Thursday 18 Apr 2024

Positing Portuguese colonialism vis-à-vis Indian nationality

Adv Moses Pinto | MARCH 03, 2024, 12:44 AM IST

With the French government announcing a controversial plan to amend the constitution to restrict citizenship to people born to immigrants in the overseas territory of Mayotte in a move aimed at curbing immigration to the Indian Ocean islands. Mayotte is an archipelago between Madagascar and the African mainland.

The French Interior Minister announced that children of immigrants born in Mayotte, which comprises two islands, would no longer automatically become French citizens.

Hence, it would no longer be possible to become a French citizen if a person was not born to a French parent in light of the new changes proposed to be effected in Mayotte. France currently grants citizenship through both parentage and birthplace. 

France’s decision to rescind the ‘droit du sol’ was motivated by the belief that some Comorians migrate to Mayotte to give birth there, thereby obtaining French nationality for their children, which entitles them to stay there.

Historical  aptness of the French-Indian colony:

As William F.S. Miles in his Journal Article titled: Defective Decolonization: The Pondichéry Legacy (1992), has aptly surmised - 

“If empire building is a haphazard affair,…imperial deconstruction – that is, decolonization – can be no less untidy.”

Miles (1992) finds consonance with the views of Reginald Schomberg, the British Consul General in Pondicherry (French India), which were expressed in 1937 in a report that in and around the French Indian territories “the nationalities are hopelessly mixed up, and many persons do not know, and cannot prove, whether they are French or British subjects.”

The foremost wording of the Citizenship (Pondicherry) Order, 1962 help to better understand the legislative intent, which is as under:

“Whereas by a Treaty of Cession which entered into force on the 16th day of August, 1962, France has ceded to India in full sovereignty of the Territory of the Establishment of Pondicherry, Karikal, Mahe and Yanam;”

The Order, 1962 in consonance with the Treaty provided an option for the colonised French nationals to retain their French nationality, notified through a written document, within a period of six months from the transfer of power. 

The treaty exempted all Pondicherrians, who were under French employment and/or were outside of Pondicherry during the transfer from giving up their French citizenship, and were eventually repatriated to India as French nationals. 

Furthermore, any minor, who was born to a French national parent would be born a French citizen; however, at the age of 18 years, the person could choose to remain French or attain Indian citizenship. 

Similarly, those who were minors when they became Indian citizens had the choice to remain Indians or choose French nationality after attaining the age of 18 years.

According to the ground reports from interviewing the French-Indian Tamilians in Puducherry, Aindrila Chakraborty (2022):

“The French nationals of Pondicherry are mainly ethnic Tamils (with a small proportion of Malayalam and Telugu speaking groups) who exercise their political rights as French citizens. However, their cultural belonging lay in the territory of which they are alien citizens, registered as Overseas Citizens of India (OCI).”

Portuguese colonial history pertaining to citizenship:

Vide Decree-Law 308-A/75 on the 24th of June, 1974,  Portugal effectively addressed the matter of Portuguese citizenship for those born or living in the overseas Portuguese territories that had gained independence.

While the presumption was that these persons would assume the citizenship of the new state, the Decree-Law had stipulated that Portuguese citizenship would be retained by those persons who were born in Portugal but lived in one of the colonial territories. 

This law would also be applicable to those persons who by virtue of being born in the colonial territories, had resided long-term in Portugal. 

All the other cases who were not covered by one of these situations would presumably lose their Portuguese citizenship ‘ex lege’ which translates from Latin as being “by operation of law”.

It has been well documented that Decree-Law 308/75 was a response to the loss of Portuguese citizenship by many people born in former territories of Portugal in Africa and elsewhere that had acquired independence. 

In other words, it maintained a Portuguese citizenship for persons who had not been born in those territories but were now living there, and those who maintained a connection with Portugal itself by long-term residence. 

The case for Goa:

Interestingly, Goa no longer retains its status as a Union Territory due to the fact that it has been conferred full Statehood on 30th May, 1987, while Daman and Diu became a separate union territory, and Goa was reorganised into two districts, North Goa and South Goa.

Puducherry (formerly known as Pondicherry) on the other hand still retains its unique status as an Union Territory which serves in garnering impetus for the Tamil born French Passport holders to retain their French Passports while holding OCI status in India.

If a Union Territory, which hasn’t yet been conferred with Statehood by the Indian government, can retain its French Passport holders in the form of OCI holders while treating them as Aliens in statutory compliance with the Citizenship Act, 1955, then it becomes highly improbable that Goans holding Portuguese nationality (which was acquired voluntarily by transcribing their Birth Records in Lisbon) would ever be granted the right to hold Dual Nationality when Goa has already been conferred with Statehood, and governance under the Indian Citizenship Act, 1955, already extends to the State of Goa.

At the most, in keeping with the equal treatment before the Laws guaranteed under Article 14, Goans holding Portuguese Nationality would be entitled to OCI Status in consonance with the French-Indians of Puducherry.

The writer is a Doctoral Researcher working under the Alliance of European Universities and has presented his research works at various Academic Conferences

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