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Introduction
Citizenship, the status of being a citizen of a specific nation state, signifies
a person’s legal status and carries with it numerous consequences. Among
associated political rights are the right to vote, to hold public office, to own
land and the right to travel with your country's official passport and
protection. On the other hand, a domicile is a concept that is determined by an
individual's expressed or implied intentions. Your domicile is your intended
ultimate home, the place to which you eventually intend to return, regardless of
where else you may live, or for how long you stay away. Domicile can be
different from your country of actual residence, or it can be the same. We begin
our lives with a domicile of origin acquired at birth. It is possible, but not
easy, to change this to a domicile of choice.
This Article basically pertains to the issue as to what does the dual
citizenship mean, what are the problems comes into picture with respect to the
whole concept of dual citizenship and what would its impact on the domicile of
the person. The general rule is that a person should have one domicile at a time
but if a person can be given citizenship of two countries at a time, can’t he be
given dual domicile. In a way the paper highlights the attributes of domicile
and citizenship and the problems with respect to the same.
What is Dual Citizenship (or Dual Nationality)?
Dual citizenship or dual nationality is simply being a citizen of two countries.
For example, if you were born in Mexico you are a native-born Mexican. If you
move to the United States and become a naturalized US citizen, you now have dual
citizenship. Dual citizens can carry two passports and essentially live, work,
and travel freely within their native and naturalized countries. Some dual
citizens also enjoy the privilege of voting in both countries, owning property
in both countries, and having government health care in both countries.
Dual citizenship is becoming more common in our increasingly interconnected,
global economy. Many countries are now seeing the advantages of dual citizenship
and are liberalizing their citizenship laws Dual citizenship has the advantages
of broadening a country’s economic base by promoting trade and investment
between the dual citizen’s two respective countries.
Some countries do not allow dual citizenship. For example, if you were born
South Korea and become a US citizen, you will most likely lose your Korean
citizenship if the Korean government finds out about it. But an increasing
number of these countries that prohibit dual citizenship are not enforcing their
laws regarding dual citizenship. So, you may informally have dual citizenship if
your native country does not take away your citizenship after you become a US
citizen.
Dual Citizenship and Indian Scenario
On January 9, 2003, the then Indian Prime Minister, Mr Atal Behari Vajpayee,
made along awaited statement: India would grant dual citizenship to certain
groups of Persons of Indian Origin. Indian-Americans got the connection they had
long wanted with their home country. Analysts both in the United States and
India view the granting of dual citizenship, and the growing political
mobilization of the Indian-American community, positively. In the United States,
Indian-Americans are seen as the educated, technologically savvy, and wealthy
minority that not only has a growing political influence but a group that could
attain a bargaining power. In India, the Indian-American community is now viewed
as helping further Indian foreign policy and security goals as well as
contributing towards its economic development.
Cases of Dual or Multiple Nationalities under the Indian Constitution
Provisions concerning Indian nationality are embodied in the Constitution, which
also contains special regulations concerning persons migrating to India from
Pakistan and vice versa. It is obvious that the provisions incorporated in the
Constitution leave open numerous possibilities for the occurrence of dual
nationality. Thus, any person born in India is Indian although he may also
possess a second nationality jure sanguinis. A descendant of Indian parents or
grandparents, born outside India but registered as an Indian citizen, will have
dual nationality if he also possesses the nationality of his country of birth.
This may be an important matter, since many Indians living outside India may in
this way acquire dual nationality, that of their country of birth and that of
India.
In view of Article 11 of the Constitution, which empowers Parliament
"to make
any provision with respect to the acquisition and termination of citizenship and
all other matters relating to citizenship", it would be premature, in the
absence of more specific enactments, to draw far-reaching conclusions from the
Constitution which clearly is merely the framework for future legislation on
this important matter.
Dual Citizenship - Causes of Conflict
(1) Indirect Causes
One of the main indirect causes of double nationality is the generally accepted
principle of practically absolute State sovereignty in this field. If each State
is entitled to determine under its own laws who are its nationals, subject only
to the tenuous limitations imposed by international law discussed in the
introduction to this study, then, indeed, Governments are free for various
reasons to claim as their nationals persons who are also citizens of other
countries.
