Give amnesty to 'Portuguese' Indians

By Cleofato A Coutinho
23 December 2013 17:53 IST

Liberation month (19 December) is certainly good time to discuss nationality issue. The 2006 Organic Law of Portugal making registration of birth in Portugal to grant Portuguese citizenship/nationality has brought our tiny state into sharp focus. The privilege given to Goans is exploited by tens of thousands to register their birth in Portugal with the only wish of using Portugal as a gateway to Europe in their hunt for a better way of life.

A new debate is currently on that persons born before 1961 are Portuguese Nationals and what the constitution of India confers is citizenship not nationality and the registration of birth in Portugal confers nationality not citizenship. Nationality is a jural relationship at international law while citizenship is a status under local law including the constitution. It is citizenship that grants civic and political rights besides other privileges while those claiming nationality (without citizenship) can never claim such rights despite domiciled in the country. This position of international law is accepted by our Supreme Court’s nine judge bench in (1963 AIR 1811).  Though we may use nationality and citizenship and interchangeable terms it is citizenship only that grants the rights. It is based upon Portuguese citizenship that one is entitled to apply for Portuguese passport. An Indian national but U.S. citizens would have no civic and political rights in India. One gets nationality by birth but that does not confer civic and political rights which are granted to citizens only.

The nationality issue raised in the citizenship debate questions the very basis of loosing of Indian citizenship by transcription of birth in Portugal. Whether Indian citizenship is to be decided by the law of Portugal is a different matter altogether but the issue of citizenship is always a matter of law. Citizenship changes by operation of law, while nationality does not.  It could be said that after independence in 1947, under the British Nationality Act 1948 read with Indian Independence Act 1947 both passed by British parliament, Indians became commonwealth citizens or British subjects without any citizenship and only after 1950 provisions for Indian citizenship were brought into being by the Constitution of India. Similarly after Goa was liberated, the 1962 Citizenship order provided that all persons whose parents or grandparents were born before 20th Dec. 1961 in Goa are deemed to have become citizens of India if within one month from the date of publication of order in the gazette they have not opted to retain the Portuguese citizenship. Goa, Sikkim, Pondicherry became parts of Indian Union and by operation of Sec. 7 of Indian Citizenship Act, all such residents are deemed to be Indian citizens. That is how law operates. Law can create or divest a citizens of their rights.  

Even when a territory is acquired by another country by liberation, annexation or conquest the residents of such territory would get the rights, privileges based upon citizenship law of the liberator, conqueror country in much the same way until independence in 1947 India was part of the British Empire. The argument whether Goa was liberated or annexed can go on forever but the fact of the matter is that Goa is ruled under the Constitution of India which grants citizenship on the principle of domicile (not residence) which is an expression means residence by choice with the intention of permanent residence in a particular country. The debate on ‘Goan nationality’ on the citizenship issue is untenable as it is the country that is considered for domicile and the only system by which a citizen is governed is a law applicable to the entire country. Unlike America we have a single citizenship. There is no scope of Goan nationality or Tamil nationality. A Lankan Tamil can have no rights or privileges in our country despite them claiming to be Tamil nationalists. Portugal has given Goans a privilege of registering birth but with that privilege comes the legal consequences of 2006 Organic Law.

 

Looking at the issue socially, the registration of birth in Portugal is only a first step to travel to Europe and there can be no doubt that registration of birth is that step towards obtaining the travel document (passport) to other countries of Europe. If there is no intention to obtain the passport, there is no reason for the sudden rush for getting the birth registered in Portugal, only after the European Union came into being. Looking at it from that angle it is extremely clear that particularly the elite sections of Goan have taken a clear and conscious decision to voluntarily given up the Indian citizenship for greener pasture of Europe. The same cannot be said of the lower sections who only saw the glitter of Europe and got caught in the legal mess created by the Organic Law of 2006. That aspect is important as a Indian looses citizenship only by a ‘voluntary’ action of acquiring citizenship of another country.

Past few years there was a clamour for special status for Goa with avowed  purpose of protecting local interests and the Goan nationalism debate has thrown up  another clamour for special status on citizenship. The dual citizenship status was clearly rejected and the Overseas   Citizens of India status was created conferring certain travel/visa rights. There is now a demand for special status on the basis of Goan nationalism without taking into account the geo-political context India is in. A Pandora’s box cannot be opened with countries like Pakistan and China on our borders. What can happen when Pakistan offer citizenship to residents of Jammu and Kashmir or China to persons from Arunachal and Sikkim is anybody’s guess!

However a solution needs to be found within the context of the constitution and the Indian Citizenship Act. An amnesty can always be worked out by the central government for those Goans who registered their birth in Portugal by giving a limited period amnesty for surrender of the Portuguese Citizenship and permitting them to apply for registration of citizenship of India. This can certainly take care of those who got caught in the legal mess unknowingly. 

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Cleofato A Coutinho

Cleofato Almeida Coutinho is a senior lawyer and one of the constitutional expert in Goa. A member of Law Commission of Goa, he also teaches at Kare College of Law in Madgao.

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Sorry Goa was not liberated. The senior lawyer should refer to UN documents to get the real facts of 1961.

- B. Colaco, Abroad | 27 th December 2013 15:13

 

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