Automatic Termination of Citizenship Under Indian Law: How India’s Legal Structure Makes Citizens Stranger to Their Own Motherland

Abstract

The provisions of the Citizenship Act, 1955, give legislative recognition to the scheme of automatic termination of citizenship, whereby the citizenship of an Indian is automatically and involuntarily terminated when they acquire the citizenship of a foreign country. While the legislative logic behind this legal arrangement is to forbid Indian citizens from possessing dual citizenship and safeguard loyalty and sovereignty, the practical operation of the scheme of automatic termination raises a raft of constitutional questions in terms of its legal legitimacy. The article is an attempt to critically assess the scheme of automatic termination in light of these questions. It will attempt to underline the infirmities of the provisions that allow for automatic termination of citizenship and how their practical application, and especially, the involuntariness, fly in the face of the guaranteed protections of Articles 14, 19, 21, and 25 of the Constitution of India.

Introduction

The concept of citizenship occupies a central place in contemporary realpolitik as it opens doors to a panoply of rights, privileges, and duties. Citizenship, along with related concepts of statehood, nationality, and belonging, is governed by international conventions (e.g., Article 15, Universal Declaration on Human Rights, 1948; Article 2(1), International Covenant on Civil and Political Rights, 1966) as well as domestic laws, both of which share a commitment towards providing a democratic and liberty-driven mechanism for the regulation of citizenship that falls in alignment with due process and human rights standards.

The governance of citizenship is subject to the strict regulation and scrutiny of the sovereign state, which holds the power to determine its contours and subsequently enlists and implements the parameters of nationalisation and denationalisation. The sovereign state also holds the authority to terminate citizenship to render individuals stateless and deprive them of the privileges that accompany it. Deprivation of citizenship is among the harshest measures adopted by governments in that it places the individual outside the protections guaranteed by virtue of membership of a state and puts an embargo on the unbridled access to such rights, privileges, and duties (Bauböck & Paskalev, 2015; Zedner, 2016). This disadvantage is amplified when the citizenship of an individual is automatically and involuntarily terminated by the state through the force of law. Involuntary loss of citizenship occurs either due to residence abroad or owing to the acquisition of foreign citizenship (van der Baaren & Vink, 2021).

India, the largest, and arguably, the most vibrant democracy, gives legislative recognition to the scheme of automatic termination of citizenship when an individual acquires the citizenship of another country. The Indian citizenship regime enacted under the Citizenship Act, 1955 (hereinafter, ‘the 1955 Act’), legislatively provides for the automatic termination of citizenship when an existing citizen acquires the citizenship of another country. Additionally, the 1955 Act also regulates the citizenship of minors holding dual citizenship. Such a scheme of termination of citizenship raises significant questions on its legitimacy, especially with respect to the Indian Constitution, which is wedded to the ideals of the rule of law.

Is automatic termination of citizenship upon acquiring the citizenship of another country a fair and reasonable measure under the Indian Constitution? In this article, I aim to answer this question. In this endeavour, I shall, first, aim to conceptually understand ‘involuntary and automatic termination of citizenship’ and its implications on concerned individuals. Second, I shall chart out the legislative framework of the 1955 Act, which gives legislative recognition to such a practice. Third, I shall venture to constitutionally analyse, with the help of Indian and foreign judgments to undergird my arguments, the provisions of the 1955 Act through the lens of the Constitution of India. In this endeavour, I shall undertake a comprehensive analysis of the provisions and argue that they infringe fundamental rights guaranteed by the Constitution, particularly Article 14 (equality before law), Article 19 (protection of certain rights regarding freedom of speech, etc.), Article 21 (protection of life and personal liberty), and Article 25 (freedom of conscience and free profession, practice, and propagation of religion). I shall contend that arbitrarily curtailed freedoms protected under Article 19, fail the proportionality test articulated in Anuradha Bhasin v. Union of India (2020), ¹ and lack judicial oversight. Furthermore, it shall be explained how the provisions of the 1955 Act undermine the right to dignity under Article 21 and violate the right to conscience enshrined in Article 25, highlighting their incompatibility with constitutional principles. I shall, at requisite places, take the help of foreign judgments to undergird my arguments. In this article, I engage with the broader citizenship literature that questions the involuntary nature of automatic termination of citizenship, using it as a framework to analyse the Indian context. By locating the Indian scheme within this theoretical and comparative perspective, I argue that the automatic termination of citizenship in India results in an unjust and disproportionate deprivation of pivotal rights, including, but not limited to, the freedoms of association, expression, dignity, and conscience. These rights so violated are not only fundamental to the Indian Constitution but also form the core of international human rights law.

