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2023 Supreme(Online)(Mad) 58634
IN THE HIGH COURT OF JUDICATURE AT MADRAS
G.R. Swaminathan, J
Sahayanathan – Appellant
Versus
The Regional Passport Officer – Respondent
W.P(MD)No.2421 of 2023
For the Appellants/Petitioners: Mr.I.Romeo Roy Alfred
For the Respondents: Mr.D.Saravanan, Central Govt. Standing Counsel
The court affirmed that a child born in India to an Indian citizen mother is an Indian citizen by birth, regardless of refugee status, and cannot be denied a passport.
Headnote:(A) Constitution of India - Article 226 - Passport issuance - The petitioner, a Srilankan refugee, sought the issuance of a passport claiming Indian citizenship by birth. The court highlighted the plight of refugees, noting that indeterminate statuses often complicate citizenship assertions. Citing provisions of the Citizenship Act, 1955, the court emphasized that the petitioner qualifies for Indian citizenship as he was born to an Indian citizen mother before the cut-off date. The government’s previous notice questioning the petitioner’s nationality was ruled erroneous. (Paras 1-9)
(B) Refugee Rights - The court referred to significant international standards regarding refugee treatment and highlighted the issues Srilankan refugees face. It reiterated that non-refoulement principles are vital in refugee protection. The court emphasized that the lack of domestic legislative frameworks creates uncertainty in refugee rights in India. (Paras 6-8)
Facts of the case:
The petitioner, a Srilankan refugee, married an Indian citizen and sought a passport to pursue employment abroad. His previous application was met with skepticism due to his refugee status per the birth certificate.
Findings of Court:
The court noted that the petitioner was an Indian citizen by birth and directed the issuance of a passport within three weeks.
Issues: The main issues revolved around the status of the petitioner as a citizen, considering his registration as a refugee.
Ratio Decidendi: The court held that being the child of an Indian citizen born before the cut-off date entitled the petitioner to citizenship by birth, and the erroneous categorization in his birth certificate could not impede his rights.
Result: Writ petition allowed.
| Table of Content |
|---|
| 1. background information of the petitioner and context. (Para 1 , 2) |
| 2. refugees' rights and citizenship issues in india. (Para 3 , 4 , 5 , 6) |
| 3. assessment of the validity of the birth certificate. (Para 7 , 9) |
| 4. importance of nationality and non-refoulement principles. (Para 8) |
| 5. court's directive to issue passport. (Para 10) |
ORDER
“ In the case of P.Ulaganathan and Others Vs. The Government of India and Others in W.P.(MD)No.5253 of 2009, I had also made a similar comparison. I referred to the mythological character “Thirisangu”. A refugee is neither here nor there. His fate hangs in the balance. He is at some point above ground level in the air in a supportless state (Kriyavin tarkalat tamil akarati). That's the literal meaning of the title of the novel.
2.Let us come to the case facts. Sahayanathan is a Srilankan refugee. He came to India in the year 1990. He was put in Sennalakudi Refugee Camp, Nattarasankottai, Sivagangai Taluk. A refugee is also a human-being. He can fall in love. Sahayanathan came in contact with Patchaiammal. She is an Indian citizen. They got married. It was not an inter-religious marriage. Inter-faith love does not necessarily culminate in inter-religious civil marriage. “Patchiammal” got converted and became Mary Christina. Their marriage was solemnized by the parish priest, Alangara Annai Cathedral, Sivagangai on 23.05.2001. The petitioner was born on 18.01.2002. He studied in S RM Higher Secondary School, Nattarasankottai and passed out in March, 2017. He studied B.Com. in Raja Doraisingam Government Arts College, Sivagangai. All that he now wants is issuance of passport so that he can explore employment opportunities abroad. He submitted an application dated 28.10.2022 before the respondent. Since in the birth certificate, the petitioner was mentioned as Srilankan refugee, the impugned notice dated 06.01.2023 was issued calling upon the petitioner to furnish proper explanation. The petitioner submitted his explanation on 17.01.2023. Apprehending that his application may not be favourably considered, the present writ petition came to be filed.
3.The apprehension of the petitioner is well-founded. I have described the plight of Srilankan refugees in getting citizenship in Ulaganathan case . One Nalini was born to Srilankan refugees on 21.04.1986 at Mandapam Camp. As per the provisions of Indian Citizenship Act , she is an Indian by birth. She was entitled to passport as a matter of right. Yet she had to move this Court for relief. Vide order dated 12.08.2022 in W.P.(MD)No.3512 of 2022, I held as follows:-
“6.In the case on hand, there is no scope for any doubt.
The petitioner has enclosed the birth certificate issued by the competent authority. Its genuineness is not doubted. The learned counsel appearing for the petitioner drew my attention to the decision of the Hon’ble High Court of Delhi made in W.P(C)12179 of 2009 ( Namgyal Dolkar Vs Government of India ) dated 22.12.2010. In the said case, the petitioner was born in India on 13.04.1986. The Hon’ble High Court of Delhi held that she is an Indian Citizen by birth in terms of Section 3(1)(a) of Citizenship Act , 1955 and that she cannot be denied passport. The case on hand is absolutely similar. Since the petitioner is an Indian citizen by birth, she need not apply for citizenship. It is not the case of the respondent that the petitioner had renounced her Indian citizenship.”
4.Harina was not lucky to be born before the cut-off date. Yet invoking Section 20 of the Passport Act , 1967, I directed the passport authorities to issue passport in her favour. Vide order dated 30.01.2023 in W.P.(MD)No. 27893 of 2022, I had held as follows:-
“6.The said provision reads as follows:
“Issue of passports and travel documents to persons who are not citizens of India.-Notwithstanding anything contained in the foregoing provisions relating to issue of a passport or travel document, the Central Government may issue, or cause to be issued, a passport o
