Indian Passport cannot be denied merely because one parent is not Indian Citizen; law abhors statelessness of children: Kerala High Court

The Kerala High Court recently declared that even when one parent of a minor born in India is not an Indian Citizen, the child is entitled to be issued an Indian Passport..Justice Bechu Kurian Thomas held that a minor who has acquired citizenship by birth as per Section 3 of the Citizenship Act, 1955 cannot be regarded as a stateless child by reason of her mother being an American citizen. "Law abhors such statelessness of children. The comity of nations ensures that every person must have a nationality so that all rights accrue to that individual as a national of that particular country. Though nationality and citizenship are not synonymous terms, the concept of nationality cannot be ignored while considering the citizenship of a minor child, especially when the statute confers citizenship by birth," the Court said in its judgement..Merely because one parent acquired the citizenship of another country or if one parent is not a citizen of India, will not by itself, disentitle a child born in India and whose other parent is an Indian citizen to be issued with an Indian passport, the Court ruled.Merely because one parent is not a citizen of India does not disentitle child born in India from getting Indian passport.Kerala High Court .The Court also noted that the right to nationality of every individual is protected under the Universal Declaration of Human Rights and the Convention on the Rights of the Child."The right of every child to acquire a nationality is guaranteed under Article 7 of the Convention, which obliges every party State to implement this right and under Article 8 to protect and preserve the nationality of every child. India, as a party State to the Convention on the Rights of the Child, (by virtue of its ratification in December 1992) has an obligation that no child is left stateless", the Court noted. .The judgment also quoted the words of Irish artist Stacia Tauscher :‘We worry about what a child will become tomorrow, yet we forget that he is someone today’.The Court said that it was was mindful of the fact that the petitioner, though a minor and a child, is still “someone, even today”. "Petitioner’s right to travel, her right to enjoy her nationality and her right to enjoy her citizenship cannot be ignored," the judgment said..The judgement came on a petition that was moved by a minor child who was born in India, with an American Citizen mother, seeking directions for issuing a passport to her without insisting on consent from her biological father who is an Indian Citizen.The petitioner's parents had been divorced for a while and the mother was appointed as her legal guardian even though she wasn't an Indian Citizen. .Three main issues were considered by the Court and answered as follows: .(i) Whether the consent of both parents are required to issue a passport to a minor child?Though in earlier times, there was ambiguity and confusion regarding the procedure to be adopted when consent of both parents could not be obtained, by virtue of several precedents, it has been provided that, if an affidavit is filed in the form of Annexure-C of Schedule III of the Passport Rules, 1980, the passport issuing authority can issue a passport to a minor child, without insisting upon the consent of both parents. Therefore, even if one of the parents of a minor child refuses to give consent, the passport issuing authority is entitled to issue a passport to a minor, provided Annexure-C is submitted..(ii) Whether the minor child is disentitled to get an Indian passport, if one of the parents is a citizen of another country? Section 3(1)(c)(ii) of the Citizenship Act reveals that a person born in India becomes a citizen of India by birth, even if only one of his parents is an Indian citizen, provided the other conditions mentioned in the sub-section are not applicable. The petitioner was born in India and her father was a citizen of India not only at the time of birth of the petitioner but is one, even at present. Petitioner has also not terminated her citizenship under section 9 of the Citizenship Act, the Court noted.Being born in India, the petitioner's domicile of origin is India. The domicile of origin is a concept of law and clings to a person until he abandons it by acquiring a new domicile of choice as held by the Kerala High Court in Govindan v Bharathi and Sindhu George v Passport Officer, Ekm. & Anr.In such circumstances, the petitioner is entitled to be treated as an Indian citizen..(iii) Whether the passport can be issued mentioning only the name of the legal guardian?Though the biological father has been given visitorial rights, that right is at the convenience of the parties and the father submitted in Court that he has no objection to the child being taken abroad by the mother, and to live there. None of the parties could bring to the notice of this Court any legal prohibition in incorporating the name of a non-citizen as the legal guardian in the passport of a minor child. Therefore, the Court held that the petitioner is entitled to be issued an Indian passport with the name of her mother endorsed not only as a mother but even as the legal guardian in the passport to be issued.The Court also had a few words of praise for the biological father of the petitioner for his willingness to send his child abroad to live with her mother in her best best interests. "The aforementioned willingness expressed by the father of the petitioner is indeed creditworthy, indicative of the parent acting in the interests of the welfare of the child and worthy of emulation by other similar parents", the Court said..The petitioner was represented by advocate Abhilash OU. The respondent passport authorities were represented by Assistant Solicitor General of India S Manu assisted by Central Goverrment Counsel Jaishankar V Nair. Advocate Shahul Hameed represented the biological father. .[Read Judgment]