Having travelled the world over the last few years as a proud Indian, one was jolted to a rude awakening that the Indian government does not view our passports as proof of citizenship! Though one never sought to prove one's 'Indian-ness' abroad by dancing boisterously to “chhaiya chhaiya” on railway tracks (our true strong and silent culture be damned), but one did indeed proudly wear the stamp of our Nationality on one's sleeve in the form of not only one's demeanour but also the passport that clearly said, Nationality : Indian. We are today told that all this while, it was just an imaginary confidence that we placed in that stamp of being Indian.

It may be fruitful to look at sub-section (2) of section 6 of the Passports Act, 1967 which mandates that :

“(2) Subject to the other provisions of this Act, the passport authority shall refuse to issue a passport or travel document for visiting any foreign country under clause (c) of sub-section (2) of section 5 on any one or more of the following grounds, and on no other ground, namely:—

(a) that the applicant is not a citizen of India;

(b) ….

…….”

In other words there is a statutory mandate to the passport authority to refuse the issuance of a passport if the seeker is not an Indian citizen. Keeping aside legal nuances of whether this provision is a statutory mandate or an enabling power, surely the government does not intend to say that it has been indiscriminately issuing passports to non-citizens over the last six decades and that it was merely a “travel document” : ignoring the fact that the Act itself creates a distinction between a passport and a mere travel document.

If a passport has erroneously been issued to a non-citizen, there is ample power under the Act to revoke such a passport. However, proclaiming that a passport issued by one arm of the State shall not be recognised as proof of citizenship by the other arm engaged in the SIR exercise , hits at the very root of rule of law which mandates consistency in governance amongst other requirements.

The recent claim of the MEA that citizenship is governed by a different Act namely, the Citizenship Act, does not detract from the fact that the Passport Act mandates that a passport be issued under section 5 only to persons who qualify as citizens under the Citizenship Act in the first place. The existence of two Acts does not excuse the authorities from understanding the interplay of both Acts. In other words, while granting a passport it was always the duty of the passport authority to verify whether the conditions mentioned in the other Act namely the Citizenship Act were duly fulfilled. Section 5(2) requires the authority to make such inquiry as it may consider necessary before granting a passport. Absent any allegation of fraud, it must be presumed that such inquiry was duly undertaken. Interestingly, section 4 of the 'Citizenship' Act 1955, which deals with citizenship where a child is born abroad to Indian parents, has a specific proviso that requires the parents to declare that the minor does not hold a foreign 'passport' – the clear implication being that a foreign passport itself is viewed as foreign nationality and a ground for refusal of registration under the Citizenship Act. This further negates the claim of MEA that the two Acts operate in different fields and have no bearing on the other.

Revocation of a passport is a totally different procedure, subject to judicial review. That is a totally distinct scenario from what the MEA officials today claim namely, that even a valid and subsisting passport can simply be ignored by the other arm of the State as at least being prima facie proof of citizenship. The ministry officials seem to overlook the fact that even historically a passport was considered ample proof of citizenship. In Satwant Singh vs Passport Officer ^[1], Chief Justice Subba Rao, after tracing the significance of a passport the world over, specifically observed that a passport is (at least) prima facie evidence of one's nationality.

There seems to be some confusion about the impact of the power under section 20 of the Passport Act to grant a passport to a non-citizen if required in public interest. Far from supporting the stated stance of the officials, the very fact that a separate and specific power was required under section 20 for grant of passport to non-citizens, in fact makes it evident that a passport under section 5 can only be granted to citizens. A person making an application under section 20 applies as a non-citizen and that is totally distinct from an application for passport made under section 5 “as a citizen” whereby the applicant is granted a passport by virtue of that citizenship.

To say that a passport is issued merely for the purpose of travelling abroad, is technically correct. However, this only means that holding a passport itself is not a precondition for citizenship . But that cannot be turned on its head to say that citizenship is not a precondition for a passport ! And if that be correct then, at least till Parliament enacts an amendment or the government implements the NRIC, a valid passport cannot be simply ignored as proof of citizenship. Given the intensity of the current debate, it is best that our Supreme Court settles this issue once and for all.

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1. Satwant Singh Sawhney v. D. Ramarathnam, Asstt. Passport Officer, (1967) 3 SCR 525 : AIR 1967 SC 1836 ↑

   Author is a senior Advocate at Supreme Court of India. Views are personal.