Absurd To Say Passport Not Citizenship Proof; If You're Living In India, Presumption Is That You're Indian : Justice Dhulia

Former Supreme Court Judge, Justice Sudhanshu Dhulia has raised serious questions regarding the ongoing Special Intensive Revision (SIR) of electoral rolls, voicing concern over the "exclusionary politics" surrounding citizenship documentation and the power vested in local election officials.

Speaking at the "Dil Se With Kapil Sibal" episode, Justice Dhulia argued that the current process places an unfair burden of proof on citizens, jeopardising the fundamental right to vote. His remarks come amid a heated debate over whether a passport constitutes a valid document for establishing citizenship.

"If You Are in India, You Are a Citizen"

Referring to the Constitution Assembly Debates, Justice Dhulia asserted that the constitutional makers didn't intend to adopt an exclusionary approach to deny citizenship or take away voting rights for lack of documentation such as a birth certificate. He stressed presumption of law must favour citizenship, however, the present-day system is more inclined to adopt an exclusionary approach rather than an inclusionary approach. He said, "If you are in India, the presumption is that you are an Indian citizen." He emphasized that all government policies are designed for the benefit of all citizens and that one's citizenship should not be questioned merely due to the absence of specific documents or without substantial cause.

Narrating his own personal story to highlight the absurdity of demanding birth certificates as proof of citizenship, Justice Dhulia revealed that he himself was born at home, a common reality for millions of Indians, particularly those born during the Partition era, pointing out that, like countless others, who don't possess a birth certificate.

His Remarks On Passport As Travel Document

Justice Dhulia acknowledged the government's technical argument that a passport is a "travel document," but countered this by pointing out the absurdity of the position. He noted that if you look at a passport, it clearly states "Nationality: Indian." He argued: "Agar Act kehta hai ki aapko passport nahi milega jab tak aap citizen nahi hain, toh nishchit roop se agar aapke paas passport hai toh aap citizen hain" (If the Act says you will not get a passport unless you are a citizen, then certainly if you have a passport, you are a citizen).

He further justified the question of why, in countries like the United States, the United Kingdom, and across the European Union, a passport is accepted as proof of citizenship, but not in India. 

SIR Process Places Unfair Burden On Citizens To Prove Their Citizenship

Justice Dhulia criticized the framework of the SIR process, arguing that it places an unfair burden of proof on citizens. He emphasized that the presumption of law must always favour citizenship: "Agar aap Hindustan mein hain toh presumption yeh hai ki aap Hindustan ke nagarik hain" (If you are in India, the presumption is that you are an Indian citizen).

He questioned the power given to Block Level Officers (BLOs) to raise objections regarding citizenship, calling it a dangerous trend. "Koi bhi aadmi aise oppose kar sakta hai ki aap nagarik nahi ho. Uska faisla kaun karega? BLO toh kar nahi sakta" (Anyone can oppose like this and say you are not a citizen. Who will decide that? A BLO cannot decide that)," he stated.

Further, he questioned the reverse onus of proof on the citizens to prove their citizens, stressing that the burden to prove a person is not a citizen must lie with the state, not with the individual. He explained: "Agar main yahan pe reh raha hoon toh presumption yeh hai ki main kyun rahunga yahan? Agar main kisi aur desh ka citizen hoon, toh main khud hi yahan visa pe aaya hoon, chala jaunga. Par agar nahi hai toh main kehta hoon main Bharatiya nagarik hoon. Aap prove karo ki main nahi hoon" (If I am living here, the presumption is why would I be here? If I am a citizen of another country, I would have come here on a visa and would leave. But if not, I say I am an Indian citizen. You prove that I am not).

Last Week, Former Supreme Court judge Justice Madan B. Lokur strongly criticised the Ministry of External Affairs' recent assertion that a passport is only a travel document and not proof of Indian citizenship, calling the position "a complete misreading" of the law with potentially serious constitutional consequences.