As per case facts, the Petitioner, a Tibetan refugee born in Dharamshala, India on 15.05.1966, faced rejection of her foreign passport application in Switzerland, being advised to seek a national ...
W.P.(C) 16380/2024 Page 1 of 38
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
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Judgment pronounced on: 02.02.2026
MS. YANGCHEN DRAKMARGYAPON .....Petitioner
W.P.(C) 16380/2024 and CM APPL.69074/2024
Through: Mr. Sanjay Vashishtha, Advocate
along with Mr. Siddhartha Goswami,
Ms. Geetanjali Reddy and Mr. Aditya
Sachdeva, Advocates.
versus
UNION OF INDIA THROUGH ITS
SECRETARY, MINISTRY OF EXTERNAL AFFAIRS & ORS.
.....Respondents
Through: Mr. Mukul Singh, CGSC along with
Ms. Ira Singh and Mr. Aryan Dhaka,
Advocates for UOI.
CORAM:
HON'BLE MR. JUSTICE SACHIN DATTA
%
JUDGMENT
1. The petitioner has filed the present petition praying as under –
“A. Issue an order / Writ / direction under Article 226 of the
Constitution of India in the nature of Mandamus directing the
Respondents to issue Indian Passport to the Petitioner.
B. Issue an order / Writ under Article 226 of the Constitution of India
or any other appropriate writ recognising the Citizenship of India of
the Petitioner in view of section 3(1) (a) of the Indian Citizenship
Act, 1955.”
2. The petitioner claims to be a Tibetan refugee by descent, born in
Dharamshala, Himachal Pradesh, India on 15.05.1966, and thus an Indian
W.P.(C) 16380/2024 Page 2 of 38
citizen by birth under Section 3(1)(a) of the Citizenship Act , 1955. The said
section provides that every person born in India on or after 26.01. 1950, but
before 01.07.1987, is a citizen of India by birth, unless covered by
exclusions under Section 3(2), which, it is submitted, are not applicable in
her case. In order to establish its place of birth in India, the petitioner has
annexed an Indian Identity certificate where the petitioner’s place of birth is
mentioned as Dharamshala, Himachal Pradesh.
3. The background of the matter is that in 1997, the petitioner migrated
to Switzerland along with her then two- year-old son, Mr. Tenzin Jigdral
Drakmargyapon, who was born in Darjeeling, India, on 27.03.1995. The
purpose of her migration was to reunite with her husband, the late Mr.
Ngawang Choephel, who had previously settled in Switzerland.
Subsequently, on 03.06.2000, the petitioner gave birth to a daughter, Ms.
Tenzin Yeshi Choephel, in Switzerland.
4. It is submitted that on 09.06.2009, the petitioner’s husband applied to
the Swiss cantonal migration authority for a foreign passport for the entire
family, as all four members held residence permits in Switzerland. It is
submitted that this resulted in the issuance of foreign passport on
02.07.2009, for the entire family of the petitioner, under Article 10 of the
Swiss Ordinance on the Establishment of Travel Documents for Foreigners.
The validity of the said passport was for five years until 01.07.2014.
However, it is submitted that when the petitioner’s husband applied for a
renewal on 09.09.2014, the then Federal Office for Migration [ now the State
Secretariat for Migration (SEM)] rejected the application on 05.11.2014.
W.P.(C) 16380/2024 Page 3 of 38
SEM held that the petitioner’s husband should have attempted to obtain a
national passport from the competent authority of his country of origin. The
translated version of the said order dated 05.11.2014 passed by the Federal
Office for Migration (annexed as Annexure P-5) is reproduced as under –
“Sir,
We refer to your request of 9 September 2014 for the issuance of a
passport for foreigners and inform you of the following:
After examining the file, we note that the conditions for issuing the
required document are clearly not met, in accordance with the
Ordinance on the Issue of Travel Documents for Foreigners (ODV, RS
143.5). Each new application is examined again. We therefore note that
you can, and may reasonably be required to, take steps with the
competent authority of your country of origin in Switzerland to have a
national passport issued for you. These steps must be taken personally.
Consequently, you are not dependent on a replacement Swiss travel
document. If the competent authority refuses to issue you with the
document, we ask you to provide us with written proof stating the reasons
for the refusal. Technical or organisational delays in issuing the passport
cannot consider you as lacking travel documents.
In view of the above, you have the possibility until 4 December 2014 to
request in writing a formal decision subject to appeal, subject to a fee of
CHF 150 (RS 172.041.1, art. 2 OGEmol of 8 September 2004). After this
deadline, your request will be considered as being without object.”
5. It is submitted that thereafter, on 01.12.2014, the petitioner’s husband
wrote to the Federal Office for Migration explaining his statelessness and
challenges in obtaining travel documents. Translated version of the said
letter [annexed as Annexure – P – 6 (colly)] is reproduced as under –
“1. I am in a situation where I have no whatsover contact with the
People's Republic of China as I escaped from Tibet in 1959 with my
parents, first to Nepal and later to India. I am in fact a stateless person
since 19591
W.P.(C) 16380/2024 Page 4 of 38
2. The only travel document I possessed was the one issued by the Indian
government which is called Certificate of Identity. While applying to your
service for "Foreign Passport for" in 2009 I clarified by I could no
longer get the Indian travel document processed in Geneva due to
changes made by India. Also, I no longer had any residential base in
India.
3. In the eyes of the Chinese authorities I am a "separatist". Between
1985-2003 I worked for the Tibetan government in exile in Dharamsala,
India and while working at the Tibet Office in Geneva I was actively
lobbying to bring the human rights situation in Tibet to the attention of
the United Nations human rights mechanisms. I have been doing this
kind of lobbying work now for over 25 years and even today I continue to
do lobbying work as a representative of an Asian NGO.
Finally, I would like to inform you that my family members must also
apply for new passports that all expired on 01/07/2104:
Yangchen Drakmargyapon- Passport Number: P0002990
Tenzin Jigdral Drakmargyapon- Passport Number: P0002996
Tenzin Yeshi Choephel-Passport Number: P0002994
I would like to thank you for your attention to this letter and would be
grateful if my new passport is issued as soon as possible.”
6. However, the SEM, via letter dated 16.01.2015, refused to issue new
travel documents and insisted that the petitioner’s husband must approach
the Chinese Embassy directly for a national passport. Translated version of
letter dated 16.01.2015 [annexed as Annexure – P – 6 (colly)] is reproduced
as under –
“Although we understand the difficulty of the situation, as mentioned in
our letter of 12 December 2014 and after a review of your observations,
we inform you that no new elements likely to change our point of view
have been brought forward. The conditions for the establishment of the
requested document are not met, in accordance with the Ordinance on
the establishment of travel documents for foreigners (ODV, RS 143.5).
W.P.(C) 16380/2024 Page 5 of 38
It is necessary for you to take steps to obtain a national passport. These
steps must be taken seriously and personally with the Chinese Embassy
and not by a third party. If these steps are unsuccessful and the Chinese
Embassy categorically refuses to provide you with the reasons for the
refusal in writing, you have the opportunity to demonstrate to the SEM
your efforts and steps taken by mentioning, for example, which employee
you spoke to, what were the reasons for the refusal given orally, etc.
Therefore, we are giving you one last opportunity to request a decision.
Formality subject to appeal (for a fee of CHF 150.- ) In this case, we
We ask you to let us know in writing by January 26, 2015.”
7. Thereafter, the petitioner’s husband died and by order of 30 May
2017, the Court for the Protection of Adults and Children established a
guardianship of representation and management in favour of petitioner. As
part of the said mandate, REPUBLIC AND CANTON OF GENEVA,
Department of Social Cohesion, Adult Protection Service was required to
represent the petitioner in her relations with third parties, in administrative
and legal matters in particular.
