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Not Mandatory To Possess Valid Foreign Passport To Apply For Indian Citizenship By Registration: Calcutta HC [Read Judgment]

Ashok Kini
27 Feb 2020 3:44 PM GMT
Not Mandatory To Possess Valid Foreign Passport To Apply For Indian Citizenship By Registration: Calcutta HC [Read Judgment]
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"Unless such a leeway is given to the applicants, genuine persons who otherwise have all the formal documents indicating that they have been residing in India for a long time and have married a resident of India would also be unable to apply for Indian Citizenship, despite having lived their entire lives and contributed to the economy and diverse culture of this country, which is contradictory to the spirit of Article 14 of the Constitution of India."
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The Calcutta High Court has held that it is not mandatory to possess a valid foreign passport to apply for grant of Indian Citizenship by Registration.

Justice Sabyasachi Bhattacharyya observed that 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 why the applicant is not in a position to produce such passport.

Bismillah Khan had migrated to India with his father in the year 1973. Aggrieved by denial of Indian Citizenship, he approached the Court contending that due to the mandatory requirement of uploading a copy of his passport, which he does not have due to reasons beyond his control, he is denied is not in a position even to file such complete application. He submitted that he could not have any opportunity of having a valid passport, since they were refugees under distress. Opposing this plea, the Union of India submitted before the Court that, the provisions of Section 5(1)(c) of the Citizenship Act, read with Rule 5 as well as Rules 11 and 12 of the Citizenship Rules, 2009 makes it mandatory to file an application in Form III for the application of the petitioner under Section 5(1)(c) of the Act to be considered at all.

Referring to the relevant Rules and Forms, the Court observed:

"However, a compliance of Rule 5(1)(a), although contemplates that an application shall not be entertained unless the application is made in Form III, such provision ipso facto does not make the availability of a passport a mandatory requirement, since the Form given with the Rules or the Rules themselves cannot override the provision of the statute itself, under which the said Rules are framed, which does not stipulate such a mandate on the applicants for citizenship under Section 5 (1)(c) of the 1955 Act mandatorily to carry a passport. Although such provision is included in the Form, which has to be complied with by the applicant, 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. Under such circumstances, 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. Unless such a leeway is given to the applicants, genuine persons who otherwise have all the formal documents indicating that they have been residing in India for a long time and have married a resident of India would also be unable to apply for Indian Citizenship, despite having lived their entire lives and contributed to the economy and diverse culture of this country, which is contradictory to the spirit of Article 14 of the Constitution of India."

Holding thus, the bench also directed that, 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, the Court directed 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. Disposing the petition, the Court further observed:

"Sanctioning of such forms, however, will be conditional upon the satisfaction of the relevant authorities about the reasons for the applicant not being able to produce her/his passport. Reading the order of the learned Single Judge dated July 25, 2018 passed in W.P. 6345 (W) of 2018 in such light, W.P. 928 (W) of 2020 is disposed of by granting the petitioner liberty to file an application before the authority as contemplated in Rule 11 of the Citizenship Rules 2009, upon furnishing explanation as to the non‐availability of the passport of the petitioner. Upon receiving such application, and upon being satisfied about the reasons given by the petitioner as regards the absence of passport and as to the correctness of the particulars of the application, the Collector shall forward such application to the State Government which, upon a consideration under Rule 12(a) shall, if satisfied about the reasons for the absence of passport, forward the said application to the Central Government, which will dispose of such application in accordance with law, giving due credence according to its own standards to the reason furnished by the petitioner for not being able to produce his passport." 


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