Among many others, Professor Pierre Louis-Lucas is of opinion that there are two
main indirect causes of multiple nationality: firstly, that there does not exist
a uniform world regime apportioning individuals among various sovereign States;
and, in the second place, that none of the various regimes is confined to an
exclusive and distinct domain of application. If, indeed, citizenship could be
obtained only as a result of the application of a unified system adopted by all
States, cases of dual nationality could hardly occur. Nor would they be likely
to arise if each of the many conflicting systems were limited in its application
to a reserved domain, so to speak, each individual being a citizen only of the
State with the strongest claim to his allegiance. Since this is not the case,
and since the numerous systems under which citizenship is attributed are
competitive, indirect causes of dual or even multiple nationality must
inevitably exist.
(2) Direct Causes-
According to Professor Louis-Lucas, there are three main
direct causes of dual or multiple nationality:
(a) The primary and most important one is the "difference in inspiration" of
domestic laws on nationality, some of which are based on jus sanguinis, others
on jus soli. Thus a child born to parents from a jus sanguinis country in a
State which applies jus soli will necessarily have dual nationality at birth,
e.g., a child born to French parents in the United States.
(b) But conflicts are also possible between countries whose legislation is based
on the same principles, for instance, if their laws admit a combination of jus
sanguinis and jus soli. Thus, a child born in France to a British father and a
French mother will have dual nationality.
(c) Finally, conflicts may also occur where legislation and regulations are
identical. The Carlier Case of 1881 is an example of this kind. At that time
both French and Belgian law stipulated that a child acquires by birth his
father's nationality. But they also provided that, if the father were an alien,
the child, if a resident of the country of birth, could claim citizenship there. Carlier, born in Belgium to French parents, was French in accordance with the
provisions of the French Civil Code. However, being born in Belgium he was
allowed to opt for the Belgian nationality according to Belgian law, without
losing his French citizenship by doing so. Had he been born in France to Belgian
parents he might have opted for French citizenship without losing Belgian
nationality. The conflict 91was due neither to a difference in the two sets of
legislation nor to conflicting rules of application, but to the rigour with
which both countries applied these identical rules.
Dual citizenship: Advantage or Disadvantage?
Dual citizenship offers practical advantages (for example, social security or
employment). It may also enhance the feeling of belonging because they have
strong personal ties to more than one country.
However, it may also bring unexpected difficulties: legal proceedings, taxation
and financial responsibilities, military service, denial of emigration, even
imprisonment for failure to comply with obligations in one of your countries of
citizenship. In general, the laws that apply to you at any time are the laws of
the country in which you are physically present at that time. The laws of a
country may provide, for example, that people residing in the country of their
second citizenship may travel only on the passport of their country of
residence. Possession of a second passport could result in its being
confiscated, or even in a fine.
Travelling with your Country’s passport and another country’s passport
simultaneously might also lead to certain difficulties in a third country. There
may be laws in a country to which a foreign traveller is not subject, but which
apply to you as a citizen of that country. For example, there may be
restrictions on exit, compulsory military service, and special taxes or
financial compensation for services received in the past, including educational
costs. There might even be special circumstances that apply to you in
particular. For eg. friends or relatives may be affected by your visiting that
country, or there may be legal proceedings pending against you that could begin
again if you return.
Serious Lacunae’s of Dual Citizenship
The dual citizenship has serious lacunae that needed to be sorted out, former
Attorney General of India Soli Sorabjee opined at a session on `Private
International Law and the Diaspora. "If we want to involve the diaspora then we
can’t deny them right to vote or the right to occupy important offices." This
Article poses an important question:
Is it the case that India's Constitution-framers reckoned only with natural-born
citizens, and did not think of a "naturalization" process for foreign-born
persons to acquire Indian Citizenship? Art. 5 to 11 in Part II of the
Constitution deal with the subject of citizenship.
Article 5 deals with Citizenship at the commencement of the Constitution. It
confers citizenship on every person who has his or her domicile in the territory
of India -
(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 preceding such commencement.
Article 11 empowers Parliament to make any provision with respect to the
acquisition and termination of citizenship and all other matters relating to
citizenship. This was achieved by the Citizenship Act, enacted by Parliament in
1955.