8. This is evident from the letter dated 28.09.021 sent by the REPUBLIC
AND CANTON OF GENEVA, Department of Social Cohesion, Adult
Protection Service on behalf of the petitioner to the SEM requesting it to
issue foreign passport to the petitioner and her two children as all avenues
available to them to obtain a Chinese or Indian national passport have been
exhausted and have all been rejected. Translated version of letter dated
28.09.2021 [annexed as Annexure – P – 7 (colly)] is reproduced as under –
“Concerns: Our data subject Mrs. Yangchen DRAKMARGYAPON, born
on May 15, 1966, widow of Mr. Ngawang CHOEPHEL, her daughter
Ms. Tenzin Yeshi CHOEPHEL, born on June 3, 2000, and her son Mr.
Tenzin Jigdral DRAKMARGYAPON, born on March 25, 1995
Madam, Sir,
W.P.(C) 16380/2024 Page 6 of 38
By order of 30 May 2017, attached, the Court for the Protection of Adults
and Children (TPAE) established a guardianship of representation and
management in favour of Mrs Yangchen DRAKMARGYAPON (Exhibit
No. 1). As part of this mandate, we are required to represent our protégé
in her relations with third parties, particularly in administrative and
legal matters. The TPAE also established a guardianship of
representation and management in favour of her daughter Ms Tenzin
Yeshi CHOEPHEL (Exhibit No. 2)
We hereby request that a foreign passport be issued to Mrs. Yangchen
DRAKMARGYAPON and her two children, Ms. Tenzin Yeshi
CHOEPHEL and Mr. Tenzin Jigdral DRAKMARGYAPON, as all
avenues available to them to obtain a Chinese or Indian national
passport have been exhausted and have all been rejected.
Mrs. Yangchen DRAKMARGYAPON and her children do not hold a
valid national passport because they are Tibetan refugees. You will
therefore find that it is impossible for them to obtain a Chinese passport,
especially since Mr. Ngawang CHOEPHEL worked for the Tibetan
Government in exile in Dharamsala and for the Tibet Office in Geneva.
For this reason, he was perceived as a separatist by the Government of
the People's Republic of China and, therefore, his family as well. In any
case, it should be noted that Mr. Ngawang CHOEPHEL had left China
with his parents in 1959 when he was only one year old, initially bound
for Nepal, then India (Exhibit No. 3). It was in the latter country that Mr.
Ngawang CHOEPHEL grew up, made his life and met Mrs. Yangchen
DRAKMARGYAPON.
Since Tibet was annexed to China, the entire family lived in exile in India
until they settled in Switzerland. On 2 July 2009, the members of the
family concerned were each issued a foreigner's passport valid until 1
July 2014.
When their foreign passports expired, they requested their renewal,
which you refused, indicating that they could be given a national
passport. The family then took several steps and contacted the Chinese
Embassy in Bern on several occasions. However, their request was never
followed up.
In the meantime, Mr. Ngawang CHOEPHEL unfortunately passed away
and Mrs. Yangchen DRAKMARGYAPON was placed under guardianship
W.P.(C) 16380/2024 Page 7 of 38
of representation and management in 2017, which is why we took over
her administrative procedures.
By letter dated September 22, 2020, we again approached the Chinese
Embassy in Beme to request the granting of a national passport for Mrs.
Yangchen DRAKMARGYAPON and her two children (Exhibit No. 4).
However, we have not received any response to date.
In April 2021, we contacted two associations working for the defense of
Tibetans, namely the "Swiss-Tibet Friendship Society GSTF/SAST" and
the "The Tibet Bureau". The Tibet Bureau explained to us that Tibetan
refugees in India can apply for a "Certificate of Identity" allowing them
to travel. However, they drew our attention to the fact that, for Tibetans
no longer residing in India, it is imperative that the renewal of this
identity certificate be carried out before its expiry date, otherwise they
risk losing the right to apply for a new Indian travel document (Exhibit
No. 5). Unfortunately, Mrs. Yangchen DRAKMARGYAPON and her
family were not aware of this detail and therefore failed to renew their
identity certificates before their expiry date. Consequently, our protégé
and her children lost the right to an Indian document allowing them to
travel.
However, we spoke by telephone with the Consulate of India in Geneva
who informed us that we had to go directly in person to their premises.
Therefore, Ms. Yangchen DRAKMARGYAPON went there on 1 May
2021, but her application for renewal of the Indian identity certificates
was rejected. We asked the Indian Consulate to inform us in writing of
their refusal, specifying the reasons, but we have still not received a
response (Exhibit No. 6).
Unwilling to give up and determined to obtain an identity document,
Madam, Yangchen DRAKMARGYAPON wrote a letter to the Consul
General of India in Geneva summarizing her situation. This letter was
directly given in person on May 25, 2021 to a contact person by the name
of Mr. Deepak CHAKRABORTY (Exhibit No. 7). The latter informed our
client orally that his request had been refused.
Given that Mrs. Yangchen DRAKMARGYAPON and her children have
exhausted all options open to them and no solution has been found, we
would like to ask you once again to grant them a foreigner's passport.
Indeed, all three of them are in reality stateless persons without travel
documents.
W.P.(C) 16380/2024 Page 8 of 38
As for Mrs. Yangchen DRAKMARGYAPON and her daughter Ms. Tenzin
Yeshi CHOEPHEL, the curators have the power of representation, and
as for Mr. Tenzin Jigdral DRAKMARGYAPON, he countersigns this
document, constituting his agreement.
We remain at your disposal for any further information and await your
news. Please accept, Madam, Sir, our distinguished sentiments.”
9. However, the desired outcome appears to have eluded the petitioner.
10. In parallel, the petitioner herself applied for a foreign passport from
cantonal migration authority on 04.11.2020, but this application was rejected
by the SEM in a decision dated 19.04.2021. The SEM cited her place of
birth in India to assert that she could acquire Indian citizenship under the
Citizenship Act, 1955. It is submitted that it was only upon receiving this
decision that the petitioner became aware of her legal entitlement to Indian
citizenship. Translated version of letter dated 19.04.2021 (annexed as
Annexure – P – 8) is reproduced as under –
“Consider in fact
The person concerned, born in Dharamsala, arrived in Switzerland on 28
July 1997 with her two- year-old son, born in Darjeeling, in order to join
her husband, who was himself born in India and had entered Switzerland
from that country. The person concerned and her child were granted an
annual residence permit under the family reunification scheme.
On 9 June 2009, the husband of the person concerned applied to the
competent cantonal
migration authority for a foreign passport on behalf of his entire family,
namely two adults and two children who now hold a C permit. The
husband of the person concerned indicated in particular that he was in
possession of a yellow identity certificate (Identity Certificate) issued by
the Indian government and that he was unable to obtain a renewal.
Validity of this document expired, unable to prove a place of residence in
India.
On 2 July 2009, a foreign passport valid for 60 months was issued to the
person concerned and her family members pursuant to Article 10 of the
former ODV.
W.P.(C) 16380/2024 Page 9 of 38
On 9 September 2014, the husband of the person concerned filed a new
application for a foreign passport with the cantonal authority. The SEM
rejected this application on 4 November 2014 and considered that it was
reasonably required that the husband of the person concerned take steps
with the competent authority of his country of origin in order to obtain a
travel document.
By letter dated 1 December 2014, the husband of the person concerned
maintained his request, stating that he had worked for the Tibetan
government in exile in Dharamsala and for the Tibet Office in Geneva,
which had made him a separatist in the eyes of the Chinese authorities.
He also insisted on his lobbying activities.
