PRODUCTION OF PASSPORT FOR APPLICATION OF CITIZENSHIP IS NOT MANDATORY

The Calcutta High Court, Justice Sabyasachi Bhattacharya, while addressing a petition regarding the citizenship of a person under the Citizenship Act, 1955, held that, the requirement to supply 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.

This relaxation is given in exceptional circumstances where a person is unable to provide a passport due to extraneous and uncontrollable circumstances. Similarly, the idea is also to alleviate the loopholes under the laws for safeguarding the rights of foreigners who are eligible for Indian citizenship.

In the case of Bismillah Khan v. Union of India, [WP No. 928 (W)/2020], before the Calcutta High Court, the Petitioner states his grievance that he was denied citizenship of India since he was not able to file an application under Section 5(1) (c) of the Citizenship Act, 1955 as the online application that has to be filed now requires a copy of the passport as a mandatory requirement for such application.

Counsel for the Petitioner, submitted that the Petitioner was a Pakhtoon citizen and due to political turmoil in the said State he had to migrate to India with his father. Petitioner was a 5-year-old child at that time. In these situations, the Petitioner could not have any opportunity of having a valid passport since they were refugees under distress.

However, counsel appearing for the State submitted that, in view of the Petitioner not complying with the mandatory requirement of furnishing a copy of the passport. State Government cannot forward such an application to the Union Government under the law.

In this respect, the Hon’ble High Court observed and said that 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.

Thus, the Hon’ble Court held that, it is not indicated in Form III that particulars regarding passport of the petitioners have to be furnished mandatorily along with a copy of a valid foreign passport. The Bench also observed that, there has to be a relaxation in such requirements in the case the petitioner is able to satisfy the appropriate authorities the reasons for non-availability of such passport.

Hence, the requirement of having a passport has to be read as optional in Form III of the Citizenship Rules, 2009. Irrespective of the fact that the said matter was dealt with respect to a particular point but the ideology flowing from the said decision is per se applicable to the other provisions under the Citizenship Act, 1955 if justified with reasonable explanation.

Lakshmi Vishwakarma

Associate

The Indian Lawyer