Meghalaya High Court
Smti Doma Tsering Alias Tsering Doma vs The Union Of India on 15 February, 2017
Author: Dinesh Maheshwari
Bench: Dinesh Maheshwari
1
WP(C) No.206 of 2015
With WP(C) No.207 of 2015
With WP (C) No.126 of 2015
IN THE HIGH COURT OF MEGHALAYA AT
SHILLONG
: ORDER :
1. WP (C) No.206 of 2015 Smti. Tenzing Choden Sherpa alias Tenzing Choden ..... Petitioner
-Versus-
Union of India and others ..... Respondents
2. WP (C) No.207 of 2015
Smti. Doma Tsering alias Tsering Doma ..... Petitioner
-Versus-
Union of India and others ..... Respondents
3. WP (C) No.126 of 2015
Shri Phuntsok Tashi ..... Petitioner
-Versus-
State of Meghalaya and another ..... Respondents
Date of Order: :: 15.02.2017
PRESENT
HON'BLE SHRI JUSTICE DINESH MAHESHWARI, CHIEF JUSTICE HON'BLE SHRI JUSTICE VED PRAKASH VAISH Shri MF Quershi, for the petitioner in WP (C) No. 206 and WP (C) No. 207 of 2015 Shri R Gurung, for the petitioner in WP (C) No.126 of 2015 Shri R Deb Nath, CGC Shri S Sen Gupta, GA BY THE COURT: (per Hon'ble the Chief Justice) (Oral) Preliminary:
These three writ petitions relating to similar nature claim of the petitioners that they are entitled to be declared as citizens of India in 2 WP(C) No.206 of 2015 With WP(C) No.207 of 2015 With WP (C) No.126 of 2015 view of Section 3(1)(a) of the Citizenship Act, 1955 (hereinafter referred to as the "Act of 1955"), have been considered together and are taken up for disposal by this common order.
Put in a nutshell, the case of the petitioners is that having born in India after 26.01.1950 but before 01.07.1987, they are citizens of India by virtue of Section 3(1)(a) of the Act of 1955 but such rights are sought to be denied to them by the respondents without any justification and without any reason.
The relevant background aspects in relation to each of the writ petitioners could be taken note of, in brief, as follows:
WP(C) NO.206 of 2015 The petitioner herein claims that she was born on 23.02.1981, at Ganesh Das Hospital, Shillong, to the Tibetan parents who came as refugees to India several decades ago. The petitioner has alleged that after attaining the age of majority, her name was enrolled as an elector from 18-West Shillong (Gen) Assembly Constituency and the Election Identity Card was issued to her. The petitioner has further pointed out that she was issued the passport by the Regional Passport Office, Guwahati and she was holding the passport bearing No.H5469436 having validity until 16.05.2020.
The petitioner has stated the grievance in the manner that on 17.4.2014, she submitted an application before the Regional Passport Officer, Guwahati Division, Respondent No.3, for the purpose of obtaining Police Confirmation Certificate (PCC) for Visa clearance and followed it up with reminders, but PCC was not issued to her and instead, she was served with a letter dated 31.03.2015, as issued by the respondent No.4, Under Secretary to the Government of 3 WP(C) No.206 of 2015 With WP(C) No.207 of 2015 With WP (C) No.126 of 2015 Meghalaya (Home) Passport Department, stating that her request for grant of Indian citizenship by naturalisation under Section 6(1) of the Act of 1955 was declined by the Government of India because she had entered India on 22.02.1981. Petitioner would state that she had never entered India on the date mentioned but in fact, she was born on 23.02.1981 and her parents had entered India much before and during the years 1950-1960.
The petitioner has further averred that she had submitted a representation to the authorities concerned so as to surrender her Registration Certificate as she was possessed of Election Identity Card and was holding the status of a citizen but the authorities were seeking to deny her the status of citizen under the Act of 1955. WP(C) NO.207 of 2015 The petitioner of WP(C) No.207 of 2015 has similarly submitted that her parents were Tibetan refugees, who came to India several decades ago and settled in Umsohsun, Shillong; and that she was born to them on 17.01.1980 at KJP Hospital, Shillong. This petitioner also submits she was holding the Election Identity Card on being enrolled as Elector from 20-Mawkhar Assembly Constituency and that she was holding the Indian Passport bearing No.J0521854 having validity until 10.07.2021.
This petitioner has stated the grievance in the manner that the respondent No.5, Superintendent of Police cum Foreigners Registration Officer, Shillong, invited herself and her parents in the month of May 2013 asking them to renounce the citizenship and to apply for certificate which was to be held by the Tibetans in India.
