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Legal Overview of the Status of Tibetans in India


India has been extraordinarily generous to the Tibetan people: it has allowed Tibetans to enter India and, with respect to the first wave of arrivals, to develop settlements, schools, and medical facilities. Yet the overwhelming majority of Tibetans residing in India lack a defined legal status. They do not qualify as refugees in any legal sense.

India is not a party to the 1951 Convention Relating to the Status of Refugees or its 1967 Protocol. Nor has it adopted national legislation for the protection of refugees. Without a “refugee” designation, Tibetans in India are considered to be foreigners under domestic law, regardless of how long they have resided in India. At the same time, few Tibetans have been able to acquire Indian citizenship and most remain ineligible for naturalization.

Tibetan refugees, as foreigners, are subject to a host of limitations affecting their ability to travel freely, either domestically or internationally, to own property in their own names, to qualify for government jobs or seats in educational institutions, and to vote in Indian elections. As foreigners, Tibetan refugees' ability to demonstrate and express themselves politically is also restricted, particularly when Chinese dignitaries are visiting India. From time to time, India has also expelled Tibetans from its territory, in violation of its international legal obligation of non-refoulement.

Although in earlier years India had “scrupulously respected the principle of non-refoulement,” and despite the apparent clarity of the law on this point, reports indicate that some Tibetans have indeed been forcibly repatriated to China. Part V(A) below describes actual cases where the courts have issued orders of deportation of Tibetans for failure to produce valid and up-to-date registration certificates.

Documentation
The types of documents issued to Tibetans residing in India and the privileges those documents confer have evolved over time. Since Tibetans first began arriving in1959, India has issued three types of documents:
  • Registration Certificates;
  • Identity Certificates; and
  • Special Entry Permits
Each serves a distinct purpose. None of the documents provide any right of citizenship, and all of them must be renewed periodically.

Registration Certificate
Because Tibetans in India are foreigners, they are required to hold a valid Registration Certificate (RC), which signifies that the bearer has registered as a foreigner in India. “RC” is shorthand for registration certificate, not refugee certificate. The RC must be renewed every 6 months to five years.163 Although an RC does not provide its holder with a legal right to reside in India, a valid RC provides its bearer with an informal status to live in India.

In practice, this informal status amounts to the ability to reside in a particular locality of India, typically connected to a Tibetan settlement camp or locale, and to travel domestically, although subject to the requirement of preapproval and registration by local authorities. As explained in Part IV(C)(2) below, Tibetans also need RCs in order to travel internationally. With an RC, albeit subject to the discretion of Indian officials, Tibetans may be issued a document known as an Identity Certificate (IC), which enables them to travel internationally to the few countries that will accept these documents in lieu of a passport, including the United States, Switzerland, and several other states in Europe.[1]

Whether or not RCs enable Tibetans to apply for bank loans, ration cards or driver's licenses varies from state to state. In Meghalaya, for example, Tibetans are deemed ineligible for ration cards and driver's licenses,164 whereas in Maharashtra, Tibetans can get both. In Uttarakhand, Tibetans can get driver's licenses but not in Sikkim. These variations are most pronounced in India's border states where Tibetans live particularly restricted lives.

States that border China and Pakistan are considered to be politically sensitive, warranting tighter policies. As such, Tibetans living in Ladakh in the state of Jammu and Kashmir, and in the various official and informal settlements in Arunachal Pradesh, are more restricted. For example, in Arunachal Pradesh, Tibetans cannot obtain cars, driver's licenses, or Aardhaar cards (unique identification cards issued by the Government of India), even if they have RCs.

In the tourist haven of Ladakh, while Tibetans can be trekking and tourist guides, and work in hotels and restaurants, they cannot run travel or trekking agencies, own or operate tourist taxis, run internet cafes or manage large hotels, under Article 370 of the Indian constitution, which grants special autonomous status to the state of Jammu and Kashmir.

