Case Note & Summary
The petitioners, Master Arya Selvakumar Priya (a minor) and his mother Dr. Priya Durairaj Selvakumar, filed a writ petition under Articles 226 and 227 of the Constitution of India challenging an order dated 12-01-2022 passed by the Joint Secretary and Chief Passport Officer, Ministry of External Affairs, which declined to grant an Indian passport to the minor petitioner. The petitioners also sought quashment of a Surrender Certificate dated 22-05-2015 issued by the Consulate General of India, Toronto, by which the mother had surrendered her Indian citizenship. The minor was born in Canada on 18-11-2010 to an Indian mother (the second petitioner) and a father of Indian origin. The mother had acquired Canadian citizenship and surrendered her Indian passport in 2015. The minor applied for an Indian passport in 2020, but the passport authority rejected the application on the ground that the mother had surrendered her Indian citizenship, and thus the minor was not entitled to Indian citizenship. The court examined the provisions of the Citizenship Act, 1955, particularly Section 4 which deals with citizenship by descent. The court held that a person born outside India on or after 10-12-1992 is a citizen of India by descent if either of his parents is a citizen of India at the time of his birth. Since the mother was an Indian citizen at the time of the minor's birth in 2010, the minor acquired Indian citizenship by descent. The subsequent surrender of citizenship by the mother in 2015 does not affect the minor's citizenship, which vested at birth. The court also noted that the Passports Act, 1967 does not empower the passport authority to deny a passport to a citizen by descent on such grounds. Accordingly, the court quashed the impugned order and directed the passport authorities to process the minor's passport application without reference to the mother's surrender of citizenship. The court also set aside the Surrender Certificate issued to the mother, holding that the surrender of citizenship by a parent does not automatically divest the child of citizenship.
Headnote
A) Citizenship Law - Citizenship by Descent - Section 4 of the Citizenship Act, 1955 - Minor born abroad to an Indian mother is entitled to Indian citizenship by descent, irrespective of the mother's subsequent surrender of citizenship - The court held that the child's citizenship vests at birth and cannot be affected by the mother's later actions (Paras 10-15). B) Passport Law - Issuance of Passport - Section 5 of the Passports Act, 1967 - Refusal to grant passport on ground of mother's surrender of citizenship is invalid - The court held that the passport authority cannot deny a passport to a citizen by descent based on the parent's citizenship status (Paras 16-20). C) Citizenship Law - Surrender of Citizenship - Section 8 of the Citizenship Act, 1955 - Surrender certificate issued to the mother is not a bar to the child's citizenship - The court held that the surrender of citizenship by a parent does not automatically affect the child's citizenship rights (Paras 21-25).
Issue of Consideration
Whether a minor child born abroad to an Indian mother is entitled to an Indian passport despite the mother having surrendered her Indian citizenship and acquired foreign citizenship, and whether the surrender certificate issued to the mother is valid.
Final Decision
The court allowed the writ petition, quashed the impugned order dated 12-01-2022 and the Surrender Certificate dated 22-05-2015, and directed the passport authorities to process the minor's passport application without reference to the mother's surrender of citizenship.
Law Points
- Citizenship by descent under Section 4 of the Citizenship Act
- 1955
- Passport issuance under Section 5 of the Passports Act
- 1967
- Surrender of citizenship under Section 8 of the Citizenship Act
- Right to passport as a fundamental right under Article 21 of the Constitution of India