The petitioner has averred that when she made a representation 4 WP(C) No.206 of 2015 With WP(C) No.207 of 2015 With WP (C) No.126 of 2015 against the proposition so stated by the respondent No.5, she was served with the copy of Notifications dated 26.08.2011 and 23.02.2012 issued by the Government of India, Ministry of Home Affairs (Foreigners Division), New Delhi, to the effect that even though born in India in the year 1980, the petitioner would be treated as a Tibetan. The petitioner has also referred to the instructions issued by the Director (Citizenship), Government of India dated 25.05.2015 to the effect that the children born to Tibetan refugees would not be treated as Indian citizens automatically based on their birth between 26.01.1950 and 30.06.1987 under Section 3(1)(a) of the Act of 1955. WP(C) NO.126 of 2015 The petitioner of WP(C) No.126 of 2015 submits that he was born on 03.03.1977 at Delhi to the Tibetan parents settled in India. This petitioner also asserts that having attained the age of majority, he was enrolled as an Elector of 19-South Shillong Assembly Constituency and was issued Voter Identity Card dated 09.12.2011. It is also asserted that the petitioner was issued the Indian Passport bearing No.G9136269 on 01.08.2008 by the Regional Passport Office, Guwahati. The petitioner submits that his parents were holding Registration Certificate meant for Tibetans as per the Registration of Foreigners Rules, 1939 and due to ignorance, they obtained such a certificate for him too though the same was not required, as he is an Indian citizen by birth.
The petitioner has stated the grievance that when he attempted to surrender the Registration Certificate, the Superintendent of Police cum Foreigners Registration Officer refused to accept such a surrender and rather directed him to surrender the Passport. 5 WP(C) No.206 of 2015 With WP(C) No.207 of 2015 With WP (C) No.126 of 2015 SUBMISSIONS ON BEHALF OF THE PETITIONERS:
While questioning the actions and propositions of the authorities concerned whereby the petitioners are sought to be denied the status as citizens of India under the Act of 1955, it is contended that the matter in issue has been repeatedly determined by the Courts against the respondents; and it has been consistently held that the children of Tibetan parents born in India on or after 26.01.1950 and before 01.07.1987 are the citizens of India in view of Section 3(1)(a) of the Act of 1955; and any proposition forcing the petitioners to carry the registration certificate as refugees and denying them the status as citizens of India remains illegal and is violative of their fundamental rights.
The learned counsel for the petitioner have particularly referred to the decisions of the Hon'ble Delhi High Court dated 22.12.2010 in WP(C) No.12179/2009 : Namgyal Dolkar vs. Union of India and dated 22.09.2016 in WP(C) No.3539/16: Phuntsok Wangyal vs. Ministry of External Affairs and others as also that of the Hon'ble Karnataka High Court dated 07.08.2013 in WP No.15437/2013 : Tenzin Choephag Ling Rinpoche vs. Union of India.
THE STAND OF THE RESPONDENTS Separate affidavits-in-opposition have been filed by different sets of respondents. The reasons for not treating the children born to Tibetan refugees in India as Indian citizens automatically based on their birth in India between 26.01.1950 to 30.06.1987 under Section 3(1)(a) of the Act of 1955, and the other factors being taken into consideration by the Government of India, have been stated in the 6 WP(C) No.206 of 2015 With WP(C) No.207 of 2015 With WP (C) No.126 of 2015 affidavit filed by the Under Secretary (Citizenship), Ministry of Home Affairs in the following manner:-
"6. It is stated that subsequently several inter-Ministerial meetings were conducted by this Ministry at various levels alongwith the various stakeholders to review the significant issues relating to grant of Indian citizenship to Tibetans.
The following decisions have been taken for grant of Indian citizenship to Tibetans in due course:
(a) The children born to a Tibetan in India will not be treated as Indian citizen automatically based on their birth in India before 01/07/1987 under Section 3(1)(a) of the Citizenship Act, 1955.
All such persons will have to submit an application individually under Section 9(2) of the Citizenship Act, 1955 to MHA and thereafter the nationality status of all such children born to Tibetans in India, will be determined by MHA as per prescribed procedure available under the Citizenship Rules, 2009. All such children, as and when their nationality status as an Indian is decided by this Ministry, will have to surrender their Identity Certificates and Identity Cards before accepting Indian citizenship.
(b) Citizenship application of Tibetan married to an Indian under Section 5(1)(c) of the Citizenship Act, 1955 may be considered on merits and on case to base basis, subject to usual security checks, full verification of antecedents etc.
