Kirandeep Kaur vs Regional Passport Office And Ors.
2005 Latest Caselaw 1148 Del

JUDGMENT

Vikramajit Sen, J.

1. Rule.

2. The facts in this case are not in dispute and are in a narrow compass. The writ petition can therefore be disposed of at this stage itself.

3. The parents of the Petitioner were Afghan Nationals. According to the Petitioner's father Mr.Manohar Singh, who is present in Court, he came to India along with his wife in 1979 and has since then been living in India uninterruptedly. On 27.3.1991 a Certificate of Naturalisation has been issued by the Government of India to both the parents of the Petitioner. The Petitioner was born in New Delhi on 4.2.1984 and has already travelled outside India on an Indian passport. Counsel for the Respondents have explained that this was permissible because of the naturalisation of the parents of the Petitioner, as she had not attained the age of majority.

4. Counsel for the Petitioner relies on Section 3 of the Citizenship Act, 1955 which prescribes that every person born in India on or after 26.1.1950 but before 1.7.1987 shall be a citizen of India by birth. By virtue of Section 3 of the Citizenship Act, 1955 the Petitioner would become a citizen of India by birth, since her date of birth is 4.2.1984.

5. Counsel for the Respondents, however, rely on Article 5 of the Constitution which enunciates that at the time of its commencement every person who is domiciled in the territory of India and who was born in the territory of India shall be a citizen of India. If there is any divergence between the provisions of the Constitution and any statute such as the Citizenship Act, the consequence would be that the statute may have to be struck down as ultra vires. However, every Court is enjoined to prefer an interpretation of a statute which would preserve its constitutionality. The short question which has to be answered therefore is whether the word `domicile' occurring in Article 5 should be given a meaning contrary to the intendment behind Section 3 of the Citizenship Act.

6. In Black's Law Dictionary domicile has been defined as that place where a man has his true, fixed, and permanent home and principal establishment, and to which whenever he is absent he has the intention of returning. A foreign domicile is a domicile established by a citizen or subject of one sovereignty within the territory of another. The Dictionary of Modern Legal Usage, Bryan A. Garner states that 'domicile' connotes residency at a particular place accompanied with positive or presumptive proof of an intention to remain there for an unlimited time. The meaning attributed to `domicile', `nationality' and `citizenship' in State Trading Corporation of India Ltd. v. The Commercial Tax Officer, AIR 1963 SC 1811 is also instructive. Accordingly, citizenship and domicile are distinct legal concepts and it is possible for a citizen of Country A to be domiciled in Country I. It has been erroneously contended on behalf of the Respondents that the Petitioner's parents have become naturalised Indian citizen only in 1991 and therefore they could not be considered to have been domiciled in the territory of India before that event. This is legally untenable since they could well have been domiciled in India even though they were not its citizens. It has further been argued that at the time when the parents had applied for naturalisation by following the procedures set down in Section 5 of the Citizenship Act, 1955, the name of the Petitioner could have been included so that her naturalisation could also have been ordered and/or a certificate of her citizenship under Section 5 could have been issued. This, however, begs the question. If the Petitioner is already a citizen of India then recourse to the procedures set down in Section 5 would be wholly unnecessary. It is no doubt true that a child or minor has no independent domicile and must be deemed to enjoy the domicile of the parents. In the present case the parents have been domiciled in India since 1979. The decision of the Division Bench in Kekhasarao Sorabji Irani v. The State of Maharashtra, is of relevance.

7. The Respondent's have placed reliance on a Circular issued in this regard by the Legal Advisor to the Commissioner of Police, Delhi, where it has been opined that a person cannot claim Indian Citizenship merely by birth unless he proves that his parents (mother & father) were citizen of India at the time of his/her birth. The applicant requires certificate of registration as an Indian citizenship from the Govt. of India U/S 13 of the Citizenship Act. This opinion is based neither on Section 3 of the Citizenship Act nor Article 5 of the Constitution. As has already been seen Section 3 declares that every person born in India between 26.1.1950 and 1.7.1987 shall be a citizen of India by birth. Article 5 contemplates that a person who was born in India and has domicile in India shall be a citizen of India. The confusion in the above advice has occurred as a consequence of ignoring that there are three distinct possibilities covered by Article 5 itself and to fuse the conditions of sub Article (b) into those of sub Article (a) has no legal justification. The three sub-articles of Article 5 are broken up by the word `or' and not `and'. Reliance on the decision in Criminal Misc. Petition No. 2140/2000 titled Shri Akbar v. Union of India decided by this Court on 14.7.2000 is a futile exercise, so far as the facts of this case are concerned.

8. The word `domicile' has not been defined in the Constitution or in the Citizenship Act, 1955. In the ordinary legal parlance domicile can be defined as an intention to reside in a particular territory which is not transient or for a limited period or purpose only. Keeping in view the fact that the parents had already migrated from Afghanistan to India in 1979, the domicile of the minor at the time of her birth should not be given an artificial meaning. As has already been observed, this would bring the provisions of Section 3 of the Citizenship Act in confrontation with Article 5 of the Constitution leaving no option but to strike down the former as ultra vires. Such an approach must be abjured. Furthermore, since the parents of the Petitioner have already been naturalised and the Petitioner had admittedly been born in India between 26.1.1950 and 1.7.1987 and has been uninterruptedly residing in India, her undisputable domicile in India should be taken into consideration on her attaining the age of majority. If so done all doubts of her domicile would vanish, even if some controversy remains in regard to her parents. It is specious to argue that the Indian domicile of the parents would not have been taken into account when they were granted citizenship by naturalization. If the relevant time is the day on which she ceases to be a minor then all the conditions envisaged conjointly in Article 5 of the Constitution and Section 3 of the Citizenship Act are fulfillled, that is, she was born and domiciled in India, and her parents are Indian citizens. The present case thus present no problems.

9. In these circumstances, the writ petition is allowed and the Respondents are directed to process the Petitioner's application on the assumption that she is an Indian citizen and, if she has qualified in all other respects, the Passport Clearance Certificate should be issued to the Petitioner within 45 days.

10. dusty.