Why archaic citizenship laws must go

Colonial-era laws infringe on the fundamental rights to life and personal liberty of persons of Indian origin

Published - September 15, 2014 01:23 am IST

It is time Parliament reconciles the concept of freedom, personal liberty and natural justice with the determination of nationality.

It is time Parliament reconciles the concept of freedom, personal liberty and natural justice with the determination of nationality.

A debate on the need to repeal obsolete laws has been set in motion in India with the government appointing a committee to look into the matter. Even our erstwhile coloniser, Great Britain, initiated the process of repealing 38 such laws last year, which were passed between the years 1849 and 1942, pertaining to the construction and maintenance of the Indian Railways. Meanwhile, our own post-independence efforts to weed out obsolete laws, through a process of spring cleaning, remain pending.

An area that requires immediate attention in this regard is conflicting laws regulating citizenship. Take for instance the colonial-era laws, The Passport (Entry into India) Act, 1920, The Registration of Foreigners Act, 1939, and The Foreigners Act, 1946. Even though Parliament has since enacted The Passports Act, 1967, The Citizenship Act, 1955, and created the Overseas Citizenship of India scheme in 2005, we continue to rely on these archaic pieces of legislation. Most of these laws enacted during colonial rule are redundant and do not stand the test of the principles of natural justice. They also confer unfettered, arbitrary and draconian powers on government authorities and need to be taken off the statute book.

> Read: What is dual citizenship

A comprehensive law 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.

Debatable question Given the social circumstances today when emigration is common, international Indians qualify to be PIOs or OCIs. If they wish to reconnect with their homeland, they should not be categorised as foreigners by invoking the colonial provisions of the 1920 and 1946 Acts. 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 colonial enactments which were brought in to regulate the entry of foreigners into India in circumstances prevailing in 1946? This is a serious issue which must be addressed in Parliament.

Today, persons of Indian origin face problems due to marital disputes with spouses of foreign origin or nationality issues arising out of foreign domiciles. The desirable approach, therefore, would be to create appropriate forums or authorities within the legal system that would address such issues by granting opportunities for 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 capable and competent of adjudicating our nationality issues to provide redressal for persons of Indian origin. Our post-independence laws provide the solutions which our vibrant judiciary interprets to protect fundamental freedoms guaranteed under the Constitution. Hence, pre-independence laws in conflict with rights today must be revoked.

( Anil Malhotra is a Chandigarh-based lawyer.)

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