The ministry of external affairs says that a passport issued to a person by the Republic of India is only a travel document, not a proof of citizenship. That it is also a travel document is not in doubt. Neither Aadhaar, nor an Elector’s Photo Identity Card (EPIC) or, for that matter, a birth certificate—all issued by statutory authorities—provides proof of the holder’s citizenship.
Clearly, no document issued by the government of India or a statutory authority can be considered to be proof of a person’s citizenship. There are two aspects of this matter that need our attention.
First, nothing stated in a document is proof of a fact stated therein. Such facts, when challenged, have to be proved through evidence, either direct or circumstantial, before a statutory authority or a court of law. That is a fundamental principle of law.
However, there is a presumption in law that the statements of fact found in each of such documents are true unless proved otherwise. The burden of doing so is on the person challenging the authenticity of such facts. Absent that, the facts stated in these documents will be deemed to be true.
However, a passport issued by the Republic of India is of special significance. It is never issued unless the person is a citizen of India. Issuance of a passport involves an elaborate investigative procedure that is required to be followed. The authorities are required to confirm the veracity of facts stated in the application including the applicant’s date and place of birth.
Such a travel document, once issued, is recognised by other member States of multilateral organisations as a valid document. The document itself reflects the fact that such a person is a citizen of India based on which the immigration authorities of member States allow entry to such a person. There are several countries in the world which allow entry to an Indian passport holder even without a visa. This dispensation is solely based on the statutory presumption that the person to whom the document is issued is a citizen of India. For the MEA to say that a passport is only a travel document is playing truant with the law.
Such a statutory presumption can certainly be rebutted. The person who seeks to rebut that presumption may be a third person or the authority itself which issued the passport, on the basis of perhaps a fresh discovery of facts or for multifarious other reasons. It is in that context that the facts will have to be established to either confirm that the person is a citizen of India and holds a valid passport, or that the passport be revoked for the authority then to decide upon the legal status of the person.
The statutory presumption arising from a person holding an Indian passport is also significant in the context of the many rights a citizen enjoys in the Republic of India, including those guaranteed under Part III (fundamental rights) and Part IV (directive principles of state policy) of the Constitution. Such a person is also entitled to benefits available under several schemes, both of the Union government and of the state in which the individual resides. The same should hold true of any such document, like Aadhaar or EPIC, issued by any other statutory authority under a law made by Parliament.
The debate should not be centred on the fact that a person holding an Aadhaar card or a passport is not a citizen of India. In fact, he or she is presumed to be a citizen of India unless it is rebutted through a process of law.
A matter of fundamental rights
There is another aspect that needs attention. The Indian Constitution does not permit dual citizenship. A person acquiring the citizenship of another country will lose his or her status as a citizen of India, and such a person’s passport will be revoked forthwith. Such a consequence proves that a passport is not merely a travel document but also proof of citizenship.
Our laws recognise various ways in which a person is presumed to be a citizen of India: by birth, descent, registration, naturalisation and incorporation of territories. By virtue of all such modes, a person is entitled to the status of a citizen and, consequently, to a passport.
In the recent elections in Bihar, Tamil Nadu, West Bengal and Kerala, the Supreme Court, while adjudicating a related matter, committed the gravest of legal errors by allowing a booth level officer to deprive a person of his right to vote by doubting his citizenship even in the absence of a lawful rebuttal, thereby taking away the statutory presumption attached to such documents. Lakhs of such persons were deprived of their franchise without the statutory presumption being rebutted.
I believe the entire process of election in West Bengal stood vitiated.
It is sad that the Supreme Court gave credence to such a procedure, which indirectly helped the ruling party. This is not just an error of law, but an error that changes political equations and allows for an uneven playing field. The Chief Justice of India has, in a recent speech, rightly said that when true equality is absent, the law disproportionately advantages more powerful entities.
It is important also to understand that the right to vote is a statutory right. But if a document on the basis of which the right is claimed attaches with it a statutory presumption, then a violation of that right is a violation of the principle of equality, which is a fundamental right.
A person holding the same statutory document and entitled to the same statutory presumption is allowed to vote while another such person is deprived of that right, which is fundamental, once the statutory presumption is not rebutted.
I do believe that this unnecessary controversy has been raised at a time when the ruling dispensation is mired in allegations of corruption—from the alleged misappropriation of temple funds to the acquisition of real estate by the family of a Chief Minister.
The future of India is at stake. I hope the Supreme Court realises this in the days ahead.
Kapil Sibal | Senior lawyer and member of Rajya Sabha
(Views are personal)
(On X @KapilSibal)
