What is dual citizenship

The Passports Act, 1967, is a comprehensive law relating to the issue of passports and travel documents. It provides statutory safeguards in procedures involving the variation, impounding and revocation of passports, with rights of appeal to aggrieved persons with regards to offences and penalties levied under this Act. However, the simultaneous existence of the Passport (Entry into India) Act, 1920 and The Foreigners Act, 1946, conferring absolute and unlimited powers to remove or summarily deport a person from India without following the due process of law, are anathema to a democratic country and an anti-thesis to the rule of law. Powers of house arrest, detention, solitary confinement and summary removal from India under these Acts clearly infringe upon the fundamental rights of life and personal liberty guaranteed under the Constitution. Therefore, these British-era laws are completely misplaced in this day and age.

The Central government has the exclusive jurisdiction to determine whether a person, who was a citizen of India, has lost that citizenship by having voluntarily acquired the citizenship of a “foreign State” as per Section 9(2) of The Citizenship Act, 1955, read with Rule 30 of The Citizenship Rules, 1956. Further, under Section 9(2) and Rule 30 above, mere proof of the fact that the person has obtained a passport from a foreign country is not sufficient to sustain an order for deportation or prosecution unless there has been a decision by the Central government under Section 9(2) of the Act. Moreover, the enquiry by the Central government under Section 9(2) of the Act is a quasi-judicial enquiry. This proposition of law is well settled by the following judgments of the Supreme Court : State of A.P. vs. Abdul Khader AIR (1961) SC 1467; Government of A.P. vs. Syed Md. AIR (1962) SC 1778 and State of U.P. vs. Rehmatullah AIR (1971) SC 1382. Thus, this process of determination of nationality is well settled in law.

With an estimated 21,90,9875 non-resident Indians spread across over 200 countries (Ministry of Overseas Indian Affairs statistics), there have been compromises in the area of dual nationality, which is otherwise prohibited under Article (9) of the Constitution and Section (9) of the Citizenship Act, 1955. The categories — “Persons of Indian Origin” (PIO) and “Overseas Citizen of India” (OCI) — were carved out to confer limited benefits on persons of Indian origin. Therefore, PIOs and OCIs now enjoy limited rights in India and can enjoy residence rights here without any visa, registration, sanction or other permissions. Moreover, under Article (5), every person who is domiciled, born or whose parents were born in India, or who has been ordinarily resident in India for not less than five years preceding the commencement of the Constitution, shall be a citizen of India. Hence, inherent rights flow to those whose nationality is determined by law.

Under the 1946 Act, disputes relating to questions of determination of nationality when a foreigner is recognised as a national of more than one country or it is uncertain as to what nationality is to be ascribed to a foreigner, such person may be treated as the national of the country with which he appears to be most closely connected. The 1920 and 1946 Acts permit the removal or the deportation of a person from India without providing any forum or procedure for determination of the question of the nationality of the foreigner or giving any statutory rights in this process. There are no tribunals available to determine these questions as of now. However, the Citizenship Act, 1955, and the Citizenship Rules, 2009, prescribe that if any question arises as to whether, when or how any person had acquired the citizenship of another country, the Central government shall first determine such questions. The Supreme Court interpreting these provisions has held that a person could not be ordered to be deported or removed from India unless the Central government takes a conscious decision upon holding a quasi-judicial enquiry that a person has ceased to be an Indian citizen. A foreign passport simply will not label a person as a foreigner, and determination of his nationality is his fundamental right. It is time Parliament reconciles this concept of freedom, personal liberty and natural justice with the determination of nationality.