Friday, September 2, 2016
Indian Citizenship Order 1962 By A Pereira
After the conquest of Goa, the Government of India passed the Citizenship Order, 1962, which declared that all persons born prior to liberation in Goa, shall be deemed to be Indian citizens, unless they make a declaration that they wish to retain their earlier citizenship or nationality. Goans who didn’t make such declaration were deemed to be Indian Nationals. However, despite the Citizenship Order, the Government of Portugal permitted persons born in their erstwhile Estado de India, and their descendants, to inscribe their births in Portugal and obtain Portuguese nationality. There is a lot of confusion about whether this inscription in Portugal, without obtaining a Cartão de Cidadão or a Passport, is tantamount to obtaining citizenship of Portugal and divesting a Goan of his Indian Citizenship, which I attempt to address herein.I will assume and proceed on the premise that birth registration in Portugal amounts to obtaining Portuguese citizenship, but yet contend that the same by itself will not divest a Goan of his Indian citizenship.
First of all, therefore, it will be important to know in what context the citizenship of an Indian citizen can be terminated. Section 9 of the Citizenship Act, 1955, provides for “termination of citizenship” and provides that any citizen of India who by naturalisation, registration or otherwise voluntarily acquires, the citizenship of another country shall, upon such acquisition, cease to be a citizen of India. Therefore it is apparent from Section 9, than Indian Citizenship can be terminated only on acquirement of foreign citizenship and that too, voluntarily. As per Section 40 of the Citizenship Rules 2009 the Central Government is appointed as the authority who has to determine the issues as to whether, when or how any citizen of India had acquired the citizenship of another country, and whilst doing so the Central Government has to follow the rules of procedure specified in Schedule III
SCHEDULE III, inter alia, lays down the following rules of procedure:-
1. Where it appears to the Central Government that a citizen of India has voluntarily acquired the citizenship of any other country, it may require him to prove within such period as may be fixed by it in this behalf, that he has not voluntarily acquired the citizenship of that country; and the burden of proving that he has not so acquired such citizenship shall be on him.
5. In determining whether a citizen of India has or has not voluntarily acquired the citizenship of any other country, the Central Government may take the following circumstances into consideration, namely: -
(a) whether the person has migrated to that country with the intention of making it his permanent home;
(b) whether he has in fact taken up permanent residence in that country; and
(c) any other circumstances relevant to the purpose.
6. Notwithstanding anything contained in paragraph 4, a citizen of India who leaves or has left India without a travel document issued by the Central Government and resides outside India for a period exceeding three years, shall be deemed to have voluntarily acquired the citizenship of the country of his residence.
In MD Ayub Khan v. Commissioner of Police, Madras (AIR 1965 SC 1623) (which dealt with a case about a person who was in India on a Pakistani Passport and sought to be deported, and claimed that he is an Indian National), the Supreme Court held that acquisition of citizenship of another country to determine Indian citizenship must, however, be voluntary. It held that a quasi judicial enquiry would have to be conducted after giving the concerned person a fair chance of disproving the allegations, and an order is not to be made on the mere satisfaction of the authority without enquiry, that the citizen concerned has obtained a passport of another country. It held that the authority has also to determine that such latter citizenship has been voluntarily acquired. It held “if a plea is raised by the citizen that he had not voluntarily obtained the passport, the citizen must be afforded an opportunity to prove that fact. Cases may be visualised in which on account of force a person may be compelled or on account of fraud or misrepresentation he may be induced, without any intention of renunciation of his Indian citizenship, to obtain a passport from a foreign country. It would be difficult to say that such a passport is one which has been "obtained" within the meaning of Paragraph 3 of Sch. III and that a conclusive presumption must arise that he has acquired voluntarily citizenship of that country”. It further held “The High Court in appeal was of the view that S. 9 laid down an objective test and once it was found that the passport was obtained in fact by an Indian citizen from another country, the law determined the legal consequences of that conduct and no question of his "intent or understanding arose". We are unable to agree with that view. If voluntary acquisition of citizenship of another country determines Indian citizenship within the meaning of S. 9 (1), and by virtue of Paragraph 3 of Sch. III of the Citizenship Rules a conclusive presumption of voluntary acquisition of citizenship is to be raised from the obtaining of a passport from the Government of any other country, it would be implicit that the obtaining of a passport was the result of the exercise of free volition by the citizen.”
