New Delhi: In a significant reaffirmation of India’s citizenship-by-birth regime, the Delhi High Court has held that a Tibetan refugee by descent, born in India between 26 January, 1950, and 1 July, 1987, would be an Indian citizen, regardless of refugee registration or possession of foreign travel documents.
The ruling was delivered by Justice Sachin Datta in the case of Yangchen Drakmargyapon, a Tibetan refugee by descent who was born in Dharamshala, Himachal Pradesh, on 15 May, 1966, but migrated to Switzerland in 1997.
The judge directed the Ministry of External Affairs to recognise Drakmargyapon as an Indian citizen and process her application for an Indian passport.
The court found that Drakmargyapon fulfilled all requirements for citizenship by birth under Section 3(1)(a) of the Citizenship Act, 1955, having been born within the statutory 37-year window from 1950 to 1987. The court also recorded that she had neither renounced her Indian citizenship nor acquired the citizenship of any other country.
“It stands conclusively settled that a person is an Indian citizen by birth in terms of Section 3(1)(a) of the Citizenship Act, 1955, if such person was born in India on or after 26 January, 1950, but before 1 July, 1987.”
The central legal issue turned on the interpretation of Section 3(1)(a), which confers automatic Indian citizenship on every person born in India in the specified period. Unlike citizenship by registration or naturalisation, this provision does not require any affirmative act or approval by the government; citizenship accrues by operation of law.
Drakmargyapon was born in Dharamshala in 1966—squarely within the “cut-off” period. The court held that her place and date of birth alone sufficiently established her citizenship and that no subsequent conduct could negate a right that had vested at birth, except for the stringent conditions of statutory renunciation or voluntary acquisition of foreign citizenship.
The central government opposed Drakmargyapon’s plea for a passport, arguing that she had effectively renounced her Indian citizenship.
It relied on the fact that she had registered herself as a Tibetan refugee, held a “Yellow” Identity Certificate declaring her nationality as “Tibetan”, and had lived in Switzerland where she held a “passport for foreigners”.
Justice Datta rejected these objections, clarifying that describing oneself as a “Tibetan national” for the limited purpose of obtaining an Identity Certificate—a travel document issued to stateless persons—did not amount to a legal renunciation of Indian citizenship. The court noted that “nationality” is not a legally recognised category under the Citizenship Act.
It also examined the nature of the Swiss document held by the petitioner, observing that it was a “passport for aliens” issued to non-citizens with residence permits. It did not confer Swiss citizenship and, therefore, did not attract Section 9 of the Citizenship Act, which terminates Indian citizenship only upon the voluntary acquisition of another country’s citizenship.
Also Read: The Great Indian Passport Scam: Labyrinth of fictional identities, expert forgers & pliant system
Petitioner’s background
The judgment detailed Drakmargyapon’s attempt to obtain a foreign passport.
Her application for the same, submitted to the Swiss cantonal migration authority on 4 November, 2020, was rejected by the State Secretariat for Migration (SEM) on 19 April, 2021.
The SEM explicitly cited her Indian birth and stated that she could acquire Indian citizenship under the Citizenship Act, 1955. It was only after receiving this decision, the court recorded, that the petitioner became aware of her legal entitlement to Indian citizenship.
Following this, she approached the Indian Consulate on 1 May, 2021 for renewal of her family’s Identity Certificates, which was rejected. She then addressed a detailed letter to the Consul General of India on 21 May, 2021, handed over in person on 25 May, 2021, to a consular official, requesting either an Indian passport or an Identity Certificate. While she was verbally informed that her request had been rejected, no written decision or reasons were ever provided.
With no alternative remedy available, the petitioner applied for recognition as a stateless person on 21 August, 2023, but this application was also rejected by the Swiss authorities.
Before the HC, the Ministry of External Affairs argued that Tibetan refugees and their children born in India who register as refugees and obtain Identity Certificates by declaring their nationality as Tibetan amounts to having voluntarily renounced Indian citizenship under Section 9(1) of the Act, and can, therefore, only obtain citizenship by naturalisation or registration.
The court rejected this interpretation, emphasising that statutory citizenship cannot be extinguished by administrative assumptions or internal ministerial meetings.
Landmark precedent
In reaching its conclusion, the court relied heavily on the landmark 2010 judgment in Namgyal Dolkar vs Government of India, which involved nearly identical facts.
That ruling held that compliance with refugee documentation requirements does not amount to renunciation of citizenship and that holding an Identity Certificate is a matter of survival, not choice.
Justice Datta reaffirmed that the legal position for Tibetan refugees born between 1950 and 1987 is “conclusively settled”.
Laying bare the human struggle for citizenship, after the death of her husband, a former representative of the Tibetan government-in-exile, Drakmargyapon and her children were left stranded in Switzerland without valid travel documents. Unable to return to India to perform his final rites, the family’s ordeal ultimately led to the present litigation.
The HC has now directed the Ministry of External Affairs to treat the petitioner as an Indian citizen by birth and process her passport accordingly.
(Edited by Nida Fatima Siddiqui)