(c) No Tibetan national, who entered India after March, 1959 and is staying as a refugee may be considered for grant of Indian Citizenship by naturalization under Section 6(1) of the Citizenship Act, 1955.
7. It is submitted that the Tibetan Community is quite clear about the broad parameters of Government‟s policy on the Tibetans living in India. In this regard, Tibetans are issued Identity Certificates on a case to case basis by the Ministry of External Affairs (MEA). The Government has laid down procedures for registration of Tibetans entering in India and for their stay in India and their travel abroad. These regulations are predicated on the clear understanding that the Tibetans in India are given temporary shelter on humanitarian considerations. It is envisaged that they would go back to their country after normalization of the situation.
8. It is submitted that citizenship issue has deep security implications for India as it would unless administered appropriately would make relatively easier for terrorists, hostile state agents and fundamentalists from various countries to enter India under the garb of refugees. The parity in providing citizenship facility to refugees would deprive the Indian citizens of their due legitimate share in political and economical spheres including employment sector, subsidized housing, medical and educational facilities and would thereby culminate in hostility towards the refugees, social tensions, and increasing law and order problems. The easy conferment of citizenship will also change the demographic profile of various regions creating political tensions besides many socio-economic problems. Besides sizeable Tibetan group, India is hosting significant population from other neighbouring countries also on various legitimate considerations. Hence, conferment of Indian Citizenship has to be viewed not only from a 7 WP(C) No.206 of 2015 With WP(C) No.207 of 2015 With WP (C) No.126 of 2015 humanitarian point of view but also, from the point of view of national security, territorial integrity and sovereignty of the State, and also India‟s geo-political situation in South-East Asia and international relations with other countries alongwith disturbances in the demographic profile of the regions which they are inhabiting.
9. It is submitted that grant of Indian citizenship are governed by various provisions contained in the Citizenship Act, 1955 and rules framed thereunder. However, even if a foreigner is eligible to apply, as a matter of right, he cannot claim Indian Citizenship. Since, grant of citizenship being sovereign function of Government along with eligibility conditions, security and other aspects of national interest including international relations with various friendly countries are also taken into consideration while conferment of Indian citizenship." It is contended by the learned Central Government Counsel that the decisions of the Hon'ble High Courts would operate as judgments in personem and cannot be applied to the present cases. The learned CGC submits that the petitioners, if they having a claim of citizenship, need to apply to the authorities concerned under Section 3 read with Section 9 of the Act of 1955 and the requisite declaration in their favour could be made only after due enquiry.
The other respondents would rely on the stand of the Government of India and would submit that the petitioners are not being treated as citizens of India for and because of the decisions taken by the concerned Ministries of the Government of India.
In relation to the writ petitioner of WP(C) No.206 of 2015, it is also contended on behalf of the respondent No.5 that as per the birth certificate dated 12.07.2012, the petitioner was allegedly born at Ganesh Das Hospital, Shillong but in her affidavit sworn before the Magistrate First Class at Shillong on 14.08.2009, the petitioner claimed that she was born at the residence at Barapathar, Shillong. It has also been stated that the said petitioner, even though holding a Tibetan Refugee Certificate bearing No.435/09/Tib dated 26.08.2009, claimed herself as an Indian before the Passport authorities and thus, she was 8 WP(C) No.206 of 2015 With WP(C) No.207 of 2015 With WP (C) No.126 of 2015 guilty of furnishing false information. It is also submitted that the petitioner had already been directed to surrender her passport as the same was obtained by suppressing material information about her nationality.
Similarly, in relation to the petitioner of WP(C) No.207 of 2015, it is alleged that she obtained the passport by concealing the fact that she was holding the Refugee Registration Certificate No.18/13/Tib/Shg dated 25.06.2013.
As regards WP(C) No.126 of 2015, it is also contended that the writ petition is without any cause of action and is misconceived; and that the petitioner never approached personally for surrendering the registration certificate.
In relation to all the petitioners, it is contended that they obtained the registration in the Electoral Rolls by suppressing the fact that they were registered Tibetan refugees and were not holding the citizenship certificate.
However, the sum and substance of the submissions on behalf of the authorities of the Government of Meghalaya on the merits of the case is that, citizenship being essentially a Union subject, they have only followed the instructions issued by the concerned Ministries of the Government of India.
