SATURDAY, JULY 27, 2024
After ruling Goa for 450 years, the Portuguese left Goa after it was liberated by the Indian armed forces on December 19, 1961. While leaving Goa’s shores, they gave a ‘gift’ to the people here. According to the law in Goa, anyone who is born in here before 1961, their children and grandchildren are eligible for the Portuguese passport and nationality.
One is eligible for Portuguese citizenship, if parents were born in Goa during the period of Portuguese sovereignty, even though the applicant was born in another country; if you are married to a Portuguese citizen.
Anyone can apply for registration of Portuguese citizenship on the basis of their birth during the period of Portuguese sovereignty, even after their death (their descendants). In life, the applicant may submit the application in person. Otherwise, their descendants are entitled to submit the application on their behalf.
But there is a catch here. India does not have dual citizenship law. Hence, whoever opts for Portuguese citizenship, has to give up Indian citizenship.
Now, following the notification by the Union Ministry of External Affairs on November 30, 2022, the Passport authorities have been revoking the Indian passport of Goans having their births registered in Lisbon, at the time of renewal. This issue has created anxiety among thousands of Goans who have registered their birth in Portugal, but are staying in the State.
If a passport is revoked during surrender, one cannot apply for an OCI card, making them a foreign national, who has to, in turn, obtain legal permission to live in India.
There are laws and regulations, which allow Goans to culminate the process of acquiring Portuguese citizenship and there are a lot of contentious issues linked to this. They’re linked to registering birth in Portugal, acquiring an identity card and thereafter acquiring passport.
Up till now, there was relative ease in this whole process. But the aforesaid circular has caused a lot of issues as people, who surrender their passports after acquiring foreign citizenship, can surrender their passports under various categories.
However, there is one category which states that a person who gets the Indian passport issued or reissued by suppressing material information about his or her obtaining foreign nationality, irrespective of the fact that the passport holder has used it for travel or not. In this particular case, their passports will have to be revoked.
Now, since this circular has come into effect, there are many Goans who have acquired their Portuguese passports and when they go to surrender their Indian passport as per law, they are asked to not only give them the date when they acquired the Portuguese passport, which is absolutely fine, but other dates like when did they acquire their identity card, which was called called the Bilhete de Identidade (BI; Identity Card), now it is called the Citizen Card (Cartão de cidadão) or CC and they are asked when their birth was registered in Portugal.
Now the contentious issue here is that often people registered their births in Portugal without necessarily carrying out any other process, which means they did not move from the registration of births to the acquiring of the CC or the Portuguese passports thereof.
Some of them were shocked when they finally decided to acquire the Portuguese passports. When the background check was done or when all the dates were found out, on the discovery that many of them may have registered their births, after which they acquired their Indian passports or reissued their Indian passports, in that case this particular section as per this new circular is applicable.
It is being stated that they are the people who deliberately suppressed material facts when they applied for the Indian passports or got it reissued. Even up to this stage, there is no cause for worry. If your passport is revoked, you have a Portuguese passport and there’s no problem. The problem starts or has started when people have begun applying for the Overseas Citizen of India (OCI) card status.
When that application is being made, they are getting letters stating that “this is in reference to your trailing mail below. You are not eligible to apply for OCI registration as the previous Indian passport of the applicant had been revoked by the concerned issuing Indian authority.”
This basically means that the OCI, which is almost seen as a natural step after surrendering your Indian passport if you apply for it, is being denied to you, which means that you do not have any legal right to stay in India under the OCI status. You can apply for a visa like any other foreigner. This is the worrying part.
Legal experts however have slammed the revoking of passports of Goans having birth registered in Portugal. According to them, passport authorities can’t just summarily cancel the passport; the Passport Officer is bound by law and has no authority to revoke or impound any Indian passport unless the holder has violated the provisions of the law.
As one can see, this issue has become a major controversy in Goa as a large number of people would be affected by this move. Even the travel agents have reacted sharply against the manner in which the Regional Passport Office (RPO) has cancelled the Indian passports of over 70 individuals who had renewed their passports, merely because their births were registered in Portugal.
The travel agents have reacted sharply against the manner in which the Regional Passport Office (RPO) has cancelled the Indian passports of over 70 individuals who had renewed their passports, merely because their births were registered in Portugal.
According to legal experts, one can’t just cancel the passport, it is illegal. As per the law show cause notices must be issued, the party must be heard and then you cancel. The RPO can’t just summarily and arbitrarily cancel the passport.