By letters dated 12 December 2014 and 16 January 2015, the SEM
maintained its position of 4 November 2014, drawing the attention of the
interested party's husband to the fact that the steps to obtain a national
passport had to be taken personally and that proof of these steps had to
be produced without fail.
By letter of 22 September 2002, the SPad informed the SEM, as part of
the procedure for
extending Mrs Drakmargyapon's residence permit, that a guardianship
had been established on 30 May 2017 in her favour. The person
concerned absolutely needed a travel document to obtain an extension of
her residence permit. Furthermore, steps had been taken by the Spad
with the Chinese representation in Switzerland. However, due to political
issues, collaboration with the Chinese authorities could not be
guaranteed.
On November 4, 2020, Mrs. Drakmargyapon, now a widow, formally
requested a passport for foreigners from the cantonal migration
authority because she is a native of Tibet, there is no consulate, the
Tibetan government lives in exile, and the Tibet office does not produce
passports.
By letter dated 22 January 2021, the SEM informed the person
concerned, whose establishment permit had been extended to 28 March
2025 in the meantime, that the conditions for establishing the required
document were not met, since it is her responsibility to take steps with the
W.P.(C) 16380/2024 Page 10 of 38
Indian authorities, it being considered in particular that her status is not
an obstacle to the steps taken to obtain a national travel document.
File reference N 527549 Vyd
The interested party requested the establishment of a formal decision
within the time limit, without producing any observations, by means of
the SPAd.
Considers in law:
Within the meaning of Art. 4 para. 1 ODV (in conjunction with Art. 59
para. 2 let. b and c LEI), a stateless person recognised under the
Convention of 28 September 1954 relating to the status of stateless
persons and a foreigner without travel documents who has a residence
permit are entitled to a passport for foreigners.
A foreigner without travel documents with an annual residence permit
may benefit from a passport for foreigners (art 4 al 2 ODV)
The status is mentioned in the passport (art 4 al 30DV)
A foreigner is deemed to be without travel documents when he does not
have any valid travel document issued by his State of origin or
provenance, and that he cannot be required him to request the competent
authorities of his State of origin or provenance the establishment or
extension of such a document, or that it is impossible to obtain for him
travel documents (art. 10 para. 1 ODV).
Delays incurred by the competent authorities of the State of origin or
provenance in issuing a travel document do not justify recognition of the
status of person without travel documents (art 10 para. 2 ODV)
In particular, persons in need of protection and asylum seekers cannot be
required to contact the competent authorities of their State of origin or
provenance (art. 10 al 3 ODV)
The status of a person without travel documents is noted by the SEM
during the examination of the application (art 10 al 4 ODV)
The factual and legal situation in force at the time the application is
decided constitutes a determining factor in the decision.
In this case, the person concerned stated that she was of Tibetan origin
and that the Tibetan government did not issue passports. The SPad also
stated that it had contacted the Chinese representation in Switzerland,
but that due to political issues related to the person concerned's
situation, collaboration with the Chinese authorities was uncertain.
W.P.(C) 16380/2024 Page 11 of 38
It is appropriate to note here that the person concerned was born in
India and was the holder of an Identity Certificate issued by the Indian
authorities. However, under the Citizenship Act of 1955, persons born in
India between 20 January 1950 and 1 July 1987 can obtain Indian
citizenship by birth, and this since 2017.
In view of the above, it is reasonably expected that the person concerned,
born in India in 1966, currently holding a settlement permit without
having been recognised as either stateless or a refugee in Switzerland,
should take the necessary steps to obtain a national passport or a travel
document (Identity Certificate) from the authorities of her country of
origin.
File reference N527549 V
In view of the above, the person concerned has not taken all reasonably
required steps to obtain a national passport. Consequently, as things
stand, she is not considered to be a person without travel document
within the meaning of the ODV and is therefore not entitled to a
foreigner’s passport.
In view of the above application must be rejected”
11. It is submitted that the SPAd subsequently contacted the Indian
Consulate in Geneva, however, they were informed that applications must
be submitted in person. Consequently, the petitioner visited the consulate on
01.05.2021, to apply for the renewal of her family’s identity certificates.
However, her application was rejected. Thereafter the petitioner addressed a
letter to the Consul General of India on 21.05.2021, which was handed over
in person on 25.05.2021 to Mr. Deepak Chakraborty (consular contact ),
explaining her situation and requesting an Indian Passport or IC. It is
submitted that Mr. Chakraborty verbally informed her that the application
had been rejected, but it is submitted that no written confirmation or reasons
were given. Letter dated 21.05.2021 is reproduced as under –
W.P.(C) 16380/2024 Page 12 of 38
“Dear Sir,
With reference to the above subject, I would like to request you to kindly
renew them. The personal details, our IC copies, Swiss Passport for
foreigners coples and the decision of Secretariat of State Migrations
SEM-Swiss Authority are attached herewith for your kind information
and are self explanatory.
The SEM-Swiss authority didn't renewed our Swiss Passport for
foreigners expired on 01.07.2014 because the SEM no longer consider
itself qualified. Told us to apply for Chinese Passports as my late
husband was born in Tibet before the Chinese occupation of Tibet. My
late husband tried his best to get them renewed but in vain.
Now They're asking us to apply for Indian Passport because I was born
in India. The SEM assumes that they can reasonably ask my family to
take steps to the Indian Consulate in order to get a national passport
(Indian). Indeed, since 2017, according to the Citizenship Act of 1955,
the people born in India between 26.01.1950 to 01.07.1987 can obtain
Indian citizenship by birth. As I was born in 1966, the SEM assumes that
I have now the right to obtain Indian nationality or at least an IC (page
3-4 of de Decision of SEM-SWISS Authority).
I therefore request you to kindly look into the matter and issue us
(DRAKMARGYAPON Yangchen -mother, DRAKMARGYAPON Tenzin
Jigdral-son and CHOEPHEL Tenzin Yeshi daughter) the Indian Passport
or IC.”
12. Subsequently, on 10.03. 2022, SPAd emailed seven Swiss embassies
and consulates in India seeking intervention, but the Swiss Embassy in New
Delhi declined to act in Indian immigration matters.
13. On 22.08.2022, it is submitted that SPAd submitted a formal request
to SEM urging it to contact Indian and Chinese authorities to facilitate travel
to India for the petitioner and her children. It is submitted that reason for
travel was to allow them to carry the ashes of their deceased husband and
father, Mr. Ngawang Choephel, to India and perform his final rites. This
plea was again denied by SEM in a decision dated 16.05.2023. The relevant
W.P.(C) 16380/2024 Page 13 of 38
portion of the order dated 16.05.2023 is reproduced as under –
“In view of the above, the persons concerned, born in India in 1966,
currently holding a settlement permit without having been recognised as
either stateless persons or refugees in Switzerland, have not
demonstrated that they have personally undertaken all the necessary
steps to obtain a national passport or a travel document (IC) from the
authorities of their country of origin, or even steps to obtain Indian
nationality. It is therefore reasonably expected that they approach the
Indian authorities in the aforementioned sense. Furthermore, the
authorities of origin are in principle competent to propose to their
nationals living abroad possible and reasonable solutions for obtaining
identity or travel documents in their country. If a personal presentation
in India were to prove unavoidable, the possibility of issuing a laissez -
passer for a single trip to India would fall within the competence of the
Indian representation in Switzerland.
It is also reasonably expected that the persons concerned should also
contact the Chinese authorities. In this regard, the SEM notes that Mrs
Drakmargyapon has already contacted the Chinese representation in
Switzerland, but again through the SPAd. However, it is important that
the persons concerned personally contact the authorities of their country
of origin as part of their efforts to obtain a travel document. Finally, this
contact is not compatible with the persons concerned' allegations
relating to their status as dissidents, which allegedly arises from the
activities of their late husband and father. If they were to persist in their
statements on this subject, they still have the option of asserting them in
the context of a separate asylum procedure.