THE PETITIONERS ARE CITIZENS OF INDIA BY BIRTH Having given thoughtful consideration to the rival submissions and having examined the material placed on record, we are clearly of the view that the respondents had been entirely unjustified in denying the rights to the petitioners as citizens of India though such rights flow directly and unfailingly by the operation of the plain provisions of law. 9 WP(C) No.206 of 2015 With WP(C) No.207 of 2015 With WP (C) No.126 of 2015 Section 3 of the Act of 1955 reads as under:-
"3. Citizenship by birth- (1) Except as provided in sub-section (2), every person born in India, -
(a) On or after the 26th day of January, 1950, but before the 1st day of July, 1987;
(b) On or after the 1st day of July, 1987, but before the commencement of the Citizenship (Amendment) Act, 2003 and either of whose parents is a citizen of India at the time of his birth;
(c) On or after the commencement of the Citizenship (Amendment) Act, 2003, where-
(i) Both of his parents are citizens of India; or
(ii) One of whose parents is a citizen of India and the other is
not an illegal migrant at the time of his birth, shall be a citizen of India by birth, (2) A person shall not be a citizen of India by virtue of this Section if at the time of his birth -
(a) either his father or mother possesses such immunity from suits and legal process as is accorded to an envoy of a foreign sovereign power accredited to the President of India and he or she, as the case may be, is not a citizen of India; or
(b) his father or mother is an enemy alien and the birth occurs in a place then under occupation by the enemy."
Each of the petitioners herein was born after 26.01.1950 but before 01.07.1987 and none of them has been shown suffering from any of the disqualifications mentioned in sub-section (2) of Section 3 ibid. It is noticed that the similar nature matter was examined in depth by the Delhi High Court in Namgyal Dolkar‟s case (supra) and similar claim made by a person born to the Tibetan parents in India after 26.01.1950 and before 01.07.1987 was upheld while observing, inter alia, as under:-
"24. A plain reading of the above provision shows that a cut-off date was introduced by the Parliament for recognition of citizenship by birth. Except as provided by Section 3(2), "every person born in India on or after the 26th January 1950 but before the 1st day of July 1987"
shall be a citizen of India by birth. Admittedly, in the present case, none of the prohibitions contained in Section 3(2) CA are attracted. The case of the Petitioner is within the ambit of Section 3(1)(a) since she was born in India on 13th April 1986, i.e., after 26th January 1950 but before 1st July 1987. The SOR accompanying the amendment Bill of 1986, by which the above provisions was introduced and discussed in the Lok Sabha and Rajya Sabha, makes it clear that the change brought about the amendment was to be prospective. The rationale behind introduction of a „cut-off‟ date was that the position prior to 1st July 1987 was not intended to be disturbed.
10WP(C) No.206 of 2015 With WP(C) No.207 of 2015 With WP (C) No.126 of 2015
25. Learned counsel for the Petitioner is right in her submission that there is no need for a person who is an Indian citizen by birth, to have to apply for citizenship. Unlike certain other provisions, like Section 5 and Section 6 CA which require an application to be made for grant or recognition of citizenship, no such application process in envisaged in Section 3(1) CA.
26. The grounds for the refusal of a passport to the Petitioner may next be examined. The ostensible ground is Section 6(2)(a) PA whereunder an application for passport can be refused if the applicant is not a citizen of India. The impugned communication dated 1 st September 2009 states that the passport has been refused on the ground that the Petitioner is not an „Indian national‟ under Section 3(1)(a) CA. At the outset it must be observed that the concept of an Indian „national‟ is not recognized by the CA. The term „national‟ is not defined under the CA. It has obviously been used in a loose sense in the communication dated 1st September 2009.
27. What is now held against the Petitioner is that in her application for a passport she did not disclose that she held an identity certificate. Further, in her application for the grant of an identity certificate she declared herself to be of Tibetan „nationality‟. This, according to the Respondents, implied that she did not consider herself to be an Indian citizen.
28. In the considered view of this Court, the above ground for rejection of the Petitioner‟s application for passport is untenable. As already noticed, the concept of „nationality‟ does not have legislative recognition in the CA. The Petitioner‟s describing herself to be a Tibetan „national‟ is really of no legal consequence as far as the CA is concerned, or for that matter from the point of view of the policy of the MEA. The counter affidavit makes it clear that the MEA treats Tibetans as „stateless‟ persons. Which is why they are issued identity certificates which answers the description of travel documents within the meaning of Section 4(2)(b) PA. Without such certificate, Tibetans face the prospect of having to be deported. They really have no choice in the matter. It must be recalled that when her attention was drawn to the fact that she could not hold an identity certificate and a passport simultaneously, the Petitioner volunteered to relinquish the identity certificate, if issued the passport. That was the correct thing to do, in any event. The holding of an identity certificate, or the Petitioner declaring, in her application for such certificate, that she is a Tibetan national, cannot in the circumstances constitute valid grounds to refuse her a passport.
