Vamos para Portugal (Lets go to Portugal)
The issue of Benaulim MLA Caitano Silva alias Caitu being in possession of a Portuguese citizenship has surfaced once again, following a petition filed by his bête noir Valanka Alemao in the High Court. This issue first surfaced before the Assembly elections earlier this year when she raised the issue claiming that he had lost his Indian citizenship by acquiring passport of a foreign country, and hence was liable for disqualification from the membership of the State Legislative Assembly.
While it may be true, as alleged by the petitioner, that his birth has been registered in the Conservatoria dos Registos Centrais on July 21, 2010, in our humble opinion, it does not necessarily mean that he has surrendered his Indian citizenship in preference to Portuguese. In any case, most Goans with have obtained such passports not out of the disloyalty to the nation, rather as a means to seek a livelihood overseas.
What apparently has upset Caitu is the letter from the private secretary of the Union Minister of State for External Affairs informing that the Indian Embassy in Lisbon had confirmed that his name has been registered in Conservatoria dos Registos Centrais since July 21, 2010. This, however, primarily appears to be a political move to embarrass the ruling dispensation in the State.
There are hundreds of Indians who have obtained Portuguese citizenships and yet continue being Indians. Gujaratis perhaps were the first to exploit the facility offered by the Portuguese Government, who were often seen arriving in busloads and making a beeline before the Portuguese Consulate which was first situated at Mira-Mar. The question uppermost however is whether if one’s birth is merely registered in Portuguese Government files, does it tantamount to Portuguese citizenship? Most middle-aged Goans were born during the Portuguese regime and therefore their names are bound to be on Portuguese registers. But, considering that there are hundreds of Goans who have Portuguese passports, the task of the local police to determine who has Portuguese passports is uphill. The only question therefore is, if the individual with Portuguese citizenship is in India, at that point, he either would have to pay a fine for overstaying or the risk cancellation of his Indian citizenship.
The issue nevertheless is complex, deserving careful consideration by every authority – be it judicial, quasi-judicial or government.
Considering the fact that the Supreme Court of India, in a catena of judgments (we have examined a dozen of them including Hari Shanker Jain v. Sonia Gandhi, AIR 2001 SC 3689), has ruled that if any question arises as to where, when and how any person has acquired the citizenship of another country, it shall be determined by such authority, in such manner, and having regard to such rules of evidence as may be prescribed in this behalf. In our opinion, the first question that should be taken up for consideration is whether Caitu Silva has really lost his citizenship, if so where, when and how?
Under section 9(2) of Indian Citizenship Act, read with Rule 40 of Indian Citizenship Rules, the Central Government is that authority that is empowered to determine the issues as to whether, when or how any citizen of India had acquired the citizenship of another country, and what repercussion has on the dual citizenship. In a world where countries vie with each other to involve the overseas citizens in development of the country of origin, it is rather redundant to raise such issues.
Further, in Sonia Gandhi case, the Apex Court dispels any doubt as to who is the authority to determine whether the citizenship of a person is liable to be terminated on account of his/her having voluntarily acquired the citizenship of another country, by stating that such a question, “if raised, would have been within the exclusive jurisdiction of the Central Government to determine.” The reason is: “there is no automatic loss of citizenship by acquisition of a foreign passport” — a proposition alluded to in State of Uttar Pradesh v. Rahmatullah (AIR 1971 SC 1382).
In light of the above legal position vis-à-vis determination of loss of citizenship, our opinion is that, Caitu Silva’s case should be first referred to the Central government which should determine the issue as per Schedule III of the Citizenship rules. But considering that the Congress is ruling at the Centre, our guess is as good as anyone else’s as to how objectively and justly, the Central government would look into the issue.