What does the recent Supreme Court judgment on Assam migrants mean for dual citizenship in India? Part 3

Part 3 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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Read Part 1 here.

Read Part 2 here.

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.

In Part 1, we established what is and is not dual citizenship and the conventional understanding of the Constitution supporting the bar on dual citizenship. In Part 2, we unpacked how the propositions thus arrived at were further examined in the recent Assam case.

We now examine in further detail whether Article 9 somehow empowers the Parliament to divest an Indian or their citizenship merely upon acquisition of foreign citizenship.

Does Article 9 empower unconsented divestment of citizenship

It is first clarified that Section 9 (of the Citizenship Act, 1955) divests Indian citizenship upon a person voluntarily acquiring foreign citizenship. Voluntary acquisition of foreign citizenship cannot naturally be equated to consent of the person for such divestment. Consented and voluntary removal of citizenship occurs under Section 8, not Section 9.

Turning to the question of empowerment of such unconsented divestment, it is first observed that Article 9 refers to Articles 5, 6 and 8. It is now settled that all three Articles are (and intended to be) applicable only at the commencement of the Constitution.

When all three constituent Articles are applicable only at the commencement of the Constitution, it could be difficult to justify based on the text of Article 9 alone that the Article lends sufficient powers to the continued absolute bar on dual citizenship, in particular to divest a born citizen's citizenship without their consent merely upon (voluntarily) acquiring foreign citizenship.

Also read: "Protect constitutional culture and morality, not notoriously vague 'culture'," Indira Jaising on Day 3 of Section 6A hearings

The well-established principles of interpretation of statutes require us to examine the context of the legislation (here drafting of the Constitution) to see if the framers intended it differently.

It should be first appreciated that India chose an approach by which the Constitution defined citizens at the commencement of the Constitution so that they can elect the Parliament, which can then initiate the process of making appropriate laws.

Part II of the Constitution is a remnant of this approach. For comparison, Israel, which was formed as a State around the same time, decided instead to first elect the legislature, who then wrote the Constitution. Therefore, Israel's Constitution has no equivalent to Part II of the Indian Constitution.

More importantly, it should be appreciated that non-inclusion in the citizen class at the commencement of the Constitution is not equivalent to the removal of existing citizenship. In addition, citizenship was defined at the commencement in certain backgrounds (Partition and as a boundary condition) and certain purposes, which are materially different from its steady state of operation.

Clarifying the character of Part II as being meant for only the commencement of the Constitution, keeping in mind the requirement to hold the first elections, it was stated in the Constituent Assembly:

"Alladi Krishnaswami Ayyar: The object of these Articles is not to place before the House anything like a code of nationality law. That has never been done in any State at the ushering in of a Constitution. A few principles have no doubt been laid down in the United States Constitution, but there is hardly any Constitution in the world in which a detailed attempt has been made in regard to the nationality law in the Constitution.

"But, as we have come to the conclusion that our Constitution is to be a republican constitution and provision is made throughout the Constitution for election to the Houses of the Parliament and to the various assemblies in the units, and for rights being exercised by citizens, it is necessary to have some provision as to citizenship at the commencement of the Constitution.

"Otherwise, there will be difficulties connected with the holding of particular offices, and even in the starting of representative institutions in the country under the republican constitution."

Also read: Transformations in Indian citizenship: Tryst with arbitrariness

In fact, K.T. Shah actively championed dual citizenship (as defined by not removing a citizens' citizenship merely because they acquire foreign citizenship) even then, while the leadership (Dr Rajendra Prasad) focused on closure given the limited scope of Part II being discussed then:

"Dr Rajendra Prasad: Dr B.R. Ambedkar drew the attention of the House to two important limitations. The first was that this draft dealt with the limited question of citizenship on the day the Constitution comes into force.

"And the other point was that all other matters, including those which are dealt with by the present draft, are left to be dealt with by the Parliament as it considers fit. With these limitations in mind, I think the discussion of these two Articles can be curtailed to a considerable extent and the matter might be disposed of quickly."

"K.T. Shah: My next amendment is no. 231. As it relates to a new Article, I do not propose also to read it just now. Then I move:

"(ii) before the Explanation, the following proviso be added:-

'Provided further that the nationality by birth of any citizen of India shall not be affected in any other country whose municipal law permits the local citizenship of that country being acquired without prejudice to the nationality by birth of any of the citizens; and

'Provided that where under the municipal law, no citizen is compelled either to renounce his nationality by birth before acquiring the citizenship of that country or where under the municipal law nationality by birth of any citizen does not cease automatically on the acquisition of the citizenship of that country.'

"(iii) after the Explanation, the following new clause be added:- 

'(2) Subject to this Constitution, the Parliament shall regulate by law the grant or acquisition of the citizenship of India.'

"Permit me to add, sir, that in this demand it is not that I am becoming self-contradictory, because just a moment before I said that a person who has settled in India should be guarded against as much as we can by our Constitution, lest the privilege of such acquired citizenship be used to our prejudice.