While the debate on automatic termination of citizenship upon acquiring the citizenship of another country may faintly touch upon the concept and practicality of dual citizenship, the objective of this article is not to explicitly advocate for dual citizenship. Instead, automatic termination forms the central theme and the article seeks to undergird the argument that automatic termination of citizenship, upon acquiring the citizenship of another country, is an arbitrary practice and finds place neither in the Indian Constitution nor in the Indian democratic set-up.

Understanding Automatic and Involuntary Termination of Citizenship

Involuntary termination of citizenship, which forms the mantle of this article, refers to instances where an individual’s citizenship is revoked or terminated by the government against their will. Bauböck and Paskalev (2015) have argued that the loss of citizenship is considered ‘involuntary’ when the state terminates a citizenship status without the explicit consent of the concerned individual. They contend that the basic distinction between involuntary and voluntary loss of citizenship relies on a normative judgement that places the burden of justification of involuntary loss on the state rather than on the individual. There are a slew of reasons that can be attributed to such termination or revocation, such as criminal activities, particularly involving acts which threaten and undermine national security, dual citizenship laws or breach of national allegiance to the state.

Historically, the concept of automatic termination of citizenship held considerable significance in countries that had reservations about their citizens acquiring passports of other nations. These states traditionally attached the idea of citizenship to the broader notions of loyalty and allegiance and opposed the idea of multiple citizenships on two fundamental grounds: first, that it could destabilise interstate relations by creating conflicting allegiances and, second, that it undermined the state’s claim and control over its human resources, thereby complicating jurisdictional authority and governance (Spiro, 2010).

In the aftermath of the partition of India, the Constituent Assembly collectively voted against the incorporation of dual citizenship because the drafters felt that dual citizens may lack loyalty and multiplicity of citizenships would involve a host of practical challenges and administrative complexities. Those who held reservations against dual citizenship opined that it would lead to divided loyalties and allegiance having the potential to undermine the integrity of India. They proposed a unified citizen framework that would ensure exclusive and singular allegiance to India (Constituent Assembly of India, 1949).

However, over time, there was a notable shift in the international perspective where we witnessed an increasing tolerance towards dual citizenship and a decreased reliance on the practice of termination of citizenship upon citizens acquiring passports of other nations. Many democracies across the world now refrain from giving legislative recognition to such a practice, or those that had done so, struck down the practice through judicial fiat. For example, the United States, as early as 1958, in the landmark ruling of Afroyim v. Rusk (1967), ² declared unconstitutional Section 401(e) of the Nationality Act, 1940, which terminated the American citizenship of persons who voted in other countries’ elections. By a 5:4 decision, the court came to the conclusion that the Congress possesses no power to terminate American citizenship in such a manner, and hence, Section 401(e) fails to hold constitutional ground. The Court ruled that citizens of the United States cannot be involuntarily deprived of their citizenship. Justice Hugo Black, in the judgment, held:

We hold that the Fourteenth Amendment was designed to, and does, protect every citizen of this Nation against a congressional forcible destruction of his citizenship, whatever his creed, color, or race. Our holding does no more than to give to this citizen that which is his own, a constitutional right to remain a citizen in a free country unless he voluntarily relinquishes that citizenship. (emphasis added)

Similarly, the Supreme Court of South Africa, in Democratic Alliance v. The Minister of Home Affairs (2023), ³ struck down as unconstitutional Section 6(1)(a) of the South African Citizenship Act that prescribed the automatic termination of South African citizenship of adult citizens who formally and voluntarily acquired the citizenship of another country (except through marriage), without first obtaining or applying for ministerial permission to retain their citizenship. Along similar lines, countries like Botswana, Kenya, Zimbabwe, and Liberia have also struck down corresponding practices through judicial fiat.

Data compiled by the European University Institute’s Global Citizenship Repository (GLOBALCIT) reveal that as of 2020, citizenship can be lost upon the acquisition of a foreign citizenship by all categories of citizens without exceptions in a total of 38 countries, out of which 22 countries provide for a mechanism where citizenship is automatically lapsed (van der Baaren & Vink, 2021). In a total of 27 states, citizenship can be lost upon acquisition of a foreign citizenship, but major exceptions are made. India is one of the 22 countries that legislatively prescribe automatic termination of citizenship upon acquiring the citizenship of another country under provisions of the 1955 Act.

The Legislative Architecture of Automatic Termination of Citizenship

Before delving into a discussion on the constitutional merits of automatic termination of citizenship, it is imperative to understand the grammar of the statutory provisions of the 1955 Act that give legislative recognition to the scheme of automatic and involuntary termination of Indian citizenship upon acquiring the citizenship of a foreign nation. ⁴ A combined reading of three provisions––Section 4(1A), final proviso to Section 4(1), and Section 9 of the Citizenship Act, 1955––allows for automatic termination. The tenets and applications of these provisions merit analysis.

