I have never said Goans are eligible for dual citizenship; I have only said Goans are dual citizens, by operation of the laws of India and Portugal. Here is how.
Portugal considers that on 19 December 1961 India annexed Goa. The annexation was not recognised by Portugal until a treaty was signed with India and diplomatic relations established; the treaty came into force on 3 June 1975. The Portuguese nationality law allows natives who were born in Goa before 1961, until the third generation to retain their Portuguese nationality as they are ethnically considered Portuguese. No clause in the treaty abrogates that citizenship.
Articles 5 the Indian Constitution lays down: Citizenship at the commencement of the Constitution.—At the commencement of this Constitution, every person who has his domicile in the territory of India and— (a) who was born in the territory of India; or (b) either of whose parents was born in the territory of India; or (c) who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement, shall be a citizen of India.
As Goa was not covered by Article 5 having not been part of the Republic of India at that time, a notification dated 28 March called Goa, Daman and Diu (Citizenship) Order, 1962 was issued.
Clause 2 reads: Every person who or either of whose parents or any of whose grandparents was born before the twentieth day of December, 1961, in the territories now comprised in the union territory of Goa, Daman and Diu, shall be deemed to have become a citizen of India on that day:
Provided that any such person shall not be deemed to have become a citizen of India as aforesaid if within one month from the date of publication of this Order in the Official Gazette that person makes a declaration in writing to the Administrator of Goa, Daman and Diu or any other authority specified by him in this behalf that he chooses to retain the citizenship or nationality which he had immediately before the twentieth day of December, 1961:
Clearly the order grants Indian Citizenship to all Goans, except those who opted out under the proviso. It does not take away the rights accruing to Goans under the law of Portugal whether or not the option contemplated by the aforesaid order was exercised.
Article 9 of the Constitution: Persons voluntarily acquiring citizenship of a foreign State not to be citizens. — No person shall be a citizen of India by virtue of article 5, or be deemed to be a citizen of India by virtue of article 6 or article 8, if he has voluntarily acquired the citizenship of any foreign State.
Acquire means to gain for oneself through one’s actions or efforts which would involve naturalisation. Goans do not voluntarily acquire Portuguese Citizenship when their births are transcribed (entered) in the Central Registry in Lisbon. The births are transcribed because Goans are eligible to do so, by the laws of Portugal, without acquisition. Those not covered by the law cannot transcribe their births in Lisbon.
Consider the case of an Indian child born in the USA and his birth transcribed in India. Initially, he obtains an Indian passport but on attaining majority, he opts for an American passport. At this point, he voluntarily acquires US citizenship based on his birth; otherwise he continues to be a citizen of India despite his birth being recorded in the USA. Why must the same law apply differently to Goans?
The move by the Passport Officer to revoke the Indian Passports and simultaneously deny OCI status to Goans who transcribe their births is playing havoc, leaving them stateless. The basis is a purported memorandum of the Ministry of External Affairs dated 30th November which pertains to “surrender of Indian passports on account of acquisition of foreign nationality by an erstwhile Indian citizen.” As detailed above, transcription is not equivalent to voluntary acquisition; however assuming, that transcription of birth does constitute acquisition how does the Passport Officer have the power to revoke passports unless the citizenship is terminated under Sec 9 of the Indian Citizenship Act 1955?
Sec 9 reads: Termination of citizenship.― (1) Any citizen of India who by naturalisation, registration otherwise voluntarily acquires, or has at any time between the 26th January, 1950 and the commencement of this Act, voluntarily acquired, the citizenship of another country shall, upon such acquisition or, as the case may be, such commencement, cease to be a citizen of India……….. (2) If any question arises as to whether, when or how any citizen of India 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.
Supreme Court of India by its decision in Bhagwati Prasad Dixit vs Rajeev Gandhi dated 25 April, 1986 has reaffirmed that position: ……In exercise of the powers conferred by clause (h) of sub section (2) of section 18 of the Citizenship Act, 1955 and sub-section (2) of section 9 of that Act the Central Government has framed rules to decide the question of voluntary acquisition of citizenship of a foreign country and the consequent determination of the citizenship of India. By rule 30 of the Citizenship Rules, 1956, the Central Government is appointed as the authority to decide such question. Schedule III of the Citizenship Rules, 1956 contains the rules of evidence applicable to a case arising under section 9(2) of the Citizenship Act, 1955. No other Court or authority has the power to decide the question as to whether, when or how an Indian citizen has acquired the citizenship of another country……..
Can the Passport Officer revoke a passport under Sec 10 of the Passport Act (as he has been doing) unless the issue of voluntary acquisition of citizenship of a foreign country is determined under Sec 9 and 10 of the Citizenship Act by the appointed authority, as mandated by the Supreme Court? Is he not acting in violation of the order of the Supreme Court when he is not the appointed authority?
Citizenship Rules 1956 have since been replaced by Citizenship Rules 2009; however the Contents of Rule 30 (though re-numbered) and Schedule III remain unaltered. Let me in conclusion add that the law on the issue needs to be settled, at the earliest.
(Radharao F Gracias is a senior Trial Court Advocate, a former Independent MLA, a political activist, with a reputation for oratory and interests in history and ornithology)
