24 March 2023 7:07 AM GMT
The Karnataka High Court has come to the aid of a 15-year-old child by directing the Passport Officer, Bengaluru to issue him an Indian Passport. The court said the travel document will remain operational till he turns 18 years old, or else he would be rendered Stateless.Justice M Nagaprasanna said that merely because the minor's father is not traceable and the mother "has been reckless" in...
The Karnataka High Court has come to the aid of a 15-year-old child by directing the Passport Officer, Bengaluru to issue him an Indian Passport. The court said the travel document will remain operational till he turns 18 years old, or else he would be rendered Stateless.
Justice M Nagaprasanna said that merely because the minor's father is not traceable and the mother "has been reckless" in not knowing the consequences of renouncement of citizenship, the fate of the child cannot be left in limbo.
“It becomes a fit case where this Court has to exercise its jurisdiction under Article 226 of the Constitution of India to remedy the wrong qua the son of the 2nd petitioner, a wrong never committed by the child as 'IF NOT THE COURTS WHO and IF NOT NOW, WHEN'," said the court.
The child and his mother had approached the court questioning the order dated 12-01-2022 passed by the Joint Secretary and Chief Passport Officer, Ministry of External Affairs declining to grant an Indian passport to the minor.
It was the case of the mother that she got married to Selvakumar Balasubramanian on 4-11-2005. From the wedlock, a son was born on 5-03-2008 in India. The husband then decided to relocate to Canada owing to his avocation in the year 2011. The wife joined him in Canada along with the son. In the year 2012, the father returned to Bangalore with the son and handed over custody of the son to his maternal grandparents. The child's father has been untraceable since then.
However, the mother continued to stay, pursuing her studies, in Canada while the son continued to stay with the grandparents in India. Later in 2015, the mother was granted Canadian citizenship and passport. Following which she filed an application before the Consulate General of Indian Embassy at Canada surrendering her citizenship of India and seeking an Overseas Citizen of India card.
Accepting the surrender application, the Ministry of External Affairs issued citizenship surrender certificate to the mother depicting that she has renounced Indian citizenship under the Citizenship Act, 1955 and cancelled the passport.
The grandparents of the child applied for issuance of a minor passport to the son. An Indian passport came to be issued to the minor on 24-07-2015 for a period of five years which was set to expire on 23-07-2020. On the ground that the husband had become untraceable for several years, wife sought divorce/annulment of marriage.
The concerned court recorded that on failure of efforts to get the respondent served including a paper publication, there was no warrant to wait for representation of the husband and then passed an ex parte order annulling the marriage on 04-09-2018 and since there was no contest in the matter, it directed permanent custody of the child to the mother.
Meanwhile, the passport of the son issued on 24-07-2015 was set to expire on 23-07-2020. He was then 12 years old. Owing to such date of expiry, the mother made an application before the Authorities seeking re-issuance of passport to the son.
The Authorities then realized that though the custody has been granted to the mother, she has renounced citizenship of India. Thus by operation of law, the court noted, the minor son also ceased to be a citizen of India. On that basis, re-issuance of Indian passport to the son was declined. This led the mother filing an appeal before the Appellate Authority.
The Appellate Authority recorded the fact that Passport Rules require the parent in whose custody the minor child is, to be citizen of India for issuance of passport to the minor and affirmed the order of the Regional Passport Officer who declined to re-issue passport in favour of the son. However, on humanitarian grounds to unite with his mother, the child was granted a temporary passport effective from 21-03-2022 to expire on 20-03-2023.
The mother contended before the court that she unknowingly or being ignorant of consequences of law, sought renunciation of her Indian citizenship. What was required to the mother was an Overseas Citizenship of India under Section 7A of the Act and not renunciation, her counsel said.
“The surrender of citizenship happened in the year 2015 and the custody of the son has come to the mother in the year 2018. Therefore, renunciation should not come in the way of grant of passport to the son, as otherwise, he would be rendered countryless or landless and will have no legal identity. Though the passport is issued to the son, it is only a temporary which would give no right of citizenship to the son. He would therefore, contend that the passport be directed to be issued in favour of the son," the counsel said.
Advocate Kumar M N for the respondents contended that in terms of the Rules, there cannot be any fault found with the order passed by the Authorities and passport is given to the son on humanitarian grounds which would expire and if the prayer is granted. it would have cascading effect and serious consequences.
The bench noted that under Section 8 of the Citizenship Act, a citizen of full age and capacity may in the prescribed manner declare renouncing his Indian citizenship and the declaration shall be registered by the prescribed Authority and upon such registration the declarant will cease to be a citizen of India.
"Sub-section (2) of Section 8 depicts that when a person ceases to be a citizen of India under sub-section (1) which would mean who ever would renounce citizenship, the minor child of that declarant who has renounced citizenship of India will thereupon i.e., from the date of such renunciation ceases to be a citizen of India," it added.
The bench further said the purport of the Act is that if the mother or the father renounces citizenship of India, the minor would cease to be a citizen of India. The proviso to sub-section (2) further permits that the child who has lost citizenship of India, if on attaining the full age i.e., 18 years then within one year thereafter can make a declaration that he wishes to resume Indian citizenship, it noted
"The legal custody of the minor child is with the mother and the mother is now a citizen of Canada. By operation of law the child also has lost his Indian citizenship and can be regained only after he attains full age i.e.,18 years," it said.
The court said three years have to pass by for the son to exercise his discretion either to become a citizen of any other country or to regain Indian citizenship, but till then he is rendered Stateless.
“A Stateless child is an individual who does not hold the citizenship of any State. Stateless children are among the most vulnerable individuals in the world, as being stateless implies several consequences. They would not have any rights, legal protection, benefits of education, healthcare, freedom of movement inter alia and Statelessness has a lifelong impact on a child who is rendered one,” said the court.
The court observed that a child is a soul with a being and a being who is entitled to all human rights.
"Merely because a minor/child has no voice in the affairs of the state qua citizenship or otherwise, the Courts exercising jurisdiction under Article 226 of the Constitution of India, both for justice and equity, cannot shut its doors to the cry of a child, who would be rendered Stateless without the aid of interference at the hands of this Court,” it said.
It further said: “LAW ABHORS STATELESSNESS OF CHILDREN. If law is abhorrent to Statelessness of a child, the situation in the case at hand has to be redeemed, failing which, it would result in the Statelessness of the son.”
The court held that the child cannot but be held to be a citizen of India "having taken birth in this land to the parents who were citizens of India at the time of birth of the son.”
Accordingly it directed the authorities to issue/extend/re-issue the passport to the minor, to be operational till he attains the age of 18 years.
“Liberty is reserved to the son/1st petitioner to resume Indian Citizenship once he comes of full age in terms of proviso to 8(2) of the Act. The respondents 1 and 2 shall issue/extend/re-issue the passport in favour of the son/1st petitioner forthwith, till the time of such issuance, the existing passport shall stand extended and no coercive or precipitative action shall be taken against the son/ 1 st petitioner,” said the court.
The court also observed that it is for the authorities bring about necessary solution to redeem such unprecedented situations whenever they would occur.
Case Title: Master Arya Selvakumar Priya & ANR And Joint Secretary (PSP) and Chief Passport officer & others
Case NO: WRIT PETITION No.21642 OF 2022
Citation: 2023 LiveLaw (kar) 119
Date of Order: 21-03-2023
Appearance: Advocate Manu P Kulkarni for petitioners
CGC Kumar M N for respondents.
Click Here To Read/Download Order