J U D G M E N T
These batch of writ petitions are related to the correction of date of birth in the passport. The issue in these writ petitions is arising out in the context of Office Memorandum produced as Ext.P6 in W.P(C) No. 599/2016 issued by the Ministry of External Affairs (CPV Division) dated 26.11.2015.
2. The passport authority, pursuant to the direction of this Court in W.P(C) No. 9073 of 2015, issued the aforesaid Office Memorandum. By the aforesaid OM, the passport authority streamlined the procedure for entertaining the correction of date of birth in the passport. The relevant guidelines are as follows:
"(i) Where an applicant claims clerical/ technical mistake in the entry relating to birth/ place of birth in the passport and asks for rectification/ correction:
In all such cases, the documents produced earlier as proof
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of date of birth/ place of birh at the time of issue of passport may be perused (if not already destroyed) by PIA. In case, it is a clerical mistake either by the applicant or the PIA, date/ place of birth correction may be allowed by issue of fresh booklet; in the former case by charging fee for fresh passport and in the latter 'gratis' (same as mentioned in Ministry's Circular No.VI/401/2/5/2001, dated 29-10-2007).
(ii) If an applicant applies for the change of date of birth in the passport within a reasonable period of time i.e. within a span of five (5) years from the date of issue of passport having the alleged wrong date of birth, with the birth certificate issued by the Registrar of Births & Deaths stating that the date of birth recorded in the passport was based on the entries mentioned documents other than the Birth Certificate, the request of such an applicant irrespective of the difference in the dates of birth, may be considered by the Passport Issuing Authority. However, before the issuance of passport with changed date of birth, the Passport Authority shall also levy appropriate penalty on the applicant for obtaining passport on previous occasion by providing wrong information regarding his/ her date of birth.
(iii) The cases where the applicant comes to PIA for change/ correction with regard to date of birth in the Passport after a period of five years from the date of issue of passport with alleged wrong date of birth, no such request shall be entertained/ accepted by the PIA and be rejected out rightly."
3. As seen from the above directions, the outer limit to make correction is within a span of 5 years from the date of issuance of passport. These writ petitions are filed by the persons who are holding passport prior to 5 years after the OM came into force. The OM came into force with effect from
26.11.2015.
4. This Court on 18.1.2016, passed following order:
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"No doubt, plausible measures have been taken by the Government of India by fixing the outer time limit of five years. Therefore, those who are vigilant enough alone can correct the entry relating to date of birth in the passport. It is to be noted that, there are many passport holders, who have obtained passport without production of birth certificate. They have obtained passport based on the school certificate or other credible documents. The proof of date of birth with birth certificate issued by the Registrar of Births and Deaths has become mandatory after 26.1.1989. The sudden change of law, therefore, will cause undue hardship to the persons, who have obtained passport based on school records and other relevant documents. The petitioner submits that he came to know about the mistake in date of birth in passport very recently. It is stated by the learned counsel for the petitioner that the petitioner intend to go to Australia and for the said purpose he had obtained a birth certificate from the local authority. It is only when he got the birth certificate, he realized the mistake in date of birth. There may be many instances of similar nature in approaching the passport authorities.
Until 25.11.2015, if the difference of age is less than two years, passport authority was having the power to correct the date of birth. If the difference is more than two years, order from the civil court also has to be produced.
Based on the direction of this court in Union Of India v. Sunil Kumar . (2015 (3) K.L.T. 501) many have approached civil court and suits are pending before the civil court. Therefore, in such situation, a transitory period can be fixed as a one time measure. It is for the Government to fix such transitory period to work out genuine grievances of those passport holders, who have obtained passport without submitting birth certificate from the Registrar of Births and Deaths.
This court is of the view that, appropriate decision shall be taken by the Government of India to enable those passport holders, who have obtained passport, based on other certificates, other than the birth certificate, to apply for correction within such time Government of India fixes. This is to enable such passport holders to work out their grievance within the time granted by the Government. The 1strespondent shall take appropriate decision in the matter."
5. Thereafter, counter affidavit has been filed on behalf of the respondents 1 and 2 in W.P(C) No.599/2016. In the
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counter, para 5 it is stated as follows:
"5. The respondents would like to bring to the notice of this Hon'ble court the following aspects.
i. Numerous applications are being filed before the 2nd respondent wherein Date of Birth correction is sought and the difference varies from 3 to 10 years from the Date of Birth as shown in the passport. None of the applicants are able to clarify to the authorities the circumstance under which they are seeking correction of Date of Birth, how a wrong entry with regard to Date of Birth occurred in the passport, what was the document produced by the applicant before the passport authorities while submitting application for passport at the first time etc. In the absence of any genuine explanation it has to be presumed that the applicants had played fraud on the authorities while obtaining the passport initially. So such applicants do not deserve any lenient approach from the authorities.
