Overseas Indian Citizen
A New ‘Setubandhan’?
The provision for overseas citizenship along with other changes in citizenship rules introduced by the Indian government reveals a trend that reinforces cultural identity and principle of descent and blood ties as constitutive of Indian citizenship. While the provision for overseas Indian citizenship may offer an “opening up” of Indian citizenship through the introduction of extra-territoriality, it occludes a simultaneous “closing of ranks”, with acquisition of citizenship through birth or by registration and naturalisation
becoming more stringent.
ANUPAMA ROY
I
unless after having migrated to Pakistan the person returned to India on a permit for resettlement. Article 8 of the Constitution provided that persons residing outside India could register themselves as Indian citizens with the diplomatic or consular authority of India in that country, if they, or either of their parents or grandparents was born in India (as defined in the India Act of 1935). Article 9 of the Constitution, however, laid down that no person shall be a citizen of India under Articles 6 or 8 if he has “voluntarily acquired the citizenship of a foreign state”. While there is no reference here to Article 7, Supreme Court judgments in the early 1960s, decided that a person who migrated to Pakistan after March 1, 1947 and acquired Pakistani nationality, could not claim the citizenship of India [Basu 1999: 18]. Thus Indian citizenship as manifest in the Constitution at its commencement thus, emphasises ethnic ties, yet it is also
Economic and Political Weekly April 15, 2006 associational in nature, disregarding territorially bound determination of citizenship [Rodriguez 2005].
Article 11 of the Constitution authorised Parliament to make laws pertaining to acquisition and termination of citizenship subsequent to the commencement of the Constitution. The Citizenship Act of 1955 made elaborate provisions specifying how citizenship could be acquired by birth, descent, registration, naturalisation, or through incorporation of territory. Subsequent amendments in the Citizenship Act in 1986 sought to deal with migration from Bangladesh, Sri Lanka and some African countries; amendments in 1992 show a strengthening of strands that emphasise descent or being born of Indian parents. While the Citizenship Act of 1955 held that every person born in India on or after January 26, 1950, was to be a citizen of India by birth,1 from July 1, 1987, i e, the date of enforcement of the amendment of 1986, every person born in India on or after January 26, 1950 but before or after the commencement of the Act, would be a citizen of India, if either of whose parents was a citizen in India at the time of his birth. The 1992 Amendment Act in turn made it possible, through an amendment of Section 4 (citizenship by descent) for a person born outside India, whose father was an Indian citizen by descent only, if his birth was registered at an Indian consulate within one year of its occurrence or the commencement of the Citizenship Amendment Act, 1992, whichever was later.2 This emphasis on ethnic bonds and Indian origin manifested a move from a relatively inclusive approach to citizenship seen at the time of the commencement of the Constitution, towards an overtly ethnic conception of citizenship where descent from parentage of Indian origin became an overriding consideration [Rodriguez 2005: 221-22].
‘Exclusive’ Citizenship
The late 1990s saw further entrenchment of a notion of citizenship marked by blood ties and cultural ascriptions. Read in the context of the majoritarian politics of the period, citizenship became more exclusive, so that while the universe of the Indian citizenship was conceived as all-encompassing – the entire earth construed as a familial community of membership – the Indian citizen was progressively marked as Hindu, upper caste and male. One of the most conspicuous manifestations of this was the debate over Sonia Gandhi’s citizenship, whose legal resolution was deemed insufficient as her foreign origins continued to be put forth as proof of her indifferent and inadequate citizenship and also indicative of her unsuitability for holding a political office as the head of government.
The category of the “overseas citizen” of India can perhaps be understood within the framework of this trend that congealed the association between ethnic Indian-ness and Indian citizenship. Yet, there also seem to be present several competing and almost dissonant strands, in the framing of overseas Indian citizenship. Ironically while a dominant suggestion seems to be that of the recovery of de-territorialised citizenship which accompanied the commencement of the Constitution, the proposed deterritorialisation is both ironic and deceptive. While lifting the denial of Indian citizenship which the assumption of citizenship of a foreign country brought in its wake, this continued to be denied to those persons of Indian origin who had made the choice of opting out of Indian citizenship in preference for Pakistani citizenship. At the same time, it manifested also a trend followed by several governments especially those which had integrated in some significant way in an “hierarchical” world economy, and assumed the position of “fast developing economies”, to reach out to their diaspora in various ways, not the least, offering them avenues of investment in their countries of origin.3
Significantly, the report of the high level/ powered committee on the Indian diaspora, headed by L M Singhvi, set up in August 2000 to suggest a framework facilitating interaction with the Indian diaspora and their association with India in a mutually beneficial relationship, incorporated all these strands. Emphasising the deterritorialisation which the Indian diaspora had come to signify, in an inversion of the logic of imperialism, the committee declared: “the Indian diaspora spans the globe and stretches across all the continents. It is so widespread that the sun never sets on it” (Singhvi Committee Report 2002, p 2). While emphasising their numbers (“estimated to be about 20 million”) and their distribution across the globe, the report carefully underscored their common identity: “…They live in different countries, speak different languages and are engaged in different pursuits. What gives them their common identity is their Indian origin, their cultural heritage, their deep attachment to India” (ibid).