Section 4(1A) of the 1955 Act states that a minor who is a citizen of India and also a citizen of any other country shall cease to be a citizen of India if they fail to renounce the citizenship or nationality of the other country within six months of their attaining full age. By virtue of Section 2(4) of the 1955 Act, a person is deemed to be of full age if s/he is not a minor. Additionally, the final proviso to Section 4(1) of the 1955 Act contemplates that the birth of a child shall not be registered unless the parents declare that the minor does not hold the passport of another country. A collective reading of the final proviso to Section 4(1) and Section 4(1A) explains that minors may hold Indian citizenship by descent and subsequently have the citizenship of another country. However, such a right of possessing dual citizenship is available only till the minors become of full age, post which, they are mandated by law to choose between either of the nationalities within six months of attaining such age. If they wish to retain their Indian citizenship, they necessarily have to renounce the citizenship of the other nation.

Section 9 of the 1955 Act, on the other hand, explains that any Indian citizen who, through naturalisation, registration, or otherwise, voluntarily acquires the citizenship of another country shall, upon such acquisition, cease to be a citizen of India. A compounded reading of Section 9(1), Section 4(1A), and the second proviso to Section 4(1) of the 1955 Act expounds that these provisions give legislative recognition to the scheme of automatic termination of Indian citizenship when an Indian citizen, voluntarily or involuntarily, acquires the citizenship of a foreign nation. Such termination is, in most cases, involuntary, and there lies no provision in the 1955 Act to consult or hear the individual in a judicial proceeding before revoking his citizenship.

The application of these sections falls abjectly on three categories of persons: (a) Indian citizens who currently possess Indian citizenship but are contemplating acquisition of another country’s citizenship; (b) former Indian citizens who have had their Indian citizenships terminated by the application of Section 9; and (c) minor children, who possess dual citizenship and by the operation of Section 4(1A) would have to renounce citizenship or nationality of the other nation in order to retain their Indian citizenship.

The legal consequences of these provisions form the subject of the issues raised in the Supreme Court in the case of Prof. Tarunabh Khaitan v. Union of India (2023) ⁵ where the constitutional legitimacy of these provisions has been challenged. Professor Khaitan, an Indian citizen by birth and a globally renowned expert in constitutional law and human rights, has lived in the United Kingdom for nearly two decades. Despite being eligible for British citizenship, he has remained an Indian citizen to avoid the automatic termination of his Indian citizenship under Section 9 of the Citizenship Act, 1955. He filed a writ petition in the Supreme Court of India praying for the striking down of Section 9(1), Section 4(1A), and the second proviso to Section 4(1) of the 1955 Act as ultra vires and violative of the Constitution of India. The petition contends that the legislative practice of automatic termination is not only inconsistent with the mandate and ideals of the Constitution but also violative of the international law as it directly leads to a blatant deprivation and restriction of the ‘right to have rights’. The petition did not argue for recognition of dual citizenship, rather, posited that the scheme of automatic termination is against the letter and spirit of the Constitution. The petition and its arguments assume considerable relevance as they highlight an unaddressed yet significant stream of issues concerning the arbitrary deprivation of rights, which shall now be discussed at length.

A Democratic Objection to Automatic Termination of Citizenship

For any law to hold constitutional ground, it has to pass the muster of Part III of the Constitution, which guarantees a myriad of fundamental rights to citizens of India as well as non-citizens. The primary aim of this article is to examine the impugned provisions of the 1955 Act and subsequently argue that they arbitrarily and disproportionately infringe multiple fundamental rights guaranteed under the Constitution. The article argues that the provisions violate the constitutional principles on the following grounds: (a) they arbitrarily deny freedom rights available under Article 19; (b) they fail to satisfy the proportionality test expounded under Anuradha Bhasin v. Union of India (2020); (c) there is an absence of judicial review; (d) they devalue the right to dignity under Article 21; and (e) they violate the right to conscience under Article 25.

Withdrawal of Rights Under Article 19

Article 19 guarantees to ‘every citizen’ the right to freedom of speech and expression, and other equally essential rights such as the right to peaceful assembly without arms, to form associations or unions, to move freely throughout the territory of India, the right of residence and settlement in any part of India, and the right to practice any profession, or to carry on any occupation, trade or business. A practical implication of automatic termination of citizenship is that the individual shall, along with Indian citizenship, lose all rights enshrined under Article 19 of the Constitution. This creates a constitutional infirmity which merits analysis.

Automatic termination of citizenship has the undesired consequence of forcibly restricting the free access to the rights of movement, association, and other rights available to an individual under Article 19. For instance, the right to reside and settle in any part of India would be drastically curtailed with the termination of citizenship. Loss of citizenship would also restrict access to professions and occupations that are the exclusive domain of citizens such as public offices, government jobs, defence positions (including security personnel), and judiciary roles. Additionally, non-citizens face heightened troubles in establishing or continuing businesses and trade in India. At this juncture, it is plausible for one to argue that citizens wishing to settle outside India can acquire the Overseas Citizen of India (OCI) status which provides a middle ground between full citizenship and no legal connection. However, while the Indian citizenship framework allows individuals to acquire OCI status, the scope of rights and privileges available to OCI members is restrictively limited in comparison to those available to Indian citizens proper. OCI members are denied rights relating to political participation, voting, employment in government agencies, ownership of agricultural land (though inheritance is allowed), and access to public welfare schemes.