Acquisition and Renewal of RC
Tibetans who are born in India receive their initial RCs at the age of sixteen.185 In general, a birth certificate is required to obtain an RC; however, a child who does not have a birth certificate may also show school documents (their Class 10 certificate) or prove his or her identity through police certification.186 Some Indian officials will accept bribes when a Tibetan is unable to provide a birth certificate.187 It is reportedly common for Tibetans to acquire an RC based on false information, most typically a representation that the Tibetan was born in India.
RCs must be renewed annually or semi-annually, depending on the place of issuance. However, effective in April 2012, Tibetans who were born in India or have lived in India for more than twenty years are only required to renew their RC every five years, assuming the holder has lived in the same district for five years. The procedure to become eligible for a five-year RC renewal varies, depending on the state government.

Typically, to renew an RC, a Tibetan must provide an application form, his or her valid
RC, and a letter of support.The support letter must come from an institution in India affiliated with the applicant—e.g. monasteries, settlement offices, and schools may provide these letters for the monks, settlers, and students that they oversee.

There are no clearly defined, national rules regulating RC renewal—some states have specific laws detailing how to renew RCs, while in other states the process is left to the discretion of the local officers. Often in the border areas, the security forces are in charge of RCs, while other states have a Foreign Registration Office (“FRO”) that is in charge of RC renewals.

In many of the settlements there is no problem with getting and renewing RCs and the 5-year renewal period is in effect. In some places, Tibetans must travel some distance to an office to renew their RC. In other states, the Settlement Officer takes all the RCs to the FRO and then brings them back renewed to the refugees.198 Sometimes Indian officers come to the settlements to renew the RCs there. In some states, the Indian government has an office within the settlement to provide support with RC renewal.

Some places are attempting to modernize and make the process smoother—though these attempts sometimes unintentionally slow things down. Overall, the process of renewing one's RC depends on the particular state and its relationship with the Tibetans.

Tibetans must usually renew their RC in the state in which it was issued. For some Tibetans, such as college students or monks living in monasteries far from their settlements, this is difficult, as it demands time away from their studies and money to travel long distances. Some Tibetans resort to paying bribes to renew their RC without traveling to the home district. It is however possible for Tibetans to request that their state for registration be changed.

Consequences of not having an RC
Although there is no accurate record of how many Tibetans are living in India without an RC, there are undoubtedly a cohort of unregistered Tibetans, who either entered in the years between 1995 and 2003 when RCs were not being given out to Tibetans by the Government of India, or who entered in 2003 or after outside of the official channels and therefore without an SEP.

Tibetans who reside in India without RCs have no legal status; they are ineligible for any benefits; they are vulnerable to harassment by the police, and arrest, detention, extortion, fines and threatened or actual deportation.

As a result of their extreme legal vulnerability, Tibetans residing in India without RCs live in a state of fear and insecurity, necessarily keeping a low profile and avoiding contact with the Indian authorities. Tibetans without RCs also find it difficult to secure housing because landlords, guesthouses, and hotels alike tend to require the production of RCs.

They are also unable to secure the use of land or housing within the settlements. Many Tibetans without RCs therefore move in with friends or family in what may already be overcrowded accommodations. Tibetans without RCs are also unable to open bank accounts or get bank loans and have trouble finding employment because most businesses, including those run by the CTA, make employment conditional on possession of an RC.

In some states, Tibetans are able to use their RCs to obtain driver's licenses, which would be more difficult, if not impossible, without a valid RC. Finally, Tibetans without RCs face difficulties obtaining benefits or services that the CTA provides to Tibetans with RCs, including education and medical treatment.

Even those Tibetans who possess RCs have no legal right to renewal of their RCs. Renewal is generally routine, but it remains subject to the discretion of the Indian authorities. Tibetan refugees, thus, do not enjoy a permanent legal status in India. Nor do they have the legal capacity to enforce, in court or elsewhere, the limited “rights” conferred by RCs—which, more accurately, should be described as privileges extended as a matter of executive policy and grace pursuant to the authority vested by the Foreigners Act of 1946 and the Registration of Foreigners Act of 1939.