Finally, to the extent that it falls outside the disputed framework as
defined (travel documents), the question of possible statelessness does
not need to be examined.
In view of the above, the SEM is of the opinion that the persons
concerned have not taken all reasonably required steps to obtain a travel
document. Consequently, as things stand, they are not considered to be
without travel documents within the meaning of the ODV and are
therefore not entitled to a foreigners' passport.”
14. It is submitted that with no alternative remedies left, the petitioner
applied for recognition as a stateless person on 21.08.2023. However, in its
W.P.(C) 16380/2024 Page 14 of 38
order dated 06.06.2024, SEM rejected this application as well.
15. It is submitted that the petitioner and her children have been stranded
in Switzerland since 2014 without any valid passport or travel document. It
is submitted that they are unable to return to India to deposit the ashes of the
petitioner’s late husband, Mr. Ngawang Choephel, in India.
16. It is averred that the only document the petitioner possessed was an
Indian Citizenship (IC) certificate, the renewal of which was not possible in
Geneva due to legislative changes made by the Indian authorities.
17. It is submitted that the Election Commission of India (ECI) has also
clarified, vide its letter dated 07.02.2014 (No. 30/ID/2010-ERS), that
children born in India to Tibetan refugees between 26.01.1950 and
01.07.1987 are to be treated as Indian citizens under Section 3(1)(a).
18. In order the substantiate it case, the petitioner has placed reliance on
Namgyal Dolkar v. Government of India, Ministry of External Affairs,
2010 SCC OnLine Del 4548, Phuntsok Wangyal v. Ministry Of External
Affairs & Ors., 2016:DHC:6690 and Sonam Lhanzom V. Union Of India
And Ors., 2018:DHC:102.
19. While objecting to the arguments of the petitioner, the respondents
submit that Section 3(1)(a) of the Citizenship Act, 1955 must be interpreted
in conjunction with the provisions of the Foreigners Act, 1946, the
Foreigners Order 1948, the Registration of Foreigners Act, 1939 and more
particularly the order regulating “entry of Tibetan Nationals into India”
20. The respondent relies on Order dated 26.12.1950 (SRO 1108) issued
under the Foreigners Act, 1946, and Registration of Foreigners Act, 1939
W.P.(C) 16380/2024 Page 15 of 38
which governed the entry of Tibetan nationals in India. The said order is
reproduced as under –
“India: S.R.O. 1108 of 1950 Regulating Entry of Tibetan national into
India,1950, 26 December 1950
In exercise of the powers conferred by Section 3 of the Foreigners Act
1946 (31 of 1946) and Section 3 of the Registration of Foreigners Act,
1939 (16 of 1939) the Central Government is pleased to direct that any
foreigner of Tibetan nationality, who enters into India hereafter shall –
(a) at the time of his entry into India obtain from officer in- charge of the
Police post at the Inda- Tibetan frontier, a permit in the form specified in
the annexed Schedule;
(b) comply with such instructions as may be prescribed in the said
permit; and
(c) get himself registered as a foreigner· and obtain a
certificate of registration.”
21. While relying upon the said order it is submitted that foreigners
(refugees) registered in India, including their children born during their stay
in India are a separate class in themselves and as such not covered within the
ambit of Section 3(1) (a) of the Citizenship Act.
22. The case of the respondent is that that foreigner Tibetan nationals and
their children born within the territory of India during their stay in India,
who have registered themselves as Tibetan refugees and have acquired an
identity certificate by expressing/declaring their nationality as Tibetan
nationals amounts to a voluntary renunciation of their Indian citizenship
(even if deemed to be acquired by birth) under Section 9(1) of the
Citizenship Act and as such, such foreigners can be granted Indian
Citizenship only by naturalisation or registration.
W.P.(C) 16380/2024 Page 16 of 38
23. It is further submitted that the issuance of Passport is secondary to
establishing Indian Citizenship status of any individual. Once the citizenship
status of the petitioner is established as per the provisions of the Citizenship
Act 1955, administered by Union Ministry of Home Affairs, the concerned
Passport Authority will consider the passport application for issuance of
Passport.
24. Learned counsel for the parties have been heard. The principal
question that arises for consideration before this Court is whether the
petitioner is an Indian citizen by birth under Section 3(1)(a) of the
Citizenship Act, 1955, and consequently, whether the petitioner is entitled to
the issuance of an Indian passport.
FINDINGS
25. Before adverting to the facts of the present case, it would be apposite
to refer to Section 3 of the Citizenship Act, 1955, which deals with
citizenship by birth. The same is reproduced 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 (6 of 2004) 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 (6 of 2004), where―
(i) both of his parents are citizens of India; or
W.P.(C) 16380/2024 Page 17 of 38
(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.]”
26. Thus, Section 3(1) of the Act, inter alia, provides that the following
categories of persons shall be citizens of India by birth -
(i) persons born in India on or after 26 January 1950 but before 1 July 1987;
or
(ii) persons born in India on or after 1 July 1987 but before the
commencement of the Citizenship (Amendment) Act, 2003, and either of
whose parents was a citizen of India at the time of their birth; or
(iii) persons born in India on or after the commencement of the Citizenship
(Amendment) Act, 2003, where both parents are citizens of India, or where
one parent is a citizen of India and the other is not an illegal migrant at the
time of birth.
27. Section 3(2) of the Act carves out certain exceptions to the above
provision to Section 3(1) of the Act.
28. In the present case, the petitioner was born on May 15, 1966, in
Dharamshala, Himachal Pradesh, India which squarely satisfies the
requirement of Section 3(1)(a) of the Act, i.e., birth in India on or after 26
W.P.(C) 16380/2024 Page 18 of 38
January 1950 but before 1 July 1987. The place and date of birth of the
petitioner are duly evidenced from the Identity Certificate (IC) annexed as
Annexure P-1 (colly) in the present petition.
29. It is not the case of the respondents that the petitioner suffers from
any of the disqualifications contemplated under Section 3(2) of the
Citizenship Act, 1955.
30. Upon a considering the facts of the present case, this Court is of the
considered view that the judgment of this Court in Namgyal Dolkar v.
Government of India, Ministry of External Affairs, 2010 SCC OnLine Del
4548, is squarely applicable. In the said case as well, the Court was
concerned with the question of citizenship of persons (whose parents were
Tibetan) born within the territory of India during the relevant period, and the
issues arising therein are substantially similar to those involved in the
present petition. The relevant extract from the judgment in Namgyal Dolkar
“16. The above submissions have been considered. It is not in dispute
that the Petitioner was born in Kangra, Himachal Pradesh, India on
13th April, 1986 and both her parents are Tibetans. The case of the
Petitioner essentially is based on Section 3(1)(a) CA.
(supra) is reproduced under –
23. The amended Section 3(1)(a) reads as under:—
“3. Citizenship by birth:— (1) Except as provided in sub- section (2),
every born in India,—
“(a) on or after the 26th day of January 1950, but before the 1st day
of July, 1987.”
(b) …….
(c) …..Shall be a citizen of India by birth.”
W.P.(C) 16380/2024 Page 19 of 38
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.
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 is envisaged
in Section 3(1) CA.
The SOR accompanying the
amendment Bill of 1986, by which the above provision was introduced
and discussed in the Lok Sabha and Rajya Sabha, makes it clear that
the change brought about by 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.
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 Indi
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.
a. The impugned communication dated 1st
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 recognised 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.
