate
            Jalpaiguri

4.         Sub-Divisional Officer
            Siliguri