Passport: Citizenship Set Right, Nationality In Mess.

The Bombay High Court (BHC) gave a judgment in a citizenship case just a few days ago. One’s own Birth Certificate, Passport, Adhaar Card, are not conclusive proofs that one is citizen if the birthdate falls on or after 1 July 1987. The newspaper reports led to animated discussions, because of general unawareness that different rules apply to determine citizenship by birth depending upon in which slot one’s birthdate falls in the different time periods created by The Citizen Ship Act, 1955 as amended. The news report said, *The birth certificate of one of the (parents of) applicants will not (suffice) as under the law it is imperative for such applicant (one born between 01-07-1987 and 02-12-2004) to establish that his parents were Indian nationals. There is no such proof adduced,” said Justice K U Chandiwal dismissing their pleas*. However, the impression most drew was that in every case Birth Certificate is fallible as the prosecution lawyer seems to suggest based on his reported statement to press, *A birth certificate may show that a person was born in India, and other documents may show that they have lived in India. But the law does not recognize that as proof of citizenship*. When, in fact, those born prior to 1st July 1987 can lay claim to citizenship solely on the strength of their birth certificates regardless of citizenship status of the parents. The relevant extract of The Citizenship Act could be accessed by clicking this.
This was not the only confusion news report created: “For all born in India on or after December 3, 2004, they can claim citizenship by birth only if both parents are Indians, or if one parent is a citizen and the other is not an illegal immigrant at the time of birth”. Immigrant is person who comes to a (foreign) country to take up permanent residence. If this was so then what happens when a child is born in India to a couple, where one is an Indian citizen and the other on a non-immigrant legal visit? If one looks at the extract above from The Citizenship Act, then the confusion dissipates: The word used is Migrant and not Immigrant. But then those born before 26th January 1950 were left confused as to what is their status or what they are required to do to prove their citizenship. Since the news report had no mention whatsoever of period prior to 26th January 1950, their doubts were not unfounded. It is not The Citizenship Act, but the Indian Constitution that takes care of people born before India became a Republic or even of the period prior to Independence (see the extract from the Constitution).
The Article 11, Part II, of the Constitution has given Parliament absolute power –Nothing in the foregoing provisions of this Part shall derogate from the power of Parliament to make any provision– to make any (prospective?) laws to govern the issues of citizenship. The Citizenship Act was made, amended, and amended again flowing from this Constitutional provision. The verdict of the BHC is therefore unexceptionable. However, the legal statute from which it has flowed would create various piquant situations and vexing legal issues.
The Indian Passport
Just after providing the bearer’s name, every Indian passport proudly announces her/him to be an Indian National (राष्ट्रीयता/Nationality: Indian). The word nationality is used in two different ways. In one sense, as Collins Dictionary defines, it means: *a body of people sharing common descent, history, language, etc; a nation*. The Indian Constitution, unlike some other Constitutions (Soviet, Russia, other splinter Republics), has, it seems, consciously avoided the use of the word *Nationality* anywhere within its body.
If the Indian Constitution doesn’t recognize the word ‘Nationality’, but does recognize the word ‘Citizenship’, then in the Indian context the meaning of the word Nationality would have to be taken in only one sense and no other: Nationality == Citizenship. Unless, it is used in this sense and this sense alone, the Indian Passport cannot even use the word Nationality anywhere. It would be illegal to do so otherwise. When an Indian passport is presented at an immigration post of a foreign country, its border service assumes that the bearer of the Indian Passport is a national or citizen of India going by the fact that her/his nationality is declared to be Indian in the passport. Were the Bombay High Court judgment that held Indian passport is not a proof of citizenship to become internationally known; then it would be well within the rights of foreign immigration services to reject Indian passport as valid travel document or for Visa Counselors in missions of foreign countries in India to refuse to issue visas to Indian passport holders. This is no laughing matter. The Government of India needs to tighten its passport issuing mechanism to see that every passport issued is in conformity with The Citizenship Act, and then recognize the passport as a presumptive proof of the citizenship of its bearer in the absence of any evidence or proof to the contrary. In its absence serious issues can arise in international travel.
In India we have now a day plethora of cards: Voter Identity Card, PAN card, Adhaar Card, Driving License, and so on. Adhaar Card was introduced with great fanfare as a messiah to deliver ‘benefits’ to the deserving poor directlyand to eliminate the dens of corruption sprouted by various schemes that give benefits in kind (except, MGNREGS, where corruption occurs in falsifying records and cash disbursement). It was the first card to embed biometric features of identification and touted as panacea for all ‘ills’ including residence, identity, citizenship and benefit transfers. But it soon encountered hurdles from Ministry of Home Affairs (MHA), who claimed inalienable right to create and maintain national population register –the one and only fountainhead of citizenship. Planning Commissions’ Adhaar card was seen as encroachment on MHA’s turf. Adhaar Card had to beat a hasty retreat; it wouldn’t qualify as proof of citizenship. The Adhaar was made compulsory to receive food subsidy, educational scholarships, even to open bank accounts going by the pronouncements of many State governments. Since the law authorizing the creation of Adhaar card is not yet in place and the fact that parliamentary standing committee passed severe strictures against the scheme and its operation; the center and state governments had to go on the back foot and proclaim that Adhaar card is not ‘compulsory’ for anything, benefits would be somehow transferred even without it. Then there are operational difficulties in running the benefit schemes with Adhaar card that have thrown spanner in the ‘election dream’ of ruling Congress of winning them on the back of cash put directly into the pockets (banks) of voters. Let us hope passport too doesn’t get buggered the way Adhar card has.
There could be other problems associated with the implementation of The Citizenship Act. Some that readily came to mind are listed below:
·        In rural and remote areas where government record keeping is very poor it would prove pretty difficult to have birth certificates of both or either parents. Would such persons be denied citizenship?
·        How would an orphan or abandoned children be treated?
·        What would happen to child born in India to a surrogate mother and father, where both hold Indian citizenship, but the biological mother is not an Indian and IVF procedure took place outside India? In such case after 2004, ‘not an illegal migrant’ would not be applicable to biological mother because she may have never come to India, at least not at the time of childbirth.
While the third is a purely hypothetical case with mere demonstrative value at this juncture, the first two cases would find very large numbers of genuine Indians covered by them. A law with specific and justified intent would come undone on the anvil of corrupt and incompetent administration and government. But, isn’t that the usual tragedy?
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