It is significant that the Singhvi Committee report keeps projecting overseas citizenship as a “new setubandhan”,4 or building bridges, and given the contexts of the emotional bonds and cultural backlinkages that the report emphasises, this would connote cementing a natural bond.
It emphasises “emotional needs” of the diaspora, as the primary justification for dual citizenship. Under the head “culture”, the report also notes the “deep commitment to their cultural identity (that) has manifested in the component of the Indian diaspora, the members of the diaspora identify with Indians, equally the inheritors of the traditions of the continuous civilisation”.
Though the report pays tribute to the expanse and cultural cohesion of the diaspora, it perhaps seems ironic that it chooses to limit the universe of overseas Indian citizens to specific countries of North America and the Europe, and Australasia (Australia, New Zealand, Singapore and Thailand), compelling the observation by Fatima Meer, a member of the African National Congress, that the overseas citizenship of India as articulated by the Singhvi Committee was nothing more than “dollar and pound citizenship”.5 That the monetary considerations were never absent, even though care was taken not to make them appear primary was the fact that among the suggestions put forward by the Singhvi Committee was the setting up special economic zones, exclusively for projects to be undertaken by OCIs, PIOs and NRIs.
Ties of Emotion
The debate on the Citizenship Amendment Bill 2003 under the NDA government, saw a reiteration of this emotional link and desire for closer ties. L K Advani, then home affairs minister, justified it not only on the grounds of the warm ties the diaspora “continue to have with India and Indian culture”, but as a measure to bring the “diaspora closer to themselves and to India”.6 The speech of Manmohan Singh, then leader of the opposition in the Rajya Sabha, likewise alluded to emotional ties while also referring to them as “a great national reservoir”, whose “knowledge, wealth, experience and expertise” could “be tapped for the benefit of our country”.
The Singhvi Committee recommended that dual citizenship should be permitted within the rubric of the Citizenship Act 1955, suggesting also that sections 9, 10 and 12 of the Citizenship Act 1955 should be suitably amended.7 A bill to amend the existing Citizenship Act was introduced in the Rajya Sabha on May 9, 2003 and subsequently referred to the standing committee chaired by Pranab Mukherjee for examination and report.8 The standing committee report (December 12, 2003) endorsed the amendment of 1955, to make provisions for the grant of overseas citizenship of India. Significantly it also recommended the introduction of a scheme
Economic and Political Weekly April 15, 2006
for compulsory registration of every citizen of India accompanied by the issue of national identity cards. To achieve these objectives the proposed amendment sought to provide for: (i) making acquisition of Indian citizenship by registration and naturalisation more stringent; (ii) preventing illegal migrants from becoming eligible for Indian citizenship; (iii) simplifying the procedure to facilitate the reacquisition of Indian citizenship by persons of full age who are children of Indian citizens and former citizens of independent India;
(iv) providing for the grant of overseas citizenship of India to persons of Indian origin belonging to specified countries and Indian citizens who choose to acquire the citizenship of any of these countries at a later date; (v) providing for compulsory registration and issue of national identity card to all citizens of India; (vi) enhancing the penalty for violation of its provisions as well as rules framed under it; and (vii) omitting all provisions recognising or relating to the commonwealth citizenship from the act.
Earlier, on June 6, 2003, the standing committee issued an advertisement in the press inviting public responses. The representations and memoranda received by it can be divided into those pertaining to overseas Indians, those concerning persons with ambivalent or “illegal” membership within the territory of India and those confined to making citizenship more identifiable and precise in the form of legal documents. The memoranda received in the first category ranged from suggestions that endorsed a selective basis of dual citizenship to those that preferred that it should be expanded to include China, Sri Lanka, Fiji, Kenya, Malaysia, Uganda, South Africa, West Indies and Zimbabwe. The demands which reflected concerns around ambivalent citizens asked for a more flexible regime of naturalisation and registration and shifts in policy to include Bangladeshi and Pakistani minority refugees, displaced persons and migrants who entered India in wake of the 1971 war and Tibetan refugees. The other demands included consideration of giving every citizen a national identity card and identification of religion on citizenship certificates (report of the standing committee, p 6).
