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2017 Supreme(Del) 3024
IN THE HIGH COURT OF DELHI AT NEW DELHI
C. HARI SHANKAR, GITA MITTAL, JJ.
LUINGAM LUITHUI AND ORS. – PETITIONERS
Versus
UNION OF INDIA AND ORS. – RESPONDENTS
W.P. (C) 1546 OF 2014
Decided On : 23-08-2017
For the Petitioner: Mr. M.S. Ganesh, Sr. Adv. with Ms. Shomona Khanna and Ms. Radhika Kolluru, Advs.
For the Respondent: Mr. Sanjay Jain, ASG for UOI with Mr. A.K. Gautam, Mr. Ranbir S. Chhillar and Ms. Rajul Jain, Advs. for UOI., Mr. S.C. Solanki, US MHA (F) and Smt. Sreenath Ghose, SO (NE-I) MHA., Mr. Surender Kumar, Under Secretary, (PV-I) and Mr. Deepak Sharma, Assistant Passport Officer (PV-I)
Headnote:
The petitioners, Indian citizens by birth, were compelled to seek refuge from the United Nations Commission for Refugees and thereafter, when deprived of their identities by the respondents, to seek passports from the Canadian authorities. The petitioners challenged the legislative competence and constitutional validity of sub-section (2) of Section 9 of the Citizenship Act, 1955 read with Rule 40 as well as paragraphs 3 and 6 of Schedule III of the Citizenship Rules, 2009. The writ petitioners also challenged the constitutional validity of sub-section (5) of Section 10 of the Passports Act, 1967.
Fact of the Case:
The petitioner nos.1 and 2 herein are husband and wife, who belong to the Tangkhul Naga Tribe (a Scheduled Tribe), domiciled in the hilly areas of the State of Manipur and are Indian citizens by birth within the meaning and intent of Article 5(a) and (b) of the Constitution of India and Section 3(1)(a) of the Citizenship Act, 1955. In 1992, both the petitioners were holding valid Indian Passports issued under the Passports Act, 1967. The petitioner no.2 was issued Indian Passport bearing No. B286072 while petitioner no.1 was issued Indian passport bearing No. W898837. While travelling in Bangkok, Thailand on 2nd July, 1994, petitioner no.2 complains that her passport was stolen while in the market place and that she had also made a police complaint in this regard. Consequently, on 4th July, 1994, the petitioner no.2 also made an application at the Indian Embassy in Bangkok for issuance of a duplicate passport, duly enclosing a photocopy of her passport which had been stolen. Inasmuch as her application for duplicate passport was not being processed despite passage of almost a year, on the 9th of May, 1995, the petitioner no.2 had filed CWP No.1651/1995 through the petitioner no.1 in this court seeking issuance of a writ of mandamus to the respondent no.3 directing it to issue a duplicate passport to petitioner no.2. The respondents appeared in response to the notice to show cause in this writ petition and filed a counter affidavit dated 16th August, 1995. We extract hereunder the relevant portion of the counter affidavit filed by the respondents : “1. Para no.1 of the writ petition is admitted to the extent that the petitioner is an Indian citizen, rest of the para is denied for want of knowledge. 2. In reply to para no.2 of the writ petition it is submitted that (i) Ms. Peingmla and her husband are from Ukhrul District in Manipur which is seriously affected by the Naga insurgency. Also in some pockets there have been Naga-Kuki conflicts. One of the top leaders of NSCN(I), i.e. Th. Muivah is also from Ukhrul District. (Emphasis by us) 9. In para 2 (ii) of this counter affidavit dated 16th August, 1995, under the caption “Brief Facts of the Case” in the said counter affidavit, the respondents alleged that : “(ii) Ms. Peingamla Luithui lives with her husband Luingam Luithui in Bangkok. Bangkok has reportedly been used as operational HQ by the top leadership of NSCN (I)(M). Isaac Swu and Th. Muivah have been reportedly using Bangkok for strategic purposes and particularly for purchase of arms for being used against Indian Security forces and civilians in the North East. They are also reported to use the place for safe haven, obtaining documents, printing of literature etc. Reportedly, arms consignments have also been procured in Thailant and sent to India through Bangladesh and Myanmar. They have been used for unlawful activities directed against the security and integrity of India. The respondents have taken up the matter with Government of Thailand to obtain their cooperation.” (Emphasis by us) 10. Thus to justify their action of non-processing of the application of petitioner no.2, the respondents made the allegations against petitioner no.1 that he “is actively assisting leaders of National Socialist Council of Nagaland (Isak Swu faction) which has been notified as an unlawful association under the Unlawful Activities (Prevention) Act, 1967”.
Finding of the Court:
The petitioner nos.1 and 2 were compelled by the acts and omissions of the respondent no.1 to seek protection from the UNHCR in 1996, which relocated them to Canada. Given the hopeless situation in which they were placed, the petitioner nos.1 and 2 had no option but to seek documents of identity from this country into which they stood relocated in 1996, again not of their volition. We may note that the petitioners have made every possible efforts for issuance of the passport to the petitioner no.2 and release of the passport of petitioner no.1, including approaching this court by way of the writ petition of the petitioner no.1 aforesaid waiting more than a reasonable time before seeking issuance of the passports from the Canadian Authorities. As noted above, it was after waiting for six years only on 17th June, 2002 when a Canadian passport was issued to petitioner no.2. The petitioner no.2 waited even longer – for a decade – till 4th October, 2006 when the Canadian passport was issued to him. The above discussion would show that petitioner nos.1 and 2 in the present case had no option but to seek issuance of Canadian passports.
