QUOTING FROM CONSTITUTION OF INDIA
PART II – CITIZENSHIP
Article 5. Citizenship at the commencement of the Constitution – At the commencement of this Constitution, every person who has his domicile in the territory of India and
• Who was born in the territory of India; or
• Either of whose parents was born in the territory of India; or
• Who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement, shall be a citizen of India.
[**this Article i.e. Article 5 has not been amended so far till date but our point is UP TO 23RD AUGUST 1988 the date of Gazette Notification]
WE, THE PEOPLE OF INDIA IN OUR CONSTITUENT ASSEMBLY this twenty sixth day of November, 1949 do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION].
We adopted the Constitution of India on 26th. November 1949 and the Constitution commenced from 26th January 1950.
POINTS:
CRITERIA TO BE CITIZEN OF INDIA – Three options:
• Who was born in the territory of India on or before 26th January 1950, or
• Either of whose parents was born in the territory of India, or
• He or she should have the ordinarily resident in the territory of India for not less than 5 years on or before 26th. January 1950 i.e. he or she should reside from 26th. January 1945 or from earlier.
THE SAID GAZETTE NOTIFICATION OF GOVERNMENT OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI THE 23RD AUGUST 1988. Published in the Gazette of India Extraordinary Part – I,Section 1 dated the 23rd August 1988,No. 26011/6/88 ICI.
‘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:
(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 or constituted the territory of India in Article 1(2) of the Constitution of India and
• Who was born in the territory of India, or
• Either of whose parents was born in the territory of India,
• Who had been ordinarily resident in the territory of India for not less than five years before such commencement shall be 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 9 of 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 Provision of the Citizenship Act 1955 and the Rules and orders made there under shall apply to the persons referred to in paragraph (1) after the commencement of Constitution.
Sd/-
(INDRA MISRA)
Joint Secretary to the Government of India.
POINT:
THE ABOVE MENTIONED ‘GORKHAS’ should be the resident of India from 26th January 1945 or from earlier up to the date of 26th January 1950 (not less than five years) would be treated as citizen of India as Nepali, OR who settled in India between February 1949 to 26th January 1950 and either of whose parents was born in the territory of India, would be treated as citizen of India as Nepali BECAUSE the term or the word ‘GORKHAS’ means Gorkha soldiers of Gorkha regiment AND they were Nepalese, recruited mainly from Magar, Gurung, Rai ethnic groups of Nepal AND their mother tongue was Nepali or lingua franca was Nepali, and their customs, traditions, culture were Nepalese.
Previous name of Nepali language was Gurkhali Language and before the Gurkhali Language it was named as Kaskura language.
There is no Gorkha ethnic group or Gorkha race in Nepal. According to Census 2001 of Nepal there are about 103 ethnic groups and castes in Nepal. Jirels, Kusundas, Sunuwars, Chepangs, Panchagaule, Thakalis, Tharus, Gurung, Magars, Tamangs, Newars, Rai, Limbu, Sherpa, Sonar, Lohar, Tatma, Lodha, Thami, Darai, Koche etc. some of the ethnic groups of Nepal. Nepalese migrated from Nepal and settled in almost all over India particularly in hilly areas. Large scale emigration of the Nepalese to India for economic opportunities started after the Anglo-Nepal war (1814-1816). Accordingly, the existence of Gorkha ethnic group or Gorkha race in India does not arise at all.
There is no separate existence or identity of ‘Gorkhas’ as like Nepalese, Assamese, Gujratis etc – as ‘Gorkhas’ i.e. ‘Gorkha soldiers’ are Nepalese. Nepalese were recruited in Gorkha regiments.
[On 8th August 1947, it was revealed that the 2nd, 6th, 7th, and 10th Gurkha regiments had been selected for continued service with the British, while the remaining six regiments should serve the Indian government (James and Sheil-Small, 1965: 254)] – by Vidya Bir Singh Kanskar, Ph.D., Professor and Head Central Department of Geography, Tribhuvan University, Kathmandu.
2nd King Edward VII’s Own Gurkha Rifles, 6th Gurkha Rifles, 7th Gurkha Rifles and 10th Gurkha Rifles became part of British Army.
It is to be noted that 1st King George V’s Own Gurkha Rifles (The Malaun Regiment),3rd Queen Alexandra’s Own Gurkha Rifles, 4th Prince of Wales’s Own Gurkha Rifles, 5th Royal Gurkha Rifles (Frontier Force), 8th Gurkha Rifles, and 9th Gurkha Rifle became part of Indian Army.
INDIAN ARMY CHANGED THE NAME “GURKHA REGIMENT” TO GORKHA REGIMENT” in February, 1949 while changing the designation of King Commissioned Officer and Viceroy Commissioned Officer to Indian Commissioned Officer and Junior Commissioned Officer, respectively.
THAT IS – the term or the word GORKHA was in use or coined since February 1949 in India. IT IS VIVIDLY CLEAR that Gorkha means Gorkha soldier, they were Nepalese.
