Kolkata, Mar 1: The Calcutta High Court has ruled that it is not mandatory for foreigners to produce a valid passport and its particulars for processing of application for grant of Indian citizenship if he is able to satisfy the appropriate authorities the reasons for non-availability of the document.
Justice Sabysachi Bhattacharya passed the order while disposing off a petition by granting the petitioner liberty to file an application before the authority "as contemplated in Rule 11 of the Citizenship Rules 2009, upon furnishing explanation as to the non-availability of the passport".
Bismillah Khan had filed the petition saying he was being denied the citizenship of India because of his inability to file an application under Section 5 (1) (c) of the Citizenship Act, 1955, apparently due to the mandatory requirement of furnishing a copy of the passport for such application.
The petitioner's counsel submitted that Khan was a Pakhtoon citizen and due to political turmoil in the said state, which subsequently merged partially into Afghanistan and partially into Pakistan, he, as a five-year old, had to migrate to India with his father in 1973.
Under such circumstances, the petitioner could not have any opportunity of having a valid passport, since they were refugees under distress, the counsel said.
The petitioner had previously approached a coordinate Bench of the court, wherein a single judge, passed an order on July 25, 2018, directing him to comply with the formalities required, as communicated by the secretary to the Government of India to the Secretary to the Government of West Bengal (Home), vide a letter dated December 7, 2017.
The court had then also given liberty to the petitioner to apply afresh before the appropriate authority under Section 5(1)(c) of the 1955 Act, having complied with all the formalities.
The petitioner then moved Bhattacharya's court submitting that a complete application as directed by the Coordinate Bench cannot be possibly filed by his client due to the mandatory requirement of uploading a copy of his passport, which the petitioner does not have due to reasons beyond his control.
The counsel said Khan is married to an Indian citizen, has a daughter and living in India for close to half a century.
The counsel for the union of India submitted that in view of no application having been filed by the petitioner, there is no scope of granting such proposed application at the present juncture for the Union.
The counsel argued that it is mandatory to file an application in Form III for the application of the petitioner under Section 5(1)(c) of the Act to be considered at all.
In view of the petitioner not complying with the mandatory requirement of submitting a copy of his passport, the state government cannot, under the law, forward such application to the union government.
After hearing all sides, Justice Bhattacharya said although the rule "contemplates that an application shall not be entertained unless the application is made in Form III, such provision ipso facto does not make the availability of a passport a mandatory requirement".
"..the Form given with the Rules or the Rules themselves cannot override the provision of the statute itself, under which the said Rules are framed, which does not stipulate such a mandate on the applicants for citizenship under Section 5 (1)(c) of the 1955 Act mandatorily to carry a passport".
The court said although such provision is included in the Form, which has to be complied with by the applicant, "it is nowhere indicated in such Form that all the relevant particulars, including the particulars regarding passport of the petitioner have to be furnished mandatorily, along with a copy of a valid foreign passport, even in the event the petitioner, for valid reasons, is not in a position to produce such passport".
Justice Bhattacharya ruled that under such circumstances, it cannot be held that the provision of producing a passport and its particulars is mandatory in nature and there has to be a relaxation in such requirement "in case the petitioner is able to satisfy the appropriate authorities the reasons for non- availability of such passport".
"Unless such a leeway is given to the applicants, genuine persons who otherwise have all the formal documents indicating that they have been residing in India for a long time and have married a resident of India would also be unable to apply for Indian Citizenship despite having lived their entire lives and contributed to the economy and diverse culture of this country."
He said such a scenario would be contradictory to the spirit of Article 14 of the Constitution of India.
"In such view of the matter, the requirement of having a passport has to be read as optional in Form III of the Citizenship Rules, 2009 and the authorities are deemed to have the power to relax such 6 requirement in the event the applicant satisfied the authorities for genuine reasons why the applicant is not in a position to produce such passport," the February 24 order said.
The court ruled that despite the provision of making applications online, a provision has to be made for persons who do not have all the particulars of their passport, which is read as optional, to file applications manually, which are to be treated as valid applications under Rule 5 of the Citizenship Rules, 2009.
The court also ordered that alternatively the necessary software be amended so that the online applications can be presented with or without passports, in the latter case furnishing detailed reasons as to non-furnishing of passports.
"Sanctioning of such forms, however, will be conditional upon the satisfaction of the relevant authorities about the reasons for the applicant not being able to produce her/his passport," the order said.
Comments
May Allah grant him Jannatul Firdous. He was an ideal for many, Respected by both Muslims and Non-Muslims. Loss for Mangalore community, a peace bearer has passed away. Inna lillahi wa inna ilaihi raji'un.
