GURGAON, India, 1 November 2017
“It’s easy to get a decree, but very hard to get it enforced”, I was told recently by my senior, a seasoned lawyer. And he is, of course, right. In India, we live by the rule of law. We take great pride in our strong and independent judiciary. And then, with great disregard for the law and the judicial pronouncements, we do whatsoever we please. The battle for Indian Passport for Tibetans has become a classic example of this habitual Indian scorn for the law.
In this case, the law (Section 3(1)(a) of The Citizenship Act, 1955) clearly states that anyone born in India between 26 January 1950 and 1 July 1987 is a citizen of India by birth. It does not matter whether one/both of your parents are, or are not, citizens of India. It does not matter whether they came to India with the Dalai Lama in 1959 or later. It does not matter what is the “nationality” mentioned on your Identity Certificate (the “Yellow Book”). If you were born on Indian soil between 26 January 1950 and 1 July 1987, you are a citizen of India by birth. Period.
The Delhi High Court upheld this interpretation in the case of Namgyal Dolkar in 2010. In September 2016, the Hon’ble Court reiterated the same in Lobsang Wangyal vs Union of India and two similar writs, ordering the Ministry of External Affairs to issue Indian passports to the petitioners.
But it wasn’t going to be that easy. The Executive is, perhaps, the most creative pillar of the Indian democracy. And this creativity has been on full display in the new and unique obstacles facing the Indians of Tibetan descent applying for a passport. To appreciate the extent of how busy our Executive has been finding ways to not execute the High Court’s order, let’s have a look at some of their best ideas so far:
- Soon after the decision in 2016, there were instances of adverse reports by Police who had to verify the applicants for the RPO concerned. Mr Lobsang ་Wangyal, one of the victims of such harassment, successfully challenged it in court. Up until a notice issued by the Ministry of External Affairs in March 2017 to all RPOs, these cases of arbitrary adverse reports by the police continued unabated.
- In mid-2017, a Tibetan’s passport was revoked on what the Delhi High Court later held to be “illusory grounds”, which included concealing his parents’ Tibetan origin.
- The Bengaluru RPO in June 2017 issued a letter listing conditions for a Tibetan seeking an Indian passport. One of these conditions is that the applicant should not be residing in a Tibetan settlement. Of course, the letter is ultra vires, being violative of the Right to Equality, but isn’t it also so very smart in its effectiveness? Considering most Tibetans live in the 71 settlements and cluster units across India, this condition, until it’s challenged in Court, forms a formidable bar for most passport applicants.
All these tactics, coupled with Tibetan settlement officers not issuing NOCs to passport applicants, as well as CTA’s response to the Bengaluru RPO’s letter, may have made applying for an Indian passport seem somewhat unpalatable for the average Tibetan.
Enter the saviours.
The Ministry of Home Affairs and the Ministry of External Affairs. (Who else?!)
By making life so easy — why apply for an Indian passport when it just got simpler than ever before to travel on the Tibetan Identity Certificate.
That’s right — soon, there might be no more exit permits. No more visiting the FRO for a permit to exit India each time you want to travel abroad. A Tibetan friend, who has applied for the Indian passport, when he heard this news said, “Now they are talking. The exit permit and return visa procedures are so annoying. If they had done this before, I wouldn’t have applied for a passport.”
Maybe this is exactly what the Indian government wants. Making it easier to travel on the IC while making it harder to get the passport, might just be a brilliant way to have convenience overshadow the fight for rights.
But — passport, is citizenship, is rights and security
Because the passport is not just an easier means of travelling abroad. The passport is a proof of citizenship — it is your right as a citizen of India. It does not change your Tibetan ethnicity, but it does give you rights to keep Tibet alive here, in India, where you are. The Constitution of India lays down Fundamental Rights, some of which are available only to citizens of India — like the Right to freedom of speech and expression (Article 19(a)), the Right to assemble peacefully and without arms (Article 19(b)), the Right to preserve language, script, culture (Article 29), plus other rights including the right to buy and own property in India.
All of these would benefit not just the holder but the Tibetan community in India as a whole. Furthermore, the Indian passport is not just the proof of the holder’s citizenship but the doorway to citizenship, rights, and security for the holder’s children and their children too.
Of course, the scrapping of the exit permit is excellent news for those Tibetans who do not fit the criteria, or are otherwise unwilling to apply for the Indian citizenship. Even so, one can’t help but be wary of the timing of this otherwise grand gesture on the part of the Indian government.
Given the executive hurdles and the social pressure already facing Tibetans applying for an Indian passport, this just might convince some to maintain the status quo and settle for the Identity Certificate instead.
Roger Nash Baldwin (founder of the American Civil Liberties Union) said, “So long as we have enough people in this country willing to fight for their rights, we’ll be called a democracy.”
Not just for the sake of Tibetans who will be born in India, but also for the sake of India itself — it is important that no compromise is made on this issue.
About the author
Anshdeep Kaur is a student of Human Rights and Refugee Rights, currently pursuing LLB from the University of Delhi. She can be reached at [email protected]