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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Ms. Shraddha Sheth for Petitioner(s): 1,
  • Mr. Dipak C Raval for Respondent(s): 1,
  • Mr. Mihir Thakor, LD. Senior Counsel Appearing as Amicus Curiae Mr. Rakesh R Patel for Respondent(s): 2,
  • Notice Served by DS for Respondent(s): 3,
  • Mr. Anshin H Desai for Respondent(s): 3,
  • Mr. Ansin Desai, for Mr. Harin P Raval for Respondent(s): 4,
  • Government Pleader for Respondent(s): 5,
  • DS Aff. not Filed (N) for Respondent(s): 6,
  • Mr. Tejas M Barot for Respondent(s): 6,
Judges
  • C.K Buch, J.
Acts
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Ms. Shraddha Sheth for Petitioner(s): 1,
  • Mr. Dipak C Raval for Respondent(s): 1,
  • Mr. Mihir Thakor, LD. Senior Counsel Appearing as Amicus Curiae Mr. Rakesh R Patel for Respondent(s): 2,
  • Notice Served by DS for Respondent(s): 3,
  • Mr. Anshin H Desai for Respondent(s): 3,
  • Mr. Ansin Desai, for Mr. Harin P Raval for Respondent(s): 4,
  • Government Pleader for Respondent(s): 5,
  • DS Aff. not Filed (N) for Respondent(s): 6,
  • Mr. Tejas M Barot for Respondent(s): 6,
Judges
  • C.K Buch, J.
Acts
See more information ...
Smart Summary

Factual and Procedural Background

This opinion addresses an application concerning the issuance and surrender of passports and travel documents for two minor babies born through surrogacy. The Union of India insisted that the minors had not been conferred Indian citizenship, necessitating the surrender of passports issued by virtue of an earlier court order. The petitioner agreed to surrender the passports to the Regional Passport Authority, Ahmedabad, and to apply for Certificates of Identity to enable travel without conferring citizenship. The Court had earlier conferred guardianship and custody of the minors to the petitioner in Civil Application No. 5575 of 2009. The matter involves coordination with the Ministry of External Affairs and consideration of administrative procedures for issuing travel documents that do not confer citizenship.

Legal Issues Presented

  1. Whether passports issued to minor babies born through surrogacy, who have not been conferred Indian citizenship, must be surrendered.
  2. Whether Certificates of Identity can be issued to such minors to facilitate their travel out of India without conferring citizenship.
  3. How the Regional Passport Authority should administratively handle the issuance of Certificates of Identity, including the treatment of the mother's name in such documents.
  4. The extent of the Court’s powers under Article 226 of the Constitution of India to direct the Union of India in this matter.

Arguments of the Parties

Union of India

  • Insisted that the minor babies have not been conferred Indian citizenship and thus passports issued must be surrendered.
  • Asserted that travel documents such as Certificates of Identity do not entail citizenship.
  • Indicated that there is no existing law governing the grant of passports to children born to surrogate mothers.
  • Suggested that the Regional Passport Office issue Certificates of Identity instead of passports, with the surrogate mother’s consent regarding the mother’s name on the certificate.

Petitioner

  • Agreed to surrender the passports of the minor babies within 72 hours to the Regional Passport Authority, Ahmedabad.
  • Committed to applying for Certificates of Identity to enable the minors to travel with him.
  • Provided information about the minors’ current residence in India and his valid visa status permitting stay until July 2009.
  • Requested the Court to consider the issuance of Certificates of Identity in his capacity as father and guardian, following the Court’s earlier conferral of guardianship.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Baby Manji Yamada v. Union of India, AIR 2009 SC 84 Consideration of the rights of children born through surrogacy under Article 32 of the Constitution of India. The Court referenced the Apex Court’s handling of similar facts and noted that while the Supreme Court dealt with constitutional rights under Article 32, this Court was exercising powers under Article 226 to issue directions to the Union of India regarding travel documents.

Court's Reasoning and Analysis

The Court recognized the Union of India's position that the minor babies had not been conferred citizenship and that passports issued were therefore improper. It accepted the petitioner’s undertaking to surrender the passports and to apply for Certificates of Identity, which the Ministry of External Affairs clarified do not confer citizenship. The Court emphasized the administrative nature of issuing such certificates and directed the Regional Passport Authority to obtain appropriate orders from the highest authority before issuance. In light of the Court’s earlier conferral of guardianship to the petitioner, the identity certificates were to be issued in his name as the guardian. The Court also considered the treatment of the mother’s name on the travel documents, noting that it may be left blank as was done in a similar case (Baby Manji Yamada), and recommended expeditious processing of the matter. The Court distinguished its exercise of powers under Article 226 from the Supreme Court’s under Article 32, focusing on internal administrative directions rather than constitutional adjudication.

Holding and Implications

DISPOSED OF with directions.

The Court directed that the passports of the minor babies be surrendered within 72 hours and that the petitioner apply for Certificates of Identity, which shall be issued by the Regional Passport Authority after obtaining necessary approvals. The certificates are to be issued in the petitioner’s capacity as guardian, facilitating travel without conferring citizenship. The Court’s decision ensures compliance with the Union of India’s stance on citizenship and travel documents for children born through surrogacy, while safeguarding the petitioner’s custodial rights. No new legal precedent was established; the ruling primarily provides procedural and administrative guidance in the context of existing constitutional provisions and prior Supreme Court authority.