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
W.P.(C) 16380/2024 Page 20 of 38
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 passpor
29. The policy decision of the MHA not to grant Indian citizenship by
naturalisation under Section 6(1) CA to Tibetans who entered India
after March 1959 is not relevant in the instant case.
t.
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 waiver of
the right to be recognized as an Indian citizen by birth, a right that is
expressly conferred by Section 3(1) CA. The Petitioner cannot be
said to have ‘renounced’ her Indian citizenship by birth by stating
that she is a Tibetan national. Renunciation can happen only in
certain contexts one of which is outlined in Section 8 which reads as
under
“8. Renunciation of citizenship:
:
(1) If any citizen of India of full age and capacity, makes in the
prescribed manner a declaration renouncing his Indian citizenship,
the declaration shall be registered by the prescribed authority, and,
upon such registration, that person shall cease to be a citizen of India.
Provided that if any such declaration is made during any war in which
India may be engaged, registration thereof shall be withheld until the
Central Government otherwise directs.
W.P.(C) 16380/2024 Page 21 of 38
(2) Where a person ceases to be a citizen of India under sub- section
(1) every minor child of that person shall thereupon cease to be a
citizen of India:
Provided that any such child may, within one year attaining full age,
make a declaration in the prescribed form and manner that he wishes
to resume Indian citizenship and shall thereupon again become a
citizen of India.”
30. Clearly the Petitioner's case is not covered by Section 8 CA. She
has not expressly or impliedly renounced her Indian citizenship by
birth. The provisions of Section 9 CA relating to termination of
citizenship are also not attracted.
“9. Termination of citizenship: — (1) Any citizen of India, who by
naturalisation, registration otherwise voluntarily acquires, or has at
any time between the 26th January, 1960 and the commencement of
this Act, voluntarily acquired the citizenship of another country shall,
upon such acquisition or, as the case may be, such commencement,
cease to be a citizen of India. Provided that nothing in this sub- section
shall apply to a citizen of India who, during any war in which India
may be engaged, voluntarily acquires, the citizenship of another
country, until the Central Government otherwise directs.
The said provision reads thus:
(2) If any question arises as to whether, when or how many citizen of
India has acquired the citizenship of another country, it shall be
determined by such authority, in such manner, and having regard to
such rules of evidence, as may be prescribed in this behalf.”
31. The Petitioner was born in India on 13th April, 1986, i.e. after
26th January, 1950 and before 1st July, 1987, and is an Indian
citizen by birth in terms of Section 3(1)(a) CA. She cannot therefore
be denied a passport on the ground that she is not an Indian citizen
in terms of Section 6(2)(a) PA
31. The aforesaid judgment has subsequently been relied upon and
followed by this Court in Phuntsok Wangyal v. Ministry Of External
Affairs & Ors., 2016:DHC:6690. The relevant extract of the said judgment
is reproduced as under –
.”
“3. The petitioner – Phuntsok Wangyal in W.P.(C) No.3539/2016 was
born on 17.09.1977 and the petitioner – Lobsang Wangyal in W.P.(C)
W.P.(C) 16380/2024 Page 22 of 38
No.4275/2016 was born on 25.05.1970. The petitioners, in these two
petitions, claim citizenship of India on the basis of Section 3(1)(a) of the
Act.
4. The petitioner – Tenzin Dhonden in W.P(C) No.7983/2016 was born
on 16.08.1992 and contends that his father was born in India on
01.01.1966 and claims citizenship of India by virtue of Section 3(1)(b) of
the Act.
5. It is contended by the petitioners that the petitioners being citizens of
India, cannot be discriminated against and cannot be denied the Indian
passport by the respondents. It is also contended that the petitioners,
being Indian citizens by virtue of the Citizenship Act, 1955, have no
requirement of making any application with the respondents for being so
declared and are entitled to all benefits and privileges, as are available
to citizens of India.
6. Reliance is placed on the decision of a Coordinate Bench of this Court
in Namgyal Dolkar versus Government of India, Ministry of External
Affairs, dated 22.12.2010 in W.P.(C) No.12179/2009, wherein similar
relief has been granted.
7. Learned counsel for the respondents rely on a letter dated 26.08.2011
issued by the Ministry of Home affairs to the Election Commission of
India, whereby Minutes of inter-Ministerial meeting held on 30.03.2010
was conveyed, inter alia, to the following extent:-
“The children born to Tibetan Refugee 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 Tibetan Refugees in India, will be
determined by MHA as per prescribed procedure available
under the Citizenship Rules, 2009. All such children, as an
when their nationality status as an Indian is decided by this
Ministry, will have to surrender their Tibetan Refugee
Certificate and Identity Card before accepting Indian
citizenship.”
8. It is contended that as per the said Minutes, all children born to
Tibetan refugees in India would not be treated as Indian citizens based
on their birth in India before 01.07.1987 and such persons shall have to
W.P.(C) 16380/2024 Page 23 of 38
submit applications individually under Section 9(2) of the Citizenship Act
and thereafter the nationality status would be determined by the Ministry
of Home Affairs, as per the procedure prescribed under the Citizenship
Rules, 2009.
9. It is contended that the petitioners cannot be considered to be Indian
citizens automatically and need to apply in terms of the decision of the
respondent.
10. Section 3 of the Act reads as under:-
“3. Citizenship by birth- (1) Except as provided in subsection
(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 , 1947, 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 any 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.”
“11. As per section 3(1) of the Act, there are three categories of persons
who are citizens of India by birth: (i) those born, on or after the 26th day
of January, 1950, but before the 1st day of July, 1987 or (ii) those born
on or after the 1st day of July , 1947, but before the commencement of the
W.P.(C) 16380/2024 Page 24 of 38
Citizenship (Amendment) Act, 2003 and either of whose parents is a
citizen of India at the time of his birth or (iii) those born on or after the
commencement of the Citizenship (Amendment) Act, 2003, where both of
his parents are citizens of India or one of whose parents is a citizen of
India and the other is not an illegal migrant at the time of his birth.
12. However a person, who though satisfies the criteria of section 3(1) of
the Act, would still not be a citizen of India if at the time of his birth (i)
either his father or mother possesses such immunity from suits and legal
process as is accorded to any 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 (ii) his father or mother is an enemy alien and
the birth occurs in a place then under occupation by the enemy.
13. The petitioner – Phuntsok Wangyal in W.P.(C) No.3539/2016 was
born on 17.09.1977 and the petitioner – Lobsang Wangyal in W.P.(C)
No.4275/2016 was born on 25.05.1970. Both of them satisfy the
requirement of section 3(1) (a) of the Act i.e. born, on or after the 26th
day of January, 1950, but before the 1st day of July, 1987.
14. The petitioner – Tenzin Dhonden in W.P(C) No.7983/2016 was born
on 16.08.1992 and his father was born in India on 01.01.1966. Since the
father of the petitioner – Tenzin Dhonden was born in India and satisfies
the requirement of section 3(1) (a) of the Act, he would be an Indian
Citizen and thus the petitioner satisfies the requirement of section 3(1)
(b) of the Act i.e. those born on or after the 1st day of July, 1947, 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.
15. None of the Petitioners admittedly suffer from the disqualification of
section 3(2).
16. In Namgyal Dolkar (Supra) the learned Judge held 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(l)(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
W.P.(C) 16380/2024 Page 25 of 38
amendment Bill of 1986, by which the above provision was
introduced and discussed in the Lok Sabha and Rajya Sabha,
makes it clear that the change brought about by 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.
xxxx xxxx xxxx xxx
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 naturalisation 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(l)(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 waiver of the
right to be recognized as an Indian citizen by birth, a right that
is expressly conferred by Section 3 (1) CA. The Petitioner
cannot be said to have 'renounced' her Indian citizenship by
W.P.(C) 16380/2024 Page 26 of 38
birth by stating that she is a Tibetan national. Renunciation
can happen only in certain contexts one of which is outlined in
Section 8 which reads as under:-
"8. Renunciation of citizenship: (1) If any citizen of India of
full age and capacity, makes in the prescribed manner a
declaration renouncing his Indian citizenship, the declaration
shall be registered by the prescribed authority, and, upon such
registration, that person shall cease to be a citizen of India.