Identity Certificate
Tibetans with RCs are eligible to acquire travel documents known as Identity Certificates (ICs), which allow them to undertake international travel. ICs resemble Indian passports in that the cover is imprinted with the Ashoka pillar, India's national symbol, although the cover is yellow rather than the passport's dark blue. Not all countries accept IC as valid travel documentation. Even when traveling to countries that do recognize the IC, such as the U.S., Canada, and some European states.

Acquisition of IC
Since 2013, Tibetans can apply for an IC online. The supporting documents required to apply for an IC are a recommendation letter from the Bureau of His Holiness the Dalai Lama, a valid RC, proof of date of birth, and proof of address in India. Once the IC application is complete, it is sent to the Passport Office of the Ministry of External Affairs in Delhi and then to the authorities in the applicant's state of residence.

The state officials verify the applicant's identity and check to make sure that the applicant resides at the address stated on the application. The Passport Office of the  Ministry of External Affairs is the governmental organ or office that ultimately issues the ICs.

While the decision to grant an IC is discretionary, TJC has not been informed of arbitrary, outright denials, except when the applicant does not live at the address noted on the application. While denials are infrequent, delays are not. In the last few years, the process for obtaining ICs has become far more difficult, with delays of two years increasingly commonplace and some taking as long as three years to be processed. None of the government offices that handle the processing of the ICs take responsibility for the delays. In stark contrast, Indian citizens only have to wait between one and four weeks to receive their passports after they apply at the exact same office.

Such significant delays – of between 1 and 3 years – in being granted ICs, inevitably causes severe difficulties for Tibetans trying to plan international trips for school or other purposes and opportunities.

There are conflicting reports about the ease with which one can obtain an IC based on false documents, such as a falsely obtained RC and birth certificate. One Tibetan official noted that many people have ICs based on false documents, but unless someone files a complaint against them which is very unlikely the authorities accept them as genuine. She noted that it is common practice to lie about being born in India in order to get a birth certificate, an RC and then an IC. Another Tibetan official reported that phony “one-time only” Identity Certificates can be obtained at the airport through bribery.

For an IC to be operational, a number of other official approvals and documents need to be sought and obtained:
  • Exit Permit
    Tibetans traveling overseas must relinquish their RCs to the Indian authorities and then secure an exit permit from the local Foreign Registration Office. The exit permit is written both on a letter bearing the FRO letterhead and also directly into the RC. Exit permits can be difficult to obtain and many applicants complained of having to pay bribes to acquire them. But once obtained, Tibetans are able to use their IC and their exit permit to exit India.
     
  • NORI stamp
    For a Tibetan to gain reentry into India, the IC must be stamped with a “No Objection to Return to India” or NORI stamp. In order to receive a NORI stamp, which must be obtained before departure, the Ministry of External Affairs and the state government's Department of Home Affairs must issue clearances. Indian authorities occasionally decline to issue NORI stamps on ICs, particularly if an applicant is known to have been involved in political activities.
     
  • Return visa
    In addition to having a NORI stamp, Tibetans traveling internationally with an IC must obtain a return visa at the Indian embassy or consulate in the country they are visiting before returning to India. While there is no guarantee that the Indian embassy or consulate will issue such a visa.
     
  • Renewal of ICs
    ICs are valid for ten years and may be renewed,255 although respondents say that renewal can sometimes take longer than the initial application process, which is on average two years. The IC cannot be renewed from abroad, which means that Tibetans must return to India to renew their ICs. Indian missions will not renew an IC abroad, apart from two exceptional categories. The two categories are staff members of Offices of Tibet (essentially the CTA's network of “embassies” overseas) and students studying abroad. These exceptions came about as a result of sustained efforts by the CTA. Despite attempts to enlarge these categories, no other exceptions are recognized.
     
