THE BACKGROUND
A passport is a document which by its nature and purpose recognises a person as a citizen of the country granting it and is in the nature of a request to other countries for his free passage. It contains a recognition of the officially authorised agencies giving nationality to the citizen of the State issuing the passport upon necessary declarations being made to it by the holder. Therefore, a citizen is granted an Indian passport upon confirmation of Indian nationality. However, it can be impounded, revoked or cancelled under the Passports Act, 1967 upon certain prescribed conditions and following the requisite procedure under law. In Satwant Singh Sawhney vs APO, New Delhi, All India Reporter 1967 Supreme Court, 1836, the Apex Court has held that deprivation of a passport amounts to infringement of right to personal liberty under Article 21 of the Constitution of India and in Maneka Gandhi vs. Union of India, All India Reporter 1978 Supreme Court 597, it was reiterated that an order impounding a passport must not contravene any fundamental rights.
THE CONTROVERSY
As debates continue in India about using laws made during the British Raj, Great Britain itself is in the process of repealing 38 enactments which were legislated between 1849 and 1942 relating to construction and maintenance of Indian Railways network during British Rule. However, we are still not following suit though an exercise has been started to identify archaic laws to be weeded out by a process of spring cleaning being initiated by respective Government departments of cobwebs in their closet which are rarely disinfected or exposed to air and sunlight. Even though the Parliament has enacted The Passports Act, 1967, The Citizenship Act, 1955 and in 2005, created “Overseas Citizens of India”, till date we still rely on The Passport (Entry into India) Act, 1920, The Registration of Foreigners Act, 1939, and The Foreigners Act, 1946, for various purposes. Most of such archaic legislations made during colonial rule are redundant, do not stand the test of principles of natural justice, confer unfettered, arbitrary and draconian powers, which seriously requires them to be taken off the statute book. But, we still carry on regardless.
A WHOLESOME LAW
The Passports Act, 1967, which is a comprehensive and wholesome law relating to issue of passports and travel documents, provides a statutory safeguard procedure for variation, impounding and revocation of passports with rights of appeal to aggrieved persons against 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 deport a person from India summarily without following the due process of law, are an anathema and an anti-thesis to the rule of law in a democratic nation with ample scope for judicial review. Powers of house arrest, detention, solitary confinement and summary removal from India under these 1920 and 1946 Acts clearly infringe the fundamental rights of life and personal liberty guaranteed by the Indian Constitution. The reasons, therefore, to retain these pre-independence laws seems to be misplaced and defy fundamental freedoms.
CODIFIED LAW OF CITIZENSHIP
The Citizenship Act, 1955, which is an Act to provide for the acquisition and determination of Indian Citizenship, prescribes under Section 9 that if any citizen of India voluntarily acquires the citizenship of another country, he shall cease to be a citizen of India. Section 9 of the Citizenship Act is a complete code as regards the termination of Indian Citizenship on the acquisition of the citizenship of a foreign country. In exercise of powers under the Citizenship Act, the Central Government has made the Citizenship Rules, 2009 to carry out the purposes of the Act. Under Rule 40 of Citizenship Rule 2009, the Central Government may determine the issues as to whether, when or how any citizen of India had acquired the citizenship of another country and in doing so shall have due regard to the rules of procedure specified in Schedule III prescribed under the Rules.
Schedule III of the Citizenship Rules stipulates salient considerations as hereunder:
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.
2. For the purpose of determining any question relating to the acquisition by an Indian citizen of the citizenship of any other country, the Central Government may make such reference as it thinks fit in respect of that question or of any matter relating thereto, to its Embassy in that country or to the Government of that country and act on any report or information received in pursuance of such reference.
3.The fact that a citizen of India has obtained on any date a passport from the Government of any other country shall be conclusive proof of his having voluntarily acquired the citizenship of that country before that date.
LAW SETTLED BY SUPEREME COURT
The Central Government is vested with powers under Section 9 (2) of The Citizenship Act, 1955, read with Rule 30 of The Citizenship Rules, 1956, as an exclusive jurisdiction to determine the question whether a person, who was a citizen of India, has lost that citizenship by having voluntarily acquiring the citizenship of a Foreign State. 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 of the Central Government under Section 9 (2) of the said Act. Moreover, the enquiry by the Central Government under Section 9 (2) of the said Act is a quasi- judicial enquiry. This proposition of law is well settled by the following judgements of the Apex Court in i) State of A.P. vs. Abdul Khader AIR 1961 SC 1467; ii) Government of A.P. vs. Syed Md. AIR 1962 SC 1778 iii) State of U.P. vs. Rehmatullah AIR 1971 SC 1382. Thus, this process of determination of nationality is well settled in law.
