Concerned over illegal immigrancy yet no policies to curb it: The great Sikkimese irony
With the merger of Sikkim with the union of India, along with its flag and sovereignty, a lot of things changed, which will be remembered by the generation. The constitutional faith of each and every Sikkimese has resuscitated again after each and every Sikkimese was given a sense of protection of their distinct identity by the union of India through constitutional protections guaranteed under 371F, wherein the laws that existed before the merger of Sikkim with India were allowed to continue.
The transitional phase of Sikkim from the Protectorate of British Empire to Indian Protectorate in 1950, led India to have exclusive control over Sikkimese defense, external affairs and communication, and finally into a merger of Sikkim into the Indian union, which was an intriguing journey. On the other hand, the question that haunted every responsible individual of the state was, whether its distinct identity would be protected or not? The question— “Is Sikkim for Sikkimese”? was raised, and the then three major distinct identities i.e. Bhutia, Lepcha and Nepali, feared that their identity would be on the verge of extinction, if due care is not taken. Among other things finally, this was solved with the reservation of seats in the assembly and in government establishments, by giving adequate opportunities to these three major communities hence, preserving the sanctity of the Sikkimese identity as per the Sikkim Subject Regulation, 1961.
Sikkimese as an Indian citizen
The argument that Sikkim is for Sikkimese was affirmed in the year 1975, when only the Sikkim Subject holders were given Indian citizenship. This was done as per the Citizenship Act, 1955, which gave the power to the central government to specify who can be the Indian citizen in case a new territory is merged with India. Subsequently, the Indian government passed an order, “Sikkim (Citizenship) Order, 1975”, which categorically fixed the criteria to become the citizen of India directly or indirectly as per the Sikkim Subject Regulation,1961.
Who is a Sikkimese?
The relevant question would be— “Who is a Sikkimese, and how does a Sikkimese become an Indian citizen post-merger”?
This all started with 1961 proclamation of the then Chogyal of Sikkim, which aimed for registration of the names of each Sikkimese individual under the regulation of Sikkim Subject Regulation, 1961. Through this, a Sikkim Subject Certificate was given after registering the name in the “Sikkim Subject Register”. Among many, one important criterion that was fixed by the 1961 Regulation to acquire Sikkim Subject, was that a person should be the resident in the territory of Sikkim for 15 years prior to the date of the commencement of Sikkim Subject Regulation. The main reason for bringing out this regulation was to protect the aboriginal status of the Sikkimese.
Clause 3 of the regulation fixed important criteria on who can be Sikkim Subjects. The first criteria was that, a person has to be the domicile holder born in the territory of Sikkim and residing in Sikkim for not less than 15 years before the commencement of 1961 Regulation; also their wife and minor child were also eligible for Sikkim Subject. Thus, it means that 1946 (15 years prior to 1961) was made the cutoff year for the grant, and eligibility of the Sikkim Subject. Further, the Regulation also states that a person shall only be eligible to have the domicile in the state, only if the person has made Sikkim a permanent home and has acquired immovable property in Sikkim. It also provides that a person shall not be deemed to have a permanent home in Sikkim if he indicates an intention of returning to his country of origin, by keeping a live interest therein, even though he might have parted with his property in his country of origin, and the mere parting of such property will not be regarded as proof of a person’s having acquired a permanent home in Sikkim. The regulation also defines Sikkim Subject by descent through which, if a person is born outside the territory of Sikkim, but at the time of the birth of his/her father is Sikkim Subject under the regulation, then a child irrespective of his/her place of birth will be termed as Sikkim Subject holder.
Repealing of Sikkim Subject Regulation, 1961
As the Indian Constitution did not make any provision for dual citizenship, the regulation was repealed as soon the Sikkim Subject holder became the citizens of India; the same was expressly repealed with effect from 26.4.1975 by the Adaptation of Sikkim Laws (No. 1) Order, 1975, promulgated under Clause (1) of Article 371F of the Constitution of India. Though, the regulation has been repealed, nevertheless, this regulation has remained an important document that could authenticate the approval of the Sikkimese identity.
Sikkim (Citizenship) Amendment Order, 1989
This amendment order was passed in pursuance of the request made by the state to the central government to consider the domicile issue of a large number of genuine individuals who were eligible to be entered in the register maintained under the said Sikkim Subjects Regulation, 1961, but were not entered because of genuine omissions. The central government after careful consideration of all the facts and documents produced in respect of 33,348 persons, determined that all these persons be deemed to have become citizens of India with effect from 26 April, 1975, in terms of Sikkim (Citizenship) Order.
The issue of citizenship no matter what, has always been in the public discourse ever since the Chogyal promulgated the 1961 Regulation. The recent order of the High Court of Sikkim while hearing the case of the fake COI case has directed the state government to use a High-Security Holographic paper and to start the process of COI digitization in accordance with prevailing laws in Sikkim.
While on one hand, people are concerned with unaccounted growth of the population in the state because of illegal immigrants, which have the potential of endangering the identities of the original Sikkimese, on the other, there has been no measure to curb these illegal immigrants. Whether or not, the state should have its own policy to combat such illegal immigrancy, is the question that is left to the government to answer before it is too late?
By Pramit Chettri
The author is an Advocate in Supreme Court of India and Delhi High Court. He can be contacted via his email id firstname.lastname@example.org.
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