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In what could turn out to be a historic case, the Supreme Court of India issued a notice to the Union Government in October in response to a petition filed by Professor Tarunabh Khaitan, a constitutional scholar, and Public Law Chair at the London School of Economics (LSE), challenging the automatic termination of Indian citizenship upon acquiring another citizenship, asserting that such a provision is unconstitutional.
In his petition, Prof Khaitan specifically challenges sections of the Citizenship Act, 1955 – namely, Section 9(1), the second provision to Section 4(1), and Section 4(1A).
His contention is that these provisions lead to the involuntary and automatic termination of Indian citizenship upon the acquisition of another citizenship.
Like Prof Khaitan, many Indians living abroad have struggled and grieved about giving up their Indian citizenship when acquiring another country’s citizenship.
The Burden To Prove ‘Indianness’
The petitioner, Prof Khaitan, an Indian citizen by birth has lived and worked in the UK for two decades. Despite being eligible for British citizenship since 2013, he has remained an Indian citizen because, “by operation of Section 9 of the Citizenship Act 1995, acquisition of British citizenship would result in an involuntary termination of Indian citizenship.”
In his petition, Prof Khaitan clearly states that he does not want to be “forced to choose between his love for his country of birth (Janambhoomi) and that for his country of domicile (Karambhoomi) or between his family and friends in the United Kingdom and those in India.”
Speaking exclusively to The Quint, Prof Khaitan explained: “These sections require the automatic termination of the citizenship of Indian citizens (and their children) upon the acquisition of the citizenship of any other country. There is no exception, it is a blanket, comprehensive, termination of the basis of one’s belonging to one’s country. I am an Indian, and will always remain so, whatever the laws say. I do not believe my becoming British is incompatible with my Indianness – hence the petition."
"I should add that only a small handful of countries in the world still retain such an automatic termination clause. Parliaments and courts around the world have changed such automatic termination clauses over the last 6-7 decades. India is very much an outlier on this issue, especially among democracies.”
‘OCI Provides Limited Rights’
Here comes the relevance of Overseas Citizenship of India (OCI). Two well-known recent cases of the cancellation of the OCI cards are that of US-based Author/Journalist Atish Taseer and Prof Ashok Swain of the Uppsala University, Sweden.
In fact, Swain’s OCI was cancelled twice. Last month, the Delhi High Court issued notice to the Union government on a plea filed by Swain challenging the government’s decision to cancel his OCI.
When asked if cases like this cause further concern, Prof Khaitan said, “The OCI card is a glorified visa that provides a very limited set of rights which fall way short of the rights of a citizen. Even this limited set of rights can be withdrawn by the government of the day. The OCI status is a discretionary privilege, citizenship is a bundle of rights.”
In Citizenship Amendment Act (CAA) 2019, section 7(D) of the Citizenship Act was further amended making it easier for the Indian government to remove the OCI card of its holder.
Cessation Of Citizenship 'Unconstitutional'
In another unresolved case Narendra Reddy Thappeta vs Union of India, in Bangalore in 2013, Mr Thappeta requested voting rights for OCI residents in India on the ground that the constitution does not permit denial of voting rights to resident citizens and that the OCI scheme was clearly intended as a dual citizenship scheme.
Mr Thappeta, who lives between USA and India, told The Quint that a second case (Radhika Thappeta et al vs Union of India) was filed in the Supreme Court of India in 2020. He said, “In this case, we challenged the continued dilution of OCI rights by the central government when the OCI legislation (section 7A/7D of the Citizenship Act) sought to grant dual citizenship rights. Alternatively, we argued the cessation of Indian citizenship (without our consent) as being unconstitutional and that our Indian citizenship should have continued without any break, which is the essence of what Prof Khaitan is arguing. While our case has remained dormant, we need to see if Prof Khaitan’s case will revive the activity in anyway. Both cases are now linked.”
Prof Khaitan argues that the termination of citizenship is unconstitutional, “The Constitution guarantees Indian citizens a whole range of rights, which the state can restrict only for a very specific set of grounds, and the restrictions must also be proportionate. If mere restrictions on a right require such stringent preconditions to be met, a wholesale extinguishment of all the rights of a citizen should surely be subject to at least the same level of scrutiny."
"The burden is on the state to show that this comprehensive, involuntary, no-exceptions termination of citizenship for a non-criminal act—for people who continue to have deep emotional, personal, and professional ties with India—is based on one of the constitutionally permitted grounds of restriction and that the restriction is proportionate to whatever interests the state is seeking to realise with such a ban.”
However, Prof Khaitan’s petition states that it is not for a 'general recognition of dual citizenship’ instead, it is about the 'disproportionate, involuntary termination of citizenship’ which, he explained: “A general recognition of dual citizenship is a broader issue that my petition is not concerned with."
Dual Citizenship Not a Contention
"For example, whether India should grant citizenship by naturalisation to a person who is already the citizen of another country—without requiring such pre-existing citizenship to be terminated—is not an issue my petition touches upon."
“Similarly, my petition has no bearing on whether India should permit spouses of Indian citizens to acquire Indian citizenship while keeping their foreign passports. Basically, the issue of dual citizenship has many sub-issues within its remit—my petition concerns itself with only one small sub-set of the same: if I am already a citizen of India, can the state take it away without demonstrating that this involuntary termination is proportionate and rights-compliant. If it succeeds, some Indian citizens will end up with dual citizenship—but the other, broader, issues concerning dual citizenship will remain unaffected.”
Prof Khaitan’s narrow petition does not seek to affect the voting rights of non-resident Indians either. Election laws currently require a voter to be a citizen and be ordinarily resident in India—this additional requirement of domicile will remain unaffected if Prof Khaitan’s petition is successful.
When asked what he would advise several OCI holders who are pained at automatically losing their Indian citizenship after acquiring the citizenship of their Karambhoomi, Prof Khaitan said, “Fight for it democratically. While far from perfect, India has a Constitution we can be proud of. I am sure there are many OCIs who feel they are Indians, and in their hearts, have never given up their citizenship. I would urge them to go to the courts, petition the government, write to politicians, speak to the press, and inform public opinion—that is, do all the things citizens do in a democracy to secure their rights as citizens. If one’s citizenship is not worth fighting for, I don’t know what is …”
The petition has been drafted by another legal scholar, Dr Saif Mahmood, a senior partner with Century’s Maxim International India’s office. His team includes senior advocates Chander Uday Singh and PC Sen.
This is a case that will be closely followed by Indians – millions of OCI card holders – across the globe as the outcome would impact them significantly.
(Nabanita Sircar is a senior journalist based in London. She tweets at @sircarnabanita. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)
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