  • Consequences of not having IC
    India is not obliged to accept the return of Tibetans with expired documents, nor is there any legal basis for a Tibetan who has lived in India without documentation to return to India from overseas. According to the most senior officials within the Central Tibetan Administration, Tibetans attempting to return to India without a current IC will not be allowed into India.
     
  • 6.1.3 Special Entry Permits
    Special Entry Permits (SEPs) represent a joint initiative of the Indian government and the CTA, which began in 2003, and regulate Tibetans entering India from Nepal. Tibetans obtain SEPs in Nepal before they depart for India from the Tibetan Reception Center in Kathmandu. SEPs ensure Tibetans safe transit from Nepal to India and then enable them to remain in India for a designated period of time after arrival.
     
  • Acquisition of SEPs
    When a Tibetan refugee arrives at the Nepal Refugee Reception Center, the Tibetan government asks the Indian Embassy in Nepal for the SEP on behalf of the refugee. Before a refugee is given an SEP, the Indian embassy verifies the background and identity documents of the refugee provided by the Nepal Reception Center to make sure the information is accurate.

    The Refugee Reception Center in Dharamsala, India did not know of any instances where a person who had been processed by the refugee Reception Center in Kathmandu, Nepal was not issued an SEP. After acquiring an SEP, the Nepal Department of Immigration gives an exit permit to the Tibetan and then he or she is escorted to India by Refugee Reception Center staff who ensure that the refugees arrive safely in the Tibetan “capital in exile” – Dharamsala, in Himachal Pradesh, India.

Once at the Refugee Reception Center in Dharamsala, Tibetan staff there liaise with the local FRO office to issue the new arrivals RCs based on their SEPs. This process is reportedly straightforward and must be undertaken within two weeks of the Tibetans entering India.

Categories of SEPs
In 2003, India created four SEP designations:
  1. Refugee,
  2. Pilgrimage,
  3. Education, and
  4. Other,
All of which had different implications for how long the bearer would be able to stay in India. In 2016, only the Education and Other designations remain in use, with “Education” being by far the most common designation.

India eliminated the Refugee designation in 2005. The Pilgrimage category was more recently taken out of usage, as it was thought unhelpful – allowing as it did only a very short-term stay, and expiring after three months with a possible extension of up to six months. Many Tibetans with pilgrimage SEPs remained after the expiration of their authorized stay, which rendered them ineligible for RCs, meaning that they were staying in India illegally.

Indeed, a memorandum from the Government of India Ministry of Home Affairs stated that Tibetans with pilgrimage SEPs who had overstayed and not regularized their status by June 30, 2012, will be dealt with under the Foreigners Act 1946 for deportation. In recognition of this problem, the pilgrimage category was abolished and an agreement was forged between the CTA and the Government of India to provide RCs to the approximately 415 Tibetans who had overstayed on the pilgrimage-based RC. Of the 415, only 300 came forward. The others may have obtained RCs illegally and were afraid to present themselves.

The Other category SEP is only issued by the Indian government in extremely rare cases because, in practice, it applies only to special situations, such as former political prisoners, although one respondent said that elderly Tibetans sometimes get this categorization, as they cannot be termed students under an educational SEP. Use of the Other category is therefore diplomatically sensitive. Indeed, research suggests that “Other” SEPs may have been issued as few as five or six times to date.

The Reception Center in Dharamsala said no Other SEPs had been issued in several years. Both the “Education” and the “Other” SEPs are stamped “long-term stay permit.” The SEP category for education is now the primary way for Tibetans to enter and remain lawfully in India. Most Tibetans who come to India are individual males (not families) between 18 to 40 years old, leaving the oppressive situation in Tibet and coming to join a monastery or for other educational purposes.

Birth Certificate
Whether or not Tibetans have access to birth certificates, which are required in order to obtain RCs and Identity Certificates, depends in large part on date of birth. In 2003, an instruction from the Kashag clarified that birth certificates would be issued by the Indian government rather than the CTA.286 Thus, Tibetans born after 2003 typically have birth certificates, whereas many Tibetans born before 2003 do not.

