The State playing judge: A case for revisiting deprivation of Indian citizenship

Citizenship is salient for accessing a bouquet of rights. It is unfortunate that the Gujarat High Court, in a recent case, has held that the Union Government can exclusively deal with the termination of citizenship, wholly excluding the jurisdiction of the civil courts.

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"It is important to remember that the provision about citizenship will be scrutinised all over the world. They are watching what we are doing. We will be undergoing great risk if you postpone this matter and raise legal controversies. By commenting on every word in this, you will never come to an end. This is a simple problem. We must always have a few foreigners coming here. This will be accidental nationality–If by the accident of birth, someone comes and stays here, subject to the proviso which we have enacted, we can control double citizenship by our legislation. We can always control that…"

– Sardar Vallabhbhai Patel

SARDAR Patel had a reputation for administrative efficiency and expediency – qualities which unified heterogenous provinces into the Indian State, and gave its citizens a national identity. Yet, it must be asked if the prongs of administrative efficiency and expediency are the tools which the Sardar was alluding to when he declared to the Constituent Assembly that "we can control double citizenship by our legislation. We can always control that". 

Patel's words were in the context of how constitutional provisions on Indian citizenship ought to be set up, and which people ought to be Indian citizens when the Constitution of India came into force. 

In a sense, there was an immediacy to it – the constitutional debates on citizenship restricted itself to the question of "who would be an Indian citizen" only to the moment of the enactment of the Constitution of India. It was understood that the legislature in due course would usher in a legal regime which would not only be permanent but also holistically address the law on citizenship. 

"Essentially, for the purpose of the Act and Rules, it is the state, the representative of which is the Union Government, which recognises a person's citizenship in India. Therefore, the state performs the role of judge, jury and executioner in matters of termination and deprivation of citizenship."

Such a law on citizenship would also delineate situations when an individual's citizenship could be terminated or deprived by the state. In 1955, the Citizenship Act ("Act"), amongst other provisions, laid out the ways in which a citizen of India could lose their citizenship. 

In recent times, the Gujarat High Court, in the case of Akil Valibhai Piplodwala vs. Central Government ("Akil Valibhai"),  had the occasion to consider the provisions of Section 9 of the Act dealing with termination of citizenship. Staying true to the text of Section 9 of the Act,  Akil Valibhai held that questions emanating from Section 9 of the Act can exclusively be tried by the Union Government, thereby wholly excluding the jurisdiction of civil courts. 

However, sections 9 and 10, which address "termination" and "deprivation" respectively, are arbitrary and procedurally dubious sans in-built safeguards. It furthers a regime of high-handedness of the state by excluding the jurisdiction of civil courts in adjudicating issues of termination and deprivation. This makes a mockery of the right to citizenship which is a pivotal precursor to access both civil and political rights as well as socio-economic rights within India.  

Termination and deprivation of citizenship

Prior to addressing the key issue which arose in Akil Valibhai, it is pertinent to understand how the processes of termination and deprivation of Indian citizenship happen as per the Act. Section 9 of the Act pertains to the termination of citizenship. In order for it to be invoked, an Indian citizen must voluntarily acquire the citizenship of another country. The inquiry into acquiring foreign citizenship, as per Section 9(2), shall be determined by an authority, with regard to the applicable rules of evidence. Such authority would be prescribed by the central government from time to time. 

In a similar vein, section 10 of the Act lays down the manner in which citizenship may be deprived. Section 10(2) provides for the five instances when citizenship may be deprived.  However, the key tenet of both sections 9 and 10 of the Act is that they provide the Union Government with unbridled power – a carte blanche of sorts – to not just decide and adjudicate upon questions of termination and deprivation but also act as a quasi-appellate authority in the event that a person is not satisfied with termination and/or deprivation of citizenship. 

Further, the Act itself does not provide for the procedure in which questions of termination and deprivation are to be adjudicated. Instead, section 18 of the Act empowers the Union Government to make rules for this purpose.

Citizenship Rules, 2009

The Citizenship Rules ("Rules") set out the manner and method in which the provisions of the Act are to be given effect to. This includes the manner in which applications for Indian citizenship are to be made and also how such citizenship would be terminated or deprived. 