In this light, involuntary and automatic termination of citizenship becomes contentious on three distinct yet interrelated fronts. First, by operation of the contested provisions, individuals who were once entitled to full enjoyment of the rights and freedoms under Article 19, will be completely devoid of these rights upon termination. Even under Section 4(1A), individuals until the age of 18 would enjoy unrestricted movement into and out of the country. However, upon attaining majority, such individuals will have to make a binding choice between citizenships. Additionally, the individuals shall, upon termination, be subjected to the rigours of immigration laws, which have implicit in them, inter alia, the schemes of immigration, detention, and deportation.

A similar issue arose in the case of Sithabile Pauline Mathe v. Attorney General (Representing the Ministry of Nationality, Immigration and Gender Affairs) (2022) ⁶ (hereinafter, ‘Sithabile Mathe’), where a challenge lay before the High Court of the Republic of Botswana to determine the constitutionality of Section 15(1) of the Citizenship Act of Botswana, which prescribed that a person, upon reaching the age of 21, must renounce the citizenship of another country or risk losing Botswana citizenship. The High Court of the Republic of Botswana held that the force of law that coerces minors to choose between nationalities or bear the detrimental consequence of losing either of the citizenships, threatens their right to movement and association which they unrestrictedly enjoyed earlier. A similar observation was propounded by the South African Supreme Court in Democratic Alliance v. The Minister of Home Affairs and another (2023), where the court explained that citizenship ensures freedom of movement, residence, trade, and occupation, and the application of automatic termination of citizenship under Section 6(1)(a) of the South African Citizenship Act unjustifiably limited such rights. A similar fate would dawn upon those subjected to the application of the 1955 Act.

Secondly, the automatic termination of citizenship shall also have ramifications on the right to form associations. For instance, the operation of Section 9 shall have a detrimental impact on those who frequently travel to India for work and meeting family. Their right to movement between the countries to meet their family members would be curtailed, limiting the individuals to mere visa-holders. In the Sithabile Mathe case, the Botswana High Court held that freedom of association is implicit in the right of citizenship, and termination of citizenship markedly affects the freedom to form and maintain associations, especially where that association is not centred around choices but is a product of familial and personal bonds. Justice Maripe, in this case, held:

…I take the view that the familial bond existing between parent and child does not change by reason only that the child has matured into an adult. Association between family members persists notwithstanding that the children would have turned 21 years of age when the restrictions begin to apply. A determination of their citizenship status on renunciation will negatively affect the children’s freedom of movement and association with either their father or mother…. (para 12)

Automatic termination of Indian citizenship has the potential to disrupt and hinder movement and association, which is pivotal for the maintenance of familial bonds and professional ties, and hence falls in violation of Article 19. Professor Khaitan rightly argued in his petition that the ‘devaluation’ of his citizenship into a mere visa-holder would not only largely restrict his right to movement in India but would also have a detrimental consequence on the maintenance of his personal and professional bonds back in India (2023, p. 44).

Third, termination of citizenship shall also deny individuals the right to vote in elections. While this right is not expressly recognised as a fundamental right and is only read as a statutory right, the Supreme Court in People’s Union of Civil Liberties (PUCL) v. Union of India (2003) ⁷ held that the right to freedom of speech and expression is not limited to oral and written expression but also includes the right to vote as a form of exercise of expression. The right to freedom of speech and expression under Article 19(1)(a) has implicit in it the expression of opinion in the electoral process through the final act of voting. In this capacity, the involuntary termination of citizenship not only freezes the right to vote but also stagnates the right to expression enshrined under Article 19(1)(a).

Restrictions to the rights mentioned under Article 19(1), stretching from Article 19(2) to 19(6), ensure that public order, morality, sovereignty of the state, and other legitimate state interests are not compromised in the exercise of rights guaranteed under Article 19(1). While there lies no doubt that the exercise of rights under Article 19(1) should be subject to reasonable restrictions, it is difficult to justify how absolute termination of citizenship can reasonably address concerns of legitimate state interests under Article 19.

The practice is also argued to be an excessive measure, as alternative and less restrictive means can be resorted to (discussed later in this article).

