JUDGMENT

SANJEEV SACHDEVA, J (ORAL)

CM No.34827/2016 in W.P.(C) 3539/2016 (delay in filing counter-

affidavit for 15 days)

For the reasons stated in the application, the application is allowed.

The delay in filing counter-affidavit is condoned and the counter-affidavit is taken on record.

W.P.(C) Nos.3539/2016, 4275/2016 & 7983/2016

1. In W.P.(C) No.7983/2016, Mr Jaitley, learned counsel for the respondent, has filed the counter-affidavit on behalf of respondent in court. The same is taken on record.

2. All these petitions seek a direction to the respondents to consider the petitioners, who are children of Tibetan parents and born in India on or after 26.01.1950 and before 01.07.1987, as citizens of India in view of Section 3(1) (a) of the Citizenship Act, 1955 (hereinafter referred to as ‘the Act’) and to issue Indian passports.

3. The petitioner – Phuntsok Wangyal in W.P.(C) No.3539/2016 was born on 17.09.1977 and the petitioner – Lobsang Wangyal in W.P.(C) No.4275/2016 was born on 25.05.1970. The petitioners, in these two petitions, claim citizenship of India on the basis of Section

3(1)(a) of the Act.

4. The petitioner – Tenzin Dhonden in W.P(C) No.7983/2016 was born on 16.08.1992 and contends that his father was born in India on 01.01.1966 and claims citizenship of India by virtue of Section 3(1)(b)

of the Act.

5. It is contended by the petitioners that the petitioners being citizens of India, cannot be discriminated against and cannot be denied the Indian passport by the respondents. It is also contended that the petitioners, being Indian citizens by virtue of the Citizenship Act, 1955, have no requirement of making any application with the respondents for being so declared and are entitled to all benefits and privileges, as are available to citizens of India.

6. Reliance is placed on the decision of a Coordinate Bench of this Court in Namgyal Dolkar versus Government of India, Ministry of External Affairs, dated 22.12.2010 in W.P.(C) No.12179/2009, wherein similar relief has been granted.

7. Learned counsel for the respondents rely on a letter dated 26.08.2011 issued by the Ministry of Home affairs to the Election Commission of India, whereby Minutes of inter-Ministerial meeting held on 30.03.2010 was conveyed, inter alia, to the following extent:-

“The children born to Tibetan Refugee in India will not be treated as Indian citizen automatically based on their birth in India before 01.07.1987 under Section 3(1)(a) of the Citizenship Act, 1955. All such persons will have to submit an application individually under Section 9(2) of the Citizenship Act, 1955 to MHA and thereafter the nationality status of all such children born to Tibetan Refugees in India, will be determined by MHA as per prescribed procedure available under the Citizenship Rules, 2009. All such children, as an when their nationality status as an Indian is decided by this Ministry, will have to surrender their Tibetan Refugee Certificate and Identity Card before accepting Indian citizenship.”

8. It is contended that as per the said Minutes, all children born to Tibetan refugees in India would not be treated as Indian citizens based on their birth in India before 01.07.1987 and such persons shall have to submit applications individually under Section 9(2) of the Citizenship Act and thereafter the nationality status would be determined by the Ministry of Home Affairs, as per the procedure prescribed under the Citizenship Rules, 2009.

9. It is contended that the petitioners cannot be considered to be Indian citizens automatically and need to apply in terms of the decision of the respondent.

10. Section 3 of the Act reads as under:-

“3. Citizenship by birth- (1) Except as provided in sub-

section (2), every person born in India, -

(a) on or after the 26th day of January, 1950, but before the 1st day of July, 1987;

(b) on or after the 1st day of July , 1947, but before the commencement of the Citizenship (Amendment) Act, 2003 and either of whose parents is a citizen of India at the