Disclaimer: This has been reported after the availability of the order of the Court and not on media reports so as to give an accurate report to our readers.
Delhi High Court: In a writ petition filed by petitioner, born in Dharamshala in 1966 and long treated as a Tibetan refugee, after being denied an Indian passport and left without any valid travel document for nearly a decade, a Single-Judge Bench of Sachin Datta, J., held that the petitioner is an Indian citizen by birth under Section 3(1)(a) of the Citizenship Act, 1955 (Citizenship Act) and entitled to issuance of an Indian passport.
Factual Matrix
In the instant matter, the petitioner claims to be a Tibetan refugee by descent, born on 15-05-1966 at Dharamshala, Himachal Pradesh. Her case rests on the assertion that she is an Indian citizen by birth under Section 3(1)(a) of the Citizenship Act, having been born in India between 26-01-1950 and 01-07-1987. The petitioner relied upon her Indian Identity Certificate, which records her place of birth as Dharamshala, to substantiate this claim.
In 1997, the petitioner migrated to Switzerland along with her minor son to join her husband, who had settled there earlier. In 2009, the Swiss authorities issued a foreign passport to the entire family under Swiss law, valid till 01-07-2014. Upon expiry, renewal was refused on the ground that the family was required to approach the competent national authorities for issuance of a passport.
The petitioner’s husband, who had escaped Tibet in 1959 and had worked extensively with the Tibetan Government-in-Exile, asserted that he was stateless and that approaching the Chinese authorities was neither feasible nor safe. Despite repeated representations, Swiss authorities consistently maintained that attempts must be made to secure a national passport from either India or China.
After the death of the petitioner’s husband, a guardianship of representation and management was established in her favour by the Geneva authorities. Multiple efforts were made by Swiss agencies on her behalf to secure travel documents. The Indian Consulate at Geneva declined renewal of Identity Certificates, and no written reasons were furnished. Swiss authorities, in turn, relied on the petitioner’s place of birth in India to hold that she could obtain Indian citizenship and an Indian passport.
It was only upon receiving a formal decision from the Swiss State Secretariat for Migration in April 2021 that the petitioner became aware of her entitlement under Indian law. Having exhausted all remedies abroad and remaining stranded without travel documents since 2014, the petitioner approached the Delhi High Court seeking recognition of her Indian citizenship and issuance of an Indian passport.
Moot Points
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Whether the petitioner is an Indian citizen by birth under Section 3(1)(a) of the Citizenship Act?
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Whether the petitioner can be denied recognition of citizenship and issuance of an Indian passport on the ground that she had earlier held an Identity Certificate as a Tibetan refugee?
Parties’ Contentions
The petitioner submitted that Section 3(1)(a) of the Citizenship Act confers citizenship by birth automatically on every person born in India between 26-01-1950 and 01-07-1987, subject only to the exceptions under Section 3(2), none of which apply to her case. Reliance was placed on Namgyal Dolkar v. Government of India, 2010 SCC OnLine Del 4548; Phuntsok Wangyal v. Ministry of External Affairs, 2016 SCC OnLine Del 5344 and Sonam Lhanzom v. Union of India, 2018 SCC OnLine Del 8082, where persons of Tibetan origin born in India during the relevant period were held to be Indian citizens by birth.
On the other hand, the Union of India contended that Tibetan refugees and their children constitute a separate class governed by executive orders issued under the Foreigners Act, 1946 (Foreigners Act). It was argued that obtaining an Identity Certificate and declaring Tibetan nationality amounts to voluntary renunciation of Indian citizenship under Section 9 of the Citizenship Act. It was further submitted that citizenship status must first be determined by the Ministry of Home Affairs before any passport could be issued.
Court’s Reasoning
The Court undertook a detailed examination of Section 3 of the Citizenship Act and observed that the statutory language is clear and categorical. A person born in India on or after 26-01-1950 but before 01-07-1987 is a citizen of India by birth, except where disqualified under Section 3(2). The petitioner, having been born on 15-05-1966 in Dharamshala, squarely satisfies the statutory requirement.
The Court rejected the contention that registration as a Tibetan refugee or possession of an Identity Certificate constitutes renunciation of citizenship. Relying extensively on Namgyal Dolkar (Supra), the Court reiterated that “there cannot be waiver of the right to be recognized as an Indian citizen by birth, a right that is expressly conferred by Section 3(1). The Petitioner cannot be said to have ‘renounced’ her Indian citizenship by birth by stating that she is a Tibetan national.”. It was asserted that renunciation of citizenship can only occur in the manner prescribed under Section 8 of the Citizenship Act, which was admittedly not attracted in the present case.
The Court further held that executive instructions or inter-ministerial communications cannot override a statutory provision. The reliance placed by the respondents on the 1950 order regulating entry of Tibetan nationals was held to be misconceived, as it cannot dilute or defeat the operation of Section 3 of the Citizenship Act.
“Mere issuance of a “passport for aliens” or a temporary travel document under the Swiss legal framework cannot be equated with voluntary acquisition of foreign citizenship so as to attract the provisions of Section 9 of the Citizenship Act, 1955. The petitioner, therefore, continues to retain her Indian citizenship, unaffected by the issuance of the said travel document.”
Noting the consistent line of precedents and the Election Commission of India’s clarification recognising children born to Tibetan refugees in India during the relevant period as citizens, the Court found no legal impediment to recognising the petitioner’s citizenship.
Court’s Decision
The Court held the petitioner to be an Indian citizen by birth in terms of Section 3(1)(a) of the Citizenship Act, 1955, and therefore is entitled to the issuance of an Indian passport in accordance with law.
[Yangchen Drakmargyapon v. Union of India, W.P.(C) 16380/2024, Decided on 02-02-2026]
Advocates who appeared in this case:
Mr. Sanjay Vashishtha, Advocate along with Mr. Siddhartha Goswami, Ms. Geetanjali Reddy and Mr. Aditya Sachdeva, Counsel for the Petitioner
Mr. Mukul Singh, CGSC along with Ms. Ira Singh and Mr. Aryan Dhaka, Counsel for the Union of India