|November 3, 2001||atimes.com|
SRI LANKA: THE UNTOLD STORY
Chapter 13: A nightmarish British legacy
By K T Rajasingham
In Britain, according to Brooke Bond Tea survey, people drink nearly 187 million cups of tea per day. It is understood that they normally drink the best - Ceylon Tea. A recent survey disclosed that, drinking at least one cup of tea a day, can reduce the risk of heart attack by 44 percent. Camellia Sinensia is the botanical name of tea, which is a good herbal brew.
Unfortunately, the British who consume the best Ceylon tea, up to date, have ignored the suffering of the people who are involved in the planting, growing and manufacturing of tea in Ceylon. They have failed to discern that, behind the tea that they enjoy, lies a tragic story. It is one of betrayal by the British government in 1948, which has made thousands and thousands of workers who pluck tea leaves, who were British subjects, stateless, strangers, suffering pain and agony, for the past 53 long, torturous years. "Thus their life blood flows; To fashion this land; A paradise for some." - A poem by poet laureate C V Velupillai - the Indian Member of the first Ceylon Parliament.
Every day, around 350,000 estate workers pluck several million tea leaves by hand. This is the first step in the manufacture of quality Ceylon tea. The tea-pluckers are the Indian plantation workers, who are "British subjects" and who became stateless and are now grieving to establish their identity. The majority of the Indian plantation workers are Tamils of the Indian origin, driven to this despicable plight by the British colonial rulers, as well as by successive Ceylon Governments that came to power after the granting of Dominion status to Ceylon, in 1948.
The Tamils of the Indian origin had a checkered history. From day one of their arrival in Ceylon they faced discrimination, hatred, humiliation and deprivation of the basic freedoms and human rights. They were bonded, bound to the wintry mountaintops to grow tea plants and to pluck the tea leaves with numb fingers. "The Indian laborers were treated no better than a dumb creature." The People of Ceylon by Dr N D Wijesekera, page 184.
The British brought the plantation workers of the Indian origin to Ceylon when the island was under their colonial overlordship. They were British subjects. "But owing to the survival in the law of traditions derived from the feudal system, citizenship was a matter not of relationship towards a country but of relationship towards the king. Those who elsewhere would be described as 'citizens' or 'nationals' of the respective countries were in the Commonwealth referred to as 'subjects' of the King, or 'British Subjects'. Since there was one king throughout the Commonwealth, even after some of the colonies obtained dominion status or independence, there was a common citizenship implied in the phrase 'British subject'." The Constitution of Ceylon by Sir Ivor Jennings, page 27.
According to Sir Ivor Jennings, "the relationship between the subject and the king was described as allegiance, so that all persons who were born in the king's dominions were said to be born within the king's allegiance. Accordingly, the Indian plantation workers, who were in Ceylon during the period when Ceylon received its dominion status, were all British subjects and even after that period of time their successors, such as children, are also British subjects."
Out of the total amount of the Indian plantation workers in Ceylon, the majority, that is, more than 85 percent, are Tamils. The Tamils came from Coiambatore, Chennai (Madras), Ramanathapuram, Nilgiris, Selam, Trichy (Trichirapalli), Madurai, Thirunelveli, Nagapatnam, North Arcot, South Arcot, Tanjore, Nellur and from so many other places in the Tamil Nadu State, which was earlier a part of India's Madras Presidency. Earlier, India was a colony under the British, but even after its independence in 1947, India remained a member of the British Commonwealth of Nations. Undoubtedly, the Tamils of the Indian origin and all the other Indian plantation workers, brought by the British from other parts of India, Pakistan and Afghanistan, too are British subjects.
In 1827, for the first time, Sir Edwards Barnes (1824-1831), the Governor, along with the head of the Botanical Garden, which maintained an experimental coffee estate at Peradeniya, brought 300 laborers from South India, to work in the coffee plantation.
The Coolebrooke-Cameron Commissioners in 1833 recommended the abolition of the Rajakariya system, a compulsory free labor service to the state. The Sinhalese laborers refused to take up the strenuous and regimented employment in the coffee estates and they felt that the offer for their labor was insufficient. Their rejection to work in the plantations created a big labor problem for the British planters, who opened up the lucrative plantations of coffee, tea, rubber and coconut.
The planters saw no reason to pay high wages when there was cheap labor available in south India. Thus, thousands of south Indian laborers began to make the annual journey to the coffee estates in the central and southern parts of the country.
The expansion of the coffee plantations created a demand for wastelands. Up to 1832, wastelands at the disposal of the Crown were allotted to the planters, on a land grant system. The first plantations introduced on a commercial scale were coffee, and the land required for the plantation was sold for 25 pence per acre, in some instance, the price went up to #1 (one sterling pound) an acre.
The government replaced its outright land grant policy by a land sales policy in 1833, to accommodate the planters, who required more and more land for their export-oriented coffee and other cash crops. The government sold available lands at five shillings per acre. Despite the government's policy of the outright sale of available land, there was an acute shortage of land for the coffee plantations. Pressure from the planters for a solution led to the promulgation of the Crown Land Encroachment Ordinance No 12 of 1840. By this ordinance, the Crown claimed all land that was not proved to have been granted previously. This led to an increase in activities in the coffee plantations, at the same time it also led to the creation of landless peasantry in the country.
In 1837, there were 4,000 acres of land under coffee plantations. In 1860, records show 40,000 acres, and this peaked in about 1870. By 1845, there were 250,000 acres of land under coffee cultivation and in 1878 it grew to 773,000. However, by 1870 a leaf fungus called Hemileia Vastratrix had appeared, leading to the demise of the coffee plantations in the country.
Tea plantations began to replace coffee in the estates of the central highland. Tea cultivation was promoted from 1860 onwards. The conversion from coffee to tea led to an important demographic development. Up to 1870, the demand for labor in the plantation sector had been seasonal. Laborers were required during the season to pick coffee beans. Therefore, the vast majority of the Indian migrant workers used to return to India.
When the tea and rubber plantations became dominant, the need for a permanent Indian labor force became a necessity. This led to the settlement of a large Indian Tamil community in the Central highlands. Governor Sir Henry Ward (1855-1860) encouraged the recruitment of the Indian laborers. In 1873, the law to allow the immigration of Indian laborers was passed.
Official population counts, including information such as ethnicity, gender, age, occupation and income, were started in Ceylon in 1871. In the census of 1871, 1881, 1891 and 1901, there was only one form of Tamil ethnicity, which included both the Ceylon Tamils and the Indian Tamils. Since 1911, Tamils of the Indian origin have been shown as a separate nationality. The population statistics are revealing. In 1901, Tamils constituted 24.5 percent, Muslims 6.4 percent. In 1911, Ceylon Tamils constituted 12.8 percent of the population, whereas Indian Tamils formed 12.9 percent; in 1921, Ceylon Tamils were 11.5 percent and 13.4 percent; in 1931, 11.3 percent and 15.2 percent, in 1946, Ceylon Tamils were 11.7 percent, the Indian Tamils 11.0 percent and Muslims 5.6 percent.
The government passed the Destitute Immigration Ordinance of 1907, to prevent the entry of persons who would be liability to the Treasury. But the entry of laborers and Kanganis of British Indian origin was not covered by Section 3(1) of the ordinance. The Legislative Council enacted Ordinance No 10 of 1912, by which the estate superintendents had to provide for the medical needs of the Indian laborers. Maternity benefits had to be given to the women laborers. Children from the age of one year to 10 had to be given at least one proper meal a day. Other provisions dealt with the sanitary conditions of dwellings and how the row of houses ought to be constructed according to prescribed specifications.
The government of India controlled emigration of the Indians to Ceylon to work in the plantation sector. According to Indian Emigration Act No 7 of 1922, section 10, "emigration for the purpose of unskilled work shall not be lawful except to such countries and on such terms and conditions as the Governor-General in Council by notification in the Gazette of India, may specify." Furthermore, these notifications are issued when approved by each Chamber of the Indian legislature. Such notification for the emigration of unskilled workers to Ceylon was issued in 1923.
