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12 May 2017

IND105798.E

India: The Delhi High Court decision of 22 September 2016, on the rights of Tibetans to citizenship and access to passports, including implementation (August 2016-April 2017)

Research Directorate, Immigration and Refugee Board of Canada, Ottawa

1. Delhi High Court Decision

According to sources, on 22 September 2016, the Delhi High Court delivered a judgement stating that "the nationality of Tibetans born in India between 1950 and 1987 cannot be questioned under the Citizenship Act" in response to petitions filed by three Tibetans born in India: Lobsang Wangyal born in 1970, Lobsand [Lobsang, Phuntsok] Wangyal born in 1977 and Tenzin Dhonden born in 1992, who had attempted to apply for Indian passports (IANS 23 Sept. 2016; Hindustan Times 22 Sept. 2016). The Times of India, an English-language daily newspaper in India, indicates that although Dhonden was born after 1987, "he was still eligible since his father was born in India" (The Times of India 23 Sept. 2016). The same source reports that the petitioners went to court after they were told by the government that they required a certificate confirming their nationality before they could apply for passports, despite "holding other proofs of Indian citizenship including Voter identification [cards]" (The Times of India 23 Sept. 2016). Indo-Asian News Service (IANS), a news wire service focusing on India and South Asia (IANS n.d.), similarly reports that the petitioners were "asked to apply for, and receive, a citizenship certificate from the Ministry of Home Affairs" before a passport could be issued (IANS 23 Sept. 2016). A copy of the 22 September 2016 Delhi High Court ruling in Phuntsok Wangyal v. Ministry of External Affairs & Others + Lobsang Wangyal v. Union of India & Others + Tenzin Dhonden v. Union of India & Others is attached to this Response.

The Indian Express, an English-language daily newspaper based in New Delhi, reports that prior to the 22 September 2016 ruling, the Ministry of Home Affairs (MHA) "had required persons of Tibetan descent to 'confirm citizenship' through application to the ministry before they could be issued a passport," and the ruling "quashed" this requirement (Indian Express 23 Sept. 2016). Similarly, the Times of India notes that the ruling "quashed" an MHA circular "that made it mandatory for Tibetans born between 1950-1987 to get their nationality cleared by the government before seeking travel documents" (The Times of India 23 Sept. 2016).

Media sources further report that the Delhi High Court ruling ordered the Indian government to treat all Tibetans who meet the criteria for being Indian citizens by birth as Indian nationals and to issue them Indian passports (Hindustan Times 22 Sept. 2016; Live Law 2 Oct. 2016; Tibetan Journal 23 Sept. 2016). The Indian Express further indicates that the High Court directed the Ministry of External Affairs (MEA) to issue the three petitioners passports within four weeks of the ruling (Indian Express 23 Sept. 2016).

2. Implementation of Ruling

Media sources report that Lobsang Wangyal filed a petition for contempt of court in February 2017 (The Tribune 17 Mar. 2017; Tibet Express 17 Mar. 2017; Hindustan Times 31 Mar. 2017), after he was denied a passport despite High Court orders (Hindustan Times 31 Mar. 2017). The Times of India notes that the contempt petition was filed against "the government of India and police officials of Himachal Pradesh" (The Times of India 19 Feb. 2017).

The Tribune, a daily newspaper published in Chandigarh (The Tribune n.d.), reports that Lobsang Wangyal held a press conference in March 2017 in which he stated that the petition for contempt of court filed in February 2017 was "resolved later that month" (The Tribune 17 Mar. 2017). Media sources further report that Lobsang Wangyal obtained his passport in March 2017 (The Tribune 17 Mar. 2017; Tibet Express 17 Mar. 2017). Information on whether Phuntsok Wangyal and Tenzin Dhonden obtained passports following the 22 September 2016 ruling could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

In an April 2017 article, the Times of India reported that the MEA notified Delhi High Court justice Sanjeev Sachdeva of its acceptance of the High Court ruling and issued a new policy in March 2017 to "all passport offices in India and abroad to process pending applications of Tibetan Refugee applicants born in India between 26/01/1950 to 01/07/1987 for the issue of passports, and treat them as Indian citizens by birth" (The Times of India 18 Apr. 2017). Similarly, the Hindustan Times, a daily English-language newspaper based in India, reports that, in a circular on 17 March 2017, the MEA "directed all Regional Passport Offices (RPOs) to issue passports to Tibetans born in India between 1950 and 1987" (Hindustan Times 31 Mar. 2017). The same source further quotes the circular as stating that "Tibetans born after July 1, 1987, either of whose parents is a citizen of India at the time of birth are also entitled to the same right as per the Indian Citizenship Act of 1955" (Hindustan Times 31 Mar. 2017). Information on the implementation of the MEA policy could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

References

Hindustan Times. 31 March 2017. Naresh K. Thakur. "External Affairs Ministry Directs to Issue Passports to Eligible Tibetans." (Factiva)

Hindustan Times. 22 September 2016. Solbam Rocky Singh. "Delhi HC Rules That Tibetans Born Between 1950-87 in India Are Indian Citizens." [Accessed 21 Apr. 2017]

Indo-Asian News Service (IANS). 23 September 2016. "Issue Passports to Tibetans Born in India: High Court." [Accessed 21 Apr. 2017]

Indo-Asian News Service (IANS). N.d. "About Us." [Accessed 27 Apr. 2017]

Indian Express. 23 September 2016. "Citizenship: Delhi High Court Relief for Persons of Tibetan Origin." [Accessed 21 Apr. 2017]

Live Law. 2 October 2016. Apoorva Mandhani. "Tibetans Born in India Between 1950 and 1987 Are Indian Citizens: Delhi HC [Read Judgment]." [Accessed 21 Apr. 2017]

Tibet Express. 17 March 2017. Lobsang Tenchoe. "Miss Tibet Organizer Lobsang Wangyal Obtains Indian Passport, Says I Am Tibetan-Indian Now." [Accessed 21 Apr. 2017]

Tibetan Journal. 23 September 2016. Yeshi Paljor. "Give Tibetans Indian Passport: Court Orders Not to Question Nationality." [Accessed 21 Apr. 2017]

The Times of India. 18 April 2017. "Tibetan Refugees to Get Indian Passports." [Accessed 21 Apr. 2017]

The Times of India. 19 February 2017. "Tibetan Files Contempt Case for Not Getting Passport." [Accessed 21 Apr. 2017]

The Times of India. 23 September 2016. Abhinav Garg. "Delhi HC to Centre: Treat Tibetans Born in India as Citizens." (Factiva)

The Tribune. 17 March 2017. "Finally, Tibetan Showman Gets Indian Passport." [Accessed 21 Apr. 2017]

The Tribune. N.d. "About Us." [Accessed 27 Apr. 2017]

Additional Sources Consulted

Internet sites, including: Amnesty International; BBC; Central Tibetan Administration; ecoi.net; Factiva; Fédération internationale des ligues des droits de l’Homme; The Guardian; Human Rights Watch; India – Gazette, Ministry of External Affairs, Passport Seva; Tibetan Legal Association; Reuters; United States – Department of State.

Attachment

India. 22 September 2016. High Court of Delhi at New Delhi. Phuntsok Wangyal v. Ministry of External Affairs & Others + Lobsang Wangyal v. Union of India & Others + Tenzin Dhonden v. Union of India & Others. W.P.(C) No. 3539/2016+ W.P. (C) 4275/2016 + W.P.(C) 7983/2016. [Accessed 21 Apr. 2017]