Clearly, the objective of the Constitution-makers - as evident from the August
1949 debates on the issue of citizenship in the Constituent Assembly - was not
exclusivist. They were concerned with prescribing general qualifications for
citizenship and left it to Parliament to decide the position of persons who are
not born Indians. They agreed that there would be the law of naturalisation,
which would make detailed provisions relating to persons who are not born of
Indian parents.
It is to the credit of the Indian Constitution that it does not distinguish the
rights of citizens on the basis of how they acquired citizenship - by birth,
descent, registration, naturalization or incorporation of territory. It does not
create different classes or categories of citizens. Vitally, unlike its United
States counterpart, the Indian Constitution does not restrict eligibility to the
top constitutional offices of President and Vice-President to natural-born
citizens. There is also no question of placing any such restriction on
eligibility to become a Minister or Prime Minister or Chief Minister. It was
certainly a conscious decision of the Constitution-makers, as any such
distinction between natural-born and naturalised citizens would militate against
equality before the law ensured by the Constitution.
Sonia as a Prime Minister: Bird’s Eye View on Dual Citizenship
The current political discourse over Congress (I) president Sonia Gandhi's
Indian citizenship has raised invectives and innuendoes between Congress (I)
leaders on the one hand and leaders of opposition on the other. While Congress
(I) leaders have been on the defensive, Sonia Gandhi's critics have been unable
to substantiate their charges against her beyond making general chauvinistic
claims that she is a foreigner, and therefore, is unfit to be the Prime
Minister. The purpose of this will be to restrict high constitutional posts to
"natural-born" citizens of India - a move with grave implications for equality
before law, which is guaranteed by the Constitution.
It was argued that Sonia Gandhi has qualified for citizenship under the existing
constitutional and statutory provisions and it is imperative to bring necessary
amendments, at least, to prevent such naturalised citizens i.e. those not born
in India and to Indian parent from becoming President or Prime Minister.
However, doubts have been cast on why Italian-born Sonia Gandhi chose to acquire
Indian citizenship in 1983 and not earlier (she has been residing in India since
1968, the year she married Rajiv Gandhi).
The answer to this lies in the fact that Sonia Gandhi was qualified for
citizenship through naturalisation as laid down by the citizenship law and
rules. But, she could not have applied for citizenship by registration until
1986. However, for this she might have had to wait until 1986 when Section 5 (c)
was inserted in the Citizenship Act, 1955, through an amendment. The inserted
section enables a foreign spouse marrying an Indian citizen to acquire Indian
citizenship by registration, if he or she has resided in India for five years at
the time of applying.
Sonia Gandhi also became an Indian citizen in 1983 by naturalisation as provided
for under Section 6 of the Citizenship Act, 1955. Section 6 of the Act enables
any person not born in India or having Indian parents to become an Indian
citizen if he or she has resided in the country for at least eight years on the
date of application. The person concerned must have resided in the country
throughout the eighth year. It is clear that Sonia Gandhi fulfilled the
residence requirement.
Section 6 of the Citizenship Act enables the Centre to grant a certificate of
naturalisation to foreigners, other than those living in the Commonwealth
countries and Ireland, if they seek Indian citizenship and fulfill the
conditions specified in the Third Schedule of the Act. The Centre can waive any
or all of the conditions specified in the Third Schedule if, in its opinion, the
applicant is a person who has rendered distinguished service to the cause of
science, philosophy, art, literature, world peace or human progress. In Sonia
Gandhi's case, there can be no doubt that she sought Indian citizenship through
fulfilling the conditions specified in the Third Schedule.
Sonia Gandhi has fulfilled almost all the conditions including that a person
must have adequate knowledge of a language specified in the Eighth Schedule of
the Constitution, with her more than adequate working knowledge of Hindi.
Sonia Gandhi was enrolled as a voter in 1980 in the New Delhi Lok Sabha
constituency - three years before she acquired Indian citizenship - and
following an expose in the media, her name was deleted from the electoral rolls
in 1982. It would be absurd to suggest that Sonia Gandhi sought to be included
in the voters' list in order to secure her Indian citizenship, as being a voter
is not a condition for determining whether a person is a citizen.