ii. Passport issued by the Central Government is considered as one of the document of identity/ prima facie evidence of nationality. The details furnished in the passport are acted upon by the agency/ person of the outside country in which he/ she travels and resides as the authenticated details of his existence as a citizen of his/her country of origin. Being so, after using the passport for a long period when a person seeks change of entry in the passport regarding his date of birth, that will affect the very sanctity of the passport.
iii. Any relaxation in the matter of change/ correction of entries in the passport will affect the integrity of the Indian Passport issuance system, undermining of which will lower confidence on Indian Passport system among foreign governments and forece them to impose visa and stay restrictions on entire population of India.
iv. Now a days, the passport issuance by the Indian Government is in accordance with International Civil Aviation Agreement 1944 to which Government of India is a signatory and in compliance with the regulations stipulated by International Civil Aviation Organisation (ICAO), Montreal. ICAO's Traveler Identification Programme (TRIP) emphasizes integrity of civil registries that issue identity documents which are the basis for issue of passport and lack of strict compliance in issue of important documents such as birth certificates by the Indian Local
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Authorities, would affect the integrity of Indian Passport Issuance System.
v. It is submitted that the applicant with his current passport may have already travelled abroad and his personal particulars including Date of Birth are registered with foreign government/ foreign employees. So any correction/ change of entries in the passport will create uncertainty on the part foreign authority/ employer about the veracity of the personal particulars of the applicant and may lead to denial of visa etc."
6. In the counter affidavit it is further stated in para 8 and 9 as follows:
"8. In the case on hand, the respondents have no objection in correction the date of birth, the difference in the date of birth as shown in the passport and claimed to be correct by the petitioner being only 1 year and also for the reason that the applicant has not put the passport in use. But as a matter of policy, the Government in pursuance of the decision of this Hon'ble Court in WP(C) No.9073/2015 has decided not to entertain any application seeking correction of Date of Birth, if the same is made beyond the period of 5 years from the date of issue. Ext.P6 OM is the result of such policy decision taken by the Central Government.
9. It is submitted that any application for correction of date of birth entry in the passport after issuance of Ext.P6 OM can be considered only in terms of the above OM and no relaxation in the policy decision taken by the Central Government is warranted in the aforesaid facts and circumstances."
7. As seen from the aforesaid counter affidavit filed as above, the Central Government is not prepared to relax OM by providing one time measure to the persons who are holding passport 5 years prior to date of OM. This is a general stand
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taken by the Central Government in the counter.
8. However, it is further seen from the counter that if there is any genuine explanation and there is no fraud committed on the passport authority, the Central Government seems to have no objection in permitting the passport authority to consider such request, by case to case. This is how in the counter filed in the W.P(C) No. 599/2016 Central Government stated that they have no objection in correcting the date of birth of the passport of the writ petitioner therein even though he was the holder of the passport prior to 5 years date of issuance of OM. Therefore the OM has to be understood in the context of the stand taken by the Central Government in W.P(C) No. 599/2016. If there is any genuine explanation made by the parties exceptionally the passport authority may entertain such application based on the merit of such explanation. It is to be noted citizen's right to seek a remedy for redressal of grievances cannot be shut down in a constitutionally governed state even in the absence of any guidelines. Such right is inherently available
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with every citizen and can be claimed as human right.
8. It is to be noted, some of the writ petitioners have approached the civil court and obtained a decree. This Court is of the view that if there is a binding decree as against the passport authority, the same shall also be honoured notwithstanding the directions in the OM. Accordingly, these writ petitions are disposed of with following directions.
i. The passport authority shall consider the explanation of each of the writ petitioner to find genuineness of this claim.
ii. If it is made clear the passport authority need not entertain any application in routine manner for correction of date of birth unless such application is filed along with an explanation explaining the delay in approaching the passport authority. If such application is filed, the passport authority shall consider the same and take appropriate decision in the light of the stand taken by the Central Government in W.P(C) No. 599/2016.
iii. It is made clear that these directions need not be
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construed as a direction to relax the directions in OM, but only to allievate the genuine grievances of the holder of the passport to have a redressal and need be construed as direction upholding the right to have access to justice.
iv. However the passport authority shall entertain all applications for correction of date of birth if such holder of the passport produce the civil court decree filed in suit initiated prior to issuance of OM dated 26.11.2015, wherein a direction is given to the passport authority to correct the date of birth notwithstanding the directions in OM.
v. If any application has been filed for correction prior to issuance of OM, the same shall be considered in accordance with the relevant regulations prevailing prior to the date of OM. The writ petition is disposed of, as above.
sd/-
sab A.MUHAMED MUSTAQUE, JUDGE
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