Delhi High Court: In a petition filed by a 17-year-old girl seeking the issuance of a passport and quashing of the office memorandum dated 25-10-2018 issued by the Ministry of External Affairs which was the basis for the rejection of her passport, a Single Judge Bench of Pratibha M. Singh, J. allowed the petition while stating that the case falls within the special circumstances for the Central Government to use the enabling powers under Section 5(4) of the Citizenship Act, 1955 (‘Act’).
The Court stated that “The Petitioner is permitted to apply for registration as a citizen under Section 5 of the Act. The application shall be processed and the decision on the shall be recitizenshipndered, considering the legal position set out above, within 30 days, upon completion of all formalities. Upon obtaining the said citizenship by registration, the Petitioner shall file a fresh application under the Passports Act for issuance of a passport, which shall be granted expeditiously i.e., within 15 days from date of application.”
Background
The case revolves around the citizenship status of the petitioner, whose parents, though originally citizens of India, renounced their citizenship prior to the petitioner’s birth. At the time of the petitioner’s birth, both parents held Overseas Citizen of India (OCI) cards, indicating their overseas status. However, the petitioner was born in India. Following the mother’s demise, the petitioner, being a minor, sought clarification on her citizenship status. The petitioner, facing uncertainty regarding her citizenship status due to the unique circumstances of her birth and her parents’ citizenship choices, filed a writ petition seeking clarity and resolution.
The petitioner stated before the Court that she was interested in taking up web development and web designing courses along with some advanced computer courses abroad for which she requires a passport as the minimum travel document. She further stated that she had never possessed any travel document and therefore, remained in India since birth.
On 30-09-2019, the petitioner submitted her application for the issuance of a passport, and her parents submitted all necessary forms for this purpose. The petitioner was also issued an Aadhar card. On 06-11-2019, the Regional Passport Office refused to issue her passport by citing Section 6(2)(a) read with Section 5(2)(c) of the Passports Act, 1967. The order stated that since both the parents had renounced Indian citizenship, and the Ministry of External Affairs had issued a circular dated 25-10-2018, the petitioner was not entitled to be recognized as an Indian citizen.
The Court directed one of the parents to file an affidavit before the Court that the petitioner does not hold any passport of the US. Complying with this, the affidavit was filed by the father. Vide order dated 14-12-2022, the Court directed the respondent to consider whether the age could be relaxed in terms of the memorandum for obtaining a declaration and issuance of a passport.
The respondent stated that unless the petitioner attained majority and gave a declaration, a passport could not be issued to her. Vide order dated 30-10-2023, the Court noted that the issues that arose for consideration in the present matter are:
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Whether the petitioner ought to be directed to apply for citizenship in India under Section 5(1)(a) of the Citizenship Act.
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Whether the petitioner would be considered an illegal migrant.
Analysis and Decision
The Court stated that the petition presented the Court with a vexata quaestio. It was mentioned by the Court that the status of the minor was central to the deliberation of the petition since it was a unique case that was presented. The Court stated that the issues in the present matter were two-fold:
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Firstly, the legality of the denial of the passport based on her parents’ citizenship, and
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Secondly, the broader implications of this denial, particularly concerning the right to citizenship.
The Court, while analyzing whether the petitioner was an ‘illegal migrant’, stated that the term ‘migrant’ itself contemplates movement from one country to another that too of a foreigner. This is why the petitioner could not be considered a migrant as she was not a foreigner but born in India and had not moved to any other country. Thus, the Court said, that the term ‘illegal migrant’ would not apply to the petitioner.
Further, the Court stated that Section 7(b)(2) of the Act does not put any restrictions upon the OCI card holders on the number of days of stay in India. The Court mentioned that they are free to live in India and can also rear families here. The Court also noted that the petitioner did not have a travel document and was in effect a Stateless person.
The Court stated that the requirement of OCI card holders entails that any child, grandchild, or great-grandchild of a person who has been a citizen or even a minor child of a person who has been a citizen, would be entitled to an OCI card. The Court said that even if the petitioner was born abroad, she would still be entitled to an OCI card under Section 7(a) of the Act.
Further, the Court said that since at the time of the birth of the petitioner, both her parents had renounced their Indian citizenship, and the mother had also passed away, the petitioner would not be entitled to citizenship by birth. While perusing Section 4 of the Act, the Court stated that the petitioner could not attain citizenship by descent since her father was not an Indian citizen at the time of her birth and she was not born abroad, but in India. The Court then said that the petitioner would not qualify to be an Indian citizen even as per Section 5 of the Act since she was a minor at present. Thus, it was stated that none of the provisions would be applicable to this case.
The Court remarked that it was necessary to examine the interaction of the Citizenship Act, 1955 and the Passport Act, 1967 with the international obligations that India had ratified, especially in the context where issues of human rights and citizenship converged. Further, while briefly reiterating the relationship that India has had with the Universal Declaration of Human Rights (UDHR), it was mentioned the significance of nationality as a fundamental human right has been underscored in Article 15 of the UDHR, which states that ‘no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.’
The Court noted that UDHR presents an international legal framework that supports the contention that being denied the basic right to a passport, constitutes an infringement of her human rights.
The Court referred to People’s Union of Civil Liberties v. Union of India, (1997) 1 SCC 301 to state that it was evident that citizenship and nationality are fundamental for the enjoyment of all rights, and that this perspective was crucial for comprehending the challenges faced by the petitioner.
The Court stated that since, in the opinion of this Court, the petitioner was not an illegal migrant, she would be entitled to citizenship by registration under Section 5(1)(a) of the Act under the category of ‘person of Indian origin’, and the case would be covered under Explanation 2 of the provision. The Court also mentioned that Section 5(4) of the Act vests powers in the Central Government under special circumstances for granting citizenship to minors by registration.
Further, the Court stated that the non-grant of citizenship and the consequent non-grant of a passport can have a deleterious impact on the petitioner and her family. It was noted that the petitioner’s circumstances were special as contemplated under Section 5(4) of the Act.
The Court opined that the present case was one where special circumstance were present for the Central Government to use the enabling powers as contemplated under Section 5(4) for favorably considering the grant of citizenship to the petitioner.
The Court, while allowing the petition, directed that the petitioner was permitted to apply for registration as a citizen under Section 5 of the Act and that the application shall be processed and the decision on the citizenship shall be rendered within 30-days upon completion of all formalities. The petitioner was also directed to file a fresh application under the Passports Act which shall be granted expeditiously, i.e. within 15-days from the date of application.
[Rachita Francis Xavier v. Union of India, 2024 SCC OnLine Del 3612, Decided on 15-05-2024]
Advocates who appeared in this case :
For Petitioner — Advocate Bhardwaj S. Iyengar, Advocate Vikas Upadhyay
For Respondent — CGSC Anurag Ahluwalia, Advocate Abhigyan Siddhant