In the past, most births occurred at home rather than at a hospital, and those births were not officially registered. Today, births typically occur in hospitals and they are automatically registered. For older Tibetans, problems regarding birth certificates persist. For those whose births were not registered, a court proceeding must be commenced which involves police interrogations and is reportedly a difficult process.


Categories of Legal Status available to Tibetan Refugees
Part II of India's Constitution defines which persons qualified as Indian citizens on the date of the Constitution's entry into force – January 26, 1950. According to Article 5, citizens include everyone who:
  1. at the time, had his or her domicile in India and had either been born in India or had a parent born in India; or
  2. ordinarily resided in India in the five years immediately preceding the Constitution's entry into force.
The Constitution does not, however, define citizenship or any process for acquiring citizenship subsequent to its entry into force. Rather, Article 11 of the Constitution gives Parliament the general power to regulate citizenship and naturalization. Parliament exercised this power shortly after the Constitution's entry into force by enacting the Citizenship Act of 1955, which, as amended by the Citizenship (Amendment) Acts of 1986 and 2003, specifies how a person may acquire and lose Indian citizenship subsequent to the effective date of the Constitution.

Citizenship
Section 3 of the Citizenship Act as amended, governs citizenship by birth. It provides that every person born in India:
  1. between January 26, 1950, and July 1, 1987; or
  2. on or after July 1, 1987 but before the entry into force of the Citizenship Act of 2003, if one of that person's parents is a citizen of India at the time of his or her birth; or
  3. on or after the entry into force of the Citizenship Act of 2003, if both parents are citizens of India, or if one parent is a citizen of India and the other is not an illegal migrant, “shall be a citizen of India by birth.”

Section 4, as amended, governs citizenship by descent. It provides that every person born outside of India:
  1. between January 26, 1950, and December 10, 1992, if their father is an Indian citizen at the time of their birth; or
  2. on or after December 10, 1992, if either parent is a citizen of India at the time of their birth, shall be a citizen of India. But if the person's parent is a citizen of India by descent only, then that person is not entitled to citizenship unless his or her birth had been registered at an Indian consulate or unless either parent had been in government service at the time of the birth.
The Citizenship (Amendment) Act of 2003 provides that after its entry into force, a person cannot acquire citizenship by descent unless the birth is registered at an Indian consulate within one year of its occurrence or within one year from the effective date of the Citizenship (Amendment) Act, whichever is later, or with the federal government's permission.

Section 5 of the Citizenship Act, as amended, provides for citizenship by registration, which is available to;
  1. persons of Indian origin,
  2. persons married to citizens of India,
  3. minor children of citizens,
  4. adult citizens of India, and
  5. persons registered as overseas citizens of India for five years who have resided in India for the previous two years.

Section 6, as amended, provides for citizenship by naturalization. The qualifications for naturalization are set forth in Schedule III. They require that the applicant;
  1. not be an illegal migrant, which is defined as a foreigner who has entered into India without valid travel documents or has remained beyond the permitted time;
  2. denounce the citizenship of any other country;
  3. reside in India for the preceding twelve months;
  4. have resided in India for nine of the twelve years preceding that twelve month period;
  5. have good character;
  6. speak one language listed in Schedule 8 of the Constitution; and
  7. intend to reside in India
Finally, the Citizenship Rules of 1956, as amended in 1998, establish further requirements applicable to the registration and naturalization process. Applicants must attach affidavits from “two respectable Indian citizens testifying to the character of the applicant;” supply certificates attesting to the applicant's language proficiency; and take an oath of allegiance to India.

Application Procedure for Citizenship
The provisions of Section 3 and 6 of the Citizenship Act of 1955 appear to offer at least a subset of the population of Tibetans in India access to citizenship. Taking Section 3 at face value, a substantial number of Tibetans in India are de jure citizens of India. In reality, it has proved virtually impossible for these Tibetans to acquire passports to prove their status as citizens, and thus they remain foreigners in India. For the many Tibetans who don't qualify as citizens under Section 3, Section 6 would seem to provide a potential path to lawful naturalization, yet there too, this avenue has been effectively foreclosed to Tibetans.

