Photograph of Anil Chawla

INDIAN CITIZENSHIP - LESSONS FROM GERMANY

Author - Anil Chawla


India lost her freedom to immigrants more than a century ago. Yet, India is not even alive to the dangers of immigrants. Citizenship Act concentrates on procedures and formalities while ignoring substantive questions relating to domicile, psyche and intentions. Time to review the Act based on laws in other parts of the world.


"As 61 million Germans decide on Sunday who their next chancellor will be, 7.3 million others won't be allowed to cast their votes.

According to the German Basic Law - the nation's constitution - foreigners must spend at least eight years in the country to be eligible to vote, prove their command of the German language and "acceptance and knowledge" of the constitution to qualify as a citizen.

But even after meeting these standards, a large proportion of foreigners are still denied from becoming Germans.

Nilfur Shayegan, 34 was born and brought up in Frankfurt after her parents left Iran in the fifties. She is one of the many 'Germans' who cannot vote on Sunday. She first applied for citizenship when she was 18. She was denied a German passport two more times and gave up trying."

(Indrajit Hazra, Berlin, September 20, published in Hindustan Times, Bhopal, 21 September 2002)

Unlike Germany, the debate in Indian political circles has been confined to a narrow topic. The issue of holding of top posts in Government by foreign-born persons is indeed a small part of the overall subject of grant of citizenship to foreigners. Politicians like Sharad Pawar, PA Sangma, Jayalalitaa, have raised the narrow issue with an eye on stopping Sonia Gandhi. But in the process they have missed the larger problem.

Provisions regarding citizenship are contained in Part II (articles 5 to 11) of the Constitution of India. Article 5 lays down the conditions for citizenship at the commencement of the Constitution. Articles 6 and 7 deal with migrants from and to Pakistan. Article 8 is regarding certain persons of Indian origin residing outside India. Article 9 is about persons voluntarily acquiring citizenship of any foreign state. Article 10 says, "Every person who is or is deemed to be a citizen of India under any of the foregoing provisions of this part shall, subject to the provisions of any law that may be made by Parliament, continue to be such citizen". Article 10 gives the power to the Parliament to make any law for grant or termination or regulation of citizenship whether acquired through provisions of the Constitution or otherwise.

Article 11 clarifies it further by saying, "Nothing in the foregoing provisions of this Part shall derogate from the power of Parliament to make any provision with respect to the acquisition and termination of citizenship and all matters relating to citizenship." Parliament has exercised the power under article 11 by enacting Citizenship Act, 1955.

In 1955, when the Act was passed, it would have been difficult to imagine that the country would face a problem of immigrants. British had just left the country and India was enjoying its newfound freedom. Surprisingly, no one even considered the possibility that immigrants could repeat history and become rulers just as British had become two centuries ago. Taking precautions against such a danger was never even contemplated. Not surprisingly, Citizenship Act, 1955 demonstrates a casual attitude with emphasis on procedure and formalities.

Five decades later, India faces severe problems from immigrants. Terrorism in Jammu-Kashmir and other parts of the country is caused by immigrants, or if you prefer infiltrators. Demographic profile has undergone a significant change in many districts of West Bengal and North Eastern states. Agitations against immigrants in North Eastern states are now almost three decades old. The number of Bangladeshis staying in large cities, like Delhi, Mumbai and Kolkata, runs into millions. Pakistan has been able to use a large number of its citizens illegally staying in India for intelligence operations and for subversive activities.

It will not be an exaggeration to say that foreigners are posing a serious threat to internal security as well as to the basic constitutional structure of the country. An Italian born woman becoming Prime Minister is just a tip of the proverbial iceberg or pyramid. One cannot say that the tip is insignificant. But, it is necessary to go to the root of the problem instead of merely aiming for some cosmetic changes at the top.

Discussion of the problem in media has concentrated on whether foreign-born citizens should enjoy the same rights as natural-born ones. Birth is a biological act. Place of performance of this act has hardly any influence on a person's psyche. For the sake of legal convenience, some importance has been ascribed to place of birth in laws relating to citizenship. But that can be no justification for treating it as the only important factor.