Provided that if any such declaration is made during any war
in which India may be engaged, registration thereof shall be
withheld until the Central Government otherwise directs.
(2) Where a person ceases to be a citizen of India under sub-
section (1) every minor child of that person shall thereupon
cease to be a citizen of India:
Provided that any such child may, within one year attaining
full age, make a declaration in the prescribed form and
manner that he wishes to resume Indian citizenship and shall
thereupon again become a citizen of India."
xxxx xxxx xxxx xxxx
31. The Petitioner was born in India on 13th April 1986, i.e.
after 26th January 1950 and before 1st July 1987, and is an
Indian citizen by birth in terms of Section 3(l)(a) CA. She
cannot therefore be denied a passport on the ground that she is
not an Indian citizen in terms of Section 6(2)(a) PA.”
17. This Court in Namgyal Dolkar (supra) has very categorically laid
down that the persons like the petitioners are covered under Section 3 of
the Citizenship Act, and cannot be denied a passport on the ground that
they are not Indian citizens in terms of Section 6(2)(a) of the Passport
Act, 1967. I am in complete agreement with the view taken by the
coordinate bench in the said judgment.
18. Learned counsel for the respondents do not contend that the said
decision has either been set aside or stayed by any higher forum.
19. Even the Election Commission of India, to whom the said letter dated
26.08.2011 of the Ministry of Home Affairs, was addressed, has issued a
letter dated 07.02.2014, which reads as under:-
W.P.(C) 16380/2024 Page 27 of 38
“No.30/ID/2010- ERS. Dated – 7th February, 2014
To,
The CEOs of all States/UTs
Subject: Registration of Tibetan Refugees and their offspring
in the electoral roll- clarification – regarding
Sir/Madam,
I am directed to refer to the Commission’s instruction dated
27th September, 2011, on the subject cited and to state that in
the light of decision dated 7th August, 2013 of Karnataka
High Court in WP No. 15437/2013 Tenzin Choephag Ling
Rinpochwe Vs Union of India and others, the Commission
has reconsidered its stand communicated by the aforesaid
letter. (A copy of the HC order is enclosed as Annexure-1)
As per Section 3(1) (a) of the Citizenship Act, 1955, the
children born to Tibetan Refugees in India shall be treated as
Indian citizens based on their in India, on or after 26th
January, 1950 and before 1st July, 1987. Hence,
notwithstanding anything contained in Union Home Ministry
letter number 26027/08/1994- S-I dated 26th August, 2011
conveyed to all CEOs vide ECI letter dated 27th September,
2011, the Commission clarifies that the EROs concerned
should not deny enrolment to the children of Tibetan
Refugees where they are satisfied that(1) the applicant was
born in India, (2) he/she was born on or after 26th January,
1950 but before 1st July, 1987, and (3) he/she is ordinarily
resident in the constituency in which the application for
enrolment has been made.
Please bring this into the notice of all concerned EROs and
other stakeholders for information and compliance.
Yours faithfully,
(R.K. Srivastava)
Principal Secretary”
20. The Election Commission of India, by the said letter dated
07.02.2014, has stated that notwithstanding anything contained in the
W.P.(C) 16380/2024 Page 28 of 38
communication dated 26.08.2011, the Electoral Return Officers (EROs)
are not to deny enrolment to the children of the Tibetan refugees where
they satisfy the requirement of Section 3 of the Act.
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 interministerial 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.
24. The respondents are directed to issue the India passports to the
petitioners, who have been declared to be Indian citizens, within a period
of four weeks in accordance with the Rules.”
32. Thus, it stands conclusively settled that a person is an Indian citizen
by birth in terms of Section 3(1)(a) of the Citizenship Act, 1955, if such
person was born in India on or after 26 January 1950 but before 1 July 1987.
In the present case, although the petitioner is of Tibetan descent and is
described as a Tibetan refugee, however, the petitioner was born in India on
15.05.1966 at Dharamshala, Himachal Pradesh. The Identity Certificate also
records the petitioner’s place of birth as Dharamshala, Himachal Pradesh.
W.P.(C) 16380/2024 Page 29 of 38
33. The contention advanced by the respondents (while relying upon
Order dated 26.12.1950 (SRO 1108) issued under the Foreigners Act, 1946,
and Registration of Foreigners Act, 1939 ) that Tibetan nationals and their
children born within the territory of India, who have registered themselves
as Tibetan refugees and obtained an Identity Certificate by declaring their
nationality as Tibetan, amounts to voluntary renunciation of Indian
citizenship under Section 9(1) of the Citizenship Act, 1955, is misconceived.
The said issue stands conclusively settled by the judgment in Namgyal
Dolkar
34. Further, this Court in Tenzin Passang v . Union Of India & Ors,
2017:DHC:1996, has observed as under –
(supra), wherein this Court categorically recognized the citizenship
of the petitioners therein notwithstanding the fact that they were holders of
Identity Certificates.
“7. Reliance is placed by the petitioners on the judgment of this Court
dated 22.09.2016 in W.P.(C) No.3539/2016 titled
Phuntsok Wangyal
versus Ministry of External Affairs & Ors and other connected
petitions. This Court by common Judgment dated 22.09.2016 in
Phuntsok Wangyal (supra), W.P.(C) No.4275/2016 titled Lobsang
Wangyal Versus Union of India and W.P.(C) No.7983/2016 titled
Tenzin Dhonden Versus Union of India relying on the decision of the
Namgyaal Dolkar versus Government of India, Ministry of External
Affairs dated 22.12.2010 in W.P.(C) No.12179/2009, held that
persons like the petitioner therein, who are covered under Section 3 of
the Act are citizens of India and cannot be denied a passport on the
ground that they are not Indian Citizens in terms of Section 6(2)(a) of
the Passports Act, 1967. The Petitioner in
Phunstok Wangyal (supra)
and Lobsang Wangyal (supra) had claimed to be Citizens of India in
terms of section 3(1) (a) of the Act as they were born in India on or after 26.01.1950 and before 01.07.1987. The Petitioner in Tenzin Dhonden (supra) was born on 16.08.1992 and had contended that his father was born in India on 01.01.1966 and claimed citizenship of
India by virtue of Section 3(1)(b) of the Act.
W.P.(C) 16380/2024 Page 30 of 38
8.
The said Writ Petitions were allowed, by a common judgment
dated 22.09.2016, holding the petitioners therein to be Indian
Citizens and entitled all benefits and privileges, as are available to
Indian Citizens. The respondents were directed to issue Indian
Passports to the petitioners, who had been declared to be Indian
Citizens
9.
.
Learned counsel for the respondent submits that the Ministry of
External Affairs, Government of India, has accepted the decision of
this Court dated 22.09.2016 in Phuntsok Wangyal (supra) and other
connected matters and issued an Office Memorandum dated
17.03.2017 to all Passport Offices in India and all Indian
Mission/Posts abroad. The Office Memorandum dated 17.03.2017 is
produced in Court and the same is taken on record
10. At this juncture, it would be expedient to reproduce the Office
Memorandum in toto. The Office Memorandum dated 17.03.2017
reads as under:
.
