PASSPORT TANGLE: GOANS AT CROSS ROADS

According to Alex Andrews George, founder of ClearIAS: “Article 5 speaks about the citizenship of India at the commencement of the Constitution (Nov 26, 1949). Article 11 gave powers to the Parliament of India to

regulate the right of citizenship by law. This provision resulted in the enactment of the Citizenship Act 1955 by the Indian Parliament.”

Alex Andrews further expounds that: “The Citizenship (Amendment) Act of 2003 introduced provisions for Overseas Citizens of India (OCI) and Persons of Indian Origin (PIO), allowing certain categories of foreign nationals of Indian origin to have certain privileges and rights in India without full citizenship.”

Here it would be worthy to cite the relevant Articles from the Constitution of India.

Article 9. Persons voluntarily acquiring citizenship of a foreign State not to be citizens. No person shall be a citizen of India by Article 5 or be deemed to be a citizen of India by Article 6 or Article 8 if he has voluntarily acquired the citizenship of any foreign State.

The phrase “voluntarily acquired” the citizenship of any foreign State is better qualified in Section 9 of the Indian Citizenship Act, 1955: Section 9 is hereby quoted ad-verbatim:

9. Termination of citizenship (sub head)

(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:

Provided that nothing in this sub-section shall apply to a citizen of India who, during any war in which India may be engaged, voluntarily acquires the citizenship of another country, until the Central Government otherwise directs.

(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.

Interestingly, sub-section (2) of Section 9 of the Citizenship Act, 1955 speaks of rules of evidence which would need to be prescribed by the Central Government.

Concomitantly, the Ministry of Home Affairs New Delhi, on the 25th of February , 2009 vide NOTIFICATION G.S.R.124(E) while acting In exercise of the powers conferred by section 18 of the Citizenship Act, 1955 (57 of 1955), the Central Government notified the following rules, namely :

Indian Citizenship Rules, 2009

Rule 40 further explicates that the Authority to determine acquisition of citizenship of another country.-

(1) For the purpose of sub-section (2) of section 9, the Central Government may determine the issues as to whether, when or how any citizen of India had acquired the citizenship of another country.

(2) The Central Government while determining any such issues shall have due regard to the rules of procedure specified in Schedule III.

The contentious procedure specified in Schedule III appears to be comprehensive with the onus being squarely placated on the person deemed to have voluntarily acquired the citizenship of a foreign state.

The relevant excerpts from SCHEDULE III are being enunciated hereunder:

1. Where it appears to the Central Government that a citizen of India has voluntarily acquired the citizenship of any other country, it may require him to prove within such period as may be fixed by it in this behalf, that he has not voluntarily acquired the citizenship of that country; and the burden of proving that he has not so acquired such citizenship shall be on him.

2. For the purpose of determining any question relating to the acquisition by an Indian citizen of the citizenship of any other country, the Central Government may make such reference as it thinks fit in respect of that question or of any matter relating thereto, to its Embassy in that country or to the Government of that country and act on any report or information received in pursuance of such reference.

3. The fact that a citizen of India has obtained on any date a passport from the Government of any other country shall be conclusive proof of his having voluntarily acquired the citizenship of that country before that date.

4. Where a person, who has become an Indian citizen by virtue of the Goa, Daman and Diu (Citizenship) Order, 1962, or the Dadra and Nagar Haveli (Citizenship) Order, 1962, issued under section 7 of the Citizenship Act, 1955 (57 of 1955) holds a passport issued by the Government of any other country, the fact that he has not surrendered the said passport on or before the 19th January, 1963 shall be conclusive

proof of his having voluntarily acquired the citizenship of that country before that date;

5. In determining whether a citizen of India has or has not voluntarily acquired the citizenship of any other country, the Central Government may take the following circumstances into consideration, namely: -

(a) whether the person has migrated to that country with the intention of making it his permanent home;

(b) whether he has in fact taken up permanent residence in that country; and

(c) any other circumstances relevant to the purpose.

Then, in pragmatic reality what could be a more acceptable solution to the renunciation of Indian Citizenship by Goans holding Portuguese Passports.

The obvious answer would be evident in Section 7A to 7D of the Citizenship Act, 1955 which relates to Overseas Citizenship and was inserted by Act 6 of 2004, supplementary to S. 7 (w.e.f. 3-12-2004).

According to Ruchika Tulshyan, on 20th March, 2015 in her article entitled: "When Indians Renounce Their Citizenship: An Expat Explains" published in the Wall Street Journal:

“Overseas Citizenship of India (OCI) is a form of permanent residency available to people of Indian origin and their spouses which allows them to live and work in India indefinitely. It allows the cardholders a lifetime entry to the country along with benefits such as being able to own land and make other investments in the country.”

According to the Frequently Asked Questions (FAQs) pertaining to the Overseas Citizenship Of India (OCI) Cardholder published on: 22.07.2021 by the Ministry of Home Affairs:

At question 26. What are the benefits to an OCI cardholder?  (sub head)

The advantage of parity of OCI cardholders in enjoying equal status with Indian nationals and Non-Resident Indians has been properly delineated in certain respective spheres.

“(3) parity with Indian nationals in the matter of,

(i) tariffs in airfares in domestic sectors in India; and

(ii) entry fees to be charged for visiting national parks, wildlife sanctuaries, the national monuments, historical sites and museums in India;”

“(4) parity with Non-Resident Indians in the matter of,

(i) inter-country adoption of Indian children subject to the compliance of the procedure as laid down by the competent authority for such adoption

(ii) appearing for the all India entrance tests such as National Eligibility cum Entrance Test, Joint Entrance Examination (Mains), Joint Entrance Examination (Advanced) or such other tests to make them eligible for admission only against any Non-Resident Indian seat or any supernumerary seat:

Provided that the OCI Cardholder shall not be eligible for admission against any seat reserved exclusively for Indian citizens;

(iii) purchase or sale of immovable properties other than agricultural land or farm house or plantation property; and

(iv) pursuing the following professions in India as per the provisions contained in the applicable relevant statutes or Acts as the case may be, namely:-

(a) doctors, dentists, nurses and pharmacists;

(b) advocates;

(c) architects;

(d) chartered accountants;

(6) Overseas Citizen of India (OCI) Cardholders are eligible for appointment as teaching faculty in NTs, NITs, IIMs, SISERs, lISc, Central Universities and in the new AIIMS set up under Pradhan Mantri Swasthya Suraksha Yojana (PMSSY).

Perhaps, a minor drawback to the OCI status would be as follows: OCI holders do not have the right to invest in farmland (agricultural property). However, they can still inherit farmland. As clarified by the "Embassy of India, Moscow (Russia)"

In their FAQ entitled: “Property Related Matters of NRIs/OCI card holders in India”, the Embassy of India, Moscow (Russia) explains:

“A. As per the guidelines issued by Reserve Bank of India, an NRI or OCI card holder can invest in any residential or commercial property. The guidelines also state that one can buy any number of residential or commercial properties. However, they are not permitted to invest in farmland, plantation land, and agriculture land. But, they can inherit the agricultural land/plantation property/ farmland.”

Hence, the Overseas Citizenship of India status appears to be an attractive option for Goans holding Portuguese Passports in order to continue staying in India with the limited advantages conferred upon OCI Cardholders.