Also read: "Free immigration and a welfare state cannot coexist," Vijay Hansaria on Day 2 of Section 6A hearings

"I am not debarred from making the suggestion I am now putting forward. I repeat, I am not becoming inconsistent, because, according to the information I have received, there are eight lakh Indians in the Federated Malay States. Under the new Constitution of the Federated Malay States, they permit such Indians settled there to acquire the fullest rights of local citizenship, without losing their Indian nationality by birth."

Thus, K.T. Shah took note of the existing Malay laws which permitted an Indian citizen to acquire Malay citizenship and be able to retain Indian citizenship only subject to Indian laws. There is no evidence of anyone having opposed the suggestion of K.T. Shah.

The possible reason why K.T. Shah's proposal was not incorporated into Article 9 was that the assembly appreciated the citizenship per Part II was being determined for the first elections, and the complexities of Partition for that instance.

Now, the pertinent question is whether the non-acceptance of the amendment proposed by K.T. Shah leads to an inference that the Constituent Assembly preferred mono-citizenship. In that context, the Assam Citizenship Case (first opinion) informs us:

"15. The Constitution of India upon its adoption guaranteed fundamental rights to the citizens of India. It is but natural that the provision on who would be citizens of the newly independent nation produced one of the most contentious of discussions in the Constituent Assembly.

"On May 30, 1947, B.N. Rau, the Constitutional Advisor, prepared the Memorandum on the Union Constitution and Draft Clauses. The Part on citizenship consisted of three provisions. The first provision prescribed who would be citizens of India on the date of the commencement of the Constitution.

"The second provision stipulated who would be citizens after the commencement of the Constitution. The provision recognised citizenship by birth, citizenship by naturalisation and citizenship by descent. The third provision stipulated that further provisions governing the acquisition and termination of federal citizenship may be made by federal law.

"It was, however, observed in the note appended to the memorandum that the second clause was not necessary since (a) it would be impossible to exhaustively define the conditions of nationality, birth or naturalisation in the Constitution; and (b) there may be some difficulty in the interpretation of the provisions of the legislation on citizenship if the provisions were entrenched in the Constitution.

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

"The ad-hoc committee on citizenship slightly altered the first clause, agreed to the second clause and recommended that in addition to the law-making power on acquisition and termination of citizenship, a provision for avoiding dual citizenship may be included in the third clause."

Thus, the Constituent Assembly clearly considered the applicable rule of law for citizenship before the commencement and after the commencement, in addition to the law avoiding dual citizenship.

It is further pertinent to appreciate that Volume 5 of the book entitled, The Framing of India's Constitution (second edition) by Dr Subhash C. Kashyap notes that the framers went as far as suggesting that 'Malay' (now Malaysia) citizenship would not be regarded as a citizenship of a foreign State on the ground that both Malay and India are members of the commonwealth.

It was accordingly considered that "a person resident in Malaya but having his origin in the territory of the Union of India would acquire Indian citizenship even if in the meantime he had become a federal citizen of Malaya." (Page 163)

From the discussion above of Article 9 as well as the importance given to citizens by birth consistently, it appears fairly clear that the Constituent Assembly eventually did not intend to empower the Parliament to pass laws (by virtue of Article 9 or otherwise) to divest a born Indian's citizenship merely upon voluntary acquisition of foreign citizenship.

In fact, the discussions at the Constituent Assembly focused on who was an Indian and always wished to confer or retain citizenship on who was unquestionably Indian. Any discomfort discussed with dual citizenship was possibly at a general level, keeping in mind possible missteps in granting Indian citizenship easily, particularly to undesirable elements of foreign origin.

Whether or not Section 9(1) withstands the scrutiny of Part III of the Constitution can depend on which of the first and second views would prevail on the interpretation of Article 11, which is further examined below.

Parliament's powers under Article 11 examined further

As noted earlier (in Part 2), the interpretation in the first opinion favours a finding of dual citizenship for born citizens. Therefore, this section examines further whether the interpretation of the second opinion is tenable as a matter of constitutional foundations.

Assuming the 'nearly unrestricted flexibility' of the second opinion empowers the unconsented termination of citizenship of Section 9(1), here are some natural questions:

Also read: Subjecting the CAA Rules to proportionality

1. What are the limits to such power, particularly in relation to terminating one's citizenship?
2. On what other grounds can the Parliament terminate a citizen's citizenship without their consent?
3. Do such grounds need to satisfy any criteria?
4. Does such criteria cover the basis on which Section 9(1) can be supported? 

In addition, it is important to examine whether such grounds violate the foundational notions of a republican form of government, particularly when there is clear evidence [from the Overseas Citizenship of India (OCI) scheme itself] that those Indians taking foreign citizenship continue to be connected to India.

When these questions are examined, it is likely that the interpretation of the first opinion is more likely to prevail.

Finally, it is first observed that the views expressed in the Assam Citizenship Case are in the context of the acquisition of citizenship, where arguably the Parliament has more powers under even other provisions of the Constitution. However, termination based on Part II of the Constitution appears untenable.

In the next and final part, we will examine India's discomfort with dual citizenship and the likely impact if dual citizenship is accepted.