The Citizenship Amendment Act 2003 made several amendments to existing sections and inserted sections 7A, 7B, 7C and 7D titled “overseas citizens” that dealt with the definition and registration of overseas citizens,9 conferred specific rights to them, identified citizen’s rights that did not belong to them and the conditions under which their registration could be cancelled.10 An amendment to the Citizenship Act 2003, through an ordinance issued in June 2005, allowed the overseas citizenship scheme to cover persons of Indian origin who emigrated after 1950 and were living in any country other than Bangladesh and Pakistan.11 The extension of the status to other countries is significant since in 2005 overseas Indians sent remittances to India at an estimated 21.7 billion dollars, more than what China (21.3) and Mexico (18 billion) received. More than half such remittances were by west Asia based Indians, with Kerala being the single largest beneficiary.12The Citizenship Amendment Act 2003 and the Citizenship Amendment Ordinance and Act 2005 provide for a variant of Indian citizenship, which is not quite dual citizenship, since it does not provide the overseas Indian with an Indian passport, but an overseas citizen card. At the fourth Pravasi Bharatiya Diwas at Hyderabad in January 2006, two Indians became the first to receive the coveted overseas Indian citizenship cards.13
Conclusion
Despite the widening of the scope of overseas citizenship, the principles underlying the scheme, read with the other changes the bill sought to introduce, show that the principle of ‘jus sanguinis’ or descent and blood ties was more important, and assumed primacy over the principle of ‘jus solis’. While Indian citizenship after the amendments bringing in the category of overseas citizenship may convey that citizenship is not to be confined to or associated with territory and membership within specific state boundaries, connoting thereby, transnational or de-territorialised citizenship, the fact that it is inextricably tied up with descent emphasising Indian origin, makes its transnationality suspect. On the other hand, Indian citizenship may be seen as having become more ossified and exclusive, with naturalisation and registration processes becoming more stringent. The ossification is further manifested in the fact that the amended act places demands on children born of Indian parents abroad, who would be automatically citizens of the other country on the principle of ‘jus solis’, to register as OCIs immediately upon coming of age. While the issue of choice is made precipitate for those born abroad, there is a degree of flexibility for Indian citizens “compelled” to choose the citizenship of their country of domicile and work, who would not lose their Indian citizenship (OCI status) till the time their registration formalities continue.
Moreover, deliberations in the standing committee affirming India’s stand on refugees, displaced people and economic migrants, show a further entrenchment of inflexibility and the expression, “illegal migrant” figures in the Citizenship Act in both “citizenship by registration”and citizenship by “birth” categories. Significantly the insertion of this category has made citizenship by birth exclusive and conditional. While the un-amended section 3 dealing with “citizenship by birth” provided for Indian citizenship to every person born in India after January 26, 1950, if “either of whose parents [was] a citizen of India at the time of his birth”, section 3 as amended by the 2003 Act provided that citizenship by birth would accrue to persons born in India where “both of his parents are citizens of India; or one of his parents is a citizen of India and the other is not an illegal migrant at the time of his birth” (section 3C, Citizenship Amendment Act 2003).14
EPWEmail: roy_singh@rediffmail.com
Notes
1 Except, however, if at the time of his birth
(a) his father possesses such immunity fromsuits and legal process as is accorded to anenvoy of a foreign sovereign power accreditedto the president of India and is not a citizenof India; or (b) his father is an enemy alien andthe birth occurs in a place than under occupationby the enemy.
2 The unamended Section 4 of the CitizenshipAct concerned itself only with the citizenshipby descent of persons born outside India, if hisfather, or either of his parents was a citizen ofIndia at the time of his birth.
3 The Philippines granted voting rights to overseasFilipinos, overseas Chinese had their firstconvention in Singapore in 2001, andVietnamese long based outside their countrymade welcome investments in their country.‘Overseas Indians: Citizenship and OtherRights’, Economic and Political Weekly, editorial, Vol XLI, No 3, January 21-27, 2006,pp 172-73.
4 The expression as reported in the ParliamentaryStanding Committee’s report, was used byL M Singhvi while presenting his views to thecommittee.
