In the High Court of Calcutta
W.P. 6345 (W) Of 2018; W.P.928 (W) of 2020
Union of India and Ors.
Date of Judgement
24th February 2020
The Hon'ble Justice Sabyasachi Bhattacharya
Facts of the Case:
- The petitioner (Bismillah Khan) was a Pakhtoon citizen,
- In the year 1973, Pakhtoon was divided and overtook partially by Afghanistan and partially by Pakistan.
- Due to this, the petitioner at the age of 5 had to move to India.
- During their arrival, they did not possess a passport, due to continuous chaos and disturbances.
- After many years of living in India, and contributing towards the Indian Economy, he is unable to file for Indian Citizenship, due to the absence of a valid passport.
- The online system of application does not allow the application to be completed, as the clause of presence of foreign passport is mandatory.
Whether a valid foreign passport is a mandatory pre-requisite for grant of Indian citizenship?
Arguments of petitioner:
- The petitioner was a Pakhtoon citizen, who had to come to India in 1973 due to division of Pakhtoon and its merger with Afghanistan and Pakistan.
- The petitioner was a 4 year boy and due to disturbance in his country, they could not have a valid passport. These situations were beyond his control.
- The online system for application of Indian Citizenship made it impossible for him to complete his application because of the necessary stipulation of a photocopy of passport, which he did not have due to above said reasons.
Arguments of respondents:
- No application has been completely filled by the appellant, so union had no scope for granting such proposed application
- Section 5(1)(c) of citizenship act, reads that it is mandatory to file an application according to Form III, even to be considered.
- According to Rule 11, application is made before the collector, who then forward the same to the State Government, or Union territory Admissions, as the case may be
- In case the applicant is unable to complete the application as per its mandatory terms, the State government, under law, is unable to pass the same to the Union government.
- It appears from provisions of Section 5(1)(c) of the Act of 1955, read with Rule 5 (1) of the 2009 Rules, that the application from the petitioner in not entertainable unless it is under Section 5(1)(c) of the Act mandatorily in Form III. A perusal of Form III shows that Clause 9 of the same requires the passport particulars of the applicant to be filled in and the documents to be attached with the application includes a valid foreign passport.
- Although, it is nowhere indicated in such Form that all the relevant particulars, including the particulars regarding passport of the petitioner have to be furnished mandatorily, along with a copy of a valid foreign passport, even in the event the petitioner, for valid reasons, is not in a position to produce such passport.
- It cannot be held that the provision of producing a passport and its particulars is mandatory in nature and there has to be a relaxation in such requirement in the case the petitioner is able to satisfy the appropriate authorities the reasons for non-availability of such passport as it would be contradictory to the spirit of Article 14 of the Constitution of India.
- The requirement of having a passport has to be read as optional in Form III of the Citizenship Rules, 2009 and the authorities are deemed to have the power to relax such requirement in the event the applicant satisfied the authorities for genuine reasons
- Read in such light, the petitioner ought to have the opportunity to approach the appropriate authorities as contemplated in Rules 11 and 12 of the Citizenship Rules, 2009 and upon such authorities being satisfied, on reasons to be recorded, why the applicant is not in a position to produce his passport, can forward such application to the Central Government, which is then bound to consider such application, despite the absence of a passport of the petitioner, upon being satisfied that the ground of satisfaction recorded by the State Authorities is up to the satisfaction of the Central Government.
- In such view of the matter, despite the provision of making applications online, a provision has to be made for persons who do not have all the particulars of their passport, which is read as optional, to file applications manually, which are to be treated as valid applications under Rule 5 of the Citizenship Rules, 2009, alternatively to amend the necessary software so that the online applications can be presented with or without passports, in the latter case furnishing detailed reasons as to non-furnishing of passports. Sanctioning of such forms, however, will be conditional upon the satisfaction of the relevant authorities, the reasons for the applicant not being able to produce her/his passport.
Edited by Sree Ramya
Approved & Published – Sakshi Raje