Colonial-era laws infringe on the fundamental rights to life and personal liberty of persons of Indian origin
A debate on the need to repeal obsolete laws has been set in motion in
India with the government appointing a committee to look into the
matter. Even our erstwhile coloniser, Great Britain, initiated the
process of repealing 38 such laws last year, which were passed between
the years 1849 and 1942,
pertaining to the construction and maintenance
of the Indian Railways. Meanwhile, our own post-independence efforts to
weed out obsolete laws, through a process of spring cleaning, remain
pending.
An area that requires immediate attention in this regard is conflicting
laws regulating citizenship. Take for instance the colonial-era laws,
The Passport (Entry into India) Act, 1920, The Registration of
Foreigners Act, 1939, and The Foreigners Act, 1946. Even though
Parliament has since enacted The Passports Act, 1967, The Citizenship
Act, 1955, and created the Overseas Citizenship of India scheme in 2005,
we continue to rely on these archaic pieces of legislation. Most of
these laws enacted during colonial rule are redundant and do not stand
the test of the principles of natural justice. They also confer
unfettered, arbitrary and draconian powers on government authorities and
need to be taken off the statute book.
The Passports Act, 1967, is a comprehensive law relating to the issue of
passports and travel documents. It provides statutory safeguards in
procedures involving the variation, impounding and revocation of
passports, with rights of appeal to aggrieved persons with regards to
offences and penalties levied under this Act. However, the simultaneous
existence of the Passport (Entry into India) Act, 1920 and The
Foreigners Act, 1946, conferring absolute and unlimited powers to remove
or summarily deport a person from India without following the due
process of law, are anathema to a democratic country and an anti-thesis
to the rule of law. Powers of house arrest, detention, solitary
confinement and summary removal from India under these Acts clearly
infringe upon the fundamental rights of life and personal liberty
guaranteed under the Constitution. Therefore, these British-era laws are
completely misplaced in this day and age.
The Central government has the exclusive jurisdiction to determine
whether a person, who was a citizen of India, has lost that citizenship
by having voluntarily acquired the citizenship of a “foreign State” as
per Section 9(2) of The Citizenship Act, 1955, read with Rule 30 of The
Citizenship Rules, 1956. Further, under Section 9(2) and Rule 30 above,
mere proof of the fact that the person has obtained a passport from a
foreign country is not sufficient to sustain an order for deportation or
prosecution unless there has been a decision by the Central government
under Section 9(2) of the Act. Moreover, the enquiry by the Central
government under Section 9(2) of the Act is a quasi-judicial enquiry.
This proposition of law is well settled by the following judgments of
the Supreme Court : State of A.P. vs. Abdul Khader AIR (1961) SC 1467; Government of A.P. vs. Syed Md. AIR (1962) SC 1778 and State of U.P. vs. Rehmatullah AIR (1971) SC 1382. Thus, this process of determination of nationality is well settled in law.
With an estimated 21,90,9875 non-resident Indians spread across over 200
countries (Ministry of Overseas Indian Affairs statistics), there have
been compromises in the area of dual nationality, which is otherwise
prohibited under Article (9) of the Constitution and Section (9) of the
Citizenship Act, 1955. The categories — “Persons of Indian Origin” (PIO)
and “Overseas Citizen of India” (OCI) — were carved out to confer
limited benefits on persons of Indian origin. Therefore, PIOs and OCIs
now enjoy limited rights in India and can enjoy residence rights here
without any visa, registration, sanction or other permissions. Moreover,
under Article (5), every person who is domiciled, born or whose parents
were born in India, or who has been ordinarily resident in India for
not less than five years preceding the commencement of the Constitution,
shall be a citizen of India. Hence, inherent rights flow to those whose
nationality is determined by law.
Under the 1946 Act, disputes relating to questions of determination of
nationality when a foreigner is recognised as a national of more than
one country or it is uncertain as to what nationality is to be ascribed
to a foreigner, such person may be treated as the national of the
country with which he appears to be most closely connected. The 1920 and
1946 Acts permit the removal or the deportation of a person from India
without providing any forum or procedure for determination of the
question of the nationality of the foreigner or giving any statutory
rights in this process. There are no tribunals available to determine
these questions as of now. However, the Citizenship Act, 1955, and the
Citizenship Rules, 2009, prescribe that if any question arises as to
whether, when or how any person had acquired the citizenship of another
country, the Central government shall first determine such questions.
The Supreme Court interpreting these provisions has held that a person
could not be ordered to be deported or removed from India unless the
Central government takes a conscious decision upon holding a
quasi-judicial enquiry that a person has ceased to be an Indian citizen.
A foreign passport simply will not label a person as a foreigner, and
determination of his nationality is his fundamental right. It is time
Parliament reconciles this concept of freedom, personal liberty and
natural justice with the determination of nationality.
Debatable question
Given the social circumstances today when emigration is common,
international Indians qualify to be PIOs or OCIs. If they wish to
reconnect with their homeland, they should not be categorised as
foreigners by invoking the colonial provisions of the 1920 and 1946
Acts. The Citizenship Act, 1955, itself creates harmony. The retention
of a foreign passport today cannot lead to deportation and summary
removal from India. Why then do we need to retain the colonial
enactments which were brought in to regulate the entry of foreigners
into India in circumstances prevailing in 1946? This is a serious issue
which must be addressed in Parliament.
Today, persons of Indian origin face problems due to marital disputes
with spouses of foreign origin or nationality issues arising out of
foreign domiciles. The desirable approach, therefore, would be to create
appropriate forums or authorities within the legal system that would
address such issues by granting opportunities for hearing and redressal.
Accordingly, deportation or removal of a person to a foreign
jurisdiction would be an abject surrender to a foreign dominion. Having
resolved to be a sovereign, socialist, secular, democratic Republic, we
in India are capable and competent of adjudicating our nationality
issues to provide redressal for persons of Indian origin. Our
post-independence laws provide the solutions which our vibrant judiciary
interprets to protect fundamental freedoms guaranteed under the
Constitution. Hence, pre-independence laws in conflict with rights today
must be revoked.
(Anil Malhotra is a Chandigarh-based lawyer.)