The High Court of Jammu & Kashmir in S. Mohsfii Shah v. Union of India and others (AIR 1974 J&K 48) further elucidated the rules and held that the plea that the passport was not acquired voluntarily but under duress or other circumstances has to be examined by the Central Government. It further held that where, it is proved that the passport was obtained under duress, compulsion, undue influence, fraud or fear, it will not amount to obtaining the passport within the meaning of Rule 3, Schedule III and therefore the question of treating the acquisition of the passport as conclusive proof of the loss of citizenship would not arise……..
The Hon’ble Supreme Court in AIR 1975 SC 972 Gangadhar Yeshwant Bhandare v. Erasmo de Jesus Sequeira also spoke on the issue of voluntarily retaining Portuguese Nationality. In this case, the Supreme Court held the declaration signed by the Indian Citizen that he wishes to retain his Portuguese Nationality as per the Citizenship Order, 1962, was not voluntarily and of his free volition and did not embody the real intention or choice of the person signing it, therefore could not make divest him of his Indian Citizenship. However, the onus would lie on him to prove that he had not done so voluntarily and that he had discharged the same.
The Bombay High Court in Abdul Rahim Khan v. Union of India ( AIR 1977 Bombay 274, has held that the Supreme Court in Md. Ayub Khan's case was not giving an exhaustive list of the various types of circumstances in which a person can get out of the consequences of obtaining the passport nor was the Court holding that the plea of force, compulsion, fraud or misrepresentation would in addition require an averment that the person had no intention of renouncing his Indian citizenship. It held that, indeed, it would appear that if a passport has been obtained by force or fraud or misrepresentation, then the person raising such plea and justifying it would be required to be exonerated without there being any further plea or without consideration of his intention of renouncing his Indian citizenship; and it would appear that the question of intention of renouncement of his Indian citizenship is a factor, or an aspect which, according to the Supreme Court is not required to be considered apart from the case of fraud or force or misrepresentation resulting in the receipt or acquiring of the passport; this would also appear to be sustained by the observations in para 11 of report of the Supreme Court decision, earlier set out where the view of the High Court holding that the intention or understanding was irrelevant was characterised as erroneous. If further held “In other words, if a passport has been taken as a result of force or fraud or misrepresentation, it is not 'obtained' within the meaning of Para 3 of schedule III.
Similarly if a person applies for and receives a passport without any intention of renouncing his Indian citizenship or without understanding the nature of what he was doing, it would be an aspect, a factor to be considered by the determining authority. This is in our opinion, implicit in the observation of the Supreme Court to be found in paras 10 and 11 of Md. Ayub Khan's case, and this aspect of the matter has been made explicit in the subsequent decision of the Jammu and Kashmir High Court in S Mohsin Shah's case (AIR 1974 J and K 48) (FB). It is clear to us that the Full Bench of the Jammu and Kashmir High Court considered the Supreme Court as having laid down the requirement that a person is within the mischief of para 3 of Schedule III only if he had secured a passport wilfully and consciously, knowing full well the consequences of the same. It is also not possible to accept the submission that the Jammu and Kashmir High Court has travelled beyond the law as laid down by the Supreme court and that this Court considering Section 9 of the Act and Rule 30 and Schedule III for itself and bearing in mind the decisions of the Supreme Court earlier referred to should hold that the intention of the person who applied for a passport and received it or his lack of understanding or the absence of any intention on his part to acquire foreign citizenship or to renounce Indian citizenship were considerations extraneous to and irrelevant for the decision to be given by the central Government and in that view of the matter hold that the representation submitted by the petitioner did not require or warrant further inquiry. In other words, we were invited to restrict the available pleas to a case of coercion, compulsion, undue influence, fraud or fear. This submission is required to be repelled and it would appear that there are two reasons for doing so.”
