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Passport Violation and Fundamental Rights

This Article is authored by Advocate Anil Malhotra.

As debates continue in India regarding the utility of laws made during the British Raj, Great Britain itself is in the process of repealing 38 enactments which were legislated between 1849 and 1942 relating to the construction and maintenance of the Indian Railways network during British rule. India needs to take steps too to remove certain redundant laws hampering justice.

Even though Parliament enacted the Passports Act, 1967, the Citizenship Act, 1955, and in 2005 created the concept of Overseas Citizen of India, we continue to rely on the Passport (Entry into India) Act, 1920; the Registration of Foreigners Act, 1939, and the Foreigners Act, 1946, for various purposes. Most of these archaic legislations made during colonial rule are today outdated, and do not stand the test of principles of natural justice, and confer unfettered, arbitrary and draconian powers. As such, these need to be promptly removed from the statute book.

The Passports Act, 1967, which is a comprehensive and wholesome law relating to the issuance of passports and travel documents, provides a statutory safeguarded procedure for variation, impounding and revocation of passports, with rights of appeal to aggrieved persons against offences and penalties levied under this Act.

The simultaneous existence of the Passport (Entry into India) Act, 1920, and the Foreigners Act, 1946, conferring absolute and unlimited powers to remove or deport a person from India summarily without following the due process of law, are an anathema and antithesis to the rule of law in a democratic country. There is ample scope for judicial review. Powers of house arrest, detention, solitary confinement and summary removal from India under these 1920 and 1946 laws clearly infringe upon the fundamental rights to life and personal liberty guaranteed under the Indian Constitution. The reasons for retaining these pre-Independence laws seem to be misplaced and defy fundamental freedoms.

New categories

The 1.2 billion Indians contributing 30 million non-resident Indians (NRIs) in almost 180 countries across the globe has led to compromises on dual nationality, which is otherwise prohibited under Article 9 of the Constitution, and Section 9 of the Citizenship Act, 1955. Two categories of "Persons of Indian Origin" (PIO) and "Overseas Citizen of India" (OCI) were carved out to confer limited benefits on persons of Indian origin. Subsequently, PIOs and OCIs enjoy limited rights in India and can enjoy residence rights in India without any visa, registration, sanction or other permissions. Moreover, under Article 5 of the Constitution, every person who has domicile in India and was born in India, whose parents were born in India, or who has been ordinarily residing in India for not less than five years may be a citizen of India. Hence, inherent rights flow to presumption of Indian nationality.

Determination of nationality

Under the 1946 Act, disputes relating to questions of determination of nationality when a foreigner is recognised as a national of more than one country - or it is uncertain as to what nationality is to be ascribed to a foreigner - such person may be treated as the national of the country with which he appears to be most closely connected. The 1920 and 1946 Acts permit removal or deportation of a person from India without providing any forum or procedure for determination of the question of the nationality of a foreigner or giving any statutory rights in this process. Tribunals to determine these questions do not exist.

However, at the same time, the Citizenship Act, 1955, and the Citizenship Rules, 2009, prescribe that if any question arises as to whether, when or how any person acquired the citizenship of another country, the Central government would first determine the matter. The Supreme Court, interpreting these provisions, has held that a person could not be ordered to be deported or removed from India unless the Central government takes a conscious decision upon holding a quasi-judicial inquiry that a person has ceased to be an Indian citizen. A person cannot be summarily labelled foreigner and determination of his nationality is his fundamental right. It is time our Parliament reconciles this concept of freedom, personal liberty and natural justice with determination of nationality.

Debatable question

In the social milieu today, international Indians qualify to be PIOs or OCIs. If they wish to reconnect with their homeland, they ought not to be bundled out as foreigners by invoking the colonial provisions of the 1920 and 1946 Acts, which offend fundamental freedoms. The Citizenship Act, 1955, itself creates harmony. The retention of a foreign passport today cannot lead to deportation and summary removal from India. Why then do we need to retain the 1920 and 1946 enactments, which were enacted to regulate the entry of foreigners into India in circumstances prevailing in 1946? This is a serious issue which must engage the attention of Parliament.

Today, PIOs have matters relating to matrimonial differences between spouses of global origin, or nationality issues arising out of foreign domiciles. The desirable approach, therefore, would be to create appropriate forums or authorities within the legal system who may address such resolvable issues by granting opportunity of hearing and redress. Accordingly, deportation or removal of a person to a foreign jurisdiction would be an abject surrender to a foreign dominion. Having resolved to be a sovereign, socialist, secular, democratic republic, we in India are very capable and competent of adjudicating our nationality issues to provide redress for indigenous Indians. Our post-Independence laws provide the solutions which our vibrant judiciary interprets to protect fundamental freedoms guaranteed under the Constitution. Hence, pre-Independence laws in conflict with assured rights today must go off the statute book.

Citizenship laws in force

  • The Registration of Foreigners Act, 1939: A law meant to provide for the registration of foreigners in India.

  • The Registration of Foreigners Rules, 1992: Issued in supersession of the Registration of Foreigners Rules 1939, rules made under the 1939 Act.

  • The Foreigners Act, 1946: An Act to confer upon the Central government certain powers in respect of foreigners.

  • The Foreigners Order, 1948: An Order made under Section 3 of the 1946 Act for power to grant permission to depart from India.

  • The Foreigners (Tribunals) Orders, 1964: An Order made under Section 3 of the 1946 Act to constitute tribunals to determine if a person is a foreigner.

  • The Passport (Entry into India) Act, 1920: An Act to take powers to require passports of persons entering India.

  • The Passport (Entry into India) Rules, 1950: Rules made under the 1920 Act.

  • The Passports Act, 1967: An Act to provide for the issuance of passports and travel documents to regulate departure from India.

  • The Citizenship Act, 1955: An Act to provide for the acquisition and determination of Indian citizenship.

  • The Citizenship Rules, 2009: Rules made under the Citizenship Act, 1955.

Revoking a passport

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 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. A passport 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 Sawhneyvs 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.

Law settled by Supreme Court

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 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. Under Section 9 (2) and Rule 30, 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 Act. Moreover, inquiry by the Central government under Section 9 (2) of the Act is quasi-judicial. This proposition of law is settled by the following judgements of the apex court: State of A.P. vs. Abdul Khader, AIR 1961 SC 1467; Government of A.P. vs. Syed Md., AIR 1962 SC 1778; State of UP vs. Rehmatullah AIR 1971 SC 1382.


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