International law has a concept of domicile, which is not solely based on the place of birth. Domicile is based on the intentions and mind of the person concerned. Sankaran Horindan v. Lakshmi Bharti (1964, Ker. 244) illustrates the concept of domicile. One Krishnan, domiciled in India (Kerala) went to England for higher education in 1925. After some time his parents declined to give him any further financial support. With the help of an English friend, Miss Hopeworth, he completed his studies in 1939 and set up his private practice in medicine in Sheffield. He earned a fortune. He purchased a mansion in Sheffield. He also served in British Health Service. Krishnan lived in England for 30 years till his death. During this period, he did not come to India even once. But in letters that Krishnan wrote to his friends and relations in India, he always expressed his intention of returning to India. Based on this fact, Kerala High Court came to the conclusion that Krishnan was domiciled in India.

It is an accepted principle of law that one must prove one's domicile in the host country before one becomes eligible for acquiring citizenship of that country. Simultaneously, one must also prove one's renunciation of domicile of the country of origin. Most countries prescribe tests and qualifications to ensure that the person is truly domiciled in the host country. Often, countries exercise such high levels of caution in this respect that there are charges of racism or of having a fortress-mentality.

India, on the other hand, goes to the other extreme. There is no attempt to determine the level of naturalization of a foreigner in the country. India has one of the simplest systems for grant of citizenship. There are no qualifications (relating to psyche or intentions) prescribed and almost everyone who applies is eligible. The applicant need not have even a rudimentary knowledge of Indian Constitution and laws.

There are two main routes available for acquisition of Indian citizenship: (a) under section 5, by registration and (b) under section 8, by naturalization. Naturalization route requires a stay of nine years and is available to citizens of some countries only. For all others the route is by way of an application in a prescribed form to the Collector of the district. The form does not make an attempt to judge the intentions of the applicant in acquiring the status of citizen.

The conditions for naturalization under Schedule 3 prescribe, "that he has an adequate knowledge of a language specified in the Eighth Schedule to the Constitution." No such condition is specified for citizenship by registration. There is no requirement of having some knowledge of the traditions and culture of India. The Act (as well as the rules made there under) does not even make it mandatory for the authorities to verify the antecedents of the applicant in the country of origin. Surprisingly, the applicant is not even required to declare his or her intention to settle and reside in the country permanently.

Sonia Gandhi, when she applied for Indian citizenship, did not have a rudimentary knowledge of any Indian language. No comments can be made about her knowledge of Indian culture, traditions or even constitution. The country till today does not know if Sonia has made up her mind to be a part of India permanently. In other words, her domicile may still be in Italy. She may well be holding property in Italy and may also be having her loyalty towards Italy. The irony is that such a person can be granted citizenship under Indian law.

There is nothing under Citizenship Act that prevents a person with wrong intentions to enter into a marriage of convenience in India and apply for citizenship. The danger that this poses is a bit too obvious and is surely not far-fetched in a country that has seen more than ten million immigrants enter in the last two decades.

It is high time that a comprehensive review of The Citizenship Act is carried out. The Act was passed in 1955 and was amended in 1986 and 1992. The Parliament can modify it again and make it necessary for an applicant to prove his / her domicile in India. The modified law can also provide for review of all cases of persons to whom citizenship might have been granted in the past. Citizenship of anyone found ineligible may well be terminated. There need be no doubt about the power of Parliament to make law for termination of citizenship. Article 11 of Constitution gives this right to Parliament in unequivocal terms.

Political parties who are talking of constitutional amendment to bar foreign-born citizens from acquiring top posts will do well to use the existing Constitutional provisions in the best interests of the country. We can learn in this regard from German basic law. Nilfur Shayegan, born and brought up in Germany has failed to get a German citizenship. There is no reason why acquiring Indian citizenship should be any easier.




ANIL CHAWLA

24 September 2002

The Citizenship Act, 1955 (Act 57 of 1955) may be downloaded from http://indiacode.nic.in

Please write to me your comments about the above article.
anil@samarthbharat.com
hindustanstudies@rediffmail.com



ANIL CHAWLA is an engineer by qualification but a philosopher by vocation and a management consultant by profession.


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