Once India approved the emigration, the Ceylon government, under Labor Ordinance No 1 of 1923, constituted a Department of Indian Immigrant Labor, in order to safeguard the interests of the Indian laborers, and to supervise housing and medical facilities for them. Under that same ordinance, an immigration fund was instituted. It was used for the recruitment of Indian labor. Licenses were given to Kanganies and others to establish agencies in almost every village in Tamil Nadu to recruit workers.
The Ceylon Labor Commission's head office was opened on June 1, 1904 at Trichirapally (Trichy) to recruit laborers to work in Ceylon. For the purpose of recruiting, the Tamil Nadu region was subdivided into Circles, and each circle had an assist commissioner, who was responsible for the entire exercise of recruitment. The divisions of the circles were as follows:
1. Trichirapally Circle: Included Trichy district, Puthukottai and Tanjore district.
2. Velore Circle: Chengalpattu district and the Arcot districts of the North and South.
3. Salem Circle: Included Coiambatore, also some areas of Trichy.
4. Madurai Circle: Included Madurai, Trinelvely and Ramanathapura districts.
In 1932 alone about 2,589 licenses were issued to Kanganies to recruit laborers. The government of the Madras Presidency provided land to the Ceylon government in Rameswaram to construct a camp, popularly called the Mandapam Camp, which was the transit point for the Indian indentured laborers to travel to Ceylon.
The island of Rameswaram is 80 square kilometers in extent and the Mandapam camp located eight kilometers west is the transit point from where the first generation of Indians went to Ceylon. This was opened by the British in 1916 for recruitment of workers for plantations in Ceylon. This camp was named Kelaniya, and so is the camp officers bungalow located close by. This name drives from that of the Kelanveli Indian Association. This association was formed in 1923 by the clerks and minor supervisory staff of the plantations in Ceylon to champion their interests. One of its major agitations centered around the demand for wages to be paid directly to the workers and on a regular weekly basis. This association took its name from the Kelaniya river which originated in the region. The camp is two kilometers from Mandapam village. In recent times it served as a transit point for plantation workers who were sent to India under various repatriation pacts. Today it is ironic that the same place is being used to accommodate Sri Lankan refugees. The camp was bought by the Tamil Nadu government from the then Ceylon government, in 1946, for Rs. 2,600,000. Mandapam camp is spread over an area of 294.25 acres and consists of 226 blocks containing 1,092 hutments. Of these, 85 blocks consisting of 786 hutments are reserved to accommodate repatriates. The camp functions under the administration of a special deputy collector. The entire camp has been fenced with barbed wire to a height of six feet at a cost of Rs. 500,000 to provide tight security.
Thousands of indentured laborers from Tamil Nadu were brought to Ceylon through the Mandapam camp and they were settled around the tea estates in the central hill region. They were gradually given the franchise to participate in the political activities of the island. In the 1920s, franchise rights were based on a residence of six months and certain property qualifications. Due mainly to property qualifications, the total number of registered voters in Ceylon in 1924 "was 204,997 or 4 percent of the total population of five million". (Donoughmore Commission Report, 1928, page 82).
It was under these circumstances that the Donoughmore Commission in its report of 1928 (page 87) stated that "we have decided to recommend the adoption of manhood suffrage. On this basis, according to the figures supplied to us, the possible voting strength of the electorate will be increased to 1,200,000. We desire, however, to make two reservations. In the first place, we consider it very desirable that a qualification of five years residence in the island (allowing the temporary absence not exceeding eight months in all during the five years period) should be introduced in order that the privilege of voting should be confined to those who have an abiding interest in the country, or who may be regarded as permanently settled in the island ... this condition will be of particular importance in its application to the Indian immigrant population. Secondly, we consider that the registration of voters should not be compulsory or automatic, but should be restricted to those who apply for it ..."
The Sinhalese leadership was against the large number of plantation workers of the Indian origin being given voting rights, as recommended by the Donoughmore Commissioners in 1928. Their misgivings were conveyed to Governor Sir Herbert Stanley (1927-1931), and modifications were accordingly made to the Donoughmore Commission recommendations by the Colonial Secretary.
The franchise status quo of the Tamils of the Indian origin, which was devised by Sir Hebert Stanley, was referred to Lord Passfield, the Secretary of States for Colonies. He in his reply dated October 10, 1929, he wrote:
"I cannot fail to recognize that unless some material modification of the proposals relating to the franchise can be announced, the prospect of general acceptance of the scheme and of active cooperation in its working if it is put in force is remote. You have fully discussed in your dispatch the main outline of the controversy, which has arisen, and in paragraph 35, you submit proposals for modification of the recommendations of the commission, which appear to me not unfair in themselves and to be likely to command a large measure of acceptance."
"I propose to adopt your suggestions under which, subject to special provisions being made for British subjects not domiciled in Ceylon being allowed to qualify for the franchise in accordance with the conditions of the present constitution, domiciled should be the standard test for the inclusion in the register. The definition of 'domicile' involves legal questions of much complexity, and qualification would hardly be suitable if it stood by itself. The difficulty would, however, be overcome by your proposal that the applicant, provided, he can furnish satisfactory evidence of five years' residence, should be qualified for the vote on the production of a certificate of permanent settlement granted by some duly appointed officer. I propose that provision should be made for this qualification in the Order in Council."
Governor Sir Herbert Stanley incorporated changes in the Order in Council 1931, after his proposal was accepted by Lord Passfield, the Secretary of State for Colonies. This arrangement, though a deviation from the Donoughmore Commission proposals, enabled the Indians to participate in the run up to the general elections to the State Councils, and to the parliamentary elections. On October 26, 1928, A F Molamure moved in the Legislative Council:
"This council accepts the recommendations of the Donoughmore Commission, as regards of the franchise subject to the following amendments:
a. That in cases of females, the age of qualification as a voter should be 21 and not 30 years of age.
b. That in the case of non-Ceylonese British subjects, a literacy qualification should be added to the proposed five years' residential qualification; or in the alternative the qualification should be that the applicant to be registered as a voter should:
i. Have resided in the island for a period of one year.
ii. Be possessed of immovable property of the value of Rs. 500.
iii. Or be in receipt of an income of Rs. 50 a month.
iv. And be able to read and write one of the languages of the island, e.g. English, Sinhalese or Tamil."
D S Senanayake, speaking on the motion, said, "We do not ask exclusive rights for the Sinhalese. We ask for equal rights for everyone who is domiciled here, but not for those who have their domicile and their interests somewhere else. If an Indian comes here and settles down, he will know what the permanent interests of the country are, and he would be naturally one of us.
"The Sinhalese are ... an unfortunate community ... the Sinhalese have been misunderstood and even their generosity forgotten ... I do not think there is any other community like the Sinhalese who have consented to penalties themselves in order to give privileges to others ... The Indians ... have a big country. We have only a small bit of land for ourselves; ... we want this country for ourselves." (Hansard - November 8, 1928.)
However, the government of India protested against the modification of the Donoughmore Commissioners' recommendations. "His Majesty's government, however, replied that they will not feel justified in agreeing to any substantial modification of the proposals, which formed an essential part of the scheme of constitutional reforms accepted by the Legislative Council of Ceylon, and that these proposals did not seem to His Majesty's Government to involve any racial discrimination against Indians, whereas some of the Indians protests amounted in effect to a claim to a position of privilege rather on equality." - Ceylon: Report of the Commission on Constitutional Reform, para 209.
The number of Indians registered as voters in 1928 rose to 100,000, against 12,438 registered under the old constitution. In 1936, the Indian registered voters' figure was 145,000, by 1938 it had risen to 170,000 and by 1939 it was estimated at 250,000 registered voters.
In 1938, the Sinhalese leaders made representation to Governor Sir Andrew Caldecott (1937-1944), alleging that the regulation regarding the Indian franchise had not been properly implemented. Accordingly, in 1940 the procedures on the revision of registers were altered with regard to qualification of domicile of choice. Instructions were given that no facts relating to the question of domicile were to be accepted unless they had been checked, either by the registering officer, or by an enumerator, and also to be orally examined. Due to harassment, the illiterate Indian plantation workers suffered, the registration of the Indians declined in 1943 to about 168,000.