Sharing thoughts on this controversy, Joseph Clive Sequeira, Managing Director, Media Promotions Pvt Ltd spoke about the issues faced by his acquaintances.
“So, basically like any other applicant, when the trend was going on that in case you have a Portuguese passport and you want to renounce your Indian citizenship, you go to the passport office and hand over the Indian passport and along with the cancellation of your voting card and your ration card. Then, you get a surrender certificate and a cancelled stamp on your passport. But, in January this year, I was accompanying a friend of mine to the passport office as he had just acquired his Portuguese passport the previous week,” Sequeira said.
“He did all the formalities to surrender his Indian passport as the trend was going on that you will be penalised for some amount right and you’ll be given your passport back cancelled. You will be given a surrender certificate. The system was accepting you and they were fining you for that. Nobody experienced the present situation, that was caused by the Kerala High Court judgment, after which the whole notification came in November last year,” he said.
“The passport was revoked, the ends were cut and the passport was handed over. Now, I asked the RPO for explanation. He refused to do so, asking us to go to the Foreigners Regional Registration Officer (FRRO) and find out. The FRRO was ignorant about it and it remained that way from February to October,” he said.
He said that till today the visa has not come and applications for OCI cards were rejected. Many of these OCIs have been rejected point blank, stating that “it is a revoke case, visa can’t be issued”.
There are two issues here. One is having your feet on both boats - the Indian boat and the Portuguese boat - that is one part. If we accept that it is incorrect, the point here is that it can be settled through a penalty or through a fine or whatever. But is it surprising that the OCI card is not being issued because of this. Now, where does that thought flow from?
Adv Aires Rodrigues said that this issue has been going on for many years.
“In fact, the government and the courts should lay this issue to rest once for all now. In 2015 the central government had issued a memorandum, directing that all these cases be kept on hold and that status quo be maintained. A team from the Centre visited Goa. They conducted some study and went back. Then a circular was issued, which says very clearly that ‘it has been decided to maintain the status quo in the state of Goa regarding citizenship issue till a final decision in this regard is taken by the central government’,” Adv Rodrigues said.
“Today we are in 2023. That final decision has not been taken. So, I think this issue has to be laid to rest once for all. There needs to be clarity. In 2014, during the general elections, the central government had promised that they would consider dual citizenship. So, if that is done, this whole issue gets resolved. But today there is unnecessary panic in the minds of the people and it’s unfair,” he said.
“So, I think the government should take a holistic view of this whole issue and find a solution and lay this issue to rest,” he added.
When asked if he was surprised with OCI rejection, he said that since any decision taken by the government has to be a well thought, and a decision that is in consonance with the law. If there is a provision in law, this issue can be resolved if the government has the willpower.
“I’m sure the government shall act in the public interest, because this is an issue not just affecting Goans, but many others. So once the issue of dual nationality is resolved by the central government as promised, these problems will also cease. The Prime Minister should take a lead now in the forthcoming session of parliament to amend the law for allowing dual nationality and resolve this issue once for all,” he said.
When asked whether he was surprised with the move of the passport authority not issuing OCI card and revoking of passport, Former MLA, Radharao Gracias said, “I have a different take on the whole situation. Under Article 9 of our Constitution, it is stated that no person shall be a citizen of India if he has voluntarily acquired a citizenship of any foreign State. Now this is where the trouble starts.”
“You see, we Goans haven’t acquired Portuguese citizenship voluntarily. Under Portuguese law, we continue to be their citizens, if we were born prior to 1961 or descendants of those people. There’s a difference between acquiring foreign citizenship and being given citizenship of that country by birth. Now, let me go further. As as far as Portugal is concerned, we are their citizens by birth. We do not register our births there. Birth cannot be registered twice,” Adv Gracias said.
Even Indian who is born abroad, transcribes his or her birth and not register it. There’s a difference between transcribing a birth and registering birth. Now what happens here is, those births which were registered in Goa when it was part of Portugal, are now transcribed in the Portuguese Central Register because they acknowledge Goans as citizens. They don’t apply for citizenship.
“The whole problem therefore is in the Article 9 of Indian Constitution. We do not voluntarily acquire foreign citizenship. We are their citizens. We transcribed our births there as per their law and we continue to be citizens. Now, we became Indian citizens by virtue of the citizenship order of March 28, 1962. It says every person who or either of his parents were or any of whose grandparents were born before the 20th day of December 1961 in the territories now comprising the Union Territory of Goa and Daman, shall be deemed to have become citizens of India on that day,” Adv Gracias said.
