An innocuous-sounding office memorandum dated November 30, 2022, issued by the External Affairs Ministry ostensibly “to ease hard-ship faced by the Indian passport holders at the time of surrender of Indian passport”, has proved to be the proverbial octopus with six arms and two legs.
One of the arms points to the possibility of the rules of the Citizenship (Amendment) Act (CAA), 2019, being framed, and the other arms can act as the decimator of the citizenship of Goans and of the Overseas Citizenship of India (OCI) scheme itself.
The office memorandum divides into various categories the issuing of surrender certificates in cases involving the delayed surrender of a Portuguese passport. But hidden in it is a category that can, in the manner being interpreted, completely skew Goa’s demographics, impacting the lives of thousands of Goans.
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The category in question is: “A person who gets Indian passports issued/reissued by suppressing material information about his/her having obtained foreign nationality irrespective of the fact that the passport holder has used it for travel or not.” The Central government proposed revocation of the passports of such people by invoking Section 10 of the Passports Act, 1967, and began implementing it vigorously.
The “internal” memorandum became conspicuous by its application to Indian citizens, including over 100 Goans over one year. It created a flutter as it resulted in the revocation of the Indian passports of Goans who got their births inscribed in the Portuguese Central Registry, which is part of the process of obtaining a Portuguese passport either for themselves or their children or grandchildren.
Inscribing of birth
This inscribing of birth, which Portugal now sees as a marker of Portuguese nationality, is being treated as a marker of foreign nationality by India too. Non-disclosure of the inscription of the birth record in Portugal is also treated by India as non-disclosure of acquisition of Portuguese nationality.
A corollary to this is that someone who seeks renewal of or surrender of their Indian passport is treated as one who “suppressed material information about his/her having obtained foreign nationality”.
The memorandum was neither displayed on the website of the External Affairs Ministry nor made accessible to those whose passports were revoked on that basis without a hearing. It was finally obtained under the Right to Information Act. The memorandum itself states that the pecuniary penalty list framed by the Ministry for those who contravened the provisions of the Passports Act, when applying for surrender of their Indian passport, was declared null and void by the High Court of Kerala, and that the memorandum was issued to decide another course of action against violators.
It is clear that the External Affairs Ministry, through the memorandum, is trying to piggyback on the Kerala High Court judgment in Citizen Legal Right Association v. Union of India [WP(C) No.7945/2018], when the judgment had clearly stated that within the scheme of the Passports Act, passport-issuing authorities cannot impose penalties but can only initiate prosecution in a court of law.
Whither due process?
The memorandum is emblematic of the current governance, where due process is bypassed and the scope of institutions such as courts of law is being whittled down to give administrative officers arbitrary powers.
But the memorandum is not the tone-setter for such conferment of arbitrary powers. It is only in the continuum of ubiquitous provisions of arbitrariness in laws. The CAA, for instance, provided that OCI registration can be cancelled if the OCI cardholder violates any of the provisions of the Citizenship Act or any other existing law that the Central government notifies for this purpose.
Here again, the language of the provision suggests that the violation will not be established by due process through a court of law empowered to establish the violation of that particular law, but instead, it will be summarily decided by the Central government through mechanisms under the Citizenship Act, which will be determined through rules enacted under the CAA.
Could the memorandum be a testing of waters by the government to gauge public response to the CAA rules to come? Following widespread agitation, rules under the CAA have not yet been framed. (In November 2023, Minister of State for Home Affairs Ajay Kumar Mishra said the CAA rules would be framed by March 2024.)
December 31, 1974: Mario Soares, Portugal’s Foreign Minister, and Y.B. Chavan, Union Minister of External Affairs, sign a treaty on Portugal’s recognition of India’s sovereignty over Goa, Daman and Diu, and Dadra and Nagar Haveli, and related matters. | Photo Credit: The Hindu Archives
How Goans will be affected
Why and how will Goans get disproportionately affected by this memorandum? Here a little background is in order. A Portuguese passport for Goans residing in Goa is possible because Portugal, unlike the UK, recognised Goans as Portuguese citizens. Operation Vijay was carried out on December 19, 1961, resulting in Goa being annexed to the Indian Union. Unlike some other States, which were not part of the Indian Union in 1947, there was no instrument of accession.
It was only in 1974 that the Treaty on Recognition of India’s Sovereignty over Goa, Daman and Diu, Dadar and Nagar Haveli and Related Matters was signed between Portugal and India, when Mario Soares was the Foreign Minister. He would go on to become Prime Minister of a democratic regime in Portugal in 1976.
Even after it recognised India’s sovereignty over the territory of Goa, Portugal did not retract the application of its nationality law to Goans (and the people of Daman and Diu). The way in which Portugal’s nationality laws were crafted held a window for considering Goans as Portuguese nationals.