Birthright Citizenship
As to citizenship by birth, Section 3 states that every person born in India between January 26, 1950 (the date on which India's Constitution entered into force), and July 1, 1987 (one of the dates on which India's Parliament amended the Citizenship Act), is an Indian citizen. Despite the plain meaning of this provision, India has always treated Tibetans born in India during this period (roughly, that is, the second generation of Tibetans in India who were born to parents who arrived in the years following the Lhasa Uprising), as foreigners subject to the Foreigners Act - not as citizens.

The inability of Tibetans, even those born between 1950 and 1987, to secure citizenship has not changed despite a number of High Court decisions holding that Tibetans born between those years are entitled to citizenship.[2]

On December 22, 2010, the High Court of Delhi issued a decision in Namgyal Dolkar v. Ministry of External Affairs. The Court ruled that Ms. Dolkar was indeed a citizen under the Constitution of India, which explicitly provides that individuals born in India between January 26, 1950 and July 1, 1987 are citizens of India.306 In other words, the Court held that Tibetans born in India during the prescribed dates, regardless of their parentage, enjoy birthright citizenship comparable to that guaranteed by the Fourteenth Amendment to the U.S. Constitution.

The High Court ordered the Government of India to pay Ms. Dolkar 5000 rupees within one month, although it took five months for the payment to be made. It took several more months for Ms. Dolkar to actually obtain the passport.

In its decision, the Court observed that, as of July 1, 1987, Parliament deliberately cut off birthright citizenship, but the relevant amendment to the Citizenship Act did not and, as a matter of Indian constitutional law, could not apply retrospectively to deprive those born in India before that date and after the Constitution's adoption on January 26, 1950, of Indian citizenship.

The Court state:
“The policy decision of the MHA [the Ministry of Home Affairs] not to grant citizenship by naturalisation under Section 6(1) [of the Citizenship Act, as amended] is not relevant in the instant case. Having been born in India after 26th January 1950 and before 1st July 1987, the Petitioner is undoubtedly an Indian citizen by birth in terms of Section 3(1)(a) [of the Act.]”

Indeed, the Karnataka High Court did just that when it granted citizenship to Tenzin Choephag Ling Rinpoche who was born in Dharamsala in 1985. He was denied a passport by the Regional Passport Office, which had consulted the Ministry of Home Affairs before issuing its denial. The Ministry's position was that Tibetans are not eligible for citizenship pursuant to Section 3 of the Citizenship Act despite the fact that they were born in India between 1950 and 1987.

In August 2013, in Tenzin Choephag Ling Rinpoche v. Union of India, the Karnataka High Court ruled in accord with the Dolkar case, holding that anyone born in India between the January 26, 1950 and July 1, 1987 are citizens pursuant to the Citizenship Act.[3]

At least two additional Delhi High Court decisions have been rendered directing the Government of India to issue passports to Tibetans entitled to birthright citizenship.[4]As in the previous High Court cases, government officials steadfastly refused to grant passports to Tibetans born within the designated years until directly ordered to do so by the High Court. Despite these High Court decisions, the policy of the Government of India has not changed.

Regardless of the year of their birth, Tibetans are considered ineligible for citizenship as a matter of national policy. In fact, Namgyal Dolkar, the named plaintiff in the Delhi High Court case, reports that she regularly receives calls from Tibetans all over India who were born in India between 1950 and 1987 yet have been unable to secure passports. They report that when they apply for a passport, they are ignored or denied even though they have the proper documents, particularly a birth certificate proving their age and place of birth.[5]

The continued refusal of the Government of India to treat Tibetans born between 1950 and 1987 as citizens was recently challenged in what could turn out to be a landmark case filed on May 13, 2016 – landmark because it directly challenges the Government of India's policy. The case was brought by Lobsang Wangyal who was born in India in 1970 and thus is eligible for birthright citizenship under the Citizenship Act. Despite that, his application for a passport was denied because he is of Tibetan descent.