In Bhagwati Prasad Dixit Ghorewala v. Rajeev Gandhi (AIR 1986 SC 1534), the Hon’ble Supreme Court has held that it is the Central Government alone which can decide the issue under Section 9(2) of the Citizenship Act, and not the Courts.
In S. Nalini Srikaran v. Union of India (AIR 2007 Madras 187), the High Court of Madras has held that it is only an order passed by the Central Government under Section 9 (2) of the Citizenship Act which operates cession of the citizenship of a person and not his acquisition of the passport of a foreign country, notwithstanding the conclusive presumption raised under the Rules.…….The authority has also to determine as to whether the person has voluntarily acquired foreign citizenship. ……….Thus, the termination of Indian citizenship does not merely depend upon the action of a foreign country in issuing a passport.
In Govt. of Andh. Pra. v. Mohd. Khan, 1962 AIR(SC) 1778, the Supreme Court held that the orders of deportation passed against a citizen without an inquiry by the Central Government were not sustainable, even if he possessed a foreign passport.
In Shiv Inder Singh and anr. V. State of Punjab (2016 Cr. L.J. 465) the High Court of Punjab and Haryana held that “It follows that once a person is admitted or held to be a citizen of India, unless there is a decision of the Central Government under Section 9(2) of the Citizenship Act,1955 that he has acquired the citizen of a foreign country, he should be presumed to be an Indian citizen.” Applying the said statute law and the principles laid down by the Supreme Court and High Courts, to the case of inscription/registration of birth by a Goan in Portugal (assuming that it amounts to acquiring Portuguese Citizenship), the following conclusions surface, viz. :-
1. If it appears to the Central Government that a Goan has voluntarily acquired a foreign citizenship through birth registration, it has to call upon him to prove that he had not registered his birth voluntarily and the issue of voluntariness would have to be decided in a quasi-judicial enquiry.
2. There is no conclusive presumption in our law, that registering birth in a foreign country will amount to acquiring foreign citizenship, like in the case of obtaining a passport, as per the rules provided in Schedule III of the Citizenship Rules.
3. The burden of proving that the citizen had registered his birth involuntarily would rest on the citizen. The citizen can discharge his burden by proving that the birth registration was done –
a. on account of compulsion i.e. by force or coercion he was compelled to do so
b. on account of fraud – that he was deceived or dishonestly induced to do so
c. on account of misrepresentation – that he was mislead and lied to about the consequences
d. on account of under duress – under imminent threat of serious bodily harm or death
e. on account of undue influence - Mental, moral, or physical domination that deprives a person of independent judgment and substitutes another person's objectives in place of his or her own, through excessive insistence, superiority of physical power, mind, or will, or pressure applied due to authority, position, or relationship in relation to the strength of the person submitting to it.
4. In deciding the issue, the Central Government would also have to take the following aspects into consideration –
a. whether the citizen has migrated to that country with the intention of making it his permanent home;
b. whether he has in fact taken up permanent residence in that country
A Goan would lose his Indian citizenship only if he has voluntarily registered his birth in Portugal. If the citizen manages to prove that the birth registration was involuntarily he will not stand to lose his Indian citizenship. Besides this a Goan could also prove that it was done without his knowledge, through fraud, forgery, etc. and in the event he proves it, it would not terminate his Indian Citizenship.
Therefore according to me, until and unless there is a decision of the Central Government that the Birth Registration was done voluntarily, it can’t divest a Goan of his Indian citizenship, merely because a Goan has registered his birth in Portugal.