The final part 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.
Read Part 3 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, a close examination shows that the judgment circumscribed the powers of the Parliament, which could open the door to dual citizenship under Indian laws.
“The government bears a significant burden in justifying the absolute bar on dual citizenship (as against born citizens) because it is the government action that is divesting the citizenship for a non-criminal act.
In Part 1, we established what dual citizenship is and is not 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. In Part 3, we examined in detail whether Article 9 empowers the Parliament to divest an Indian or their citizenship merely upon acquisition of foreign citizenship.
In this part, we examine India's discomfort with dual citizenship and the likely impact if dual citizenship is accepted.
Two points should be borne in mind when examining whether the discomforts justify maintaining the absolute bar on dual citizenship (especially when the text of the Constitution does not provide for that):
It is pertinent to remember that the Singhvi report itself was written at an early stage of mobility in 2000–02, while the more cross-border dependence of life for the diaspora, would demand dual citizenship even more than in 2000.
The list of concerns often heard includes national security, allegiance to the country, duties, taxation, legal conflicts, military service, diplomatic considerations, and responsibility in case of need to protect and evacuate in emergencies.
In meeting the burden noted above, the government's answers need to factor in or explain at least the following:
More significantly, the answers need to demonstrate that 'foreign citizenship' is not being inadvertently used to subvert the character of a 'republican' form of government, in which people are supreme and the government serves its people (instead of the OCI scheme which makes a significant number of contributing Indians subservient to the 'executive').
“The first question one is tempted to ask is how India benefits by 'giving' dual citizenship. Is it a question of 'giving' or 'not taking away'?
The answers and approach taken by the government must necessarily dissipate any notion of 'conventional and stereotyped blinkers' noted in:
"The committee has deliberated on the issue of dual nationality in all its ramifications and has given its anxious consideration to all the pros and cons of the issue. It has come to the conclusion that the demand for dual citizenship deserves to be considered in a positive and forward-looking spirit and without the conventional and stereotyped blinkers which have often obfuscated an objective consideration of the issue on the merits of the proposals." (Singhvi report)
A written record complementing the Singhvi report appears to be in order.
The impact analysis is explained as different questions and topics below.
The first question one is tempted to ask is how India benefits by 'giving' dual citizenship. Hopefully, this series has made it clear that what is being discussed is 'not taking' (i.e., termination), which should not be equated to 'giving'.
The standards for 'not taking' are fundamentally different from 'giving'. Irrespective, suffice it to say that grant of dual citizenship makes it more likely that fair-minded Indians will continue to engage more with India to the benefit of the people in India, and also strengthen India's political stature in other countries, being armed with full voting rights in foreign countries as well. It must be viewed as a strength for India.
The second question to consider is whether Indian citizenship will grow uncontrolled and unbridled in foreign countries if Section 9(1) of the Citizenship Act, 1955 is somehow made inoperative.
The answer is a clear no. Specifically, Section 3 of the Citizenship Act of 1955 recognises as 'citizens by birth' only those that are born in India to Indian citizens and there is no further procedural requirement.
Section 4 recognises as 'citizens by descent' those born outside India to Indian citizens. However, under Section 4, if the child is born to a citizen by descent, there is a requirement for registration of the child before being recognised as a citizen of India.
No such procedure exists when a child qualifies as a 'citizen by descent' by being born to a citizen by birth. Section 4 can be further rewritten to not continue citizenship for those that are not functionally engaged with India (e.g., by residence requirement to parents and/or grandparents), or perhaps tying to domicile/residence of the person/parent consistent with the approach taken to Article 5 of the Constitution. In a digital world, maintaining these records should not be tough.
The third question is whether dual citizenship will increase the strain on seats in educational institutions from already privileged people. Factually, it is hopefully clear that very high net-worth individuals (HNIs, both resident Indians and OCIs) are not seeking admission to the very competitive seats in Indian universities.
“The second question to consider is whether Indian citizenship will grow uncontrolled and unbridled in foreign countries if Section 9(1) of the Citizenship Act, 1955 is somehow made inoperative.