“No. VI/441/1/16/2016 (Vol.III)
Government of India
Ministry of External affairs
CPV Division
Patiala House Annexe, New Delhi
The 17th March, 2017
OFFICE MEMORANDUM
Subject: Grant of passport facilities to the Tibetan
Refugees born in India between 26/01/1950 to 01/07/1987,
who have been declared as the Indian Citizens by birth
under Section 3 (1) (a) of the Citizenship Act, 1955 by the
High Court of Delhi vide its judgment dated 22/09/2016 in
the W.P. No. 4275/2016 of Lobsang Wangyal Vs. Union of
India & others – reg.
It may be mentioned that the High Court of Delhi vide its
judgment dated 22/09/2016 in the W.P. (C) No. 4275/2016
of Lobsang Wangyal Vs Union of India and two other
WPs,
has not only declared the Tibetan Refugees (TRs)
W.P.(C) 16380/2024 Page 31 of 38
born in India between 26/01/1950 to 01/07/1987, as the
Indian citizens by birth under Section 3(1)(a) of the
Citizenship Act, 1955 but also quashed the executive
instructions dated 26/08/2011 of the Ministry of Home
Affairs and the minutes of the meeting dated 30/03/2010,
restraining TR applicants to declare themselves as the
Indian citizens by birth under the relevant section (s) of
the said Act. The High Court besides declaring all such
TR petitioners as the Indian citizens by birth also
directed this Ministry/Passport Issuing Authorities to
process their applications for the issue of passports, if
they were otherwise eligible to hold the same
2.
.
Pursuant to the judgment dated 22/09/2016 of the
High Court of Delhi, the Ministry to Home Affairs being
the major stakeholder on the TRs as well as Indian
citizenship related issues was requested to apprise this
Ministry whether they are intended to file an Appeal/SLP
against the impugned order dated 22/09/2016 of the
Single bench of the High Court of Delhi before the
Division Bench of the same High Court or the Supreme
Court of India, as the case may be. Since there was no
time bound reply by the MHA in this regard, this
Ministry decided to comply with the Court’s order dated
22/09/2016 and issued the passports to all the petitioner
TRs in respect of whom the order was passed
3
.
. However, the Ministry of Home Affairs subsequently
informed that they are not intended to file any appeal
against the order dated 22/09/2016 of the High Court of
Delhi as their executive instructions, which had been
quashed by the High Court could not bear the judicial
scrutin
4. Since the Ministry of Home Affairs has explicitly stated
that they would not file any appeal against the impugned
order dated 22/09/2016 of the High Court of Delhi and the
executive order dated 26/08/2011 of MHA restraining the
TR applicants to declare themselves as the Indian Citizens
by birth under Section 3(1) (a) of the Citizenship Act, 1955
has been quashed by the High Court, at present other than
the Citizenship Act, 1955 and the order dated 22/09/2016
of the High Court of Delhi nothing is binding on this
y.
W.P.(C) 16380/2024 Page 32 of 38
Ministry, so far as the issue of citizenship of TRs born in
India in the above mentioned intervening period is
concerned. Moreover, a number of TR applicants after the
issue of order dated 22/09/2016 have also approached the
same High Court requesting the court to also declare them
as the Indian citizens by birth under the relevant section
(s) of the Citizenship Act, 1955 and the court has clubbed
all such matters for the next hearing scheduled on
21/03/2017, with the observation that unless there is a stay
against its order dated 22/09/2016, non- compliance of the
same in general in respect of all such TRs amounts to
contempt of the High Court. In view of this, there is a huge
probability that on the next date of hearing i.e.
21/03/2017, the High Court may come down very heavily
on the Government.
5.
In view of the above it has been decided that all the
Passport Issuing Authorities in India/abroad in
compliance/pursuance to order dated 22/09/2016 of the
High Court of Delhi, subject to usual checks and other
formalities stipulated under the Passports Act, 1967 and
the Passport Manual, 2016, shall process all the pending
applications of TR applicants born in India between
26/01/1950 to 01/07/1987, for the issue of passports
treating them as the Indian citizens by birth under
Section 3(1)(a) of the Citizenship Act, 1955
(Y.K. Shukla)
. However, if
the Police Verification Report (PVR) in the cases of such applicants from the local police authorities or the security agencies of the Government is received as “ADVERSE”
by virtue of the fact that the applicant being a TR is not an Indian citizen by birth, shall not be taken as Adverse but the same shall be accepted as „CLEAR‟ and passport will
be issued to such an applicant, if he is otherwise eligible
to hold the same.
Under Secretary (PV-I)
Ph. 011- 23070364
Fax 011- 23389802
E-mail-uspv1@mea.gov.in”
W.P.(C) 16380/2024 Page 33 of 38
11
. By the Office Memorandum dated 17.03.2017, the Government
of India, in compliance of and pursuant to judgment dated
22/09/2016 (supra), directed all passport Issuing authorities in India
and abroad, subject to usual checks and other formalities stipulated
under the Passports Act, 1967 and the Passport Manual, 2016, to
“process all the pending applications of TR applicants born in India
between 26/01/1950 to 01/07/1987, for the issue of passports treating
them as the Indian citizens by birth under Section 3(1)(a) of the
Citizenship Act, 1955.
xxx xxx xxx
However, if the Police Verification Report
(PVR) in the cases of such applicants from the local police authorities
or the security agencies of the Government is received as
“ADVERSE” by virtue of the fact that the applicant being a TR is not
an Indian citizen by birth, shall not be taken as Adverse but the same
shall be accepted as „CLEAR‟ and passport will be issued to such an
applicant, if he is otherwise eligible to hold the same”.
13. In terms of the Office Memorandum dated 17.03.2017 all persons
who are citizens in terms of section 3(1)(a) of the Act would be
entitled to a passport, subject to usual checks and other formalities
stipulated under the Passports Act, 1967 and the Passport Manual,
2016.
14. Thus the petitioners, (i) Tenzin Passang (W.P.(C) 254/2017), born
on 25.11.1986, (ii) Rinzin Dolma (W.P.(C) 1455/2017), born on
01.08.1973, (iii) Tsering Dhonden Lhewa (W.P.(C) 1893/2017), born
on 10.09.1969 and (iv) Rinzin Dorjee (W.P.(C) 2171/2017), born on
30.06.1978 and who claim to be a citizens of India in terms of Section
3(1)(a) of the Act are declared to be citizens of India and entitled to a
passport in terms of the Office Memorandum dated 17.03.2017,
subject to usual checks and other formalities stipulated under the
Passports Act, 1967 and the Passport Manual, 2016.
15. The petitioner – Tenzin Yangzom (W.P.(C) 1865/2017), who was
born in India on 11.11.1990 and who claims to be a citizen of India in
terms of Section 3(1) (b) of the Act is also entitled to be so declared.
Her mother Rinzin Dolma, (petitioner in the connected Writ Petition
being W.P.(C) 1455/2017), was born in India on 01.08.1973 and has
been held to be a citizen of India in terms of Section 3(1)(a) of the Act
and covered by the Office Memorandum dated 17.03.2017.
16. The case of the petitioner Tenzin Yangzom (W.P.(C) 1865/2017),
is also similar to the case of Tenzin Dhonden (supra) whose petition
W.P.(C) 16380/2024 Page 34 of 38
was also in the batch of cases decided by the common judgment dated
22.09.2016, which judgment has been accepted by the Respondents
and consequent to which the Office Memorandum dated 17.03.2017
has been issued. The said petitioner is also declared to be a citizen of
India and entitled to a passport, subject to usual checks and other
formalities stipulated under the Passports Act, 1967 and the Passport
Manual, 2016.
17.
