INDIAN PASSPORT SANS CITIZENSHIP

A passport is a document which by its nature and purpose recognises a person as a citizen of the country granting it and is in the nature of a request to other countries for his free passage. It contains a recognition of the officially authorised agencies giving nationality to the citizen of the State issuing the passport upon necessary declarations being made to it by the holder. Therefore, a citizen is granted an Indian passport upon confirmation of Indian nationality. However, it can be impounded, revoked or cancelled under the Passports Act, 1967 upon certain prescribed conditions and following the requisite procedure under law.  In Satwant Singh Sawhney vs APO, New Delhi, All India Reporter 1967 Supreme Court, 1836, the Apex  Court has held that deprivation of a passport amounts to infringement of right to personal liberty under Article 21 of the Constitution of India and in Maneka Gandhi vs. Union of India, All India Reporter 1978 Supreme Court 597, it was reiterated that an order impounding a passport must not contravene any fundamental rights.

The Citizenship Act, 1955, which is an Act to provide for the acquisition and determination of Indian Citizenship, prescribes under Section 9 that if any citizen of India voluntarily acquires the citizenship of another country, he shall cease to be a citizen of India. Section 9 of the Citizenship Act is a complete code as regards the termination of Indian Citizenship on the acquisition of the citizenship of a foreign country. In exercise of powers under the Citizenship Act, the Central Government has made the Citizenship Rules, 2009 to carry out the purposes of the Act. Under Rule 40 of Citizenship Rule 2009, the Central Government may determine the issues as to whether, when or how any citizen of India had acquired the citizenship of another country and in doing so shall have due regard to the rules of procedure specified in Schedule III  prescribed under the Rules.

Schedule III of the Citizenship Rules stipulates salient considerations as hereunder:

1.Where it appears to the Central Government that a citizen of India has voluntarily acquired the citizenship of any other country, it may require him to prove within such period as may be fixed by it  in this behalf, that he has not voluntarily acquired the citizenship of that country; and the burden of proving that he has not so acquired such citizenship shall be on him.

2. For the purpose of determining any question relating to the acquisition by an Indian citizen of the citizenship of any other country, the Central Government may make such reference as it thinks fit in respect of that question or of any matter relating thereto, to its Embassy in that country or to the Government of that country and act on any report or information received in pursuance of such reference.

3.The fact that a citizen of India has obtained on any date a passport from the Government of any other country shall be conclusive proof of his having voluntarily acquired the citizenship of that country before that date.

4.In determining whether a citizen of India has or has not voluntarily acquired the citizenship of any other country, the Central Government  may take the following circumstances into consideration, namely:-

(a)whether the person has migrated to that country with the intention of making it his permanent home;

(b) whether he has in fact taken up permanent residence in that country; and

(c) any other circumstances relevant to the purpose

Clearly, the Central Government is vested with powers under Section 9 (2) of The Citizenship Act, 1955, read with Rule 30 of The Citizenship Rules, 1956, as an exclusive jurisdiction to determine the question whether a person, who was a citizen of India, has lost that citizenship by having voluntarily acquiring the citizenship of a Foreign State. Further, under Section 9 (2) and Rule 30 above, mere proof of the fact that the person has obtained a passport from a foreign country is not sufficient to sustain an order for deportation or prosecution, unless there has been a decision of the Central Government under Section 9 (2) of the said Act. Moreover, the enquiry by the Central Government under Section 9 (2) of the said Act is a quasi- judicial enquiry. This proposition of law is well settled by the following judgements of the Apex Court:

i) State of A.P. vs. Abdul Khader AIR 1961 SC 1467;

 ii) Government of A.P. vs. Syed Md. AIR 1962 SC 1778

 iii) State of U.P. vs. Rehmatullah AIR 1971 SC 1382

Let us apply the above principles to the case of X, a stated Indian citizen holding an Indian passport who travelled to England in 1962. X obtains British Citizenship and a British Passport in 1968 and travels to India in 1969 on the British Passport. In 1981, X obtains an Indian Passport which is renewed in 1994 in India. Further, in 1995 and 2004, X obtains fresh Indian Passports in India. Upon a question being raised in 2012 for determination of the nationality of X by the Central Government under Section 9 of the Citizenship Act, it is stated by X that he never wanted to settle in UK permanently, he came back to India 1969 after surrendering his British Passport and renouncing British Citizenship which X had not acquired voluntarily in 1968 and that he had intimated all these facts to the Indian Authorities. X claims to have travelled to UK in 1995 and again thereafter  on a British Visa since he had acquired an Indian Passport from 1981 onwards being an Indian Citizen living permanently in India.

The Central Government upon hearing X comes to the conclusion that it cannot be accepted that X got British Citizenship under duress in 1969 since he stayed in UK from 1962 to 1969. Thereafter, even though he acquired Indian Passports in 1981 and 2004, there is no record since 1981 onwards of X being granted Indian Citizenship. It is concluded that X automatically ceased to be a citizen of India upon acquisition of British Citizenship in 1968. X is now told that he is at liberty to acquire Indian Citizenship as per the due process of law.

In the opinion of the author, the said determination by the Central Government falls  foul of the principles laid down in Schedule III of the Citizenship Rules. It seems surprising that after 21 years of residence of X in India and without any confirmation from the British authorities of surrendering his British passport/ citizenship and without determining his permanent residence in India since 1981, an adverse conclusion has been drawn against X. It has not been determined whether X had at all migrated to UK to make it his permanent home, whether he has resided in UK permanently after 1969, and his travel to UK in 1995 and thereafter on a British Visa, stamped his Indian passport, has been totally over looked as relevant facts.

The error apparent on record seems to be determine the nationality issue under Section 9 of the Citizenship Act without invoking the procedure for revocation, cancellation or impounding of the Indian passport under the Passports Act, 1967. The moot question which seems to have  escaped notice is that an Indian passport could not have been issued in 1981 and 2004 unless there was a determination of Indian nationality. If this was not the case, then, first, the Indian passport ought to have been revoked under Section 10 of the Passports Act, 1967. Thereafter, the issue of determination of Citizenship could possibly have arisen. Perhaps, a more comprehensive  and detailed procedural investigation ought to have been conducted before taking away the rights of X. A short circuit procedure neither satisfies the ends of justice nor is it equitable in law. Established rights can only be dislodged by the due process of law and cannot be taken away after 21 years summarily. Justice must not only be done but must seem to be done un influenced by other factors.