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Dual Citizenship: Impact of Overseas Citizenship of India

Written by: Archana Raghuvanshi - B.A.LL.B. (Hons.) Student
Immigration Law in India
Legal Service
  • 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.

    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 domain 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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