Show full summary ...

    Jan Balaz Petitioner(S) v. Anand Municipality & 5 (S)

    ORAL ORDER

    1. Having considered the earlier orders passed by this Court and one order passed by this Court today in Civil Application No. 5575 of 2009 preferred by the original petitioner, it is necessary to pass further orders as it has been insisted by the Union of India that both minor babies have not been conferred citizenship of India and therefore passports issued on account of the order passed by the Court requires to be surrendered.

    2. The petitioner shall surrender the passports to the Regional Passport Authority, Ahmedabad, more particularly, in compliance of the undertaking given to the Court in the background of the earlier order passed by the Court in Civil Application No. 6046 of 2008 on 13/05/2008. The petitioner further submits that he shall surrender the passports of both the minor babies who are at present in India at the address mentioned in the Civil Application No. 5575 of 2009.

    2.1 In view of the above submission, the passports of both minor babies shall surrender within 72 hours to the Regional Passport Authority, Ahmedabad and the petitioner shall apply for issuance of Certificates of Identity which can help both the minor babies to travel out of India alongwith petitioner, as according to Mr. Desai, granting of certificate of identity does not entail citizenship. This instruction has been received by Mr. Desai from the Ministry of External Affairs, Government of India and these facts are also mentioned in the affidavit filed in Civil Application No. 6791 of 2008. It would be beneficial to reproduce herein relevant paragraph 5 of the reply affidavit filed by one Mr. Gajanan Atmaram Sane, Assistant Passport Officer, in Civil Application No. 6719 of 2008.

    “5. I state and submit that the present case was referred to the Ministry of External Affairs by the office of the answering deponent and the Ministry has directed the office of the answering deponent to issue identity certificates instead of the passports and therefore, the passports are required to be surrendered and identity certificates will be issued for the purpose of permitting the twin kids to travel. The said process will be done as expeditiously as possible and as soon as the passports are surrendered. The Ministry of External Affairs have issued a communication to the office of the answering deponent stating in clear terms that there does not seem to be any law governing grant of passports to children born to surrogate mothers, and that, the Regional Passport Office can consider granting of identity certificates which does not entail citizenship, to the children showing the name of surrogate mother as requested by the petitioner, provided the surrogate mother has no objection, to enable the children to travel to Germany and U.K with the biological parents. It is also stated by the Ministry of External Affairs that though the German Embassy/Consulate has been communicated of the facts, but no response has been received from them.”

    3. On receipt of such application, the Regional Passport Authority, Ahmedabad shall see that appropriate orders from the Highest Authority is to be obtained and the certificates of identity as contemplated under the statute is to be issued in the name of the petitioner.

    4. It is possible for the petitioner to mention the name of the countries where the petitioner intends to go with both the minor babies. Today this Court has conferred guardianship/entitlement to have custody of both minor babies while disposing Civil Application No. 5575 of 2009. So, the identity certificate can be handed over to the petitioner in capacity of father and guardian/person responsible for the welfare of minor babies.

    5. The petitioner is in India and it is submitted that he has VISA, Valid Permission to stay in India upto July, 2009 and therefore it would be necessary for the concerned authority of Government of India to see that the matter can be expedited and both the minor babies can travel with the petitioner-father.

    6. In case of Baby Manji Yamada v. Union of India (UOI), reported in AIR 2009 SC 84, mostly similar facts were before the Hon'ble Apex Court. Of course, the Hon'ble Apex Court was dealing with the petition moved under Article 32 of the Constitution of India, more particularly, in reference to right of child.

    7. Here, the case before this Court is bit different and in exercise of powers vested with the Court under Article 226 of the Constitution of India, certain directions can be given to the Union of India being party internal proceeding. It is, therefore, directed that while dealing with the application preferred by the applicant to grant certificate of identity, the authority may consider as to whether the columns in respect of name of mother in the certificate of identity that may be issued to the applicant, requires to be kept blank or not. Because, it is the say of Union of India that travel document does not entail the citizenship. It appears that the Hon'ble Apex Court had dealt with the entire issue as to how the same be relevant administratively while disposing the case of Baby Manji (Supra).

    8. Today, one press cutting of ‘The Telegraph’ Calcutta Edition, Saturday, October 18, 2008 is shown to the Court by learned Advocate for the petitioner which says that Union of India had issued certificate of identity valid only for Japan and the mother's name and nationality has been left blank. Normally, the Court will not rely on such press cutting especially while passing legal orders and therefore while deciding such application, it is possible for the concerned authority of Department to ascertain as to whether such decision was taken or not and therefore the Court is of the view that the authority may look into the matter and if possible the column in respect of name of mother as well as nationality may be kept blank, if the same has been done by the Department in case of Manji (Supra). Though advocate for Union of India has stated that he has no instructions as regards the identity certificate issued in the case of Manji (Supra) and the contents of the said certificate.

    9. The Court expects that expeditious decision can be taken so that the certificate of identity can be issued to the applicant-father of both the minor babies Nikolas Balaz and Leonard Balaz. Order and Direction accordingly.

    10. Registry shall now list this petition for final disposal after reopening of the vacation.

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    Comments

    Jan Balaz Petitioner(S) v. Anand Municipality & 5 (S)
    (May 13, 2009)