29. The policy decision of the MHA not to grant Indian citizenship by naturalization under Section 6(1) CA to Tibetans who entered India after March 1959 is not relevant in the instant case. Having been born in India after 26th January 1950 and before 1st July 1987, the Petitioner is undoubtedly an Indian citizen by birth in terms of Section 3(1)(a) CA. The fact that in the application form for an identity certificate the Petitioner described herself as a Tibetan national will make no difference to this legal position. There cannot be a waiver of the right to be recognized as an Indian citizen by birth, a right that is expressly conferred by Section 3(1) CA."
11WP(C) No.206 of 2015 With WP(C) No.207 of 2015 With WP (C) No.126 of 2015
The aforesaid decision was followed by the Karnataka High Court in the case of Tenzin Choephag Ling Rinpoche and was reiterated by the Delhi High Court in Phuntsok Wangyal (supra). The contrary decisions and communications as sought to be suggested by the respondents have also been disapproved by the Delhi High Court in Phuntsok Wangyal (supra) in the following :-
"21. Furthermore, Section 3 of the Act very categorically lays down the conditions under which a person acquires citizenship by birth. By a mere correspondence or an inter-Ministerial meeting, the statutory provisions cannot be defeated. No decision taken in an inter- ministerial meeting can override a statutory provision. The petitioner have been given rights under the Act, those rights cannot be taken away by a mere inter-ministerial decision.
22. The communication dated 26.08.2011 of the Ministry of Home Affairs notices the decision of this Court in Namgyal Dolkar (supra), but, records that the same may not be applicable per se in other cases. It is not understandable as to how such a view could be taken by the Respondents in view of the clear findings of this court in Namgyal Dolkar (supra). The action of the respondents is clearly unsustainable. The communication dated 26.08.2011 and the minutes of meeting dated 30.03.2010, being contrary to the Act, are quashed.
23. The writ petitions are allowed holding that the petitioners are Indian citizens and entitled to all benefits and privileges, as are available to Indian citizens. The respondents cannot require the petitioners to make any application under section 9 of the Act. The Petitioners cannot be denied Indian passport by the respondents on that ground."
We have no hesitation in stating our total agreement in what has been discussed and held in the decisions aforesaid as we find that the statement of law therein remains unexceptionable. This is for the simple reason that the interpretation above referred is essentially based on the plain reading of unambiguous provisions of law, particularly as contained in Section 3 of the Act of 1955. Any decision by any Ministry cannot override the plain provisions of law nor any correspondence or any communication could do so. 12 WP(C) No.206 of 2015 With WP(C) No.207 of 2015 With WP (C) No.126 of 2015
The allegations of the respondents that the petitioners furnished any false information or deliberately concealed any fact remain baseless and could only be rejected. When the petitioners are the citizens of India by virtue of the operation of law, they cannot be faulted in having asserted so while getting registered as electors or while seeking issuance of the passport. The suggestion about some inconsistency as regards place of birth, as to whether it was in the hospital or at the residence, (in relation to the petitioner of WP(C) No.206 of 2015), is also too remote and inconsequential when it is found that she was born in India during the period envisaged by Section 3(1)(a) of the Act of 1955. Needless to add that in fact, the place of birth could have been specifically stated only on the basis of personal knowledge by her parents and not by the petitioner herself.
The suggestion that the decisions in the referred cases could only be considered as applicable to the individual petitioners is rather baseless; and on the contrary, we are clearly of the view that such decisions, which relate to the interpretation of the provisions of law, would squarely apply to the similarly circumstanced persons, like the present petitioners. Moreover, it has been pointed out that the respondents related with the Government of India had accepted the said decisions and implemented the same in relation to the said petitioners. We are clearly of the view that equal and similar treatment to the similarly placed persons like the petitioners should not have been denied.
CONCLUSION:
The upshot of the discussion hereinabove is that while agreeing with the aforesaid decisions in Namgyal Dolkar, Phuntsok Wangyal 13 WP(C) No.206 of 2015 With WP(C) No.207 of 2015 With WP (C) No.126 of 2015 and Tenzin Choephag Ling Rinpoche and reiterating the ratio therein, we hold that the petitioners are entitled to the same relief.
Accordingly, these petitions are allowed to the extent and in the manner that the petitioners are held Indian citizens and entitled to all benefits and privileges available to the Indian citizens. The respective prayers of the petitioners to the concerned authorities shall now be considered in conformity with this declaration and, of course, in accordance with law.
No costs.
JUDGE CHIEF JUSTICE marlene