Thus, despite the Delhi and Karnataka High Court decisions, the on-the-ground reality for Tibetans seeking birthright citizenship has not changed. Tibetans born between the designated years are still routinely denied passports and it appears that the only way to enforce the provisions of the Citizenship Act is to hire a lawyer to contest the denial in High Court. This is not a realistic option for the vast majority of Tibetans.

Naturalization
As for citizenship by naturalization, the text of the Citizenship Act, as amended, suggests that Tibetans who have resided in India for ten years should be eligible for citizenship under Section 6 of the Act. But, among other problematic criteria for Tibetans, Section 6 requires that the applicant not be from a country that denies citizenship to Indians. In theory, China's Nationality Law satisfies this criterion, for it provides generally that foreign nationals “who are willing to abide by China's Constitution and laws” may be naturalized if they are close relatives of Chinese nationals, have settled in China, or have other “legitimate” reasons.320 But it is not clear that most Tibetans in India are Chinese “nationals;” they are more accurately described as stateless persons.

At any rate, citizenship by naturalization has not, in practice, ever been a realistic option for Tibetans. The U.S. Department of Citizenship and Immigration Services, UNHCR, and the Immigration and Refugee Board of Canada[6], uniformly confirm that Tibetans cannot become citizens in this way despite their apparent eligibility under Section 6 of the Citizenship Act, as amended.

Significance of Acquiring Citizenship
The significance of citizenship for Tibetan communities in India cannot be overstated, as it would affect many areas of their lives. Some constitutional rights, for example, including the rights to freedom of speech and association, vest in all “citizens” as opposed to all “persons.” Consequently, Tibetan citizens of India could bring constitutional challenges to the practice of repressing Tibetan demonstrations. No longer would it be obvious that the Indian government's policy in this regard can be followed without the risk of violating the constitutional rights of Indian citizens. Also, it would appear that the children of Tibetans granted citizenship would themselves qualify for citizenship under Section 3 of the Citizenship Act.

Without citizenship, Tibetans may not participate in India's political processes hold Indian government jobs and obtain the perquisites that accompany such positions or own property absent approval from the Reserve Bank of India, which is reportedly very difficult to obtain. They also do not qualify for most of the seats in postsecondary educational institutions and if they do gain admissions, they pay more for their education.Tibetans also may not legally own companies or shares in companies.

Although in many states Tibetans with RCs can apply for small business licenses, Tibetans cannot obtain the licenses necessary for running substantial businesses, and in some states they are unable to obtain any kind of business license and so must “rent” them from Indian citizens. Some professionals are unable to get licenses to practice in India. Further, whether any of these restrictions will be altered as a result of the Tibetan Rehabilitation Policy 2014, discussed in Part VI below, remains to be seen.[7]

Voting Rights of Tibetan Refugees
As foreigners, Tibetans are ineligible to vote in Indian elections. However, on February 7, 2014, the Election Commission of India issued a directive to the states to enroll Tibetans born between January 26, 1950 and July 1, 1987. This directive followed the Karnataka High Court decision described above which held that, pursuant to Section 3 of the Citizenship Act, Tibetans born between 1950 and 1987 are citizens of India.

The directive states, ss per Section 3(1)(a) of the Citizenship Act, 1955, the children born to Tibetan Refugees in India shall be treated as Indian citizens based on their birth in India, on or after 26th January, 1950 and before 1st July, 1987. Hence, notwithstanding anything contained in Union Home Ministry letter dated 26th August, 2011 conveyed to all CEOs vide ECI letter dated 27th September, 2011, the Commission clarifies that the EROs concerned should not deny enrolment to the children of Tibetan refugees where they are satisfied that:
  1. the applicant was born in India,
  2. he/she was born on or after 26th January, 1950 but before 1st July, 1987, and
  3. he/she is ordinarily resident in the constituency in which the application for enrolment has been made.[8]
Foreigner's Act, 1946
The Foreigners Act defines foreigners in the negative, that is, as all persons other than citizens of India. It also authorizes the central government to “make provision, either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner . . .”[9]