Schedules II and III of the Rules enumerate the procedure for termination and deprivation, respectively. For termination of citizenship, Schedule III provides the power of enquiry solely upon the Central Government. Clause 3 of Schedule III states that if a citizen of India has obtained a passport from another country, such fact shall be "conclusive proof" of having voluntarily acquired the citizenship of that country. 

Given these powers, it is also vital to consider that the factum of citizenship itself is recognised by the state. Essentially, for the purpose of the Act and Rules, it is the state, the representative of which is the Central Government, which recognises a person's citizenship in India. 

"If citizenship is a public good then its termination and deprivation ought to be subjected to the highest thresholds of procedural propriety."

Therefore, the state performs the role of judge, jury and executioner in matters of termination and deprivation of citizenship. Firstly, it recognises citizenship. Secondly, it acts as the agency which enquires into questions of termination and deprivation and gives effect to them. Lastly, it acts as the appellate authority to adjudicate upon the veracity (or lack thereof) of its decision. 

Also read: What does 'citizenship' mean in India

The Akil Valibhai judgement

The substantial question of law in the Akil Valibhai case was whether the Act ousts the jurisdiction of civil courts. However, there is currency in considering the facts of the case and certain other issues which emanate from them. 

In this case, the appellant contended that he has been living in India for the last 40 years as an Indian citizen and he is under the apprehension that the Respondent (being state authorities) would deport him. The reasons for such deportation are not material to this essay in as much as the procedure which facilitates such deportation. 

The respondent contended that the appellant had voluntarily acquired citizenship in Pakistan and had issued a deportation order under the Foreigners Act, 1946 ("FA 1946") i.e., as the appellant had failed to establish himself as an Indian citizen, ipso facto he became a foreigner, and liable for deportation. Due to this, the appellant had prayed before the trial court to declare him as an Indian citizen. 

The high court, placing reliance on section 9 of the Act, and the cases of the Supreme Court in "State of UP vs. Shah Mohammad" ("Shah Mohammad") and "State of U.P. vs. Mohammad Din" ("Mohammad Din") held that 

"…There is no iota of doubt that as per Sub-section (2) of Section 9 of the Citizenship Act, 1955, read with section 40 along with schedule III of the Citizenship Rules, 2009, the said question can exclusively be tried by the Central Government…"

In Shah Mohammad, the Supreme Court had also observed that the procedure under section 9(2) of the Act is a "procedure established by law", within the meaning of Article 21 of the Constitution of India. 

It could also be said that the high court as well as the Supreme Court were alluding to the fact that sections 9 and 10 of the Act read with Schedules II and III of the Rules are a self-contained code which would determine questions of termination and deprivation of citizenship. 

Judicial discourses 

If citizenship is a public good then its termination and deprivation ought to be subjected to the highest thresholds of procedural propriety. Yet, the Act and its concomitant rules enumerate a cavalier procedure, which succeeds in efficiently and expediently terminating and depriving citizenship, but fails miserably in ensuring the bare minimum of procedural safeguards. 

A couple of key issues arise from the judgements in Akil Valibhai, Shah Mohammad and Mohammad Din. Firstly, in all these cases, the person whose citizenship stands to be terminated challenged such an act of termination. In fact, in the Mohhamad Din case, the person prayed for being declared as Indian citizens. Both instances of challenge and recognition is against the state – it is the state who is either terminating the citizenship or refusing to recognise citizenship. 

Secondly, there seems to arise an interplay between the Act and the FA 1946. Much has been written about the gross injustice which is meted out by foreigner tribunals constituted under the FA 1946, found here and here. 

While this article does not address the functioning of foreigner tribunals, it is pertinent to note that there is a cogent possibility of proceedings being initiated under the FA 1946 in the event a person's citizenship is terminated and/or deprived. For example, in the Akil Valibhai case the deportation order was passed under the FA 1946. Since an order of deportation simply cannot deport a person to a country (as the receiving country's permission would be required), deportees are indefinitely detained by the state. 

