there is a fear that those who opted to get their birth transcribed in Portugal for facilitation of obtaining Portuguese passport to travel to European countries in search of employment, could create a major demographic change in old conquests of Goa. Though Goans from old conquests were emigrating to other countries for decades, it is only after the European Union, the loss of Indian Citizenship has become an issue due to them obtaining Portuguese citizenship as travel permit to other European countries. As the demand for dual citizenship falling on deaf ears with the Central government in no mood to consider Goa’s special case, the only question is whether the election commission can actually go ahead and delete their names from the electoral roll without hearing them.
Under the Citizenship Act, the decision over citizenship is to be taken only by the Central government. Having a passport of another country is a conclusive proof of having taken up citizenship of that country under the citizenship rules. Erasmo de Sequeira, ex-MP from South Goa chose to maintain his Portuguese nationality and citizenship by making a declaration in writing on 27th April 1960 and thereafter, he travelled on the Portuguese passport issued to him by the then Portuguese administration and renewed it upto July 1964 in London. He even obtained an alien residential permit in India and did not surrender his Portuguese passport before 19th Jan. 1963 as required by clause 3A of the 1962 Citizenship rules. In an election petition by G.Y. Bhandare who questioned his election to the Lok Sabha, the Ld. Judicial Commissioner held that Erasmo did not make the declaration ‘voluntarily’ and that the retention of the Portuguese passport was due to ‘compelling reasons’ and in that context held that Erasmo was an Indian Citizen. The Supreme Court upheld that view (AIR 1975 SC 972).
The issue as to whether holding of a foreign passport tantamounts to loss of Indian citizenship has been a subject matter of debate even after the rules making holding of a foreign passport to be a conclusive proof. Sec 9(2) of the citizenship Act confers the power to determine whether Indian citizenship is terminated upon the central government. Since a foreign country grants a passport, is it possible to hold that upon a foreign country issuing a passport, the Indian citizenship is terminated? Does holding of a foreign passport dispense with determination by the central government under Sec. 9(2)? A person who holds the foreign passport may prove that the foreign passport was received by him under a situation that could be said to be not ‘voluntary’. May be he manages to prove fraud, misrepresentation or ‘compelling circumstances’ like the one pleaded and held to be proved by Erasmo de Sequeira. A constitution bench of Supreme Court in Ayub Khan v/s commissioner of Police (AIR 1965 SC 1523) also interpreted the words ‘voluntary’ and ‘obtained’ in the amended rules to indicate that mere fact of obtaining the passport from the foreign country would not empower the central government to hold that the person has acquired citizenship of that country unless it holds and inquiry that his application for the passport was made voluntarily and not by force, fraud and misrepresentation.
Constitutional expert D.D. Basu held that not giving effect to conclusive proof view would only delay the procedure of deportation as in every case there could be a claim that the passport was not voluntarily obtained. However jurist H.M. Seervai opined that a person cannot be deprived of his citizenship without hearing him. He held a view that there is a no such inquiry required as held by Supreme Court (AIR 1962 SC 10 52) deserved to be overruled and that actually happened in the Ayub Khan case of 1965.
Erasmo de Sequeira case is the shining example of succeeding in proving that he did not surrender his Portuguese passport due to compelling reasons. But Erasmo de Sequeira was lucky as he had the benefit of an inquiry by the court where he could lead evidence and prove that he had ‘compelling reasons’ not to surrender the Portuguese passport and all this despite signing a declaration of Portuguese nationality under the citizenship order!
The Central government is not a court and would go by rules under the Citizenship Act which do not expressly permit leading of evidence and cross examination. The central government may not grant an opportunity of inquiry of the type afforded to Erasmo de Sequeira but the fact of the matter is the law as laid down by the constitution bench in Ayub Khan case requires holding of an inquiry by the central government for which issuance of notice is certainly a must. But once the central government decides, the challenge to such a decision may be within the limited writ jurisdiction of the Hon’ble High Court or the Supreme Court as the case may be.
The Election Commission cannot on the basis of holding a foreign passport, without issuing any notice and conducting a hearing delete name of any person from the electoral roll. Deletion in the manner threatened would go against the letter and spirit of the citizenship law which H.M. Seervai claims to be ‘the more serious injury that can be done to an Indian citizen’. But the point in how many of those, except MLAs facing disqualification are prepared to assert that they have not voluntarily obtained the passports or have taken Portuguese citizenship?
(The writer is practicing advocate, senior faculty in law and political analyst)