In 1936, A E Goonesinghe became general secretary of the Inhaled Mara Sabah. He organized a campaign against the Malayalees (Keralites), aimed at boycotting their shops, boutiques and restaurants. Goonesinghe urged the government to deport all the Malayalees in government service and give local Sinhalese their jobs.
Meanwhile, in December 1934, the State Council resolved, "That in view of the serious and increasing unemployment among Ceylonese workers, this council respectfully requests His Excellency the Governor to appoint a commission to consider and report upon the problem of non-Ceylonese workers in Ceylon, particularly with a view to the restriction and effective control of immigration into Ceylon of workers from other countries."
Accordingly, Sir Edward St J Jackson examined the issues and concluded that no restriction of immigration for the protection of employment of proscribed percentages of Ceylonese should be recommended. Sinhalese politicians severely criticized the Jackson Report. S W R D Bandaranaike said, "I do not wish to go into arguments about the Jackson Report. Let it be remembered that he came here, held full inquiry; he returned to England, and it took him two years to produce that report, when that report should have been written in a month."
In 1939, D S Senanayake moved a resolution in the State Council calling for the deportation of 15,000 Indians and to deport all Indians appointed to government service after April 1, 1934 and to discontinue all Indians with less than 10 years of service. Associations of Indians in Ceylon jointly met and condemned the deportation move and resolved to bring it to the Indian National Congress and to the notice of Mahatma Gandhi.
Gandhi sent Pundit Jawaharlal Nehru, as his special envoy to meet the Ceylonese leaders. Nehru arrived on July 18, 1939 and met D S Senanayake and some other ministers. The Sinhalese ministers took an uncompromising stand. Senanayake bluntly told Nehru that many educated Ceylonese were unemployed and that they would revolt if foreigners were allowed to rob them of their jobs. Nehru's persuasion failed.
Despite the pressure put by Mahatma Gandhi and Pundit Nehru, the Ceylon government served notice to discontinue the services of 800 Indians in Colombo. The government instructed the heads of departments not to recruit Indians. Furthermore, after 1935 the Ceylon government passed several laws that were discriminatory and were against the Indians in Ceylon. To name:
Earlier, the Village Committee Act of 1889 stipulated that Europeans, Burghers and Indian plantation workers were excluded from exercising their right to vote in elections for the village committees. In 1924, when the ordinance was amended, the exclusion was retained. But in 1937, S W R D Bandaranaike, the minister of Local Government, brought an amendment by which Europeans and Burghers were given the right to vote in the village committee elections, but the amendment continued with the exclusion of the Indian plantation workers. The Colonial Office in London ratified the amendment and retained the exclusion clause relating to the Indian plantation workers.
These discriminatory actions against the Indians in Ceylon had serious repercussions in India. The Indian National Congress passed a resolution criticizing Ceylon's bid to deport the Indians, and also for the adoption of discriminatory legislation against the Indians.
When the Indian National Congress made resolutions against the Ceylon government, backed by Mahatma Gandhi and Jawaharlal Nehru, the government of India on August 1, 1939 revoked its earlier notification regarding emigration of workers to Ceylon and imposed a ban on the emigration of all unskilled laborers from India to Ceylon. Under sub-section 2 (1) of the ordinance, the term "unskilled laborers" was broadly interpreted as "Laborers engaged in agricultural pursuits".
Since 1928, one could easily discern a gradual change in the approach of the Colonial Office in London, which without the slightest dissent or objection approved anti-Indian laws and began to lean towards the majority community. Until 1940, under the Donoughmore Constitution, the external affairs of Ceylon came under the purview of the Chief Secretary. To the British, Ceylon was suddenly cast as a throwaway colony and it decided to allow the Indian plantation workers issue to be settled by the Sinhalese leadership. To crown the anti-Indian move, in 1940 the British colonial government decided to give the Board of Ministers the right to negotiate on behalf of the government the crucial Indian status issue. Furthermore, the British gave authority to the Board of Ministers to appoint the Ceylon's Representative to India. This was a calculated move by the British to wash their hands on the Indian plantation laborers.
In November 1940, a conference was held in Delhi between representatives of the two governments to settle outstanding differences on matters connected with franchise, domicile and the status of Indians in Ceylon, and also as an added subject, trade relations between the two countries.
The Ceylon delegation was led by D S Senanayake, the leader of the State Council and Minister of Agriculture and Lands. Other members were, G C S Corea, the Minister of Labor, Industry and Commerce and S W R D Bandaranaike, the Minister of Local Administration, who was also the president of the Sinhala Maha Sabah. L J Senivaratne was secretary to the delegation.
Sir Girja S Bajapai led the Indian delegation and the other members were Sir A Ramaswami Mudaliyar and A Wittal. S Dutt was the Secretary to the Indian team. Meetings were held in Delhi November 4, 5, 7, 8 and 12, 1940. The conference broke down on the question of the status to the Indian immigrants in Ceylon.
According to a newspaper report, Senanayake, in a public rally, disclosed details regarding the Indo-Ceylon conference. He explained that the Indian government wanted full rights for 900,000 Indians, but it was impossible to agree. Senanayake gave details of the proposals made by the Ceylon delegation regarding the status of the Indian residents in Ceylon, as well as the counter-proposals submitted by the representatives of the Indian government.
Explaining the differences between the two sets of proposals, Senanayake said, "We proposed that the franchise should be given to all Indians now in Ceylon who have permanently settled down here and that full rights of citizenship be given only to the second generation of such Indians.
"Their proposal was that full rights of citizenship should be given to all Indians who have lived five years in Ceylon and have their families here. Their proposal would practically amount to our having to confer full rights of citizenship on the entire 999,000 Indians now in Ceylon, except to those who chooses to leave Ceylon. We found it impossible to agree to these proposals and so the Conference had to end in this unsatisfactory manner."
Subsequently, on March 4, 1941, G S Woodman, the Chief Secretary to the Colony, at the request of the Board of Ministers, moved in the State Council the first reading of a bill entitled "An ordinance to make provision for the regulation and control of the entry of non-Ceylonese into Ceylon and for other matters incidental to or connected with the purposes aforesaid". The second reading of the bill was taken on March 18 and passed on March 26, with division and referred to a standing committee, where it remained ever since.
A second Indo-Ceylon Conference took place from September 5 to 14, 1941, in Colombo. The delegations met again on September 18, 19, 20 and 21 and their joint report was signed. In December 1941, war broke out with Japan and in February 1942, the Indian government requested that Ceylon postpone the negotiations until after the war. Again in February 1943, Indian government informed that it had in effect decided to refuse to ratify the Agreement.
As the ban on emigration imposed by India in 1939 was in force, the Indian workers who were in Ceylon has been there for almost nine years by the year ending 1948. By then, the government of Ceylon should have considered to assimilate these Indian Tamils domiciled in Ceylon. Unfortunately that was not so.
According to the recommendations of the Soulbury Commissioners, the Ceylon Constitution Order in Council 1946 become the supreme law of the land and a bicameral parliament was constituted. The Tamils of the Indian origin who took an abiding interest in the political and economical development of the country participated in the parliamentary general elections of 1947.
The Ceylon Indian Congress, formed in 1939 under the patronage of Jawaharlal Nehru, contested eight parliamentary seats and won in seven. The successful candidates were: S Thondaman contested the Nuwera Eliya seat and the other congress candidates who won were George R Motha - Maskeliya; K Rajalingham - Nawalapitya; K Kumaravel - Kotakella; S M Subbiah - Badulla; C V Velupillai - Talawakalle; and D Ramanujam - Aluthnuwera.
In December 1947, Pundit Jawaharlal Nehru, by then the Prime Minister of India, and D S Senanayake, his Ceylonese counterpart, met to resolve the problems regarding the Indian plantation workers. An agreement was reached on the general principles. Subsequently, correspondence that followed showed that the two governments placed different interpretations on what was thought to have been agreed upon.