NEW CATEGORIES
1.2 billions Indians contributing 30 million non resident Indians in almost 180 countries on the globe has led to compromises on dual nationality which is otherwise prohibited under Article 9 of the Constitution of India and Section 9 of the Citizenship Act, 1955. Categories of “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 in India without any visa, registration, sanction or other permissions. Moreover, under Article 5 of the Constitution, every person who has his domicile in India and was born in India or whose parents were born in India or who has been ordinarily resident in India for not less than 5 years preceding for commencement of the Constitution, shall be a citizen of India. Hence, inherent rights flow to presumption of Indian nationality by determination and interpretation of Indian law .
DETERMINATION OF NATIONALITY
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 removal or 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. Tribunals to determine these questions are non existent. However, in the same breath today, now the Citizenship Act, 1955 and the Citizenship Rules, 2009 prescribe that if any question arises as to whether, when or how any person had acquire the citizenship of another country, the Central Government shall first determine such question. 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 simpliciter will not label a person as a foreigner and determination of his nationality is his fundamental right. It is time our Parliament reconciles this concept of freedom, personal liberty and natural justice inter-twined with determination of nationality.
DEBATABLE QUESTION
In the social milieu today, international Indians qualify to be PIOs or OCIs. If they wish to reconnect with their homeland, they ought not be bundled out as foreigners by invoking the colonial provisions of the 1920 and 1946 Acts which offend fundamental freedoms. The Citizenship Act, 1955 itself creates harmony. The retention of a foreign passport today cannot lead to deportation and summary removal from India. Why then, do we need to retain the 1920 and 1946 enactments which were enacted to regulate the entry of foreigners into India in circumstances prevailing in 1946. This is a serious issue which must engage the attention of Parliament.
NEED OF THE HOUR
Today, persons of Indian origin have matters relating to matrimonial differences between spouses of global origin or nationality issues arising out of foreign domiciles. The desirable approach in the proper perspective today therefore would be to create appropriate forums or authorities within the legal system who would address such resolvable issues by granting opportunity of hearing and redressal. Accordingly, deportation or removal of a person to a foreign jurisdiction would be an abject surrender to a foreign dominion. Having resolved to be a sovereign, socialist, secular, democratic Republic, we in India, are very capable and competent of adjudicating our nationality issues to provide redressal for Indigenous Indians. Our post independence laws provide the solutions which our vibrant judiciary interprets to protect fundamental freedoms guaranteed under the Constitution of India. Hence, pre-independence laws in conflict with rights today must go off the statute book.
Besides discarding outdated legislations on the statute books, legislators seriously need to make new laws for the international Indians. Immediate concerns come in the arena of inter parental cross border child removal when innocent children are made victims of spousal fights and their offspring is manipulated and used as trophies for settling personal disputes. Likewise, commercial surrogacy, a booming baby business in India, seriously needs a regulatory law with a effective legal mechanism to implement it. The trade of human smuggling and illegal immigration needs a central law for saving precious human lives of Indians who are exploited by unscrupulous agents in this deathly trade. Spousal maintenance rights and marital laws need a workup to be at pace with international family law obligations. International adoption of children needs to be governed by a brand new regulatory law. As of now, all the energy has been focused on commercial laws, giving step motherly treatment to laws which govern family and the society in India. Resultantly, nothing has changed for over 50 years. The thought must shift. Attention must be diverted. If we are to make access free to our foreign Indians, we must first give them a stable home, a happy family life and a comfortable society to live in. Indians laws can no longer exist in isolation. They must be reconciled with laws abroad.
CITIZENSHIP AND FOREIGNERS LAWS AT A GLANCE
The Registration of Foreigners Act, 1939 – An Act to provide for the registration of foreigners in India.
The Registration of Foreigners Rules, 1992 issued in supersession of the Registration of Foreigners Rules 1939 – Rules Made under the 1939 Act.
The Foreigners Act, 1946 – An Act to confer upon the Central Government certain powers in respect of foreigners.
The Foreigners Order, 1948 – An Order made under Section 3 of the 1946 Act for power to grant permission to depart from India.
The Foreigners (Tribunals) Orders, 1964 – An Order made under Section 3 of the 1946 Act to Constitute Tribunals to determine if a person is a Foreigner.
The Passport (Entry into India) Act, 1920 – An Act to take powers to require Passports of persons entering India.
The Passport (Entry into India) Rules, 1950 – Rules made under 1920, Act.
The Passports Act, 1967 – An Act to provide for the issue of Passports and travel documents to regulate departure from India.
The Citizenship Act, 1955 – An Act to provide for the acquisition and determination of Indian Citizenship.
The Citizenship Rules, 2009 – Rules made under Citizenship Act, 1955.
Comments