This post has been contributed by Mr.Anil Malhotra. He is BSc. LL.B (Punjab), LL.M (London) and heads the firm Malhotra and Malhotra Associates, headquartered at Chandigarh, India. He has books “International Indians and the Law,” (2014), “Surrogacy in India : A law in the Making (2013),” “Indians, NRIs and Law” (2011), “India, NRIs and the Law” (2009) and “Acting for Non-Resident Indian Clients” (2005) to his credit. He can be reached at email@example.com.
As debates continue in India about using laws made during the British Raj, Great Britain itself is in the process of repealing 38 enactments which were legislated between 1849 and 1942 relating to construction and maintenance of Indian Railways network during British Rule. However, we are still not following suit though an exercise has been started to identify archaic laws to be weeded out by a process of spring cleaning being initiated by respective Government departments of cobwebs in their closet which is rarely disinfected or exposed to air and sunlight. Even though the Parliament has enacted The Passports Act, 1967, The Citizenship Act, 1955 and in 2005, created “Overseas Citizens of India”, till date we still rely on The Passport (Entry into India) Act, 1920, The Registration of Foreigners Act, 1939, and The Foreigners Act, 1946, for various purposes. Most of such archaic legislations made during colonial rule are redundant, do not stand the test of principles of natural justice, confer unfettered, arbitrary and draconian powers, which seriously requires them to be taken off the statute book. But, we still carry on regardless.
A WHOLESOME LAW
The Passports Act, 1967, which is a comprehensive and wholesome law relating to the issue of passports and travel documents, provides a statutory safeguard procedure for variation, impounding and revocation of passports with rights of appeal to aggrieved persons against offences and penalties levied under this Act. However, the simultaneous existence of the Passport (Entry into India) Act, 1920 and The Foreigners Act, 1946, conferring absolute and unlimited powers to remove or deport a person from India summarily without following the due process of law, are an anathema and an anti-thesis to the rule of law in a democratic nation with ample scope for judicial review. Powers of house arrest, detention, solitary confinement and summary removal from India under these 1920 and 1946 Acts clearly infringe the fundamental rights of life and personal liberty guaranteed by the Indian Constitution. The reasons, therefore, to retain these pre-independence laws seems to be misplaced and defy fundamental freedoms.
LAW SETTLED BY SUPREME COURT
The Central Government is vested with powers under Section 9 (2) of The Citizenship Act, 1955, read with Rule 30 of The Citizenship Rules, 1956, as an exclusive jurisdiction to determine the question whether a person, who was a citizen of India, has lost that citizenship by having voluntarily acquired the citizenship of a Foreign State. Further, under Section 9 (2) and Rule 30 above, mere proof of the fact that the person has obtained a passport from a foreign country is not sufficient to sustain an order for deportation or prosecution, unless there has been a decision of the Central Government under Section 9 (2) of the said Act. Moreover, the enquiry by the Central Government under Section 9 (2) of the said Act is a quasi- judicial enquiry. This proposition of law is well settled by the following judgements of the Apex Court in –
i) State of A.P. vs. Abdul Khader AIR 1961 SC 1467;
ii) Government of A.P. vs. Syed Md. AIR 1962 SC 1778 ;
iii) State of U.P. vs. Rehmatullah AIR 1971 SC 1382.
Thus, this process of determination of nationality is well settled in law.
1.2 billion Indians contributing 30 million non-resident Indians in almost 180 countries on the globe has led to compromises on dual nationality which is otherwise prohibited under Article 9 of the Constitution of India and Section 9 of the Citizenship Act, 1955. Categories of “Persons of Indian Origin” (PIO) and “Overseas Citizen of India” (OCI) were carved out to confer limited benefits on persons of Indian origin. Therefore, PIOs and OCIs now enjoy limited rights in India and can enjoy residence rights in India without any visa, registration, sanction or other permissions. Moreover, under Article 5 of the Constitution, every person who has his domicile in India and was born in India or whose parents were born in India or who has been ordinarily resident in India for not less than 5 years preceding for the commencement of the Constitution, shall be a citizen of India. Hence, inherent rights flow to the presumption of Indian nationality by determination of law.
DETERMINATION OF NATIONALITY
Under the 1946 Act, disputes relating to questions of determination of nationality when a foreigner is recognised as a national of more than one country or it is uncertain as to what nationality is to be ascribed to a foreigner, such person may be treated as the national of the country with which he appears to be most closely connected. The 1920 and 1946 Acts permit removal or deportation of a person from India without providing any forum or procedure for the determination of the question of the nationality of the foreigner or giving any statutory rights in this process. Tribunals to determine these questions are non-existent. However, in the same breath today, now the Citizenship Act, 1955 and the Citizenship Rules, 2009 prescribe that if any question arises as to whether, when or how any person had acquired the citizenship of another country, the Central Government shall first determine such question. The Supreme Court interpreting these provisions has held that a person could not be ordered to be deported or removed from India unless the Central Government takes a conscious decision upon holding a quasi-judicial enquiry that a person has ceased to be an Indian citizen. A foreign passport simpliciter will not label a person as a foreigner and determination of his nationality is his fundamental right. It is the time our Parliament reconciles this concept of freedom, personal liberty and natural justice inter-twined with the determination of nationality.
In the social milieu today, international Indians qualify to be PIOs or OCIs. If they wish to reconnect with their homeland, they ought not to be bundled out as foreigners by invoking the colonial provisions of the 1920 and 1946 Acts which offend fundamental freedoms. The Citizenship Act, 1955 itself creates harmony. The retention of a foreign passport today cannot lead to deportation and summary removal from India. Why then, do we need to retain the 1920 and 1946 enactments which were enacted to regulate the entry of foreigners into India in circumstances prevailing in 1946. This is a serious issue which must engage the attention of Parliament.
NEED OF THE HOUR
Today, persons of Indian origin have matters relating to matrimonial differences between spouses of global origin or nationality issues arising out of foreign domiciles. The desirable approach in the proper perspective today, therefore, would be to create appropriate forums or authorities within the legal system who would address such resolvable issues by granting opportunity of hearing and redressal. Accordingly, deportation or removal of a person to a foreign jurisdiction would be an abject surrender to a foreign dominion. Having resolved to be a sovereign, socialist, secular, democratic Republic, we in India, are very capable and competent of adjudicating our nationality issues to provide redressal for Indigenous Indians. Our post-independence laws provide the solutions which our vibrant judiciary interprets to protect fundamental freedoms guaranteed under the Constitution of India. Hence, pre-independence laws in conflict with rights today must go off the statute book.
Image from here