Chaitanya S. Nair v. UOI, W.P(C) 22555/2021
Read the judgement here.
Date of the decision: 08.03.22
Court: High Court of Kerala
Judges: Justice Bechu Kurian Thomas
Summary: The Petitioner is deemed a non-citizen by the Regional Passport Officer and rendered ineligible to apply for an Indian Passport. The Kerala High Court countered this by proving that the Petitioner is an Indian citizen. Thus, entitling her to nationality and, by extension, an Indian Passport.
Facts: The Petitioner, born in 2011, is a minor seeking the issuance of a passport without the insistence of her biological father’s consent. Her parents are divorced. The mother of the Petitioner, an American woman who is also registered as an Overseas Citizen of India, is the appointed legal guardian while the father has been given visitorial rights. The mother has now remarried a Canadian citizen and intends to take the Petitioner abroad with her.
The Regional Passport Officer, however, refused to issue the Petitioner a passport without the consent of her biological father, even though it is not legally required. In the absence of any information regarding the biological father’s citizenship, the Regional Passport Office assumed that both parents of the Petitioner have renounced their Indian citizenship and acquired foreign citizenship. If the legal guardian was not an Indian citizen, the Petitioner cannot be one either, it argued. The Regional Passport Office, therefore, deemed the minor ineligible for Indian citizenship, let alone an Indian passport, despite having been born in India and possessing an Aadhar Card.
The Court felt that the biological father’s presence here was imperative. The latter admitted to most of the averments on the writ petition except those accusing him of abandoning the Petitioner. He also declared that he had no objection in the issuance of a passport to the Petitioner - his daughter - without his consent and that the mother could maintain the application for an independent passport for their child. Most importantly, he informed the Court that he is an Indian citizen.
Holding: The High Court of Kerala ruled in favour of the Petitioner. It asserted that the Passport Office had no legal authority to demand consent from both parents when issuing a passport for a minor. The Regional Passport Office, hence, was bound to process the application for the issuance of a passport to the Petitioner regardless of her biological father’s consent. Since the biological father had no objections, the option of filing an affidavit in the form of Annexure C and Annexure D of Schedule III of the Passport Rules, 1980 was available to the Petitioner.
Secondly, the High Court of Kerala found that the Petitioner is an Indian citizen. As per Section 3 of the Citizenship Act 1955, the Petitioner is a citizen of India by birth since she was born in India to a father who is an Indian citizen and a mother who was not an illegal migrant. Having a foreign national as a parent or a legal guardian, the Court contended, does not necessarily render the minor stateless. That may have been the case had one or both of the parents renounced their citizenship as well as acquired foreign citizenship. The mother of the Petitioner, however, had always been an American citizen while the father, was an Indian citizen. The question of either renouncing or for that matter terminating, their citizenship as per Sections 8 and 9 of the Citizenship Act 1955 does not arise in the first place. Given that the Petitioner was born in India and to an Indian father, to doubt her citizenship–or even nationality–solely on the grounds of an American mother, appears not only “odious” but also “legally unsustainable” (paragraph 25).
The High Court of Kerala, in accordance, abhorred the disentitlement of the Petitioner’s citizenship—not just as an Indian but also as a minor. It held that she can be issued an Indian passport with the name of the mother as the sole legal guardian without an insistence on both parents’ consent in the process. The Court concluded that even though she is still a minor, she is still “someone, even today” (paragraph 29) and cannot be deprived of her right to travel, and enjoy her nationality as well as citizenship.
Significance: Unlike the Regional Passport Office, the High Court of Kerala did not find the consent of the biological father necessary to issue a passport to the Petitioner. What it, however, did find necessary was to uphold the right of every child to acquire a nationality. The Court stated India’s ‘obligation’ (paragraph 23) as a party State to the Convention on the Rights of the Child to implement, protect and preserve the nationality of every child. In accordance, it not only found the Petitioner an Indian citizen but also abhorred the statelessness of minors like her.
