Herald: The Portuguese nationality bug

The Portuguese nationality bug

21 Sep 2016 07:07am IST
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21 Sep 2016 07:07am IST

With the Election Commission attempting to delete Goans with Portuguese passport from the electorol here, a new bug has caught us.

Goans were Portuguese and they did not give up Portuguese citizenship and continued to be so. After the Indian troops marched into Goa, the conferring of Indian citizenship on Goans (deemed Indian citizens status) did not divest them of Portuguese citizenship as they neither voluntarily accepted Indian citizenship nor they gave up Portuguese citizenship. 

Citizenship of any country is a relationship of the person with the state at international law. Even if the use of force by Indian troops in 1961 is taken as ‘annexation’ the residents of Goa, Daman and Diu who were Portuguese nationals, did not get Indian citizenship on 19th Dec. 1961. It came after passage of one month from the application of citizenship order from 1962. International law accepts subjugation as one of the modes of acquiring nationality and citizenship. It can be said that in the interregnum between 19th Dec. 1961 and the application of the citizenship order in 1962, Goans who are Portuguese nationals became Indian nationals. 

‘Citizens are those who subjected themselves to the dominion of a government for the promotion of the general welfare and for the protection of the individual as well as their collective rights’. That is what the US Supreme Court said in 1875. It may hardly be of any relevance and to whether the subjugation is by way of troops marching to liberate to annex or to conquer or by people accepting a new sovereign. Subjugation can be by way of war or peaceful takeover of a territory. Large parts of India came under British control. Portugal took over Goa. Pondicherry came under French control. 

Citizenship by subjugation is the principle of the English common law and our Supreme Court has accepted that position of law – the residents of the territories did not carry with them the rights which they possessed a subjects of the ex sovereign, and that a subjects to the new sovereign they had only such rights as are granted or recognized by the new sovereign, so far as the relations between the subject and the sovereign are concern this position at law is loud and clear. 

Section 7 of the Indian Citizenship Act specifies the person/s who shall be citizens of India in connection with the Indian Union from the date specified in the order. This provision is also in tune with the principles of English common law accepted in India that incorporation of a foreign territory by a sovereign is an act of the state. Thus a French national born in Pondicherry or a Portuguese national born in Goa or Dadra Nagar Haveli as the case may be and residing in India on the appointed date under the citizenship (Pondicherry order 1962) or Goa, Daman and Diu (citizenship order 1962) became Indian citizens from the appointed day, in case they have not chosen to retain their French nationality within six months and Portuguese nationality within one year. 

The crucial word is ‘retain’ i.e. non-retention has the effect of giving up and the constitution bench of the Supreme Court of India headed by the illustrious H.M. Hidayallulah interpreted in Rev. Mons. Sebastiao Francisco Xavier dos Remedios Monteiro v/s the State of Goa, said “after the annexation of Goa by India, he had the choice of becoming an Indian national or retaining Portuguese nationality. He chose the latter and was registered as a foreigner”. That is how all persons born on or before 19th Dec. 1961 became India citizens by not signing the declaration retaining their Portuguese nationality under the 1962 order which conferred the deemed citizens status on Goans which had the effect of giving up the Portuguese citizenship. 

Citizenship is always a matter of law. It can be granted and divested by law. In 1950 when the Indian Constitution was inaugurated, it was left to parliament to legislate on citizenship. The British Nationality Act 1948 is replaced by the British Nationality Act 1981. US provides any person of whatever race or colour born within the United States of America to acquire citizenship of United States. American women do not lose their citizenship by marrying aliens conversely alien women do not acquire American citizenship by marrying Americans. Some countries provide ‘birth’ in their land to grant citizenship to boost what is referred to as ‘birth tourism’. Citizenship is neither natural right nor a constitutional right as some may contend but certainly a statutory right. That statute may grant or divest a person of his citizenship. 

An interesting case arose after Berubari Union no. 12 and 4 Cooch Behar enclaves had to be given to Pakistan under a Nehru – Noon Agreement. A boundary dispute between India and Pakistan after independence was being settled by an agreement redrawing the boundary line. The residents of the ceded territory will loose their Indian citizenship the moment cession takes effect opined L. F. L. Oppenheim – a German Jurist and an accepted authority on International law. Whether they would acquire citizenship of Pakistan which incorporates the ceded territory would depend on the law in Pakistan. There is nothing in international law that compels the state to grant citizenship and D.D. Basu an author on Indian Constitutional Law opines such persons shall become stateless. Before Independence, residents of India owed allegiance to the queen were made British subjects under Sec. 1 of the British nationality Act 1948 enacted as a result of agreement between the UK and India which position continued until India was declared as a republic in 1950 and by virtue of provisions of India (consequential provisions) Act 1949 Indians continue to be commonwealth citizens. 

(The writer is a practicing advocate, senior faculty in law and political analyst)
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