Calcutta HC says passport not mandatory for foreigners to apply for Indian citizenship

Justice Sabyasachi Bhattacharyya disposed of a petition by granting the petitioner liberty to file an application before the authority as contemplated in Rule 11 of the Citizenship Rules 2009, upon furnishing explanation for the non-availability of the passport.

The court noted that Clause 9 of Form III of the citizenship application requires the passport particulars of the applicant to be filled in and the documents to be attached with the application includes a valid foreign passport.

Passing the order, the court observed that although the rule "contemplates that an application shall not be entertained unless the application is made in Form III, such provision does not make the availability of a passport a mandatory requirement".

It further said that the "Form given with the Rules or the Rules themselves cannot override the provision of the statute itself, under which the said Rules are framed, which does not stipulate such a mandate on the applicants for citizenship under Section 5(1)(c) of the 1955 Act mandatorily to carry a passport".

The court said that under such circumstances, it cannot be held that the provision of producing a passport and its particulars are mandatory in nature and there has to be a relaxation in such requirement in the case the petitioner is able to satisfy the appropriate authorities the reasons for non-availability of such passport.

The court further said that unless such leeway is given to applicants, genuine persons who have been residing in India for a long time and married a resident of India would also be unable to apply for Indian Citizenship, despite having contributed to the economy and diverse culture of this country.

The high court said that this would be "contradictory to the spirit of Article 14 of the Constitution of India".

In such view of the matter, the requirement of having a passport has to be read as optional in Form III of the Citizenship Rules, 2009 and the authorities are deemed to have the power to relax such requirement in the event the applicant satisfied the authorities for genuine reasons why the applicant is not in a position to produce such passport, Justice Bhattacharyya said in the order passed earlier this week.

The court said that despite the provision of making applications online, a provision has to be made for persons who do not have all the particulars of their passport, to file applications manually.

Alternatively, provision has to be made to amend the necessary software so that the online applications can be presented with or without passports, in the latter case furnishing detailed reasons for non-furnishing of passports.

"Sanctioning of such forms, however, will be conditional upon the satisfaction of the relevant authorities about the reasons for the applicant not being able to produce her/his passport," the court said in its order.

Petitioner Bismillah Khan had moved the court on the ground that he is being denied the citizenship of India since he is not being able to file an application apparently due to the online process which contemplates that a copy of the passport of the applicant as a mandatory requirement for such application.

Petitioner's counsel Sharmistha Podder submitted before the court that Khan was a Pakhtoon citizen and due to political turmoil in the said State, which subsequently merged partially into Afghanistan and partially into Pakistan, the petitioner, as a five-year-old, had to migrate to India with his father in the year 1973.

Podder further submitted that under such circumstances, the petitioner could not have any opportunity of having a valid passport, since they were refugees under distress.

Counsel for the Union of India submitted that in view of no application having been filed by the petitioner, there is no scope of granting such proposed application at the present juncture.

He further argued that it is mandatory to file an application in Form III for the application of the petitioner under Section 5(1)(c) of the Act to be considered at all.

The counsel for the West Bengal government submitted before the court that in view of the petitioner not complying with the mandatory requirement of submitting a copy of the passport of the petitioner, the state cannot, under the law, forward such application to the Union government.

Hearing all the parties in the petition, the court passed the order.

Podder said that Khan, a businessman here, is married to an Indian citizen and has a daughter.