‘She Is For All Practical Purposes A Stateless Person’: Madras HC Directs Centre To Consider Issuing Indian Passport To Sri Lankan Refugees’ Daughter

The Madurai Bench of Madras High Court on Monday directed the Central Government to consider issuing a passport to a woman, whose parents had escaped to India to save themselves from persecution.

Justice G. R. Swaminathan, noting that the process of applying for Indian Citizenship by naturalization under Section 6 of the Citizenship Act may not afford immediate relief, permitted the petitioner to submit an application under Section 20 of the Passports Act. 

Section 20 of the Passports Act,1967, empowers the Central Government to issue passports or travel documents even to a non-citizen, the only requirement is that the Central Government must be of the opinion that it is necessary to do so in the public interest.

"Prima facie it appears that her (petitioner) birth was not registered and therefore, she is not a Srilankan citizen. She is not an Indian citizen either. She is for all practical purposes a stateless person. Now, she wants passport only to explore overseas employment opportunities. Right to earn one's livelihood and right to travel abroad are enshrined in Article 21 of the Constitution of India which applies to all persons, citizens and non-citizens alike. In these circumstances, granting passport to the petitioner under Section 20 of the Passports Act, 1967 is not going to prejudice the interest of the country. On the other hand, it would serve public interest. Attending to the needs of the refugees, asylum seekers and stateless persons is certainly a matter of public interest," Justice Swaminathan observed. 

The court at the outset observed, "What happened and what is happening in Srilanka are matters of common knowledge. Frontline magazine in its Issue dated 13.01.2023 has carried an article titled 'Srilankan Tamil Hindus seek India's support as Sinhala Government targets temples'."

The court was hearing the petition filed by a woman, a child of Srilankan citizens who escaped to India to avoid persecution in the country of their birth. She was born and brought up in India. The petitioner's efforts to obtain an Indian Passport to go abroad for employment were in vain and thereby, the Writ Petition was filed. 

The Standing Counsel appearing for the Central Government submitted that since the petitioner was born after the cut-off date (01.07.1987) she cannot claim Indian citizenship as a matter of right. Relying on the Apex Court decision in Sarbananda Sonowal v. UOI, he contended that a child born in India to an illegal immigrant after the cut-off date is also not eligible for citizenship. According to the Standing Counsel, the petitioner can apply for citizenship by naturalization and it would be considered on merits by the competent authority.

The Court thereby granted the petitioner the liberty to apply for Indian citizenship by naturalization under Section 6 of the Citizenship Act. However, since it is a long process and which might not afford the petitioner immediate relief, it considered other alternative relief. 

Advocate Arun Balaji drew the attention of the Court to Section 20 of the Passports Act, 1967.

The Court pointed out that the reason for incorporating Section 20 as provided under Clause 20 of Objects and Reasons is that "under this clause, a passport can be refused on the ground that the applicant is not a citizen of India. But, in special cases, having regard to international convention and usage, it may become necessary for the Government to issue a passport or travel document to a person who is not a citizen of India. This clause seeks to give necessary powers to the Central Government in this behalf."

Considering the facts and circumstances of the case, the court observed that the petitioner has made out a case for relief. Therefore, the Court permitted the petitioner to submit an application under Section 20 of the Passports Act. The Court directed the authorities to consider her application and pass the order as expeditiously as possible. 

While passing the order, the Court referred to two International Conventions dealing with statelessness. The Court observed that the 1954 Convention on Status of Stateless Persons is designed to ensure that stateless people enjoy a minimum set of human rights, guarantees stateless people a right to identity, travel documents and administrative assistance.

Furthermore, the 1961 Convention on Reduction of Statelessness establishes that children are to acquire the nationality of the country in which they are born if they do not acquire any other nationality, the court noted.

"I am conscious that India is not a signatory to the said conventions. However, one can definitely seek guidance from them," the Court said. 

Advocate Santhanam Rajesh Kumar appeared for the Petitioner.

Senior Counsel Advocate Lakshmi Shankar appeared for the 1st and 2nd Respondent. 

Additional Government Pleader Advocate B. Saravanan appeared for the 3rd Respondent. 

Case Title: Harina v. The Regional Passport Officer and Ors.

Citation: 2023 LiveLaw (Mad) 37

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