LANDMARK DECISION
By a decision of August 7, 2013 the High Court of Karnataka following an earlier erudite precedent of the High Court of Delhi of December 22, 2010 has held that a Tibetan refugee born in India to Tibetan parents between January 26, 1950 to July 1, 1987 would as a right entitle him to claim citizenship by birth under The Citizenship Act, 1955. The Courts rejected the contention of the Union of India that such Tibetan refugees born in India are said to have “renounced” their Indian citizenship acquired by birth, by holding that by virtue of their having a Tibetan identity certificate, it does not amount to renunciation of Indian citizenship. Following the mandate of the Supreme Court in Satwant Singh Vs. APO, New Delhi AIR 1967 SC 1836 and Maneka Gandhi Vs. Union of India AIR 1978 SC 597, that no Indian citizen could be denied a passport, except on specified grounds, it has been held by these Courts that Indian passports cannot be denied to such Tibetans born in India in the said period.
BACKGROUND
Reportedly, more than 1.5 lacs Tibetan refugees had taken shelter in India for an indefinite period following the footsteps of the 14th Dalai Lama in 1959. By a policy decision of the Ministry of Home Affairs, a Tibetan national who entered India after March 1959, could not be granted Indian citizenship by naturalisation under The Citizenship Act, 1955, which is a law to provide for the acquisition and determination of Indian citizenship. Such Tibetan nationals in India possess Tibetan identity certificates in lieu of passports, which are issued by Central Tibetan Administration running in exile in India. These certificates are required to be surrendered to the nearest Indian Passport issuing authority upon acquisition of Indian national passports upon gaining Indian citizenship by any of the modes prescribed in the Citizenship Act.
LAWS APPLICABLE
The Passports Act, 1967, is a law to provide for the issue of passports and travel documents. Travel documents can be issued under this law to “stateless” persons resident in India, including Tibetan refugees, as such documents issued under the authority of the Government of a foreign country are also recognised under this law. It was the contention of the Government of India that since Tibetan refugees were holding Tibetan identity certificates, they could not be treated as Indian citizens under The Citizenship Act, 1955 and could therefore not be granted Indian passports.
The Citizenship Act, 1955, was amended in 1986 to provide Indian citizenship to persons born in India after January 26, 1950 but before July 1, 1987, as a of cut off date, and was thus meant to confer citizenship status acquired by birth as a matter of right, without requiring any such person to make an application for Indian citizenship. Hence, in view of the above verdicts, it has now been decided by the Courts that in the case of Tibetan refugees born in India during this period, irrespective of the fact that they held a Tibetan identity certificate, they could not be denied Indian Passports on the grounds of being Tibetan nationals. The Courts did not find favour with the argument that without there being an application by such Tibetan refugees under the Citizenship Act, the competent authority issuing an Indian Citizenship certificate, was entitled to decline the issue of an Indian passport since the nationality of such Tibetan refugees born in this period was indicated by them as Tibetan on their “identity certificates”. Hence, the Courts have now held that any Tibetan refugee born in India between January 26, 1950 to July 1, 1987 is to be automatically considered as a citizen by birth in India without a declaration or an application under the Citizenship Act.
A VIBRANT INTERPRETATION
The reasoning adopted by the Courts is laudable. The ostensible grounds for rejection of an Indian passport under the Passports Act on the ground that such persons are not citizens of India and that because they are not “Indian nationals” under the Citizenship Act, were duly analysed by the Courts. It was observed that the concept of “nationality” does not have legislative recognition in the Citizenship Act. The Ministry of External Affairs treats Tibetans as “Stateless” persons and thus recognises their Tibetan “Identity Certificates” answering the description of travel documents within the meaning of the Passports Act, whose absence would render Tibetans facing the prospect of being deported. Hence, the Courts have held that the holding of a Tibetan “identity certificate” or a declaration in an application form that the applicant was a Tibetan national, would not constitute valid grounds to refuse an Indian passport.
The Courts further held that the policy decision of the Ministry of Home Affairs not to grant Indian citizenship by naturalisation to Tibetans who entered India after March 1959, is not relevant to Tibetan refugees born in India between January 26, 1950 and July 1, 1987 as such persons are Indian citizens by birth under the Citizenship Act. Possessing any “identity certificate” answering the description of a Tibetan national and registration as such under the Registration of Foreigners Act, 1939, does not amount to waiver of the right to be recognised as an Indian citizen by birth and will not amount to renunciation of Indian citizenship under the Citizenship Act.
SUPPORTING REASONING
The Passports Act enjoins that a person is eligible to hold only one passport or travel document. An “identity certificate” answering the description of a travel document would clearly have to be relinquished upon the issue of an Indian passport. This, therefore, per se cannot constitute valid grounds to refuse issuance of an Indian passport. Hence, prior surrender of the “identity certificate” rendering a stateless person without a travel document, would not legitimately amount to a disqualification for an Indian Passport. However, subsequent surrender of the “identity certificate” upon issuance of an Indian passport is necessary for compliance of the Passports Act.
ANALYSIS AND CONCLUSION
The choice of the Tibetan youth refugees to amalgamate and merge in a land of their new birth by their independent conscious decisions deserves to be respected and honoured. Opening of windows to balance citizenship rights expressed in a democratic set up with progressive modern life standards for aspiring to achieve new professional avenues gained in a cosmopolitan environment reflects the true spirit of globalisation. Second and third generation Tibetan diaspora may now also no longer harbour feelings of living in exile in their new home land of birth. They find expression of their identity by adorning a new habitat offering opportunities of higher educational facilities, vocational training and an ultimate economic prosperity. The winds of change under the view propounded by the judicial umbrella only furthers, aids and assists such denizens in rehabilitating themselves in a land of their choice. The vibrant interpretations of their rights echo, resound and resonate constructively in times today.
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