The Case For Dual Citizenship

By Naren Thappeta | August 11, 2016

Indians resident in foreign lands are often presented the opportunity to become citizens of their adopted land. But they soon learn that they will lose their Indian citizenship when they acquire citizenship of another country.

The Indian Constitution is the Supreme Law in India, and all statutes and acts are subordinate to it. Dual citizenship was barred by Article 9 of the Indian Constitution with the objective of framing and defining citizenship derived from various geographies upon its commencement. But the Constitution does not impose a bar on dual citizenship at a subsequent stage. Article 10 empowers “Parliament to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship.”

Section 9 of the Citizenship Act, passed by Parliament in 1955, divests a person of his Indian citizenship upon acquiring the citizenship of a foreign country. The basic question we need to first ask is whether Section 9 is constitutional. We will answer that question from the perspective of India born citizens acquiring foreign citizenship. This is contrasted with foreigners acquiring Indian citizenship as born citizens have a legally and morally higher claim to dual citizenship.

The relevant enquiry becomes whether divestment of citizenship (and thus denial of dual citizenship) is constitutionally justified. It is critical to understand that the foundations of India’s Constitution, like those of other democratic countries, respects choices in the absence of a compelling reason to curtail that freedom.

On that principle, denial of dual citizenship status would be proper only for considerations of national security or integrity. Since the Overseas Citizen of India (OCI) Card grants lifelong visa and freedom to live in India to a much broader group of people than India born citizens, and no problems have surfaced to date, it would be difficult to assert such concerns with granting dual citizenship to born-citizens. To the contrary, a more compelling case can be made that denial of dual citizenship creates a polity of NRIs/OCIs who are unconnected with the democratic processes of India, thus endangering the security and integrity of the country in the long run.

In the 1940s, when India acquired Independence, almost every country in the world denied dual citizenship. But now almost all democratic countries recognize dual citizenship for at least their born-citizens. Indeed, countries like Canada and the United Kingdom make it difficult, if not almost impossible, for born-citizens to renounce citizenship even if they so desire.

Clearly, India will be in the company of many democratic societies by recognizing dual citizenship.

It is my contention that Section 9 of India Citizenship Act is unconstitutional. I have argued this in a writ petition pending in Bangalore High Court since August 2013, to which the Government of India has thus far failed to respond.

Manifest Injustice

Denial of dual citizenship is manifestly unjust for thousands of Goan Indians. Under Portuguese law, subjects and descendants of its erstwhile empire are automatically granted Portuguese citizenship, requiring them to only register their birth information. Portuguese citizenship in turn opens the entire European Union to Goans after registration, which 75,000 are reported to have done.

The Indian government, however, interprets its laws to require them to elect either Indian or Portuguese citizenship. If they want Portuguese citizenship they must opt for the OCI card. Many of them are fearful of giving up Indian citizenship for fear of what the Portuguese future may hold for them. This is a gross injustice, perpetrated predominantly against poor people, who may be able to find better employment opportunities in Europe. This problem will fester for generations as Portuguese citizenship law extends to their descendants in perpetuity.

The problem is also faced by OCIs living in India. Dual citizenship is a practical necessity for NRIs who return to India for a long duration (say 5 years or more) and desire to retain the option to return to the foreign land at an unknown later date. Citizenship of the non-India jurisdiction in combination with the OCI card obviously gives mobility to these people and hundreds, possibly thousands, of such OCIs are currently living in India.

These India-born OCIs have done no harm to India, pose no security threat, yet India has sweeping laws that involuntarily divests them of their Indian citizenship. Many other democratic countries have avoided these constitutional issues by simply recognizing dual citizenship.

So why does India reject dual citizenship? The current India laws were framed in the 1950s, rooted in the division of Pakistan, and at a time when dual citizenship was a rarity. But while other democratic societies have adopted dual citizenships, India continues to cling to its antiquated laws.

The need for dual citizenship is pressing, because of rising mobility, including digital connectivity. Mobile Indians, such as Portuguese Goans, NRIs, OCIs, and many business people would benefit from dual citizenship, as would the country.

Unfortunately, decision makers are principally non-mobile Indians, such as politicians, legal fraternity and senior administrators, who typically have lifetime jobs and retirement options in India. The odds are stacked decidedly against the interests of mobility, despite its contribution to trade and global peace.

The NRI community has been denied voting rights pursuant to Article 326, which empowers the legislature to exclude voters based on “non-residence.” NRIs as a group are thus disconnected from the decision and law making processes in India. The denial under Article 326 of voting rights to NRIs, even though they are citizens of India, serves to diminish the political clout of those with the largest stake in dual citizenship.

Perhaps the expansion of e-ballots by the Supreme Court recently will serve to extend voting rights to NRIs in the future, which may create a constituency to pressure the government on dual citizenship. Until then, the prospects of India adopting dual citizenship laws are bleak.

 Naren Thappeta is a U.S./India patent attorney based in Bangalore.