5 Fatima Meer made this observation at the first Prawasi Bharatiya Divas convention onJanuary 9, 2003. V S Naipaul was among thefirst to raise the issue of discrimination when the OCI confined OCI to select group of “rich”countries. See Rammanohar Reddy, ‘Citizenship with Dollars and Pounds’, Hindu SundayMagazine, January 19, 2003.
6 He recommended therefore, continuingobserving December 9 and 10 as PrawasiBharatiya Diwas, the first such event havingalready been organised in 2003. Incidentally,December 9 is symbolic of “return” associatedwith Gandhi’s return that day from South Africa.
7 Section 9 provided for the termination of Indiancitizenship on the voluntary acquisition ofcitizenship of another country and Section 10lay down conditions under which a person maybe deprived of Indian citizenship. Both thesesections made voluntary acquisition ofcitizenship of another country a ground fortermination and deprivation of Indian
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citizenship. Section 12 conferred on the centralgovernment the power to make provisions onthe basis of reciprocity for the conferment ofall or any of the rights of a citizen of India onthe citizens of any country specified in scheduleI which included 11 commonwealth countries and the Republic of Ireland. The CitizenshipAmendment Act 2003, amended Section 9 byadding the proviso that after the commencementof the Citizenship Amendment Act 2003, anycitizen of India who voluntarily acquires thecitizenship of a specified country shall notcease to be a citizen of India, if within six months he makes an application for registrationas an overseas Indian under subsection (1) ofSection 7A. The 2003 Act omitted Section 12 of the Act along with Section 11.
8 Parliamentary Standing Committee on HomeAffairs, 107th report on the CitizenshipAmendment Bill 2003.
9 The act provided that the central governmentcould, on application, register any person ofIndian origin as an overseas citizen if thatperson was from a country which allowed dualcitizenship. A ‘Person of Indian Origin’ (PIO)was in turn a citizen of another country who
or anything leading to imprisonment of morethan a year. Overseas Indian Citizenship doesnot entitle people who have acquired, or areplanning to acquire, foreign nationality, to retaintheir Indian passports. The law continues torequire that Indian citizens who take foreignnationality must immediately surrender theirIndian passports. Those who are eligible canthen apply for registration as Overseas IndianCitizens.
10 While registration of an overseas Indian citizenwas made subject to conditions and restrictionsincluding the condition of reciprocity, the rightsfrom which such a citizen was especially barredwere the rights to equality of opportunity inmatters of public employment, contestingelections for the post of president or vicepresident of India, appointment as judge of theSupreme Court and high courts, voting rights,contesting elections to the legislative assemblyor legislative council and appointment to publicservices and posts in connection with the affairsof the union or any state.
11 The amendment also reduced the period of stayof two years to one year in India for an OverseasCitizen of India, who is registered for five yearsto become eligible for grant of Indiancitizenship. The procedure of application wasalso simplified.
12 It was only recently though that the governmentannounced a few welcome measures to reach out to this large category of low-level, semiskilled labour in west Asia. These include an easing of remittances facilities, the assuranceof extending legal help to distressed workersand women as well as the promise of grantingvoting rights, as overseas workers in mostcountries in the region are not accorded
naturalised citizenship rights.
13 The card now allows a greater flexibility tooverseas Indians in entry and registration withlocal police authorities. The Overseas Citizenof India can apply for a new type of visa called‘U’ visa which is a multipurpose, multipleentry, lifelong visa entitling them to visit thecountry at any time for any length of time andfor any purpose. It also accords them paritywith non-resident Indians in economic, financial and educational fields, except in acquisition ofagricultural or plantation properties.
14 Significantly, discussions in the standingcommittee, while affirming the government ofIndia’s policy on taking March 25, 1971 as thecut-off date for granting citizenship, showeda distinction being made between refugees whohad crossed borders to come to India to escapereligious persecution, and those who werecoming for economic reasons. The refugeeswere to be addressed under the provisions ofinternational law and the problem dealt withthrough diplomatic channels. The latter – theillegal migrants – however, the committee felt,“should be sternly dealt with as per the law ofthe land” (107th report of the standing committeeon home affairs, December 12, 2003, pp 9-10).
References
Basu, D D (1999): Shorter Constitution of India, Wadhwa and Company, Nagpur.
Rodriguez, Valerian (2005): ‘Citizenship and theIndian Constitution’ in Rajeev Bhargava andHelmut Reifeld (eds), Civil Society, PublicSphere and Citizenship: Dialogues andPerceptions, Sage, Delhi.
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