Disproportionate Nature of the Scheme

Automatic termination of citizenship can also be construed to be a disproportionate measure under the existing constitutional framework. The Supreme Court in the case of Anuradha Bhasin v. Union of India (2020) held that excessive restrictions on fundamental rights guaranteed under Part III must satisfy the tests of proportionality and necessity. Outlining the parameters of the test of proportionality, the court laid down that (a) the goal of any restriction on fundamental rights must be ‘legitimate’; (b) the restriction must be ‘necessary’; (c) the state must explore and consider ‘alternative measures to the restriction’; (d) the ‘least restrictive measure’ must be adopted; and (e) the restriction must be open to ‘judicial review’.

The court further explained that the

degree of restriction and the scope of the same, both territorially and temporally, must stand in relation to what is actually necessary to combat an emergent situation… The concept of proportionality requires a restriction to be tailored in accordance with the territorial extent of the restriction, the stage of emergency, nature of urgency, duration of such restrictive measure and nature of such restriction. (para 71)

While Anuradha Bhasin pertained to the legality of excessive internet shutdowns, the test of proportionality can be comfortably used to assess the excessiveness of automatic termination.

As mentioned earlier in this article, the primary aim of the Constituent Assembly was to safeguard the loyalty and sovereignty of India by effectively combating the aftermath of the partition of India. This led to the Assembly refraining from including dual citizenship in the citizenship regime. While the aim to protect and safeguard loyalty and sovereignty can be construed as a legitimate aim for the state, the underlying assumption that all dual citizens lack loyalty is a misnomer.

Automatic termination is a blanket measure that applies uniformly to all individuals with foreign citizenships, failing to differentiate between situations where dual citizenship poses a genuine threat to India’s sovereignty and integrity and those where it presents no risk at all. The measure falls short of accommodating individual circumstances which compel individuals to acquire citizenships of other nations, thereby blurring its legitimacy.

A classic example buttressing this argument is the case of Professor Khaitan, who, in his petition, stated that under the risk of being separated from his spouse and future children, he was obliged to apply for British citizenship. Against this backdrop, can it be logically concluded that the acquisition of British citizenship makes Professor Khaitan any less a citizen or that he possesses any less loyalty and allegiance towards India than any other Indian citizen? Professor Khaitan’s case aptly undergirds the notion that people acquire citizenship of other nations, and in this process, it is not necessary that such individuals subsequently want to weaken or cut ties with India.

Automatic termination of citizenship also fails to satisfy the necessity requirement. Proportionality requires the state to explore alternative measures and adopt the least restrictive alternative measure. However, the accomplishment of the aims of loyalty and sovereignty does not fundamentally require a blanket revocation of citizenship and can be achieved through less severe and restrictive means. Less restrictive means could involve the assignment of conditional dual citizenship frameworks where certain rights, under extraordinary circumstances, can be restricted while allowing the individuals to retain their Indian identity and benefits. Additionally, enhanced diplomatic discussions and cooperation with countries permitting dual citizenships can address prospective jurisdictional concerns. The legislature can also provide for a framework where it can terminate, through a judicial process, Indian citizenship of individuals who are guilty of having threatened the sovereignty or security of the country, like in cases of terrorism, waging war, or membership in banned organisations.

Lastly, the grammar of the contested provisions also provides no measure of judicial review, which makes the practice of automatic termination of citizenship under the 1955 Act highly contentious (the aspect of absence of judicial review is discussed in the following segment). On this ground too, the impugned provisions fail to satisfy the proportionality test.

Absence of Judicial Review

Under the mandate of Article 21, it is necessary for any Act that offends or impairs human dignity and deprives life and personal liberty to only do so in accordance with the procedure established by law, where the procedure so established is fair, reasonable, and just, and subsequently stands the test of other fundamental rights (Maneka Gandhi v. Union of India, 1978). ⁸

Collectively, the Constitution, through Articles 14 and 21, necessitates fairness in trial, right to be heard before being condemned, judgment only after trial, and deprivation of life and liberty only after following a procedure that is fair, just, and reasonable. The right to a fair trial is sine qua non for respect of human dignity, which is engulfed as a necessary right within the wide ambit of Article 21. It is only when fair trial requirements are adhered to can a democracy prevent further transgressions of human dignity (Dupré, 2021).

In Alvin Teage Jalloh v. Olubanke King-Akerele (2019), the Supreme Court of the Republic of Liberia struck down the scheme of automatic termination of Liberian citizenship upon acquiring the citizenship of another nation envisaged in Sections 22.1 and 22.2 of the Aliens and Nationality Law of Liberia. The court held that the deprivation of the constitutional mandate of the right to life, liberty, security, property, and privilege can only happen ‘as an outcome of a hearing judgment’ according to the provisions laid down in the Constitution. The practice of automatic loss of citizenship without resorting to any judicial proceedings was held to be violative of the guarantee of due process and fair trial under Article 20(a) of the Constitution of Liberia.