This staunch opposition to the statelessness of children by an Indian High Court is striking considering how conveniently - selectively - expresses and enforces this opposition across the country. We hear its silence most loudly in Assam where the recently concluded National Register of Citizens threatens to render million - including minors - stateless. Consider Rajendra Das v. Union of India, where an entire family, a couple as well as their three children, are declared ‘foreigners’ by the Foreigners’ Tribunals and are currently at the risk of losing their Indian citizenship. In another case, an entire family - but their daughter - has been verified as citizens. The nine-year-old was pronounced a foreigner by a notice sent to their home despite the fact that neither her nor her parents ever stood trial at a Foreigners’ Tribunal, nor had she been declared a foreigner by one. Is India not a party State to the Convention on the Rights of the Child when it comes to these children? Why is the obligation to implement, protect and preserve their nationality - and by extension, citizenship - any less pressing? Must their statelessness not be abhorred but more importantly, averted? These are questions one cannot help but ask in light of the judgement at hand.
The second point to note here is the Regional Passport Office (RPO) blatantly exceeds its power. Why does it demand the consent of the Petitioner’s biological father in the issuance of a passport when it is legally unnecessary? What authority does it have to declare the status of the Petitioner citizenship as ‘lost’? How is it permitted to introduce its own conditions and considerations on who is and should - or rather, is not and should not - be eligible for an Indian citizenship? The case at hand is only one instance of the RPO overstepping its boundaries. There have been many more. Take Namgyal Dolkar v. Government Of India, Ministry of External Affairs for example. In this case, the RPO denied the Petitioner a passport on account of being a Tibetan national even when, as found by the High Court of Delhi, she was a citizen by birth as per Section 3 of Citizenship Act 1955. It is in this context that one must be critical of the increasing recurrence and severe repercussions of the RPO dangerously blurring distinctions between the executive and the legislature.
A more sociological query is to wonder why the Court found something as minimally demanding as simply not objecting to one’s right to mobility - that too of one’s own daughter - so “commendable.” (paragraph 10) The fact that the Petitioner’s biological father considered the “welfare of the child,” prioritised the need for “maternal care more than the paternal” and was praised for it by the Court–-despite being accused of abandonment by the Petitioner—is crucial. It reveals that the Indian legal system admits, even prescribes, a mother’s care as something that is not only undoubtedly natural but also of utmost necessity. This understanding absolves the father of his parental responsibilities by perceiving them as less important. In the case at hand, it furthermore admired and applauded him for voluntarily giving up the same, even when he was criticised by his child for abandonment. By nullifying the Passport Office’s insistence on a father’s consent yet lauding the lack of one, the Court inadvertently upheld the underlined gendered norms and patriarchal sentiments.
Lastly, it is interesting to note how citizenship is embodied and experienced differently by the Petitioner’s mother, an American citizen and an Overseas Indian citizen. Grace Carswell, Thomas Chambers and Geert De Neve noted how women encounter the Indian state and by extension, Indian citizenship in a distinct manner; one that is dictated not only by gender but also class and caste. It is women, they observe, who shoulder the ‘waiting work’, that is, signified by extensive paperwork, bureaucratic procedures, numerous court visits and so on. This waiting, imposed by men, more often than not of higher class, higher class and dominant religion, reinforces women as “passive, submissive and dependent.” This is further amplified by the absence of a caste-class network, although one cannot be sure how much that dis/favours the Petitioner’s mother—an American woman. Nevertheless, we are reminded of the many lived realities of citizenship much before and after a court provides its judgements, and how these experiences necessitate an ongoing negotiation of gendered as well as class-caste hierarchies.
Resources:
Rajendra Das v. Union of India, WP(C) No. 8295/2019
Namgyal Dolkar v. Government Of India, Ministry of External Affairs, WP(C) No. 12179/2009
Arunabh Saikia, Assam’s NRC: These children could be stateless soon, The Scroll, 27 August 2019.
Anupama Roy, Overseas Indian Citizen: A New ‘Setubhandan’?, Economic & Political Weekly, 15 April 2006.
Grace Carswell, Thomas Chambers and Geert De Neve, Waiting for the state: Gender, citizenship and everyday encounters with bureaucracy in India, Economic and Planning C: Politics and Space, 2018.
This case note is part of Parichay’s ongoing project to study, track, and publish key propositions and latest developments in citizenship law and adjudication in India. This note was prepared by Shreya U.K.