"Mr. Nehru's own view of the matter was tersely expressed in the following words: 'If you don't want these Indians here, we still take them back. What difference will seven or eight lakh make in a country of four hundred million people. But, if you feel that you cannot be without them, then it becomes a matter of honor with us that they should be given the rights to which all citizens are entitled." Sri Lanka's First Prime Minister: Don Stephen Senanayake by H A Hulugalle, page 215.
After gaining independence, D S Senanayake enacted the following acts of parliament and rendered more than 800,000 Tamils of the Indian origin, who were British subjects, stateless and people without vote. The following acts of parliament repudiated their civic and political rights:
1. Ceylon Citizenship Act No 8 of 1948.
2. Ceylon Parliamentary Elections Amendment Act No.48 of 1949
3 The Indian and Pakistani Residence (Citizenship) Act No 30 of 1949.
Senanayake's decade old anti-Indian stand began to unfold when he introduced the Ceylon Citizenship Act No 18 of 1948. Under this, Indian Tamils, those born in Ceylon and others domiciled in Ceylon, were denied Ceylon citizenship. The Citizenship Act laid down the law governing the citizenship of Ceylon. Under this law a person born in Ceylon before the appointed date (ie November 15, 1948) shall have the status of citizen of Ceylon by descent. The birth qualification purposely intended to preclude the Indian Tamils from Ceylonese citizenship. The relevant sections of the act are given below:
4 (1) Subject to other provisions of this part, a person born in Ceylon before the appointed date (ie, November 15, 1948,) shall have the status of a citizen of Ceylon by descent, if (a) his father was born in Ceylon, or (b) his paternal grandfather and paternal great grandfather were born in Ceylon.
(2) A person born outside Ceylon before the appointed date shall have the status of the citizen of Ceylon by descent, if (a) his father and paternal grandfather were born in Ceylon, or (b) his paternal grandfather and paternal great grandfather were born in Ceylon.
(3) A person born in Ceylon on or after the appointed date shall have the status of a citizen of Ceylon by descent if at the time of his birth his father is a citizen of Ceylon.
Senanayake, who was also the Minister for External Affairs and the one responsible for immigration and emigration, presented this bill in the floor of the House, even though he faced aggressive opposition in the Parliament. He was very composed and made a very short introductory speech, merely describing the provisions of the bill. He said:
"It is quite a simple bill, but a very important bill. We are not prejudicing the interests of anyone, we are only trying to confer Ceylon citizenship on to the people in Ceylon who are citizens of another country ... it is necessary that we should have our own citizenship laws." (Hansard August 19, 1948)
A Ratnayake, the Minister of Food and a Kandyan by birth, said, "I am myself inspired by a fear complex ... we are afraid, that is why we feel that we have to restrict the composition of our nationals. I fear that the freedom we have won is already in danger - in great danger. It is the danger from within." He expressed his fears of a future Indian domination. He also alleged that S Thondaman, the Ceylon Indian Congress leader, had a vision of Ceylon federated with India, dominated by India and overwhelmed by India.
Thondaman in his speech said, "My people toiled and made the wasteland productive." He argued that he and his people were as Kandyan as anyone else. "It is my home," he said. "I and my family are more attached to the Kandyan land than many Kandyans."
J R Jeyawardene, the Member for Kelaniya and the Minister of Finance, quipped, "A Kandyan Tamil !" Thondaman retorted, "Yes, I am a Kandyan Tamil." He challenged the baseless allegations of loyalty to India and explained that the Ceylon Indian Congress supported the independence demand of Ceylon as much as the United National Party.
In this debate, S W R D Bandaranaike, the Minister of Home Affairs, said, "We want to be friendly with the great continent of India. There is so much we have to admire about India. We would be friends, but friends on what terms? On terms of betrayal of our own people? Never, never, never can friendship be based on a betrayal of our people."
Dr Colvin R de Silva, the leader of the Bolshevik-Leninist Party, predicted, "The moment the government starts applying an anti-racial principle against a particular group, this would lead to discrimination against other minorities, who are today accepted as Ceylonese."
S J V Chelvanayakam, of the All Ceylon Tamil Congress, spoke at length when the second reading of the bill was debated. He launched a spirited attack on the government for its Machiavellian thinking behind the legislation. Chelvanayakam criticized Senanayake for presenting a bill that would adversely affect "the Tamils, Indians and the Muslims". He continued, "He is not hitting us directly, but when the language question comes up, which will be the next one to follow in the series of legislation, we will know where we stand. Perhaps that will not be the end of it."
He was so carried away by anger, he shouted at the government benches, "you are now hitting at the weakest section of the Tamils, you are hitting at the innocent and the meek that are laboring in the chill and the cold of the hill-country plantation regions producing your wealth. We will know where we stand when our turn come next, we will know when the next piece of legislation in this series comes, the one dealing with our language." This description was given by V Navaratnam, a former Federal Party stalwart and Member of Parliament for Kayts, in his book The Fall and Rise of the Tamil Nation, pages 47-49.
According to the Ceylon population report of 1946, there were 784,708 Indian Tamils and 42,141 Indian Moors in the country. The effect of this law was that overnight all persons in Ceylon bearing Tamil names, including 729,611 Ceylon Tamils of the total population of 6,657,339 of the 1946 population count, were made doubtful citizens in their own motherland.
On the citizenship bill, the Tamil speaking Muslim members in parliament did not share the same concerns and when vote was taken during the second reading of the bill in August 1949, nearly 53 members voted for the bill and 35 against it. The two Tamil ministers of that time, C Suntharalingham and C Sittampalam, voted with the government, but refrained from speaking in the debate. Subsequently, Suntharalingham, who had serious reservations about the bill, resigned from the government.
Prominent Tamil members such as S J V Chelvanayakam, G G Ponnampalam, C Vanniasingham, S Sivapalan, S Thondaman, G R Motha, K Rajalingham, D Ramanujam, S M Subbiah, C V Velupillai and Sinhalese members namely - I M. R. A. Iryagolle, W Dahanayake, R S Pelpola, Lakshman Rajapakse, Wilmot Perera, H Sri Nissanka, Somaweera Chandrasiri and all the Left party members, voted against the bill.
Thus the last funeral rites of nearly 1 million Tamils of the Indian origin, took place in the Parliament. Senanayake had finally got his way by disfranchising and making stateless nearly one million human beings. This was a repugnant act against humanity. Sinhalese Members of Parliament under the leadership of Senanayake, who were affected by "Indian-phobia", created a million or so stateless people.
Again, in 1949, the UNP government introduced the Indian and Pakistani (Resident Citizenship) Bill to provide for those who sought Ceylonese citizenship. The bill laid down the qualifications for the grant of citizenship, accordingly, seven years of continued residence in the country for a married person from January 1, 1939, and 10 years continued residence from January 1, 1939, for unmarried persons. Furthermore, persons applying for citizenship had to posses an adequate means of livelihood. Also, the applicants' families normally should have been resident in Ceylon and should be capable of observing the laws of the land.
Senanayake's introduction of the bill amounted to a requiem mass and he said that the new law would enable the persons of the Indian origin to gain their citizenship. Thondaman, the leader of the Ceylon Indian Congress, in his address highlighted the difficulties of gaining citizenship according to the proposed bill. He pointed out that the procedural and administrative requirements were all designed to prevent the persons of the Indian origin from obtaining citizenship. He rightly pointed out the ambiguity of the phrase, "continuous residence". He lambasted the bill as being cleverly aimed to be shown to the world as an act of restitution. He also challenged Dudley Senanayake, the minister and the heir apparent of the elder Senanayake, the prime minister, to produce his grandfather's birth certificate.
"On the eve of independence, however, the Tamil Congress party which represented the Ceylon Tamils, took a unique step which held out great promises. G G Ponnampalam as its leader gave a written undertaking to the leaders of the Ceylon Indian Congress that, whenever the Tamil plantation workers or their interests were threatened, he would stand by them and voice their cause. It was the first attempt at forging a solidarity between the two sections of the Tamil people. G G Ponnampalam at the time was such a popular leader that he was hailed as the uncrowned king among the Ceylon Tamils. A combination of his powerful voice and the trade union power of the Ceylon Indian Congress would certainly have been a potent force which would have deterred D S Senanayake and the UNP from pursuing their program of anti-Tamil legislation.