Great personality. I knew Moulana Syed Yusuf Saheb since my college days in 1969 and I have attended many of his Friday Jumaa sermons (Qutbahs) at Kachi Meman Masjid in Bunder, Mangalore. He used keep a good relationships with youngsters and inspire and encourage them to carry out the noble deeds for the betterment of communities and the society.
May Allah forgive him and accept all his good deeds. May Allah bless him with the bounties of Jannatul Firdous. May Allah give sabr to the grieved family to bear the loss of their dear one.
Innaa Lillahi Wa Innaa Ilaihi Rajivoon. Heartfelt Condolences.
Inna lillahi wa inna ilihi rajiwoon . Alhamdulillah, I am fortunate enough to have met & benefited from both of you. May Almighty bless today's imams/moulana's with wisdom similar to that of Moulana Yusuf saheb.
Allah SWT please accept his service to islam, to mankind, may grant him magfirah and cause him to enter highest level of Jannah. Aameen.
May Allah reward my grandfather with Jannatul Firdaus!!
Alhumdulillah, he has done so much good in his life.
He was one of the most generous and pious people I've ever known.
May Allah give us the guidance like my grand father to follow the righteous path to practice n preach! Indeed he was is n insha Allah vl b a grt personality ! Very soft spoken very humble down to earth personality !! May Allah accept his good deeds his work n forgive his mistakes n save him from fitnah of barzaq n grant him peace in his abode n grant him the glad tidings of jannah !! Ameen !! We will miss our nana dearly
*Inna lillahi wa inna ilaihi raajioun*, may almighty allah bless late moulana syed yusuf saheb,
With jannathul firdouse, aameen. He was one of the rare islamic scholars, with rich bundle & store of knoweldge of deen and duniya, keeping a very low profile and non-controversial & a broad minded humanitarian. Indeed, in his death the muslims of mangalore / d.k.dist / udupi dist, in particular and others in general, are deprived of a high thinking and simple living scholar in this modern era. As holy quran says *kullu nafsin zaayikathul mouth*(every living soul has to taste death)., each & every one of us has to face & taste death, when our living term ends in this world. But in this joureny between life and death, we have to live with our noble living and leave this temporary world to the ever lasting eternal world, with the memory to be cherished with, by the living masses. May almighty allah give strength, patience and forebearance to the family members of late moulana syed yusuf saheb, to bear the bear the brunt of bereavement, aameen. May almighty allah guide & protect all of us, aameen.
Very true brother
Aameen.. absolutely true
Exactly.. absolutely true
Very well said.. absolutely true...
Inna lillahi wa Inna ilaihi raajioon. He certainly was a testament of not just an amazing Muslim but also an amazing human being. he was a man of complete integrity.. he was someone who did not have even an ounce of pride and was an extremely down to earth person.... I consider myself extremely fortunate to have known him so very well and to have learnt all the immense knowledge from him.. he has departed from this dunya but he will remain in our hearts perennially. May Allah grant him jannathul Firdous. Aameen
End of era. No Muslim youth who attended his sermons can go astray. We need scholars like him to educate and enlighten Muslim youth and prevent them from going astray. May allah accept all his deeds and reward him immensely.
يَا أَيَّتُهَا النَّفْسُ الْمُطْمَئِنَّةُ ارْجِعِي إِلَى رَبِّكِ رَاضِيَةً مَرْضِيَّةً فَادْخُلِي فِي عِبَادِي وَادْخُلِي جَنَّتِي
Moulana was great personality. Embodiment of simple living high thinking. Lived upto what he preached. Remained non controversial all his life. Very knowledgeable but extremely humble. His moderate and unique style of delivering khutbah impressed many,including me . He was taking keen interest in current affairs and concerned about global status of ummah. He always motivated me with his superlative appreciation and generous words. Always encourged me to deliver khutbas in his place , whenever I was in Mangalore. May Allah give him highest abode in Jannah
Innalillahi Wa Inna Ilahi Rajivoon. May Allah grant him magfirath and mashrat. I remember Moulavi Saab as a soft spoken, kind hearted,highly knowledable person but with down to earth approach. Moulavi Saab always make it a point to attend " Bearys Welfare Forum "- Abu Dhabi, arranged mass marriages at Mangalore ,and encouraged us to do more to the poor and needy in the society.
My usthad. The one who guided me and helped me to change my life. Inna lillahi va inna ilaihi rajivoon. May allah grant him one of the highest positions in jannah.
Very said. This is a loss not only for Muslim community, but also for all communities in Mangaluru. He was a true religious leader. May his soul rest in peace.
Innalillahi Wa Inna Ilaihi Rajiwoon.
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