Issues: Whether the petitioner nos.1 and 2 voluntarily acquired citizenship of Canada, if so, effect thereof.
Ratio Decidendi: The petitioner nos.1 and 2 were compelled by the acts and omissions of the respondent no.1 to seek protection from the UNHCR in 1996, which relocated them to Canada. Given the hopeless situation in which they were placed, the petitioner nos.1 and 2 had no option but to seek documents of identity from this country into which they stood relocated in 1996, again not of their volition. We may note that the petitioners have made every possible efforts for issuance of the passport to the petitioner no.2 and release of the passport of petitioner no.1, including approaching this court by way of the writ petition of the petitioner no.1 aforesaid waiting more than a reasonable time before seeking issuance of the passports from the Canadian Authorities. As noted above, it was after waiting for six years only on 17th June, 2002 when a Canadian passport was issued to petitioner no.2. The petitioner no.2 waited even longer – for a decade – till 4th October, 2006 when the Canadian passport was issued to him. The above discussion would show that petitioner nos.1 and 2 in the present case had no option but to seek issuance of Canadian passports.
Final Decision: The writ petition stands allowed in the above terms.
GITA MITTAL, J.
1. The present writ petition has been filed by the petitioners challenging the legislative competence and constitutional validity of sub-section (2) of Section 9 of the Citizenship Act, 1955 read with Rule 40 as well as paragraphs 3 and 6 of Schedule III of the Citizenship Rules, 2009. The writ petitioners also challenge the constitutional validity of sub-section (5) of Section 10 of the Passports Act, 1967. The writ petitioner makes the following prayers :
“(i). Call for the records of the case from respondent Nos. 1 to 4, including, in particular, the original passport No. R 461568 issued on 4.8.1994 by Respondent No.3 and valid upto 3.8.2004;
(ii). Hold and declare that:
(a) The power to legislate for and enable the State to exile or banish a citizen of India is beyond the legislative competence of Parliament under Articles 10, 11, 245 and 246(1) read with the Seventh Schedule, List I, Entries 17 and 19 and hence also beyond the competence of the executive power conferred on the Union by Article 73 of the Constitution of India;
(b) That sub-section (5) of Section 10 of the Passports Act, 1967 and sub-section (2) of Section 9 of the Citizenship Act, 1955 read with Rule 40 and paragraphs 3 and 6 of Schedule III of the Citizenship Rules, 2009 are ultra-vires the Constitutional and fundamental rights guaranteed to the Petitioners by Articles 5(a) and (b), 10, 11, 14, 19(1)(a) to (g), 21 and 29(1) read in the light of Articles 39A, 51(c), 51A(c), (f) and (h) and Article 253 of the Constitution of India;
(c) That the alleged and impugned Impounding Circular No. VI/405/89/94 dated 31st August 1995 issued by Respondent No. 3 and the alleged and impugned Look Out Circular (LOC) No. 18/96 bearing F.No. 25018/127/96-F.IV dated 24.9.1996 issued by Respondent No. 1 and 2 are void ab initio and also vitiated by malice in law;
(d) That Petitioner Nos. 1 and 2 have not voluntarily acquired the citizenship of any foreign State (Canada) within the meaning and intent of Article 9 of the Constitution of India or of paragraphs 3 and 6 of Schedule III under Rule 40(2) of the Citizenship Rules, 2009 read with Section 9(1) of the Citizenship Act, 1955.
(iii). Issue a writ of certiorarified mandamus or an appropriate writ, order or direction in the nature of certiorarified mandamus:
(a) Directing Respondent Nos. 1 to 4 to grant visas to Petitioner Nos. 1 and 2 to travel to and enter the territory of India to reclaim their citizenship of India;
(b) Directing Respondent Nos. 1 to 4 to restore to Petitioner Nos. 1 and 2 their full civil rights, including the right of permanent residence in India as citizens of India by birth;
(c) Directing Respondent Nos. 1 to 4 to grant Person of Indian Origin (PIO) cards to Petitioner Nos. 1 and 2;
(iv). Grant to Petitioner Nos. 1 and 2 specifically Prayers iii(a) and (b) above such that they are operative nunc pro tunc from 22.9.1995 when this Hon’ble Court passed its Order finally disposing of C.W.P. No. 1651 of 1995 filed by Petitioner No. 2 through and represented by Petitioner No. 1;
(v). Award costs of this Petition in favour of Petitioner Nos. 1 and 2 and against Respondent Nos. 1 to 4”
2. We are confining the present order to the consideration of the prayer of the petitioner nos.1 and 2 to issuance of their passports which prayer for issuance of passport has been denied by the respondents on the plea of their having opted for Canadian citizenship.
3. We note hereunder such facts as are necessary for considering this prayer, which are undisputed.
4. The petitioner nos.1 and 2 herein are husband and wife, who belong to the Tangkhul Naga Tribe (a Scheduled Tribe), domiciled in the hilly areas of the State of Manipur and are Indian citizens by birth within the meaning and intent of Article 5(a) and (b) of the Constitution of India and Section 3(1)(a) of the Citizenship Act, 1955.
5. In 1992, both the petitioners were holding valid Indian Passports issued under the Passports Act, 1967. The petitioner no.
