Goans are already enjoying dual citizenship from 1961

By Radharao Gracias
04 July 2016 09:44 IST

I have previously subscribed to the view that Goans whose births are registered in Portugal may lose the citizenship of India. I have now re-examined the position and I feel otherwise. And here is why.

We have become citizens of the Republic of India in terms of Sec.7 of the Citizenship Act, 1955 read with Citizenship Order dated 28.3.1962 which I quote below:

“Sec.7: If any territory becomes a part of India, the Central Govt., may by order notified in the Official Gazette, specify the persons who shall be citizens of India by reason of their connection with that territory; and those persons shall be citizens of India as from the date to be specified in the order.”

Order dated 28.3.1962:

“2.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.

Provided that any such person shall not be deemed to have become a citizen of India as aforesaid if within one month from the date of publication of this order in the Official Gazette that person makes a declaration in writing to the Administrator, Goa, Daman & Diu or any other authority specified by him in this behalf that he chooses to retain the citizenship or nationality which he had immediately before the 20th day of December, 1961.”

From a simple reading of these provisions, it is evident that Goans were conferred Indian citizenship by the order dated 28.3.1962. The fact also remains that “the citizenship or Nationality which he had immediately before 20th day of December, 1961” was not terminated. Thus effectively, dual nationality was conferred on Goans.

Clearly Goans who did not desire to be Indian Nationals could opt out of Indian Citizenship by making a declaration within thirty days of the Order. Conversely, there is no requirement that those who have been conferred Indian citizenship have to opt out of Portuguese nationality.

There is nothing in the Constitution of India nor in the Citizenship Act, 1955 which expressly or by implication bars dual nationality. However, Article 9 of the Constitution provides:

“Art.9. No person shall be a citizen of India by virtue of article 5, or be deemed to be a citizen of India by virtue of article 6 or article 8, if he has voluntarily acquired the citizenship of any foreign State. "

Thus, a pre-requisite to attract the provision of Art.9 is that one has to be first a citizen of India and then acquire citizenship of foreign State. Nothing more. Nothing less.

 

And that is where the distinction lies. Goans have been, since before 19.2.1961 and continue to be Portuguese nationals under the law of that country. On top of this, was overlaid Indian citizenship by aforesaid order dated 28.3.1962. To attract the disqualification under Art.9 one has to “voluntarily acquire citizenship of a foreign State” after one has become Indian citizen. In case of Goans, we have been Portuguese citizens by birth (and not by acquisition) before Indian citizenship was conferred on us. It cannot therefore be said that Goans “have voluntarily acquired citizenship of a foreign State”.

In the case of Goans, born before 20.12.1961, none of us have “voluntarily acquired” citizenship of Portugal. On the contrary, the citizenship of India has been conferred on us, despite the fact that Goans continue to be citizens of Portugal.

The situation has remained static even after the incorporation of Goa, Daman & Diu into India was regularised by the treaty between Portugal and India dated 14.3.1975. The treaty recognises Indian sovereignty over Goa. It is pertinent to note that the Govt. of India did not in signing the treaty raise any objections to the fact that Goans continued to be recognised as citizens by Portugal, thus implying that the dual citizenship of Goans has not been disputed.

There is a misconception that Goans who transcribe their births in the Central Registry of Births in Portugal are applying for Portuguese citizenship. Quite to the contrary, Goans, because they already are Portuguese citizens exercise the right to transcribe their names in the Central Registry. A similar provision also exists in the Registration of Births & Deaths Act, 1969 in India, wherein under Sec.20(2) children of Indian parents born abroad are allowed to transcribe their births in India on the family’s return.

Had Goans to apply for Portuguese nationality, they would have to proceed under Art.7 of the Organic Law which deals with naturalisation. In other words any Goan who obtains Portuguese Citizenship under Sec.7 of that Country’s law will lose Indian Citizenship under Art.9 of the Constitution. But those who merely transcribe their births in the Central Registry of Births in Portugal will not lose their citizenship.

And to conclude, I must say that Goans seem to be in the unique position in India and enjoying the benefits of dual nationality.

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Radharao Gracias

Radharao F.Gracias is a senior Trial Court lawyer and ex President of the South Goa Advocates Association. He is also former independent MLA of Goa. He has been an activist on issues related to Goa for more than three decades.

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Previous Comments

What about those born after 1961, and who get Portuguese citizenship and maintain dual citizenship despite very well knowing that it is not allowed per Indian law. I wonder what you have got to say about that!

- Jhalmi Mahadev, Florida | 22 nd July 2016 20:03

 

Well written Dr. Radharao.

- Diogo Antonio de Sousa, Moira | 18 th July 2016 20:08

 

I am in complete agreement with this interpretation of the law. Goans born before 1961 have always been Portuguese citizens and continue to be so. They do not "acquire a foreign nationality" when they transcribe their births in Portugal or obtain Portuguese passports.

Furthermore, India (or any nation, for that matter) does not have the right to extinguish the citizenship of the citizens of any country other than its own. Thus, with respect to this statement in your article: "The fact also remains that 'the citizenship or Nationality which he had immediately before 20th day of December, 1961' was not terminated." India could not have terminated the Portuguese citizenship of Goans even if the Citizenship Order had stated as such. Only Portugal (or the citizen himself) can terminate (renounce in the case of the citizen) Portuguese citizenship.

Thus, pre-1961 Goans are Portuguese citizens by birth and Indian citizens by the conferral of citizenship upon them by by the Government of India. They are dual citizens in fact and in law, which any commonsense reading of the law should recognize.

- Jose Menezes, Mumbai | 04 th July 2016 16:03

 

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