"But the curse that hangs over the heads of the Tamil people in Ceylon, the craze for office, would not permit that prospect, D S Senanayake was too shrewd a politician to allow time for his opponents to consolidate their strength. He and his advisers were much too seasoned men to let the Tamil solidarity to take shape and grow and not to exploit the weakness of the Tamil leaders. After Suntharalingham left the cabinet, therefore, D S Senanayake sent out feelers to G G Ponnampalam.
"As it turned out, G G Ponnampalam was in the opposition only until he voted against the Ceylon Citizenship bill. He was taken into the cabinet soon afterwards and appointed Minister of Industries and Fisheries. When the Indian Pakistani Residents Citizenship Bill came up for voting he was in the Treasury benches, and he voted with the government." The Fall and Rise of the Tamil Nation by V Navaratnam, pages 52-53.
Dr N M Perera, a Marxist and the leader of the opposition, said that the laws were openly anti-working class, deliberately designed against the Indian working class and that class alone. In the 1947 parliamentary elections the Tamils of the Indian origin supported the Lanka Sama Samaja Party led by Dr N M Perera in several parliamentary constituencies they contested. Unfortunately, neither Dr. Perera nor the other Marxist members of parliament took any extra-parliamentary measures to prevent the Tamils of the Indian origin from being made stateless and disfranchised.
At the conclusion of the debate, when the division in parliament was taken, S J V Chelvanayakam and C Vanniasingham voted against the bill and members of the Tamil Congress led by G G Ponnampalam voted with the government, which permanently sealed the fate of the Tamils of the Indian origin. There were 58 members in favor of the bill and 32 against it.
The law allowed time for the people of Indian and Pakistani origin to apply for citizenship. In the meantime, the executive committee of the Ceylon Indian Congress decided unanimously, that no one should apply for citizenship and nearly 90 percent abided by that decision. Also, the executive committee granted exception to its seven parliament members to apply for citizenship, so that they could retain their seats in parliament.
The Indian constitution treated persons of Indian origin permanently settled in another country as citizens of their respective adopted countries. Under Article 8 of the Indian constitution, all those who failed to obtain Ceylon citizenship were deemed to be citizens of India. They had only to enter their names in the register at the Indian High Commission in Colombo. This was obstructed and sabotaged by both the High Commission and by the leaders of the Indian Tamils. The Indian government thereafter declared that those who did not qualify for Ceylon citizenship and whose names were not entered in the register were stateless.
The Indian Tamil leaders initially obstructed workers from applying for registration under the 1949 legislation, which amounted to a show of protest. When they did apply, just before the expiry of the closing date fixed by law, nearly 237,034 applications were made for acquiring Ceylon citizenship. Meanwhile, the government failed to set up the administrative machinery to process the applications until 1962. A specially established department examined the applications and in 1964 merely 134,188 out of 800,000 were accorded citizenship. The officials who processed the applications said that the others did not have the requisite residential qualifications. The claims that all were Ceylon born, or were second or third generation residents, were seen as false by the scrutinizing authorities.
G G Ponnampalam, the leader of the Tamil Congress, joined the government as a minister. Chelvanayakam led the resistance with the support of Members of Parliament. C. Vanniasingham, S Sivapalan, Dr E M V Naganathan (Senator) and Dr V K Paramanayagam, the General Secretary of the Tamil Congress, walked out of the Tamil Congress
Chelvanayakam formally inaugurated as Ilankai Thamil Arasu Kadchi - Ceylon Tamil State Party - in English, but commonly called the Federal Party, on December 9, 1949, at the Government Clerical Service Union hall, located at Maradana, Colombo. Dr Naganathan, C Vanniasingham and V Navaratnam drafted the interim constitution of the party, and it was adopted at the inaugural meeting. Chelvanayakam was elected the founding president and Naganathan and Navaratnam were elected as joint secretaries.
D S Senanayake went on for his final assault on the Tamils of the Indian origin, by introducing the Ceylon (Parliamentary Elections Amendment) Act No 48 of 1949. This was aimed at amending the 1946 Ceylon (Parliamentary Elections) Order-in-Council, regarding the franchise enjoyed by the Ceylonese, including the Tamils of the Indian origin. Senanayake, through this amendment, deprived the Tamils of the Indian origin voting rights, which they had exercised even before the elections held for the State Councils in 1931 and 1936, as well as in the 1947 parliamentary general elections, by which they elected seven members of parliament.
According to the 1949 Act, Clause 4(1) "No person shall be qualified to have his name entered in any registrar of elections in any year, if such as person is not a citizen of Ceylon." Tamils of the Indian origin, a million of them, thus became Stateless and Voteless in their own country.
Thondaman consulted with Chelvanayakam on matters connected with the laws regarding the disfranchisement of the Tamils of the Indian origin. On Chelvanayakam's legal advice, the Indian Tamil leaders consulted with constitutional and legal experts in India and Ceylon and the general opinion that surfaced was that the new laws were in clear violation of Article 29 of the constitution and should be challenged in the courts of law.
Accordingly, in 1950, during the revision period of the electoral registers, one Govindan Sellappah Nayar Kodakan Pillai, a Tamil of the Indian origin, applied to have his name registered in the electoral voters register, as a voter in a parliamentary constituency, in the district of Kegalle. The registering officer, Punchi Banda Mudananayake, the assistant commissioner of elections at Kegalle district, rejected his application, as the applicant could not prove his Ceylonese citizenship, as required by law.
This matter was taken up by a team of lawyers led by S Nadesan, a senior advocate of the Colombo Bar and who was later to become a Queen's Counsel and a senator, filed an action in the District Court of Kegalle, for legal remedy.
Sir Alan Rose, the Attorney-General, appeared on behalf of the government. The district judge of Kegalle, N. Sivagnanasundaram, in his judgment ruled that the new laws did violate Article 29 and were therefore void. He accordingly allowed Kodakan Pillai's appeal.
The government appealed in the Supreme Court in Colombo. A divisional bench of three judges heard the case and they held that "the laws were not ultra vires of parliament" and accordingly quashed the judgment of the district judge.
Kodakan Pillai appealed to the Privy Council. It held that "the Acts in question were inter vires of the Ceylon legislature since the legislation concerned was the legislation on citizenship, and it was a natural and a legitimate function of the legislature of a country to determine the composition of its nationals; standards of literacy, of property, of birth or of residence, were standards which a legislature might think its right to adopt in legislation on citizenship and did not create disabilities in a community as such, since the community was bound together by its by its race or its religion and not by its illiteracy, its poverty or its migratory character.
"The migratory habits of the Indian Tamils [see para 123 and para 203, Soulbury Report - given below] are facts which in their Lordships' opinion are directly relavant to the question of their suitability as citizens of Ceylon, and have nothing to with them as a community." The appeal was dismissed. (The case of Govindan Sellappah Nayar Kodakan Pillai v Punchi Banda Mudaanyake et al 1953 - All England Law Reports Vol. 2 - pages - 834 - 838. (The full text of the judgment is given as an annex).
The Indian Tamils: Para 123: "The Indian Tamil community is of much later origin. These Tamils first came to the island as laborers on plantation in 1837, and the systematic recruitment began in 1839. Their numbers have tended to ebb and flow according to the economic positions and in normal times they move to and from India in a continuous stream. Over a long period of years the planting interests have built up an elaborate organization for the importation of this labor and few Indian immigrants come to Ceylon for work on the plantations, or estates as they are often termed, except by this mean.
Owing to the curtailment of the census of 1931 for reasons of economy, it is not possible to estimate with accuracy the number of these estate workers on the island; but figures supplied by the controller of labor showed the Indian Tamil population on estates at the end of 1936 to have been approximately 659,000, including women and children - Sessional paper III of 1938. - In view of the ban on the further emigration of the Indian unskilled workers to Ceylon imposed by the Government of India in 1939 (see paragraphs 226-231), this figure is not likely to have been materially altered and it is probably safe to estimate the present number at between 650,000 and 700,000."