Also read: Indian Citizenship Law a Mess, Proving Citizenship Even Messier

Further, neither the Act nor the Rules provide for any proceedings which are to be undertaken under the FA 1946. Accordingly, the state at its whims may at times commence proceedings under the FA 1946 which may consequently lead to detention. Proceedings under the FA 1946 are a fait accompli, if they arise from an order of termination and/or deprivation as the Central Government, while passing such orders, acts in a quasi-judicial capacity. 

Since the term 'foreigner' is defined as a person who is not a citizen of India, once the Central Government – functioning under the Act and Rules – passes an order of termination and/or deprivation of citizenship, the authority under the FA 1946 merely has to give effect to this order in those situations where the FA 1946 is actually invoked. 

Lastly, there are contestations around the word 'voluntarily' as it appears in section 9(2) of the Act. In the case of Luingam Luithui, certain activists lost their passports in Thailand. Subsequently, the Indian state delayed the issuing of fresh passports indefinitely, and the activists were subjected to harassment and illegal search procedures in Thailand. Due to this, the United Nations High Commissioner for Refugees ("UNHCR") found the activists to be "persons of concern" and relocated them to Canada where they were issued Canadian passports. 

The moot question was: Could it be held that the activists had voluntarily acquired Canadian citizenship? In a scathing judgment against the notion, the Delhi High Court noted that an act of acquisition of a passport of any other country has to be treated as conclusive proof of his having acquired the citizenship of that country. It necessarily entails consideration of the issue as to whether such acquisition of passport was also a voluntary act and not compelled by any relevant circumstances. Finally, it held that the activists were forced to acquire Canadian citizenship solely due to the actions of the Indian state. 

Similarly, in the case of Ghaurul Hasan a person had applied to the Collector for registering his citizenship in India. The Collector, after issuing certificates of citizenship, proceeded to cancel the same under section 10 (2) of the Act, which allows for deprivation of citizenship if such citizenship has been acquired by fraud and misrepresentation. The Supreme Court held that the actions of the Collector were illegal as there had been no misrepresentation in the case. 

Arbitrary state action

Staying true to Sardar Patel's intuition, that the Indian State could adjudicate citizenship claims through legislation, and the Constitution need not comprehensively address rights of citizenship, was perhaps the strongest blow to achieving a morally just framework for citizenship in India. 

As the cases above highlight, it is often the state who has to be litigated against in order to achieve citizenship. This leads to an anomalous situation where on one hand the state is distributing the pre-eminent good of citizenship, and on the other hand it is also the authority adjudicating upon purported concerns surrounding citizenship. 

By being the "authority" as per the Act and Rules, the state acts as a judge in its own cause by being both, the body which bestows citizenship and enquires into situations where citizenship ought to be purportedly terminated or deprived, and then passes orders giving effect to such termination and deprivation. 

Such actions of the state are done in 'deliberative isolation' without being accountable to any other instrumentality – like the judiciary or the citizenry at large. In cases where a person is aggrieved, they have two hollow remedies. They may prefer a review under section 15A of the Act, which would lie before the Union Government (being the body which passed the order in the first instance) or they may prefer an action in writ before a high court or the Supreme Court. Neither of these are cogent remedies, as writ courts are circumspect in interfering in matters of administration and an individual would be left to the caprices of a particular judge. 

Also read: Rights Activist Nandita Haksar on Seeing India through the Eyes of its Refugees

In these situations, it is not the power of the state to adjudicate upon questions of termination and deprivation which is arbitrary, but the manner in which such decisions are arrived at, without any recourse, which is manifestly arbitrary. As the cases above show, an enquiry into 'voluntariness' of acquiring citizenship may or may not happen. A person may or may not be subjected to the provisions of the FA 1946 (eventually leading to detention). A person undertaking a routinely bureaucratic task, such as applying for registration as a citizen, may suddenly find herself at the receiving end of state action, without any statutory succor. 

Given the salience of citizenship in accessing a bouquet of other rights, it is of paramount importance to reconsider the manner in which termination and deprivation of citizenship happen in India.