Those competing for such seats are 'not-so-HNIs', who have been taxpayers in India for several years. They simply wish to retain their foreign citizenship for better opportunities globally. Residence (as a taxpayer) is an appropriate inclusive filter even for dual citizenship, instead of using 'foreign citizenship' alone as a filter to exclude.
This is arguably what weighed in the mind of the court in Anushka Rengunthwar and Ors versus Union of India and Ors, in which the court made inapplicable to OCIs for at least a decade the impugned Union home ministry notification which sought to curtail even India-resident OCIs from competing for seats of professional colleges.
The fourth question is: How does the current situation with Canada inform the dual citizenship debate? It does make the case for dual citizenship clear. It makes it more evident the law does not distinguish between those who do not wish to continue as Indian citizens and those who would like to continue as Indian citizens along with having foreign citizenship.
It would be rather unfortunate if many Indian citizens were unable to vote and influence the election outcomes in Canada simply because of the Indian law that does not permit them to be Canadian citizens and vote there as well.
It also brings to light the fact that even law-abiding patriotic OCIs have been exposed to the removal of OCI cards, denial of entry to India, and perhaps removal from India from future governments and administrations, all of whom cannot be expected not to be arbitrary.
It is easily a desirable option to confirm dual citizenship so that the broad powers the government seeks to exercise under the OCI scheme are available against only those mobile Indians that do not wish to be Indian citizens.
Irrespective, specific laws that punish (by appropriate jail term, extradition, etc.) those residents in foreign lands who are clearly acting against the unity and integrity of India should be considered.
The fifth question is: Does the suggested right to dual citizenship weaken the government? The answer is— it does not. The government can continue to wield broad powers not just due to Entry 17 of List I of the Seventh Schedule, but also from other sources (e.g., over matters in foreign lands, aliens, etc.), while recognising the legitimate life interests of its people and citizens. The government can continue to require citizens by naturalisation, etc., to renounce foreign citizenship and impose that continuing requirement.
The final question here is what will it take administratively to implement the dual citizenship scheme should Section 9(1) be found to be unconstitutional ab initio, as argued above.
“Residence (as a taxpayer) is an appropriate inclusive filter even for dual citizenship, instead of using 'foreign citizenship' alone as a filter to exclude.
Fundamentally, it means that Indian laws will ignore or disregard the fact that citizens (recognised to have dual citizenship) acquired foreign citizenship. This is simpler to administer, given the large Indian diaspora, and it avoids unneeded litigations on diaspora rights.
On the transition itself, with there having been operative a bar on dual citizenship in the past, a minor challenge is faced by the administration having misinterpreted and misused the term 'renunciation'. Renounce is a word from Section 8 of the Citizenship Act, which would be when one voluntarily and volitionally gives up Indian citizenship (for example in a scenario of reacquiring Indian citizenship, a person with an OCI would be required to give up foreign citizenship).
Section 8 had an important use when most countries had mono-citizenship laws (and some countries continue to do so), and an Indian citizen was required to give up Indian citizenship before acquiring foreign citizenship.
However, the administration sadly has forced many diaspora members to secure a 'certificate of renunciation' as a pre-requisite to granting an OCI card. What would have been appropriate is a confirmation of understanding that their citizenship ceased by operation of Section 9 and the consequent surrender of the Indian passport.
Having confused Sections 8 and 9 of the Citizenship Act, it will require some engineering to figure out who should be given back an Indian passport. But that is a task manageable with reasonable precision. Irrespective of whether or not the current government wishes to recognise dual citizenship, there is a need to impress on the administration that accurate records be maintained in accordance with the law.
The concept and legal ramifications of dual citizenship need to be understood in the context that it is the creamy and wealth layer that is positioned to engage with both India and foreign countries that demands protection of laws of more countries (and thus dual citizenship).
“For those who have global mobility needs, citizenship is viewed from a functional perspective.
For those who have global mobility needs, citizenship is viewed from a functional perspective. Most vibrant democracies (and not-so-vibrant ones including Pakistan and Bangladesh) have moved to dual citizenship laws and it is time India also considers the switch sooner than later to accommodate the needs of the law-abiding Indians who wish to continue a positive engagement with India.