[AFTER THE CHANGE OF NAME OF ‘GURKHA REGIMENT], The ‘GORKHA REGIMENT’ took birth on FEBRUARY 1949 i.e. the period between February 1949 to 26th January 1950 was about one year AND IT
IS LESS THAN FIVE YEARS So the criteria of five years of the above mentioned Gazette Notification dated 23rd August, 1988 is not applicable.
So THE ABOVE MENTIONED ‘GORKHAS’ i.e. Nepali soldiers should be settled in India between February 1949 to 26th January 1950 and either of whose parents was born in the territory of India, would be treated as citizen of India as Nepali BECAUSE the term or the word GORKHAS means Gorkha soldiers of Gorkha regiment AND they were Nepalese, recruited mainly from Magar, Gurung, Rai ethnic groups of Nepal.
Gorkha means Gorkha soldier when a Nepali was in service as soldier. After retirement from Gorkha regiment, he was a general citizen i.e. he was a general Nepali. It is matter of notification, verification and records that (1) how many Nepalese of that particular six (6) Gorkha regiments were settled in India and who were alive till the Gazette Notification dated 23rd August 1988 and were able to submit records that either their parents was born in India,
OR (2) who settled in India and after their death their family members were able to submit that their ancestor was Gorkha soldiers and that Gorkha soldiers were settled between February 1949 to 26th January 1950 and either of their (Gorkha soldiers) parents was born in India.
The above mentioned verification, Notification, recording etc had not done so far before the Gazette Notification. Government of India has violated human rights by publishing this Gazette Notification.
[The Gorkha can thus be described as an ethnic community living in Nepal, India** ….] claimed by the Gorkha Janmukti Morcha is baseless, false and fictitious. [** from website of Gorkha Janmukti Morcha (GJM)] as there is no existence of Gorkha ethnic group in Nepal, in India and in the world (again read the above mentioned submission).
While it is true that Gorkhas have shared a common lineage and stock with the Nepalese] claimed by Gorkha Janmukti Morcha is baseless, false and fictitious as Gorkha means Gorkha soldiers of Gorkha regiment; they were recruited from Nepalese; they were Nepalese and Gorkha soldiers have had no separate identity as Nepalese, Assamese, Gujratese etc. AND to be read with that THE NAME ‘GORKHA’ is in use in India or coined in India on and from FEBRUARY 1949.
ETHNIC GROUP OR RACE CANNOT BE CREATED ARTIFICIALLY, SHOULD BE REAL. Creation of Ethnic Group or Race is the natural process. No Gazette Notification or administrative Order can create Ethnic group or Race.
Nepalese migrated from Nepal mainly for economic reason and settled in Darjeeling and other parts of India. Now in Darjeeling hills, namely Darjeeling, Kalimpong and Kurseong, they are more or less about 85 percent of the total population. The aboriginal inhabitants of Darjeeling were Lephchas, the indigenous tribes.
[The waves of Nepalese immigration into Sikkim became perceptible from early as the last century*, but caused little anxiety as long as land was plentiful and the spars indigenous population did not feel deprived or threatened. The flow came mainly from the Darjeeling district of India to the south of Sikkim and from the eastern regions of Nepal contiguous to Sikkim’s western frontier. Darjeeling originally part of Sikkim, had been ceded to the British in 1835 for the establishing of a sanatorium, since when it had become a refuge for Nepal’s surplus population] – from Sikkim, A Himalayan Tragedy by Nari Rustomji, published by Allied Publishers Private Limited, Calcutta, 1987.
AT PRESENT, Ethnic group and/or Race and/or Linguistic minority is/are the matter of International subject and the subject of human rights. baseless, false and fictitious claim on Ethnic group or Race is the violation of human rights.
Human Rights are no longer within a state’s domestic jurisdiction. That which is governed by international law or agreement is ipso facto and by definition a matter of international concern, not a matter any state’s domestic jurisdiction.
Government of India ratified the International Covenant on Civil and Political Rights (ICCPR). Inspired by the provisions of Article 27 of the ICCPR concerning the rights of persons belonging to ethnic, religious or linguistic minorities, General Assembly adopted “Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities” in 1992.
In this case the ‘Gorkha ethnic group’ is baseless, false and fictitious and the demand for GORKHALAND state based on ‘Gorkha ethnic group’ is the glaring violation of human rights.
AS IT IS THE MATTER OF INTERNATIOAL SUBJECT now (baseless, false, fictitious claim on Ethnic group or race), so Government of India, Government of West Bengal, Indian Coast Guard and Gorkha Janmukti Morcha may submit documents, papers if any in support of ‘Gorkha ethnic group’, ‘Gorkha race’, and separate entity of ‘Gorkha’ like Nepalese, Assamese, Gujratese etc to the appropriate International Forum for recognition and approval BEFORE FURTHER MEETING FROM ANY LEVEL IN INDIA WITH GORKHA JANMUKTI MORCHA.
Dipak De, [Human Rights Activist; M.Phil in Human Rights; Member of Amnesty International; United Nations on line volunteer on Human Rights; in touch with: Asian Human Rights Commission, Hongkong].
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