Passport as proof of Citizenship
Passport as proof of Citizenship
Litigation News

Not mandatory to furnish passport while applying for Citizenship if there are valid reasons for non-production of passport: Calcutta HC

Meera Emmanuel

The Calcutta High Court recently held that the requirement to furnish passport details while applying for Indian Citizenship under Section 5(1)(c) of the Citizenship Act, 1955 is optional, where the applicant shows sufficient reasons for the non-production of the passport.

Justice Sabyasachi Bhattacharyya ruled,

“… 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.”
Calcutta High Court

The Court was dealing with a plea filed by one, Bismillah Khan, who had migrated to India as a five-year old in 1973, with his father, from a conflict-ridden Pakhtoon.

While applying for Indian citizenship under Section 5 (1)(c) of the Indian Citizenship Act, he ran into hurdles in view of the details sought for in an online application form to apply for citizenship, i.e. “Form III.”

This form required that Khan furnish his passport details to proceed further. However, owing to the circumstances in which he migrated and his refugee status, he did not possess a passport.

On Monday, the High Court came to his rescue when it found that there is no provision in the parent statute, i.e. the Citizenship Act itself, that made it mandatory to furnish passport details while applying for citizenship.

This being the case, the Court opined that in cases where an applicant has genuine reasons for being unable to provide passport details, he cannot be barred from applying for citizenship merely on that count. The Court observed,

“… 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.”

Further, it was noted, “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.”

The Court also added, “… 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.”

Calcutta High Court

In view of these observations, the petitioner was allowed to make a fresh application for Indian Citizenship, without having to furnish his passport details. The Court also directed that similar relaxation should be provided for all applicants who do not possess a passport for valid reasons. As recorded in the order,

“.. 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 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.

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.”

[Read the Order]

Bismillah Khan v UOI.pdf
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