The Foreigners Act empowers the government:
  1. To prohibit, regulate, and restrict foreigners' entry into India or their departure from India; [10]
  2. To limit their freedom of movement; [11]
  3. To require them to reside in a particular place, furnish proof of identity, and report to designated authorities at prescribed intervals;[12]
  4. To submit to photographing and fingerprinting at designated times by designated authorities, as well as to medical examinations; and [13]
  5. To prohibit them from association with persons of a designated description, from engaging in designated activities, and from using or possessing designated articles. [14]

The Foreigners (Amendment) Act prescribes the penalties for violating the Foreigners Act.[15] Section 14A provides that any foreigner who enters or stays in India without valid documentation is subject to imprisonment for a term of two to eight years and to a fine of between 10,000 and 50,000 rupees.[16]

The Registration of Foreigners Act defines foreigners in the same way as the Foreigners Act, and authorizes the national government to promulgate regulations governing foreigners' activities. For example, the Act empowers the government to require foreigners to:
  1. Report their presence to prescribed authorities at designated intervals; [17]
  2. Report their movements within India and internationally; and [18]
  3. Provide proof of identity to authorities and hotel managers.[19]
To this day, Tibetans in India remain “foreigners” within the meaning of the Foreigners Act of 1946 and the Registration of Foreigners Act of 1939. As foreigners, Tibetans generally cannot become citizens (with one exception discussed in Part IV(D) below); travel freely, either within India or internationally; own property in their own name; hold government or other public jobs; or qualify for resident rates at most government- funded schools.

End-Notes:
  1. http://www.phayul.com/news/article.aspx?id=27252&t=0
  2. Namgyal Dolkar v. Ministry of External Affairs, W.P.12179/2009 (High Court of Delhi) (India), December 22, 2010
  3. Tenzin Choephag Ling Rinpoche v. Union of India, 15437/2013 (High Court of Karnataka) (India) August 7, 2013.
  4. Phuntsok Topden v. Union of India, W.P.(C) 1890/2013 and Tenzin Jigme v. Union of India, W.P.(C) 6137/2014.
  5. http://www.ecoi.net/local_link/303896/426979_en.html
  6. http://www.refworld.org/docid/3f51f90821.html
  7. www.hrdc.net/sahrdc/hrfeatures/HRF183.htm
  8. http://www.ecoi.net/local_link/303896/426979_en.html
  9. The Foreigners Act, No. 31 of 1946 Sec 3(1); India Code (1993)
  10. The Foreigners Act, No. 31 of 1946 Sec 3(1); India Code (1993),
  11. Id. Sec 3(2)(a)-(b), (d), (e)(ii).
  12. Id. Sec 3(e)(i).
  13. Id. Sec 3(e)(iii).
  14. Id. Sec 3(e)(iii).
  15. Foreigners (Amendment) Act, 2003.
  16. Id. Sec 14A(b).
  17. The Registration of Foreigners Act, 1939 Sec 3(1)(a).
  18. Id. Sec 3(1)(b)-(d).
  19. Id. Sec 3(1)(e).

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Section 482 CrPc - Quashing Of FIR: Guid...

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The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of th...

Whether Caveat Application is legally pe...

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Whether in a criminal proceeding a Caveat Application is legally permissible to be filed as pro...

How To File For Mutual Divorce In Delhi

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How To File For Mutual Divorce In Delhi Mutual Consent Divorce is the Simplest Way to Obtain a D...

Copyright: An important element of Intel...

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The Intellectual Property Rights (IPR) has its own economic value when it puts into any market ...

The Factories Act,1948

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There has been rise of large scale factory/ industry in India in the later half of nineteenth ce...

Law of Writs In Indian Constitution

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Origin of Writ In common law, Writ is a formal written order issued by a body with administrati...

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