Para- 203: "The Donoughmore Commissioners recommended that a qualification of five years' residence in the Island (allowing for temporary absence not exceeding eight months in all during the five-year period) should be introduced in order that the privilege of voting should be confirmed to those who have an 'abiding interest' in the country or who may be regarded as 'permanently settled' in the Island. They described this condition as of particular importance in its application to the Indian immigrant population [Donoughmore Report -cmd. 3131-, page 87]. When in 1929 the Donoughmore Report was debated in the Ceylon Legislative Council, the principle of abiding interest and permanent settlement as a condition of the franchise met with general acceptance, but the method of its application caused acute controversy. - Ceylon: Report of the Commission on Constitutional Reform - Para 103 - page - 53 and Para 203 - page -75
The word "community" is neither defined nor interpreted in the Order-in-Council 1946 - the Constitution of Ceylon. Furthermore, the Privy Council failed to go into the practice of the usage of the word in vogue, had unwarrantedly treaded on its own abstract idea of a "community" and by this, it failed to ascertain that the word community is in official usage when referring to an ethnic group by the government of Ceylon. Ethnic grouping, even today, called as a community by the government of Ceylon and the un-defined word community got imported into the constitution in the relevant section.
The usage of the words Indian origins denotes the origin of the people in the crudest form, and identifies them as people who are an ethnic grouping isolated, moreover, and were alleged as people who have never participated in the political, economical and evolutionary process of the country. This coinage of the word is intentional and remains to be very mischievous from its statement to alienate them from being people from another country, India. Whereas, these people are born and lived in Ceylon, whose forefathers came from India, therefore, they are called as people of Indian origin, at the same time Sinhalese too are people of the Indian origin. Similar to the Sinhalese, these people too have not seen the shores of India. They are of course Tamils, but to differentiate them as people with some problem, they were distinguished from the Tamils who did not face such discriminatory problems, at that particular point of time, Sinhalese sought to an appropriate coinage of the words, to be used to distinguish them from the other Tamils of the country. The most appropriate term, they invented was, Tamils - of the Indian origin, and these are people who had already exercised their franchise rights in the elections held earlier on 1927, 1931, 1936 and 1947.
We have seen the forefathers of S W R D Bandaranaike and J R Jayewardene, too, were from India and Tamils, subsequently assimilated into Sinhalese ethnicity. Those Sinhalese of the Slagama caste are originally weavers, migrated from Malabar (Kerala). Slagamas' migrations started in the 14th century and continued up to the end of 17th century and were enlisted to peel cinnamon.
These facts might have created a more conciliatory impact on the Privy Councilors and their observation, such as of the "migratory character" and the question of determining the legislation of citizenship to a national of a community, who were already a constituent part of the citizenry of the country. Several other factors contributed for the failure on the part of the Privy Councilors to take note of the fact that the Tamils of the Indian origin are actually a community already accepted, and the Citizenship Act of 1948, and the Ceylon (Parliamentary Amendment) Act of 1949, had imposed disability on a community as a whole, by achieving indirectly and astutely disfranchising the Tamils of the Indian origin, which the legislature had no power to achieve directly.
Unfortunately, the British government's response to the loss of citizenship and their right to exercise votes was a marked silence. This was a human issue where British subjects were involved. Below are given the relavant Acts of acquiring British nationality - the very basic background information - for the consideration of those Tamils of the Indian origin still languishing with the stigma of "statelessness".
Lord Soulbury at a later stage suggested the creation of special constituencies for the Indian plantation workers. In his letter dated April 30, 1964, to C Suntheralingham, he wrote, "The position of the Tamil workers on the estate is also very disquieting it is deplorable that such large body of men and women should be voteless [sic].
"I can understand the reluctance of the Sinhalese in the area of Kandy to an enfranchisement of numbers large enough to swamp the electorate. But reasonable solution would be to create four or five seats available to the Tamil voters only - no matter what part of the Island the live in; outside, of course the Northern and Eastern provinces." Eylom: Beginnings of Freedom Struggle Dozen Documents by C Suntheralinhgam, page 76.
Background to the British nationality law
The country had no nationality law until the coming into force, on January 1, 1915, of the British Nationality and Status of Aliens Act 1914. The Act conferred the common status of British subject upon those persons who had specified connections with the Crown's dominions. The status of British subject implied allegiance to the Crown.
2. In general terms, that status was held by those people born within the Crown's dominions or naturalized there, and by the first generation born elsewhere (legitimate descent in the male line only). The status could be lost by naturalization in a foreign state, or by making a Declaration of Allegiance. A British woman marrying an alien lost her British subject status automatically on marriage, before 1933 whether or not, she acquired her husband's citizenship; from that date onwards she lost it only if she acquired the nationality of her husband. An alien woman who married a British subject automatically became a British subject on marriage. The nationality of minor children was tied to that of their father or widowed mother, and they gained or lost British subject status accordingly.
The British Nationality Act 1948
3. At the Commonwealth Conference in 1947, it was agreed that each of the self-governing dominions (Canada, Australia, New Zealand, Union of South Africa, Newfoundland, India, Pakistan, Southern Rhodesia and Ceylon) would introduce separate citizenships for those persons who belonged to each country, but all would continue to share the common status of British subject, or Commonwealth citizen, both terms to have the same meaning. The United Kingdom legislation, the British Nationality Act 1948, created the status of British subject: Citizen of the United Kingdom and Colonies (BS/CUKC) for all those whose connection was with the United Kingdom itself or with a place which, on 1 January 1949, was still a colony. (This did NOT include those self-governing counties listed above).
4. The Act provided for the acquisition of BS/CUKC status by those born or naturalized in the UK or an existing colony, and by the first generation born abroad. There was no longer any restriction on the holding of dual nationality and persons acquiring citizenship of a foreign state did not automatically lose British nationality, as a result. Adult aliens could acquire BS/CUKC status by naturalization, but Commonwealth citizens and minor children were eligible in certain circumstances to acquire it by registration. Women who married CUKC husbands after 1 January 1949, had an entitlement to be registered as CUKCs themselves, subject only to the productions of evidence of a valid marriage.
5. The Act also provided for two categories of persons to remain "British subjects" only (not CUKCs). These were persons connected with the Republic of Ireland, and persons connected with one of the self-governing dominions, which had not yet enacted its own citizenship law. From 1951 onwards the only persons remaining in the latter category are those connected with India or Pakistan.
6. Over the years most of the remaining colonies acquired independence within the commonwealth. Normally those CUKCs who acquired citizenship of the newly independent country ceased to be CUKCs on independence day unless they possessed specified connections with the United Kingdom itself, or with a place which remained a colony.
The British Nationality Act 1981
7. The British Nationality Act 1981, which came into force on January 1, 1983, replaced citizenship of the United Kingdom and Colonies with three separate citizenships:
(a) British citizenship for those persons who had the right of abode in the United Kingdom (as defined in Section 2 of the Immigration Act 1971);
(b) British Dependent Territories citizenship for those connected by birth or descent with a dependent territory;
(c) British Overseas citizenship for those who did not belong to categories (a) or (b) above.
The term "Commonwealth citizen" no longer has the same meaning as "British subject" although persons connected with the Republic of Ireland, India or Pakistan who were British subjects under the 1948 Act (see paragraph 5 above) retain that status under the 1981 Act.
8. Women, whether commonwealth or foreign, no longer have an entitlement to registration, but spouses (of either sex) may apply for naturalization after three years residence in the UK. Citizenship may now be transmitted through either the male of female line, except that in the case of an illegitimate child it can be acquired only through the mother.
9. In general, since 1 January 1983, it has been possible to acquire British citizenship automatically:
(a) by birth in the UK to a parent who is either a British citizen or settled in the UK under immigration law;
(b) by adoption in the UK by a British citizen parent;
(c) by birth outside the UK to a parent who is a British citizen "otherwise than by descent";
(d) by birth outside the UK to a British citizen parent in Crown, Designated or European Community service.
