Karnataka High Court Directs Centre To Issue Indian Passport To ‘Stateless’ Minor

The Karnataka High Court today has come to the aid of a 15-year-old child by directing the Passport Officer, Bengaluru to issue him an Indian Passport.

The court said the travel document will remain operational till he turns 18 years old, or else he would be rendered Stateless.

Justice M Nagaprasanna said merely because the minor’s father is not traceable and the mother “has been reckless” in not knowing the consequences of renouncement of citizenship, the fate of the child cannot be left in limbo.

The court stated that “It becomes a fit case where this Court has to exercise its jurisdiction under Article 226 of the Constitution of India to remedy the wrong qua the son of the 2nd petitioner, a wrong never committed by the child as ‘IF NOT THE COURTS WHO and IF NOT NOW, WHEN’.”

The child and his mother approached the court questioning the order dated 12-01-2022 passed by the Joint Secretary and the Chief Passport Officer, Ministry of External Affairs declining to grant an Indian passport to the minor.

It was the case of the mother that she got married to Selvakumar Balasubramanian on 4-11-2005. From the wedlock, a son was born on 5-03-2008 in India. The husband then decided to relocate to Canada owing to his avocation in the year 2011. The wife joined him in Canada along with the son. In the year 2012, the father returned to Bangalore with the son and handed over custody of the son to his maternal grandparents. The child’s father has been untraceable since then.

However, the mother continued to stay in Canada, pursuing her studies, while the son continued to stay with the grandparents in India. Later in 2015, the mother was granted Canadian citizenship & passport. Following this, she filed an application before the Consulate General of the Indian Embassy in Canada to surrender her citizenship of India and seek an Overseas Citizen of India card.
Accepting the surrender application, the Ministry of External Affairs issued a citizenship surrender certificate to the mother depicting that she has renounced Indian citizenship under the Citizenship Act, of 1955 and cancelled the passport.

Therefore, the grandparents of the child applied for the issuance of a minor passport to the son. An Indian passport came to be issued to the minor on 24-07-2015 for a period of 5 years which was set to expire on 23-07-2020. On the ground that the husband become untraceable for several years, the wife sought divorce/annulment of marriage.

The concerned court recorded that on the failure of efforts to get the respondent served including a paper publication, there was no warrant to wait for representation of the husband and then passed an ex parte order annulling the marriage on 04-09-2018 and since there was no contest in the matter, it directed permanent custody of the child to the mother.

Meanwhile, the passport of the son issued on 24-07-2015 was set to expire on 23-07-2020. He was then 12 years old. Owing to such date of expiry, the mother made an application before the Authorities seeking re-issuance of passport to the son.

The Authorities then realized that though custody has been granted to the mother, she has renounced citizenship in India. Thus, by operation of law, the court noted, the minor son also ceased to be a citizen of India. On that basis, the re-issuance of Indian passport to the son was declined. This led the mother to file an appeal before the Appellate Authority.

The Appellate Authority recorded the fact that Passport Rules require the parent in whose custody the minor child is, to be a citizen of India for issuance of passport to the minor and affirmed the order of the Regional Passport Officer who declined to re-issue passport in favor of the son.

However, on humanitarian grounds to unite with his mother, the child was granted a temporary passport effective from 21-03-2022 to expire on 20-03-2023.

The mother contended before the court that she unknowingly or being ignorant of the consequences of the law, sought renunciation of her Indian citizenship. What was required of the mother was an Overseas Citizenship of India under Section 7A of the Act and not renunciation, her counsel said.

The council said that “The surrender of citizenship happened in the year 2015 and the custody of the son has come to the mother in the year 2018. Therefore, renunciation should not come in the way of granting of passport to the son, as otherwise, he would be rendered country less or landless and will have no legal identity. Though the passport is issued to the son, it is only temporary which would give no right of citizenship to the son. He would, therefore, contend that the passport be directed to be issued in favor of the son.”

Advocate Kumar MN contended that in terms of the Rules, there can’t be any fault found with the order passed by the Authorities and the passport is given to the son on humanitarian grounds which would expire if the prayer is granted. it would have a cascading effect and serious consequences.