Against this backdrop, a reading of the contested provisions in light of the fairness requirements as interpreted under Articles 14 and 21 makes it amply clear that the scheme of automatic termination provides no opportunity to an individual to be heard before a court of law prior to his Indian citizenship being terminated. Neither does the 1955 Act prescribe any provision/s to appeal against such a revocation of citizenship. The right to appeal becomes even more difficult and complicated once the citizen loses Indian citizenship, as access to rights under Article 32 is substantially curtailed. Thus, the lack of fair trial compliance and the absence of the application of judicial mind before revocation of a right as crucial as citizenship make the scheme fall foul of Articles 14 and 21.

Article 14 and the Artificial Distinction

The democratic vision of the Constitution establishes a commitment to equality and protection from the arbitrary action of the state. Article 14 of the Constitution proscribes the state from denying to any person equality before the law or equal protection of the laws within the territory of India. This equality clause protects citizens and non-citizens against unreasonable, unfair, and arbitrary discrimination. The idea that equality, in its wide scope, is inclusive of the preservation and protection of the moral worth of individuals––that all persons are equally entitled to and possess the same package of rights and duties––is one of the central themes of the Constitution and forms one of the foremost ways in which equality can be assured (Killmister, 2023; Lenard 2016).

This construction of Article 14 assumes significant relevance in the context of involuntary and automatic termination of citizenship as the grammar and operation of the impugned provisions arbitrarily discriminate against individuals who possess dual citizenship or those contemplating obtaining a dual citizenship status.

Section 4(1A), for instance, endorses the practice that while individuals are allowed to hold dual citizenship, they can only do so till they have attained the age of 18, post which they shall cease to be Indian citizens, unless they renounce their foreign citizenship or nationality. This practice is discriminatory as it creates a new category of citizens whose citizenship is entirely contingent on the renunciation of their foreign citizenship post attaining majority. While such citizens, under the force of law, are compelled to make an involuntary choice or be subjected to the rigours of automatic termination of citizenship, other citizens enjoy, in an unbridled manner, the privileges of citizenship indefinitely. Technically, this represents an arduously long process of naturalisation to become an Indian citizen proper and treats individuals, who are born as dual citizens and have just become of full age, as a separate category of citizens.

Now, it is plausible that the state can argue that individuals who are below the age of 18 and possess dual citizenship constitute a separate class of citizens. However, such a distinction creates what the Supreme Court in D.S. Nakara v. Union of India (1983) ⁹ termed as ‘artificial distinction’. Artificial distinctions are created when an arbitrary factor is used to create a distinction between homogeneous and similarly situated individuals. The court held that such distinctions, unless rationally justified, are unconstitutional. An enactment that draws an unfounded distinction between these two categories of citizens––Indian citizens proper and Indian citizens holding dual citizenship––and coerces the latter by force of law, to actively relinquish the citizenship of another country in order to retain Indian citizenship, is manifestly arbitrary. This makes the scheme of automatic termination of citizenship antithetical to the fundamental guarantee of non-discrimination as envisaged under Article 14.

A similar observation was propounded by the South African Supreme Court in Democratic Alliance v. The Minister of Home Affairs and Another (2023), where the constitutional validity of Section 6(1)(a) of the South African Citizenship Act was challenged. The impugned provision prescribed that adult citizens would automatically lose their South African citizenship when they formally and voluntarily acquire the citizenship of another country (except through marriage), without first obtaining or applying for ministerial permission to retain their citizenship. The requirement of ministerial permission was prescribed under Section 6(2) of the same Act. The Supreme Court of South Africa, while striking down the provision as unconstitutional, held that the practice of termination of South African citizenship, on the grounds that an individual has acquired the citizenship of another country, without any decision being made by any person or without any notice to the affected citizen, and without considering individual circumstances, is ‘unfair and capricious’.

Advocates of the practice of automatic termination of citizenship have tabled their distrust in the aspect of multiplicity of citizenships. Some advocates attach to citizenship the notions of loyalty and allegiance, whereby they are irked and anxious about the faithfulness of dual citizens and consequently question their loyalty towards one country, particularly during times of war (Faist & Gerdes, 2008; Gibney, 2013). Others argue that possessing dual citizenship has a host of benefits which are otherwise not available to those who hold single citizenship status. Thus, in such cases, termination of citizenship is claimed to balance the advantages and disadvantages shouldered by dual and single citizens (Lenard, 2016).

However, Lenard argues that while obtaining dual citizenship may have its benefits over possessing single citizenship status, and automatic termination may nip the resultant inequality between the two supposed categories of citizens right in the bud, the practice of involuntary and automatic termination of citizenship opens floodgates of a slew of other inequalities between single and dual citizens. It is argued that the power of the state to terminate citizenship represents a blatant and undemocratic violation of the commitment to equality and is read antithetical to the equality mandate under Article 14.