Dual Citizenship and its Impact on the Domicile
The concept of domicile is of significance in every legal system and plays a
significant role in private international law. In the common law world the
concept of domicile has traditionally been used as the major connecting factor
to determine the personal law of an individual. In the civil law tradition
nationality has played that role. Domicile can be distinguished from nationality
in that, while the latter connects an individual to a state, the former relates
to a legal jurisdiction. It differs, too, from nationality in that while a
person can be stateless, or have more than one nationality at the same time, he
cannot be without a domicile, and can only have a single domicile at any one
time. Domicile does not equate to residence, for it is possible to be domiciled
in a place other than one's country of residence.
But here a question emerges- just as a person can have dual citizenship can’t he
have two domicile at one point of time? Some of the general rules in respect of
domicile are:
1. No person can be without a domicile. It is well established that everyone
must have a domicile.
2. A person cannot choose to be without a domicile, even though he can choose to
change his domicile. Every independent person must have a domicile, either of
origin or of choice. Every dependent person must also have a domicile, either
that of the person on whom he is dependent or that otherwise attributed by law.
3. No person can at the same time for the same purpose have more than one
domicile. However, in a federal or composite state consisting of a number of
different jurisdictions, there may be statutes creating one domicile for one
purpose and another domicile for other purposes. For example, section 39(3)(b)
of the Family Law Act 1975 (Commonwealth) in Australia creates an Australian
domicile (as distinct from a domicile in one of the various states, such as
Queensland) for the purpose of divorce jurisdiction. Therefore, a person can
have two domiciles in Australia: one for matrimonial causes and another for
other issues. This is just an instance of Australia, but the basic principle
regarding domicile can’t be changed i.e. while a person can be stateless, or
have more than one nationality at the same time, he cannot be without a
domicile, and can only have a single domicile at any one time.
Moreover, the burden of proving a change of domicile rests with the person
alleging such a change. A domicile of origin is more tenacious and it is harder
to prove that a person has abandoned his domicile of origin than his domicile of
choice. Where the change is from a domicile of origin to a domicile of choice,
the older case law indicates that the standard of proof is more onerous than the
balance of probabilities applied in other civil cases, and the elements of
"residence" and "intention" must be shown with
"perfect clearness and
satisfaction" or "beyond a mere balance of probabilities". Thus, we can see that
if dual domicile is allowed it may bring lot of complexities with respect to
facts such as what is the intention or residence (in case of domicile of
choice) of the person to make a particular place as their permanent home.
Conclusion
It may be inferred from the preceding analysis of various nationality laws that,
whatever the provisions are, whether they are based on jus sanguinis or jus soli
or a mixture of both, and whether or not the legislator has taken particular
precautions, the existence of dual nationality is unavoidable under the present
circumstances.
As long as Governments maintain the principle stated in The Hague Convention of
1930 that "It is for each State to determine under its own laws who are its
nationals", dual or multiple nationality is bound to arise. As for married
women, dual nationality is a consequence of modern trends towards the legal
equality of the sexes. Nor is it to be expected or even to be hoped that in the
near future Governments will be eager to abandon the principle that legislation
on nationality belongs to the domaine reserve.
Present conditions would seem to indicate that States would wish to increase
rather than relax their hold on their citizens. But even if all States were to
adopt identical laws on nationality - it suffices to mention here the famous
Carlier Case dual nationality would not necessarily be limited. Dual Nationality
is therefore, in the main, the consequence of conflicts of laws.
Also when we see a larger issue of Dual Citizenship and its impact on the
Domicile of a person it can be said that while a person can be stateless, or
have more than one nationality at the same time, he cannot be without a
domicile, and can only have a single domicile at any one time. Thus, this
preposition highlights an unanswered question as to the fact that why can’t
there be two domicile just as Dual Citizenship? Even if a person is presumed to
have two domiciles as in Australia: one for matrimonial causes and another for
other issues, it will give rise to large complex issues and more problems than
what has been discussed in this Project Paper with respect to Dual Citizenship.
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The author can be reached at :
raghuvanshiarchana@legalserviceindia.com
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