10. Special rules apply to the acquisition of British citizenship by British Dependent Territories citizens connected with Gibraltar and the Falkland Islands.
Furthermore the "British Subjects" was defined in section 3 of the Order in Council of 1946, as "any person who is a British subject according to the law of the time being of the United Kingdom, any person who has been naturalized under any enactment of any of His Majesty's dominions, and any person who is a citizen or subject of any Indian states as defined for the purposes of the Government of India Act, 1935."
Accordingly, the Tamils of the Indian origin are British Subjects. Unfortunately, the famous constitutional scholar, Sir Ivor Jennings was mischievous with his contention, when he wrote: "Also, many of the so-called 'Indians' in Ceylon were not British subjects because they were born in states, such as Travancore and Mysore." - The Constitution of Ceylon - page - 165.
Appeal from an order of the Supreme Court of Ceylon, dated Sept 23, 1952, granting a mandate in the nature of a writ of certiorari quashing an order made by the third respondent dated July 2, 1951, that the appellant's name be included in the register of electors for the Electoral District 84, Runwanwella, for the year 1950. The first respondent, Punchi Banda Mudanayake, was the assistant registering officer, the second respondent, Victor Lloyd Wirasingha, was the Commissioner of Parliamentary Elections and the third respondent, Namaswayampillai Sivagnanasunderam, was the revising officer. The facts appear in the judgment.
D N Pritt, QC, Frank Gahan, QC, S Canagarayar and S Amerasinghe (of the Ceylon Bar) for the appellant.
Sir Hartley Shawcross, QC, Sir Frank Soskice, QC, Dingle Foot, QC, W Jayewardene (of the Ceylon Bar) and P B D Ashbrooke for the respondents.
LORD OAKSEY: This is an appeal from the judgment of the Supreme Court of Ceylon dated Sept. 28, 1951, granting a mandate in the nature of a writ of certiorari, quashing an order made by the third respondent date July 2, 1951, that the appellant's name be included in the register of electors for the Electoral District 84, Runwanwella, for the year 1950. The issue for determination in this appeal is whether the Supreme Court of Ceylon were right in holding that s. 4 and s.5 of the Citizenship Act, No.18 of 1948 (hereinafter referred to as the Citizenship Act), and s.4 (1) (a) of the Ceylon (Parliamentary Elections) Order in Council, 1946, as amended by the Ceylon (Parliamentary Elections) Amendment Act, No.48 of 1949 (hereinafter referred to as Franchise Act), were valid, or whether, as contended on behalf of the appellant and as held by the third respondent (hereinafter referred to as revising officer), these sections were made in contravention of s. 29 (2) of the Ceylon (Constitution and Independence) Order in Council, 1946 and 1947.
It is convenient to set out here the provisions of s. 29 of the Constitution Order in Council, s.4 and s.5 of the Citizenship Act and s.4 (1) (a) of the Franchise Act. The Ceylon (Constitution and Independence) Order in Council, 1946, as amended, provided:
"29. (1) Subject to the provisions of the order, Parliament shall have power to make laws for the peace, order and good government of the island. (2) No such law shall- (a) prohibit or restrict the free exercise of any religion; or (b) make persons of any community or religion liable to disabilities or restrictions to which persons of other communities or religion are not made liable; or (c) confer on persons of any community or religions any privilege or advantage which is not conferred on persons of other communities or religions; (d) alter the constitution of any religious body except with the consent of the governing authority of that body: Provided that , in any case where a religious body is incorporated by law, no such alteration shall be made except at the request of the governing authority of that body. (3) Any law made in contravention of sub-s. (2) of this section shall, to the extent of such contravention, be void..." The Citizenship Act provided:
"4. (1) Subject to the other provisions of this Part, a person born in Ceylon before the appointed date shall have the status of a citizen of Ceylon by descent, if -(a) his father was born in Ceylon, or (b) his paternal grandfather and paternal great grandfather were born in Ceylon. (2) Subject to the other provisions of this Part, a person born outside Ceylon before the appointed date shall have the status of a citizen of Ceylon by descent, if- (a) his father and paternal grandfather were born in Ceylon, or (b) his parental grandfather and paternal great-grandfather were born in Ceylon.
"5. (1) Subject to the other provisions of this Part, a person born in Ceylon on or after the appointed date shall have the status of a citizen of Ceylon by descent if at the time of his birth his father is a citizen of Ceylon. (2) Subject to the other provisions of this Part, a person born outside Ceylon on or after the appointed date shall have the status of a citizen of Ceylon by descent if at the time of his birth his father is a citizen of Ceylon and if, within one year from the date of birth, the birth is registered in the prescribed manner- (a) at the office of a consular officer of Ceylon in the country of birth, or (b) where there is no such officer, at the appropriate embassy or consulate in that country or at the office of the Minister in Ceylon. The Franchise Act, as amended in 1949, reads as follows:
"4 (1) No person shall be qualified to have his name entered or retained in any register of electors in any year if such person - (a) is not a citizen of Ceylon, or if he is by virtue of his own act, under any acknowledgement of allegiance, obedience or adherence to any foreign Power or State which is not a member of the Commonwealth.
On Jan 22, 1951, the appellant filed a claim in the prescribed form pursuant to the Ceylon (Parliamentary Elections) Order in Council, 1946, to have his name inserted in or retained on the register of electors for the Runwanwella electoral district. In a letter annexed to his claim, he averred that he was a resident in the said electoral district and had been so resident for a continuous period of over six months in the eighteen months immediately prior to June 1, 1950; that he was, and had at relevant period been, a British subject; that he was in no way disqualified to be an elector; and that his name had been included in the register prepared in the year 1949. His letter also included the following passages;
"9. I claim that the alternatives in the qualification to be an elector affected by Act 48 of 1949 are not valid and are of no effect in law inasmuch as the said Act was ultra vires the legislature.
" 10. I claim that the qualifications to be an elector should be determined according to the Ceylon (Parliamentary Elections) Order in Council, 1946, without the same being modified or amended by Act 48 of 1949. According to the said Order in Council as un-amended by the said Act 48 of 1949, I am qualified to be an elector."
On Feb. 26, 1951, the first respondent, as assistant registering officer, held an inquiry into the appellant's claim at which the appellant gave oral evidence. In answer to the first respondent, he stated (inter alia) as follows:
"I was born in British India. Both my parents and all my relations were born in British India. All my wife's relations are in India except my brother-in-law, who lives with me. I have not sought registration under the Citizenship Act, No 18 of 1948, under the Indian and Pakistani Residents (Citizenship) Act, No. 3 of 1949. I do not own any property in India ... I do not own any property in Ceylon either."
At the end of the inquiry, the first respondent made the following order:
"I have rejected this claim as the [appellant] is not a citizen of Ceylon within the meaning of the Citizenship Act, No. 18 of 1948... I accept the statements of fact mode by the [appellant] before me at this inquiry."
On Mar. 8, 1951, the appellant filed a petition of appeal to the revising officer praying that the order of the registering officer be set aside and that the appellant's name be included in the register of electors. By an affidavit dated May 15, 1951, the appellant deposed (inter Alia) as follows:
9. "The vast majority of the present Indian immigrant population came to Ceylon long after the year 1852, and though a large number of the members of the community have been born in Ceylon yet their parents were not born in Ceylon. In the case of the Indian community, unlike in the case of the Sinhalese and Ceylon Tamil communities, fails to confer that status on by far the vast majority of the members of the Indian community settled in Ceylon."
