[Courting Controversy] Passport, Ergo Civis

René Descartes, the French philosopher, widely considered a seminal figure in the emergence of modern philosophy and science during the Renaissance era, had famously stated, Cogito, ergo sum, which translates to I think, therefore I am. The phrase expresses a simple yet profound idea: the very act of thinking is undeniable proof of one's existence. It requires no external validation.

In many ways, the recent controversy surrounding the Indian passport, turns that logic on its head. The debate began when a senior official of the Ministry of External Affairs (“MEA”) stated that a passport is merely a travel document and does not, by itself, constitute proof of Indian citizenship.  Unlike Descartes’ cogito, where the act itself establishes the truth of the proposition, MEA's comment suggests that possessing a passport says nothing conclusive about the very status that made its issuance possible in the first place. A document issued after a declaration and, presumably verification, of citizenship, is curiously, not treated as evidence of one.

The statement leads to a larger debate: if a passport is not proof of citizenship, then what is?

The Citizenship Act, 1955 (“Citizenship Act”) merely prescribes the various modes by which citizenship may be acquired, that is, by birth [Section 3], descent [Section 4], registration [Section 5], and naturalisation [Section 6]. Citizenship is best understood as a legal status and not as a document. That status is immensely valuable because it unlocks rights and entitlements unavailable to non-citizens, from the right to vote and eligibility for public office to access to numerous statutory benefits and constitutional protections. Yet Indian law has never identified a single document that conclusively proves that status.

The Passports Act, 1967 (“Passport Act”), on the other hand, has three interesting provisions whose analysis is relevant for this issue. First, Section 6, mandates that the Passport Authority shall not issue a passport to an applicant who is not a citizen of India. Second, Section 12, makes it a criminal offence, punishable with imprisonment, for a non-citizen to obtain or apply for an Indian passport by suppressing or misrepresenting one's nationality [Section 12(1-A)]. Third, Section 20 empowers the Central Government to issue, or cause to be issued, a passport to a non-citizen, in public interest.

There is a clear and obvious distinction in the scheme of Passport Act. As a matter of right, only an Indian citizen may apply for and obtain an Indian passport. A non-citizen has no such entitlement. Section 20, by contrast, proceeds on the express premise that the recipient is not an Indian citizen. It is an exceptional power of the Central Government to issue a passport notwithstanding the absence of citizenship. Therefore, apart from the fact that an applicant for an Indian passport is required to make a declaration of citizenship which is presumably verified by the passport office before an Indian Passport is issued, a passport issued under Section 20 is clearly issued to a person who is not an Indian citizen.

It is, therefore, somewhat paradoxical, that an Indian passport would have greater evidentiary value the moment it crosses India's borders, enjoying the curious distinction of being more persuasive to a foreign immigration officer than to the country that issued it. It is established law that a passport when issued to a citizen who goes out of his country to a foreign land, is a political document by which the bearer is recognized in foreign countries as a citizen of the issuing state. That international recognition of the passport is tied to a broader guarantee. Article 12 of the International Covenant on Civil and Political Rights (“ICCPR”) provides that “[e]veryone shall be free to leave any country, including his own.” This guarantee has been interpreted to require States to make that right effective by issuing the necessary travel documents, including passports. As the UN Human Rights Committee has observed, the right to leave one's country would be rendered largely illusory if States were free to withhold the documents needed to exercise it without reasonable justification.

Accordingly, given that Indian law does not recognise a single, universal certificate of citizenship for all legal purposes, an Indian passport should, at the very least, constitute prima facie proof of the same. Further, given that less than 10% of India’s population hold valid passports, there is little reason to doubt that passports have been issued after due diligence and verification.

Descartes taught us that some truths need no further proof. Citizenship and a validly issued passport should be one of those. If thought is sufficient proof of existence, surely an Indian passport, validly issued by the Indian State and preceded by declaration and the State's own satisfaction of citizenship to a person it has already determined to be Indian, should be sufficient proof of citizenship, at home, just as it is abroad. Passport, ergo civis, or Passport, therefore citizen, may not be a Cartesian truth, but is one that ought to follow just as naturally.

Nakul Dewan is a Senior Advocate and King’s Counsel.