Cal HC | Availability of Passport is not a mandatory requirement while applying for Citizenship, if genuine reasons provided

Calcutta High Court: Sabyasachi Bhattacharya, J., while addressing a petition regarding the citizenship of a person, held that,

“An application has to be made to acquire citizenship under Section 5(1)(c) of the Citizenship Act, 1955 mandatorily in Form III as given in Rule 5(1) of Citizenship Rules, 2009.”

Petitioner states its grievance that he has been denied citizenship of India since he was not able to file an application under Section 5(1) (c) of the Citizenship Act, 1955 as the online application that has to be filed now requires a copy of the passport as a mandatory requirement for such application.

Counsel for the Petitioner, submitted that the petitioner was a Pakhtoon citizen and due to political turmoil in the said State he had to migrate to India with his father. Petitioner was a 5-year-old child at that time. Under such circumstances, the petitioner could not have any opportunity of having a valid passport since they were refugees under distress.

Counsel for the State submitted that in view of the petitioner not complying with the mandatory requirement of submitting a copy of the passport. State Government cannot, under the law forward such an application to the Union Government.

Court’s Analysis & Decision

Petitioner has to make an application to acquire citizenship under Section 5(1)(c) of the Citizenship Act mandatorily in Form III as given in Rule 5(1) of 2009 Rules. On perusal of Form III, Court stated that clause 9 of the same requires passport particulars of the applicant and documents to be attached with application include a valid foreign passport.

Further, the Court noted that,

A compliance of Rule 5(1)(a), although contemplates that an application shall not be entertained unless the application is made in Form III, such provision ipso facto does not make the availability of a passport a mandatory requirement, since 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.

 Thus, the Court held that, it is nowhere indicated in Form III that particulars regarding passport of the petitioners have to be furnished mandatorily along with a copy of a valid foreign passport. The Bench also added that, 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.

Hence, the requirement of having a passport has to be read as optional in Form III of the Citizenship Rules, 2009.

Further, the Bench made an observation 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, which is read as optional, to file applications manually, which are to be treated as valid applications under Rule 5 of the Citizenship Rules, 2009, alternatively to amend the necessary software so that the online applications can be presented with or without passports, in the latter case furnishing detailed reasons as to non-furnishing of passports.”

[Bismillah Khan v. Union of India, 2020 SCC OnLine Cal 540, decided on 24-02-2020]

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