But by the order of the Indian government, Goans don’t cease to be Portuguese citizens. Only the Portuguese government can cancel citizenship. So therefore, by law of both countries, Goans are citizens of both India and Portugal. India does not allow dual citizenship to those who voluntarily acquire it.
“We are not voluntarily acquiring anything. We are citizens of Portugal as per their law. All that we do is transcribe our births there. This difference has to be understood and decided upon,” he said.
What about descendants of people who are born before 1961? Suppose one is born in a Goa hospital two generations later. What happens to him or her?
“Under the Portuguese law, if we apply for Portuguese citizenship, then we will become naturalised citizens. There will be an order naturalising as a citizen by the Portuguese government, which doesn’t happen. Our birth is just transcribed because they take us as their citizens. So there is no granting of any citizenship,” he said.
“We are not acquiring foreign citizenship. We are already their citizens as per their law. Voluntary acquiring means there has to be a physical act by me where I go and apply. Have I applied for Portuguese citizenship? No. Goans don’t register their birth. They transcribe. The difference is between transcription and registration. Transcription is permitted because we are their citizens,” Adv Gracias said.
Kennedy Afonso, President of Goans for Goa NGO, has been helping out a lot of people as far as the problems related to passports are concerned.
Explaining the kind of trouble people are going through, Afonso said, “I have a friend of mine who has gone through this ordeal. He was the one who approached me and said he was completely confused. He didn’t know what to do. He’s still not got his passport revoked and is holding on to it because he’s saying I’ll wait. But by waiting, he is incurring a fine of Rs 10,000 every month. He has a 30-day grace period.”
“If you are going to pay a monthly fine of Rs 10,000, then that becomes a worrying factor. He is worried about what to do. His whole family is worried because the X-1 visas were not issued. They were told to exit the country. Where could they go in such a short period of time? They exited the country because without the X-1 visa, they would have been living illegally. So, they had to go to Portugal and come back on a visit visa.
The X-1 visa is granted to Persons of Indian Origin who do not possess an OCI card. It allows a stay of up to five years with multiple entries.
“Denying an X-1 visa forces a person to be on the run. There was nowhere to go. So they went out and came back on a visit visa. There are Goans who have suffered. So this is something that is worrying everybody. This has happened after the circular has come and now we are trying to help because they are all scattered. We are trying to bring them together so that at least we can find a way to resolve their problems,” Afonso said. The issue is that as far as Goans born before 1961 is concerned, the right to acquire Portuguese citizenship formally by virtue of a passport. The Portuguese citizenship is ingrained in them by virtue of the birth registered there or transcribed thereof. These are special privileges that have not been taken away.
So as most people here agree that unless these privileges are taken away, they continue to exist and the issue is that the denial of these privileges by virtue of new circulars and laws is not applicable. However, what is important here is that there is no absolute clarity on each of these issues.
The government needs to very clearly lay down the rules and it is important for everybody to understand. Learned people will know about it, but the general Goan should understand and then take proper decisions based on that understanding as to at what point of time will you be considered as a Portuguese national.
Let that be completely clarified in the sense that we have our views and interpretation of what the situation is. It should be defined, not only by India, but also by Portugal as well, as to at what stage are you considered as a Portuguese citizen and when Portugal says that your birth is registered and hence you are considered citizen of their country.
The Indian government must also specify very clearly as to what is its point of view, because if there’s no clarity and there’s a grey area, then problems arise. It leaves the door open for any kind of interpretation and that needs to be sorted out immediately.
The matter should certainly go to court, but there should be a proper deliberation on this. A highly empowered committee of people can be formed and that the committee should include people from Goa who are very learned and let there be a final proper documentation done to ensure that Goans are not troubled any longer.
That is very important because at the end of the day, you take a lot of decisions. There are a lot of hardships involved and then when you suddenly become a Stateless citizen in your own country, that’s not a good thing to happen. It affects your family and that’s very important.
The governments must remember the fact that every decision taken by them has a direct bearing on the welfare of its citizens. If any modification in the law is intended, then there should be proper engagement with the public. There shouldn’t be any scope for knee-jerk reactions. A country can’t be governed on individuals’ whims.
Most importantly, the affected people need to be given adequate time to take stock of the changed scenario and decide on the next course of action. There is no alternative to humane approach, when we are dealing with humans.
