What does the recent Supreme Court judgment on Assam migrants mean for dual citizenship in India? Part 1

Part 1 of the four-part series revisiting the question of dual citizenship in India in view of the Supreme Court judgment on Assam migrants.

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THE Supreme Court confirmed on October 17, 2024 the constitutionality of Section 6A of the India Citizenship Act, 1955 (hereafter Assam Citizenship Case). The Section granted citizenship to a certain class of migrants from Bangladesh to Assam.

The majority in the judgment clearly sided with the Parliament, which would suggest confirmation of the broad powers of the Parliament in matters of citizenship.

However, close examination shows the judgment circumscribed the powers of the Parliament, which could open the door to dual citizenship under Indian laws. The development could align India's jurisprudence with that in Afroyim versus Rusk, where the US Supreme Court held that Congress does not have the power to divest citizenship without the citizen's consent.

The points presented are likely to be examined in one or more of the following pending cases:

1. Narendra Reddy Thappeta versus Union of India (WP 37535, filed 2013) at the Karnataka High Court.
2. Radhika Thappeta et al versus Union of India (W.P. (C) no. 1397 of 2020) at the Supreme Court of India.
3. Tarunabh Khaitan versus Union of India & Ors. W.P. (C) No. 1074/2023 at the Supreme Court of India.

What is (and not) dual citizenship?

Dual citizenship simply means that India would be tolerant of (or disregard) foreign citizenship taken by an Indian. For now, an Indian can be assumed to be a person who is recognised as an Indian citizen at birth.

In other words, the dual citizenship argument is that there simply should be no change to how an Indian is treated under Indian laws merely because they acquire foreign citizenship (subject to the points noted below).

Also read: Transformations in Indian citizenship: Tryst with arbitrariness

The ask is consistent with the notion of a liberal democracy, which by general understanding means that one does not ordinarily need to account to others/government for their personal choices.

The elemental question asked is what is it to other Indians if an Indian takes foreign citizenship (subject to the points noted below).

In appreciating the ask for dual citizenship, it needs to be borne in mind that the ask does not mean at least the below:

1. The ask does not cover the grant of Indian citizenship to foreigners (i.e., inward migration).
2. The ask does not cover dual citizenship with countries not aligned with India's interests or values (e.g., neighbours with whom India has ongoing disputes).
3. The ask does not mean equality with mono-citizens in all respects. Suitable legislations of appropriate scope (e.g., based on length of residence in India, wealth, etc.) may be considered in the focus areas such as constitutional positions not already barred by the Constitution, hiring in sensitive organisations such as armed forces, admissions to professional colleges, representing India in international events, and acquisition and ownership of agriculture and plantation properties.

With the clarity that the ask is for fellow citizens and that the parameters of the ask are fairly reasonable, it must be appreciated that there is an ocean of difference between dual citizenship— a full bottle from which undesirable rights are excluded per well-thought-out legislation (A-C above being examples)— and the current Overseas Citizenship of India (OCI) scheme— an empty bottle into which the executive pours or from which it removes a bundle of rights according to its wishes.

The ask is Option 1, consistent with the liberal foundations of the Indian Constitution and ethos, in addition to the fundamental principle that law must enable the life and choices of individuals (and particularly the productive class represented by those seeking dual citizenship). Unfortunately, the question of dual citizenship is mostly examined from the perspective of points A-C and other areas of discomfort discussed in later parts.

The question is particularly relevant given that there is an increasing number of Indians, both resident in India and outside, who are choosing foreign citizenship irrespective of Indian laws, but continue to engage with India as before.

Also read: Subjecting the CAA Rules to proportionality

In the Table below [obtained based on a right to information (RTI) application], the renunciation count is believed to represent the number of Indians reported to have acquired foreign citizenship.

Table: Indian citizenship renunciation/cessation and OCI grants 

This needs to be understood in the context that it is the creamy and wealth layer, positioned to engage with both India and foreign countries (in this increasingly mobile world, with fewer financial and economic barriers), that demands dual citizenship. The pertinent point to remember is that it is natural for such persons to want the protection of laws in both India and other countries.

Conventional understanding of the Constitution supporting bar on dual citizenship

Section 9(1) of the Citizenship Act 1955 is the primary provision that bars dual citizenship for existing citizens and states in pertinent form:

"9. Termination of citizenship: "Any citizen of India who by naturalisation, registration otherwise voluntarily acquires, or has at any time between January 26, 1950 and the commencement of this Act, voluntarily acquired the citizenship of another country shall, upon such acquisition or, as the case may be, such commencement, cease to be a citizen of India."

In summary, once an Indian citizen acquires foreign citizenship voluntarily, they automatically ceases to be a citizen of India by operation of Section 9(1). The conventional understanding of support for the bar on dual citizenship has been primarily based on a reading of Articles 5, 9 and 11 reproduced below:

Also read: "The provision has become an endless beacon attracting illegal migrants to Assam," Shyam Divan on conclusion of Section 6A hearings

"Article 5: Citizenship at the commencement of the Constitution: At the commencement of this Constitution, every person who has his domicile in the territory of India and: 

• who was born in the territory of India, or

• either of whose parents were born in the territory of India; or

• who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement,

shall be a citizen of India."

"Article 9: Constitution of India 1950: No person shall be a citizen of India by virtue of Article 5, or be deemed to be a citizen of India by virtue of Article 6 or Article 8 if he has voluntarily acquired the citizenship of any foreign State."

"Article 11: The Parliament to regulate the right of citizenship by law: Nothing in the foregoing provisions of this Part shall derogate from the power of the Parliament to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship."

The following significant propositions (on the extent of powers of the Parliament) evolved as courts examined cases pre-1970, particularly with migrants to/from Pakistan:

Proposition 1: Article 9, in view of Article 5, bars dual citizenship for born citizens also, even if parents were born in India.

Proposition 2: Article 11 confers on the Parliament powers to make any provision in matters (including acquisition and termination) relating to citizenship.

The next part unpacks how the propositions thus arrived at were further examined in the recent Assam case.