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

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.