The revising officer held an inquiry on May 19, 29 and 30, 1951, at which the appellant was represented by Mr. Advocate Nadesan and Mr. Advocate Kanagarayar, and the second respondent by the Attorney-General and Mr. Walter Jayewardene, Crown counsel. On May 16, Mr. Advocate Nadesan moved to file the appellant's aforesaid affidavit dated May 15, 1951. The Attorney General objected, inter alia, to para. 9 thereof. He raised, however, no objection to the affidavit being filed provided that, if in the course of the argument it became necessary for him either to lead evidence or file a counter-affidavit, he should be allowed to do so. Mr. Advocate Nadesan had no objection, and the revising officer accordingly admitted the affidavit subject to those conditions. Mr. Advocate Nadesan stated that he did not propose to call any evidence at this stage of the inquiry, and that it would be a matter of legal argument. No further evidence was called. At the resumed hearing on May 29, the Attorney General tendered an affidavit dated May 28, 1951, sworn by the registering officer for the Runwanwella Electoral District, but did not contradict the allegations of para. 9 of the appellant's affidavit. On July 2, 1952, the revising officer gave judgment holding the Acts in question ultra vires on the ground that the Citizenship Act was in no true sense legislation to create the status of citizenship, but was, with the Franchise Act part of a legislative plan to reduce the electoral power of the Indian community.
On July 16, the Attorney General applied to the Supreme Court of Ceylon for a mandate in the nature of a writ of certiorari quashing the decision of the revising officer. The appellant tendered three affidavits sworn on Aug. 21, 1951, which purported to deal (inter alia) with the history of Indian immigration into Ceylon and the position of Indian residents under the Citizenship Act and the Franchise Act, but these affidavits were not admitted by the Supreme Court. The Supreme Court of Ceylon unanimously granted the application for the certiorari and quashed the order of the revising officer, holding, firstly, that the evidence tendered to them ought not to be admitted and in any event was irrelevant; secondly that a court should not search among State papers and other political documents for the substance or the true nature and character of an impugned statute without permitting the language of the statute to speak for itself where such language is clear and unambiguous; and thirdly, that the statutes in question do not, on the face of them, make the Indian Tamil community liable to any disability to which other communities are not liable.
At their Lordships' Board, it was contended on behalf of the appellant that the Citizenship Act and Franchise Act make persons of the Indian Tamil community, of which the appellant is a member, liable to a disability or restriction within the meaning of s. 29 (2) (b) of the Constitution Order in Council and are, therefore, ultra vires. It was conceded for the appellant that these Acts do not, on their faces, discriminate against the Indian Tamil community, but it was argued that they indirectly have that effect since, on the evidence before the court and as was conceded by the Attorney General, a large number of Indian Tamils cannot become citizens of Ceylon, because neither their fathers nor their grandfathers were born in Ceylon. It was further argued for the appellant that the Acts were what was called colorable, and that they disclose, when their pith and substance or their true character is ascertained, the intention of the legislature to do indirectly what admittedly it cannot do directly, namely, to make persons of the Indian Tamil community liable to a disability to which persons of other communities are not made liable.
The appellant's counsel at first submitted that further evidence ought to be admitted as to the effect of the Acts on the Indian Tamil community, but in reply he expressly withdrew his application to introduce further evidence and no further evidence was referred to.
In these circumstances, and in view of the admission before the revising officer of the affidavit of the appellant dated May 15, 1951, without objection, their Lordships do not find it necessary to decide if, and how far, evidence is a admissible of facts which go to show the actual effect of an Act after it has been passed. It was common ground between the parties, and is, in their Lordships' opinion, the correct view, that judicial notice ought to be taken of such matters as the reports of parliamentary commissions, and of such other facts as must be assumed to have been within the contemplation of the legislature when the Acts in question were passed (cf. Ladore v. Bennett (1) ( 3 All E.R. at p.101), and both parties have referred their Lordships to a number of paragraphs in the report of the Soulbury Commission of 1945
With much of the reasoning of the Supreme Court of Ceylon, their Lordships find themselves in entire agreement, but they are of opinion that there may be circumstances in which legislation, though framed so as not to offend directly against a constitutional limitation of power of the legislature, may indirectly achieve the same result, and that, in such circumstances, the legislation would be ultra vires. The principle that a legislature cannot do indirectly what it cannot do directly has always been recognized by their Lordships' Board, and a legislature must, of course, be assumed to intend the necessary effect of its statues. But the maxim omnia praesumuntur rite esse acta is at least as applicable to the Act of legislature as to any other acts, and the court will not be statue to attribute to any legislature motives or purposes or objects which are beyond its powers. It must be shown affirmatively by the party challenging a statute, which is, on its face intra vires, that is was enacted as part of a plan to effect indirectly something which the legislature had no power to achieve directly.
It was argued that s.4 and s.5 of the Citizenship Act made it impossible that the descendants, however remote, of a person who was unable to attain citizenship himself could ever be able to attain citizenship in Ceylon no matter how long they resided there, but their Lordships' attention was subsequently drawn to the Indian and Pakistani Residents (Citizenship) Acts, No. 3 of 1949, by which an Indian Tamil could, by an application, obtain citizenship by registration and thus protect his descendants, provided he had a certain residential qualification. It was suggested on behalf of the appellant that this Act might itself be ultra vires as conferring a privilege on Indian Tamils within s. 29 (2) (c) of the Constitution Order in Council and that, therefore, it was inadmissible to rebut the inference that the legislature had intended by the Citizenship and Franchise Acts to make Indian Tamils liable to disabilities within the meaning of s. 29 (2) (b), but their Lordships cannot accept this argument. If there was a legislative plan the plan must be looked at as a whole, and when so looked at it is evident, in their Lordships' opinion, that the legislature did not intend to prevent Indian Tamils from attaining citizenship, provided that they were sufficiently connected with the island.
The cases which have been decided on the British North America, Act, 1867, and the Australian Constitution have laid down the principle which their Lordships think is applicable to the present case, although it is true that in those cases the question was to the construction of legislative subjects assigned to the Dominion or Commonwealth Parliaments on the one hand, and to the legislatures of the provinces or States on the other, whereas in the present case the question is as to the construction of a constitutional limitation on the general sovereign power of the Ceylon legislature to legislate for the peace, order and good government of Ceylon. But, in their Lordships' opinion, the question for decision in all these cases is in reality the same, namely, what is the pitch and substance, as it has been called, or what is the true character of the legislation which is challenged: see A.G. for Ontario v. Reciprocal insurers (2) ( A.C. at p. 337), and Prafulla Kumar Mukherjee v. Bank of Commerce, Ltd., Khulna (3) (1947) (74 L.R. Ind. App. 23).
Is it in the present case legislation on citizenship, or is it legislation intended to make and making Indian Tamils liable, to disabilities to which other communities are not liable? It is, as the Supreme Court observed, a perfectly natural and legitimate function of the legislature of a country to determine the composition of its nationals. Standards of literacy, of property, of residence are, as it seems to their Lordships, standards which a legislature may think it right to adopt in legislation on citizenship, and it is clear that such standards, though they may operate to exclude the illiterate, the poor and the immigrant to a greater degree than they exclude other people, do not create disabilities in a community as such, since the community is not bound together as a community by its illiteracy, its poverty or its migratory character, but by its race or its religion. The migratory habits of the Indian Tamils (see para. 123snd para. 203, Soulbury Report) are facts which, in their Lordship's opinions, are directly relevant to the question of their suitability as citizens of Ceylon, and have nothing to do with them as a community.
For all these reasons, their Lordships have come to the conclusion that the Citizenship and Franchise Acts are intra vires of the Ceylon legislature, and they therefore humbly advise Her Majesty that this appeal ought to be dismissed the appellant must pay the costs of the appeal.
Appeal Dismissed [Reported by G A Kinder, Eeq Barrister-at-Law]
All England Law Reports 1955 - Vol. 2 - pages - 834-838.
Chapter 14: Post colonial era: Realignment of political forces
Chapter 1: The first teardrops
Chapter 2: Beginning of British rule
Chapter 3: Muslim riots and communal rumblings
Chapter 4: The Ceylon National Congress and its intrigues
Chapter 5: Political polarization on communal lines
Chapter 6: Donoughmore - Tamils no more
Chapter 7: State Councils - elections and boycotts
Chapter 8: Board of ministers - A Sinhalese ploy
Chapter 9: British Concordance and concoctions
Chapter 10: Lord Soulbury and his soulless report
Chapter 11: On the threshold of freedom
Chapter 12: Chapter 12: Tryst with independence
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