Another issue that arises is with regard to the Identity Certificate
(I.C.) /Registration Certificate/Residential Permit (R.C./R.P.) issued
to petitioners and other similarly situated persons
18. Learned counsel for the respondent submits that since the Office
Memorandum has been issued directing issuance of passport to the
petitioners and other similarly situated persons, the Identity
Certificate (I.C.) /Registration Certificate/Residential Permit
(R.C./R.P.), already issued, is required to be surrendered prior to
issuance of the passport.
.
19. It is submitted that a surrender certificate application form is
proposed to be circulated to all Passport Offices requiring the persons
who are applying for a passport to surrender the existing Identity
Certificate (I.C.) /Registration Certificate/Residential Permit
(R.C./R.P.) prior to the issuance of the Passport.
20.
It is an admitted position that some of the petitioners and some
of the other similarly situated persons are using the Identity
Certificate (I.C.) /Registration Certificate/Residential Permit
(R.C./R.P.), as a travel document
21.
.
Rule 13 of the Passport Rules, 1980 stipulates that a person
holding a passport or travel document in special circumstances shall
not be entitled to another passport or travel document unless he
surrenders, to the passport authority, the passport or travel
document already held by him
22
.
. Accordingly, the petitioners are directed to surrender the Identity
Certificate (I.C.) /Registration Certificate/Residential Permit
(R.C./R.P.), if issued, by approaching the respective Passport Office
where they have applied for issuance of a passport
23.
.
It is clarified that the Identity Certificate (I.C.)/Registration
Certificate/Residential Permit (R.C./R.P.) would be required to be
surrendered prior to the issuance of the passport.
W.P.(C) 16380/2024 Page 35 of 38
24. In view of the above, the petition is disposed of directing the
respondents to issue the passports, as expeditiously as possible,
preferably within a period of four weeks, subject to the petitioners
satisfying the other requirements of the Passports Act as well as the
Passport Manual, 2016 and the Rules framed there under. There shall
be no orders as to costs.”
35. The Identity Certificate of the petitioner also notes as under –
“This certificate is issued for the sole purpose of providing the holder
with identity papers in lieu of a national passport. It is without prejudice
to and in no way affects the national status of the holder. If the holder
obtains a national passport, this certificate ceases to be valid and must
be surrendered to the nearest Indian Passport Issuing Authority.”
36. Thus, in light of the settled legal position and having due regard to the
fact that the petitioner was born on 15.05.1966 at Dharamshala, Himachal
Pradesh, within the territory of India and during the period between 26
January 1950 and 1 July 1987, this Court holds that the petitioner is an
Indian citizen by birth in terms of Section 3(1)(a) of the Citizenship Act,
1955.
37. It is also relevant to note that the petitioner’s case does not fall within
the ambit of Section 8
1
of the Citizenship Act, as the petitioner has not
renounced her Indian citizenship. Equally, the provisions of Section 9
2
1
8. Renunciation of citizenship.—(1) If any citizen of India of full age and capacity, 26[* * *] makes in the
prescribed manner a declaration renouncing his Indian Citizenship, the declaration shall be registered by
the prescribed authority; and, upon such registration, that person shall cease to be a citizen of India:
of
Provided that if any such declaration is made during any war in which India may be engaged, registration
thereof shall be withheld until the Central Government otherwise directs.
(2) Where [a person] ceases to be a citizen of India under sub-section (1) every minor child of that person
shall thereupon cease to be a citizen of India:
Provided that any such child may, within one year after attaining full age, make a declaration [in the
prescribed form and manner] that he wishes to resume Indian Citizenship and shall thereupon again
become a citizen of India.
2
9. Termination of citizenship.—(1) Any citizen of India who by naturalisation, registration or otherwise
W.P.(C) 16380/2024 Page 36 of 38
the Citizenship Act, which pertain to termination of citizenship, are
inapplicable to the facts of the present case, as the petitioner has clearly not
acquired the citizenship of another country, as per the provision of the
Section 9 of the citizenship Act.
38. It is correct that the petitioner was issued a Swiss passport for
foreigners on 02.07.2009 for herself and her family members. T he said
passport was issued under the Swiss Ordinance on the Establishment of
Travel Documents for Foreigners and was valid for a limited period of five
years, i.e., until 01.07.2014. It appears evident that such travel documents
are issued only to foreigners who do not possess a national travel document
but hold a Swiss residence permit, or to asylum seekers. In the present case,
the petitioner was holding a Swiss residence permit, on the basis of which
the Foreigners passport was issued.
39. The petitioner has placed on record copies of Swiss passport for
foreigners issued to her son and daughter, which explicitly describe the
passport as a “passport for aliens”, thereby leaving no manner of doubt that
the said documents were issued to non- citizens and were merely travel
documents for foreign nationals.
voluntarily acquires, or has at any time between the 26th January, 1950 and the commencement of this Act
voluntarily acquired, the citizenship of another country shall, upon such acquisition or, as the case may be,
such commencement, cease to be a citizen of India:
Provided that nothing in this sub-section shall apply to a citizen of India who, during any war in which
India may be engaged, voluntarily acquires the citizenship of another country, until the Central
Government otherwise directs.
(2) If any question arises as to whether, when or how any 30[citizen of India] has acquired the citizenship
of another country, it shall be determined by such authority, in such manner, and having regard to such
rules of evidence, as may be prescribed in this behalf.
W.P.(C) 16380/2024 Page 37 of 38
40. Accordingly, the 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.
41. It is further noted that after the expiry of the aforesaid travel
document, when the petitioner once again applied for issuance of a passport
for foreigners, the competent Swiss authorities responded that the conditions
prescribed under the Ordinance on the Issue of Travel Documents for
Foreigners (ODV, RS 143.5)
42. The translated version of the said communication dated 05.11.2014,
as annexed by the petitioner, is reproduced hereinbelow for ready reference:
were not fulfilled. The petitioner was
accordingly advised to approach the competent authority of her country of
origin to obtain a national passport, clearly reaffirming her status as a
foreign national and not a Swiss citizen.
“Sir,
We refer to your request of 9 September 2014 for the issuance of a
passport for foreigners and inform you of the following:
After examining the file, we note that the conditions for issuing the
required document are clearly not met, in accordance with the
Ordinance on the Issue of Travel Documents for Foreigners (ODV, RS
143.5). Each new application is examined again. We therefore note that
you can, and may reasonably be required to, take steps with the
competent authority of your country of origin in Switzerland to have a
national passport issued for you. These steps must be taken personally.
Consequently, you are not dependent on a replacement Swiss travel
document. If the competent authority refuses to issue you with the
W.P.(C) 16380/2024 Page 38 of 38
document, we ask you to provide us with written proof stating the reasons
for the refusal. Technical or organisational delays in issuing the passport
cannot consider you as lacking travel documents.
In view of the above, you have the possibility until 4 December 2014 to
request in writing a formal decision subject to appeal, subject to a fee of
CHF 150 (RS 172.041.1, art. 2 OGEmol of 8 September 2004). After this
deadline, your request will be considered as being without object.”
43. In Namgyal Dolkar
44. It further observed “that Clearly the petitioner’s case is not covered
by Section 8 CA. She has not expressly or impliedly renounced her Indian
citizenship by birth. The provisions of Section 9 CA relating to termination
of citizenship are also not attracted”.
(supra) the Court has categorically held that “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 waiver of the right to be recognized as an Indian
citizen by birth, a right that is expressly conferred by Section 3(1) CA. The
Petitioner cannot be said to have ‘renounced’ her Indian citizenship by birth
by stating that she is a Tibetan national.”
45. Thus, the petitioner being a citizen of India by birth in terms of
Section 3(1)(a) of the Citizenship Act, 1955, is therefore entitled to the
issuance of an Indian passport in accordance with law.
46. The present petition is allowed in the above terms.
SACHIN DATTA, J
FEBRUARY 2, 2026/
sv
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