This made it possible for Goans to affirm their Portuguese citizenship and obtain a Portuguese passport. The nationality law provided that all those who were born to Portuguese parents or grandparents, which pre-1961 Goans were, could be considered to be of Portuguese origin. So, the Goan who could be recognised as a Portuguese national at the time of the accord with Portugal was one who was born in Goa before 1961 or whose parents or grandparents were born in Goa before 1961. There was a prescribed procedure to be so considered, though. Merely getting one’s birth inscribed in the Portuguese Central Registry did not give that right. After considering the birth record and the identity card, the call would be taken.
However, apart from those who were in Portugal at the time, there was no gold rush of the kind there is today to acquire Portuguese citizenship, perhaps because of the state of the Portuguese economy. It was only when Portugal became part of the European Economic Community in 1986 that Portuguese citizenship became prized.
When the European Union was established in 1993, with Portugal as one of the members, the rush to acquire a Portuguese passport started in earnest. On any given day, to date, there is always a queue of people outside the Portuguese consulate to apply for a passport. This rush was prompted by the fact that a Portuguese passport is in reality a passport to becoming a member of the European community, implying consequent ease of travel to and facility in securing work in any member of the EU, even if not in Portugal itself.
Highlights
- The way Portugal’s nationality laws were crafted held a window for considering Goans as Portuguese nationals.
- When the European Union was established in 1993, the rush to acquire a Portuguese passport started in earnest.
- The latest memorandum deprives Goans of even an OCI card, which helps them retain ties to the country.
Demand for Portuguese passport
The rush was of the young and not-so-young job seekers. By 1993, the job-seeking age group already included a lot of those born in annexed Goa because the oldest of those born in India were already 31, counting from December 19, 1961. Therefore, they could only exercise the option of invoking Portuguese citizenship if the Portuguese citizenship of their parents was invoked to start with. To commence this whole process, the aspirant for Portuguese citizenship had to ensure that the birth of at least one parent was transcribed in the birth records in Portugal.
The parents, in the autumn or winter of their lives, were generally neither able to get nor interested in jobs in the EU and, therefore, had no intention of becoming Portuguese nationals. Moreover, the extreme cold of Portugal was not something that appealed to them in their sunset years. But they got their birth certificates into the pipeline for the sake of their children. In hindsight, it seems that there was neither a well-thought-out integration into the Indian Union in terms of process nor a special status accorded to Goa like many others.
While the 1960s were not the best time to debate issues like dual citizenship, owing to the confrontation with Portugal in Operation Vijay, 1974 was a missed opportunity to decide on dual citizenship and integrate this aspect into the Constitution via a provision for special status.
Goa made an entry into the special status section of the Constitution via Article 371I, when it attained statehood, but at that time too, the issue was not considered. It is still not too late to arrest the further damage caused to Goans on account of the non-availability of dual citizenship, where Goans are always at the mercy of arbitrary circulars and office memorandums.
Former MLA and activist Radharao Gracias argues that Goans were already citizens of Portugal before the formation of the Indian state. So, with the integration of Goa into India, Goans now had another citizenship, that is, Indian citizenship.
Dual citizenship
If Portugal can still entertain the idea of dual citizenship when it comes to Goans, it is not understood why the Indian state should pose any barriers.
In keeping with its ordained mandate under the Constitution to ensure social, economic, and political justice for all its citizens, the country can very well also allow, in today’s world, for creative application of the mandate of the Constitution in reading its Articles.
Gracias draws attention to the Citizenship Order of March 28, 1962, which states that “every person who or either of whose parents or any of whose grandparents was born before the twentieth day of December 1961, in the territories now comprised in the union territory of Goa, Daman, and Diu, shall be deemed to have become a citizen of India on that day”.
Gracias argues that since Goans were already bestowed with Portuguese citizenship, with the passage of the Citizenship Order, they acquired dual citizenship.
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The prevalent notion of nationalism was that if someone opted for or, as some say, affirmed a foreign citizenship, that person had no love for his land. Consequently, Goa’s citizenship concerns remained just that, concerns that did not transition to resolution. Ever since, the notion of nationalism has sunk into a deeper abyss by metamorphosing into Hindu nationalism.
The latest memorandum is yet another nail in the coffin that buries Goan citizens’ interests as it deprives them even of an OCI card, which helps them retain ties to the country. Those whose passports are revoked in arbitrary fashion cannot even stake a claim to an OCI card, as the grounds for revocation of passport will be seen as violation of the law and bar them from being entitled to a card.
Given that Goans invariably make sure that at least one person in their family continues to have full Indian citizenship, so as to have the possibilities of voting and political decision-making, the absence of the OCI card will be a disadvantage as there is the possibility of being denied right of entry into India, with which comes the prospect of separation from their families.
In this day and age, dual citizenship is already a reality in many countries. And in a world where mobility is at a premium, and where there is high potential of persons of Indian origin financing developmental activity in their homeland, the Centre’s latest move is regressive.
Albertina Almeida is a Goa-based lawyer and human rights activist.