Devaluation of Dignity

It is argued that the legal arrangement contemplated by the impugned provisions devalues human dignity and transgresses the mandate of Article 21, which assures that no person shall be deprived of life or personal liberty except by a procedure established by law. Human dignity is flouted when free choice and decisional autonomy are compromised by the force of law. Recall that in the case of Sithabile Mathe, a challenge lay before the High Court of the Republic of Botswana to determine the constitutionality of Section 15(1) of the Citizenship Act of Botswana, 1998, which prescribed that a person, upon reaching the age of 21, must renounce the citizenship of another country or risk losing Botswana citizenship. Striking down the provision as unconstitutional, the court held that––

The very knowledge that at some point in time, at the age of 21 years of age, a choice which is required by law, to renounce or not to renounce, which requirement is not made in respect of other citizens, must be a mentally daunting experience. The applicants aver that the requirement to renounce subjects the children to an emotional penalty over a matter that the children had no choice over, they not having chosen, in the case of the original applicants, to have a Norwegian father. They are also made to choose between their homes. This is quite a choice with significant implications for it requires in effect that the children should regard one of their homes as more important than the other, and to practically abandon the other. To the extent that this does not arise from a voluntary election but under compulsion of law, this causes some emotional detachment, which would not otherwise happen but for the requirement of law. This affects the children’s freedom of association as well as their dignity. (emphasis added)

A careful reading of Section 4(1A) and Section 9 shall suggest that though these provisions facetiously provide a choice to the individual to choose between multiple citizenships, they practically strand the minor between a rock and a hard place, to choose between their janmabhoomi [country of birth] and their karmabhoomi [country of domicile]. In a similar vein, Professor Khaitan rightly argued that the application of Section 9 violates the right to life and personal liberty, which has implicit in it the right to enjoy a meaningful family life without being coerced to give up his Indian citizenship. Such a measure would further deprive his future children of their right to enjoy a meaningful life and connection with their culture, origins, and ancestry (2023, p. 43). Involuntarily depriving the ‘right to have rights’ for conduct that is principally non-criminal makes the scheme of automatic termination a punishment without a crime and is equivalent to a ‘forced exile’ that falls at odds with the Constitution of India.

Moreover, the consequence of termination of citizenship fundamentally snatches aspects of free choice and decisional autonomy from the hands of the individual. Such a devaluation of free choice not only flouts human dignity but is also in flagrant violation of the right to privacy, which includes within its wide array the aspects of free choice and decisional autonomy.

In 2017, a nine-judge bench of the Supreme Court, in the landmark case of Justice K. S. Puttaswamy v. Union of India (2017), ¹⁰ held that the right to privacy is a fundamental right falling within the wide ambit of personal liberty under Article 21. The right to privacy is elemental in maintaining human dignity and autonomy which are central concepts of personal liberty. The court affirmed that privacy was an aspect of personal liberty and plays a significant role in the exercise of other fundamental rights. Thus, privacy formed a fundamental and irreducible prerequisite to the exercise of personal liberty and other freedoms under Part III. Additionally, the court dictated that within the concept of privacy lie the core concepts of autonomy and free choice, which were also held to be essential prongs of the right to privacy.

Privacy and decisional autonomy allow citizens to engage in the political process, form opinions, and express themselves freely, which are fundamental aspects of active citizenship. The involuntary termination of citizenship, and the subsequent denial of the untrammelled decisional autonomy, fracture the very essence of the right to privacy, which formed the fulcrum of the Puttaswamy judgment. In this capacity, the scheme of automatic termination can also be read as a violation of the fundamental right to privacy, which is an essential facet of Article 21.

Lastly, human dignity is also flouted when access to political, social, civil, and economic rights is unjustifiably trampled. There are a host of political, legal, civil, and socio-cultural rights that individuals are deprived of when their citizenship is terminated. It significantly hampers political representation and public participation of individuals as they not only lose the right to vote but also become ineligible to hold public offices, run campaigns, and influence social policies in India, for which citizenship is a prerequisite. Legal and civil rights are also relinquished when citizenship is terminated, as with the loss of Indian citizenship comes the restriction of access to consular services, protections abroad, and ease of travel to India. Additionally, while non-citizens can own properties in India, major legal restrictions apply to them, especially in cases of ownership of agricultural land. Socio-culturally, loss of citizenship practically severs ties with India and counts as a loss of identity. Moreover, employment opportunities and access to public welfare schemes, which are exclusive to Indian citizens, such as state-sponsored food security schemes, educational benefits, and healthcare, are also retracted. Additionally, the measure disproportionately disadvantages marginalised and vulnerable communities like migrants, diaspora groups, and women in mixed marriages.

At this juncture, a note of Marshall’s (1950, pp. 10–11) explanation of the concept of citizenship bears considerable importance. Marshall construed citizenship as a ‘full membership of a community’, that comprises three basic elements––‘civil rights’ that are elemental for individual freedom like liberty, freedom of speech, thought, and faith, and the right to justice, ‘political rights’ that guarantee participation of the individual in the political process as an elector or member of a political authority, and ‘social rights’ that include the rights of economic welfare and security.

