Individuals born in India between January 26, 1950, and July 1, 1987, are Indian citizens by birth and entitled to a passport, regardless of their parents' nationality or refugee status.

JUDGMENT :

SACHIN DATTA, J.

1. The petitioner has filed the present petition praying as under –

“A. Issue an order / Writ / direction under Article 226 of the Constitution of India in the nature of Mandamus directing the Respondents to issue Indian Passport to the Petitioner.

B. Issue an order / Writ under Article 226 of the Constitution of India or any other appropriate writ recognising the Citizenship of India of the Petitioner in view of section 3(1) (a) of the Indian Citizenship Act, 1955.”

2. The petitioner claims to be a Tibetan refugee by descent, born in Dharamshala, Himachal Pradesh, India on 15.05.1966, and thus an Indian citizen by birth under Section 3 (1)(a) of the Citizenship Act, 1955. The said section provides that every person born in India on or after 26.01.1950, but before 01.07.1987, is a citizen of India by birth, unless covered by exclusions under Section 3 (2), which, it is submitted, are not applicable in her case. In order to establish its place of birth in India, the petitioner has annexed an Indian Identity certificate where the petitioner’s place of birth is mentioned as Dharamshala, Himachal Pradesh.

3. The background of the matter is that in 1997, the petitioner migrated to Switzerland along with her then two-year-old son, Mr. Tenzin Jigdral Drakmargyapon, who was born in Darjeeling, India, on 27.03.1995. The purpose of her migration was to reunite with her husband, the late Mr. Ngawang Choephel, who had previously settled in Switzerland. Subsequently, on 03.06.2000, the petitioner gave birth to a daughter, Ms. Tenzin Yeshi Choephel, in Switzerland.

4. It is submitted that on 09.06.2009, the petitioner’s husband applied to the Swiss cantonal migration authority for a foreign passport for the entire family, as all four members held residence permits in Switzerland. It is submitted that this resulted in the issuance of foreign passport on 02.07.2009, for the entire family of the petitioner, under Article 10 of the Swiss Ordinance on the Establishment of Travel Documents for Foreigners. The validity of the said passport was for five years until 01.07.2014. However, it is submitted that when the petitioner’s husband applied for a renewal on 09.09.2014, the then Federal Office for Migration [now the State Secretariat for Migration (SEM)] rejected the application on 05.11.2014. SEM held that the petitioner’s husband should have attempted to obtain a national passport from the competent authority of his country of origin. The translated version of the said order dated 05.11.2014 passed by the Federal Office for Migration (annexed as Annexure P-5) is reproduced as under –

“Sir,

We refer to your request of 9 September 2014 for the issuance of a passport for foreigners and inform you of the following:

After examining the file, we note that the conditions for issuing the required document are clearly not met, in accordance with the Ordinance on the Issue of Travel Documents for Foreigners (ODV, RS 143.5). Each new application is examined again. We therefore note that you can, and may reasonably be required to, take steps with the competent authority of your country of origin in Switzerland to have a national passport issued for you. These steps must be taken personally. Consequently, you are not dependent on a replacement Swiss travel document. If the competent authority refuses to issue you with the document, we ask you to provide us with written proof stating the reasons for the refusal. Technical or organisational delays in issuing the passport cannot consider you as lacking travel documents.

In view of the above, you have the possibil