A legislative feat that involuntarily terminates citizenship strikes at the very heart of the free and untrammelled access to these social, civil, and political rights. Essentially, disallowing access to such rights in an arbitrary and discriminatory manner, without taking into consideration the ideals of reasonableness and fairness, fundamentally goes against the philosophy of the Constitution that envisions in its Preamble, inter alia, the realisation of social, economic, and political justice, and liberty of thought, expression, belief, faith, and worship. In this capacity too, the theme of automatic termination devalues human dignity and thereby violates the constitutional guarantee under Article 21.

Violation of the Right to Conscience

Article 25 of the Constitution guarantees to every person equal entitlement of, inter alia, the freedom of conscience. The right to conscience embodies within its interpretation the exclusive right to act in accordance with her/his conscience and subsequently decide the moral quality of their actions (Supriyo @ Supriya Chakraborty v. Union of India, 2023). ¹¹ Elaborating on the expansive scope of Article 25, the Supreme Court in Bijoe Emmanuel v. State of Kerala (1986) ¹² propounded that the right to conscience extends beyond mere religious beliefs and must be respected by the state even if they are not in consonance with conscientiously held beliefs. Similarly, in Puttaswamy v. Union of India (2017), the Supreme Court recognised personal autonomy as inherent in the right to dignity and freedom.

The right to free conscience is elemental as it forms the mantle of individual decisions and philosophies and these decisions underscore the notion that decisions regarding citizenship and identity are inherently personal and fall within the expansive scope of conscience. These decisions not only need to be respected by the state, but any unreasonable restriction on the free exercise of the right to conscience can only be seen as an infringement of Article 25. This right, however, is not absolute and can be restricted on the grounds of public order, morality, health, or other provisions of Part III.

Conscience greatly regulates constructions, choices, and preferences of, inter alia, occupation, family life, social life, and standard of living. The outbreak of coronavirus highlighted instances of people applying for permission to reside indefinitely in different countries for instrumental reasons like health security and ease of movement. It is an undeniable fact that many citizens venture to relocate abroad in quest of economically efficient employment options, better educational opportunities, or ease of movement. Deeper connections to a particular political system may also influence relocation. Moreover, many resettle on the grounds that their spouses reside outside India. Additionally, the idea of citizenship as a choice, rather than an innate status, has gained traction. This can be attributed to the judicial resistance faced by governments that possessed absolute sovereignty in regulating citizenship. Courts from around the world, especially the United States, developed a jurisprudence around ‘individual rights’ that discouraged automatic termination of citizenship and promoted the scheme that citizenship can be renounced only when a person voluntarily chooses to do so (Vink et al., 2019).

Inherently, the acquiring or renunciation of citizenship is a matter of individual choice and conscience and it is a cerebral flaw to collectively assume that with the acquisition of a new citizenship, an individual necessarily wishes to sever ties with their country of origin and lose its citizenship or the rights that accompany it. Manifestation of allegiance and loyalty to one country does not necessarily entail the abandonment of ties to the home country.

The scheme of automatic termination is premised on the flawed assumption that an individual necessarily wants to renounce Indian citizenship by acquiring the citizenship of another country. The act of assigning a consequence as severe as termination of citizenship, and coercing, by force of law, to choose between nationalities, puts a restrictive boundary on the free exercise of conscience, thereby violating the right to conscience enshrined under Article 25. In his petition too, Professor Khaitan had expressly argued that the operation of the impugned provisions forced him to choose between his janmabhoomi and karmabhoomi, thereby violating his right to conscience guaranteed under Article 25 (2023, p. 37).

Additionally, the choice to acquire citizenship of another country does not, in any capacity, have the potential to disrupt or disturb public order, morality, health, or any other fundamental right. Hence, in the absence of any effect on any of these limitations which curtail the scope of Article 25, any restriction on the free exercise of the right to conscience becomes unwarranted and unconstitutional.

Conclusion

The concept of citizenship is legally dubious, highly contested, and historically chequered, yet it forms one of the most significant artefacts of Indian democracy as it is not only a constitutional right but is also the conduit to the exercise of other fundamental rights. Democracy and citizenship function hand-in-hand and are ‘naturally compatible and mutually complementary’ (Jayal, 2013). Regrettably, the 1955 Act fails to align the citizenship regime in consonance with the fundamental rights. This article demonstrated how the scheme of automatic termination of citizenship is a practice that transgresses the fundamental rights enshrined under Part III of the Indian Constitution. The constitutional validity of the contested provisions is challenged before the Supreme Court. Whether the court shall continue this regressive and illiberal practice, or embark on a liberal and liberty-driven path that expands the scope of citizenship rights, is only for time to tell.