The passage of the Citizenship (Amendment)
Act, 2019 (CAA) has exposed the Indian state’s trust deficit with its people.
As it stands today, one needs to prove that at least one parent is a legal
citizen. Being born in your country is no longer enough to belong in India! For
Goans, this amendment may be in direct contradiction to the Goa,
Daman, and Diu (Citizenship) Order, 1962, which granted them
Indian citizenship.
The CAA ostensibly aims to give refuge to
persecuted non-Muslims from Afghanistan, Bangladesh, and Pakistan. While the
protocols and modalities of establishing persecution and refugee status are
unclear, many commentators observe that the new amendment is a backdoor approach
of accommodating the lakhs of Hindus identified as foreigners after the Assam
NRC exercise.
The original law, the Citizenship Act, 1955,
was enacted with the express purpose of recognizing all people as citizens
within the newly-constituted India. This law liberally granted citizenship to
people especially since India was a new nation formed after the demise of
British colonialism. The liberal outlook of the law was in sync with standard democratic
practices across the world. Thus, in India citizens were recognized on the
basis of birth, descent, registration, and naturalization. Subsequent
amendments to this Act (by Congress and BJP governments) restricted the liberal
outlook of the law.
After the annexation of Goa, Daman, and
Diu, the Indian government issued an order, appended to the Citizenship Act,
1955. Similar to the original law, the order extending Indian citizenship to
Goans was also liberal in its outlook. Thus, the order states,
“Every person who or either of whose parents or any of whose grand parents was
born before the twentieth day of December, 1961, in the territories now
comprised in the union territory of Goa, Daman and Diu, shall be deemed to have
become a citizen of India on that day.”
Though India had granted citizenship to
Goans in 1962, the diplomatic tussle between New Delhi and Lisbon over the sovereignty
of Goa, Daman, and Diu continued till 1975. India, in 1962, recognized that the
problem of sovereignty and citizenship did not have a clear solution. Hence,
the 1962 order left the option open for any person in Goa, Daman, and Diu to
maintain the preexisting citizenship by notifying in writing to the
administration or any other authorities.
In 1975, under the leadership of the then
president of Portugal, Mario Soares, who was keen to normalize relations with
India (following decolonization in Africa and East Timor), Portugal recognized
India’s sovereignty over Goa, Daman, and Diu. This treaty,
signed on 14 March 1975 recognized India’s
sovereignty by backdating it to 1961. By normalizing diplomatic relations, both
Portugal and India recognized that Goans were Portuguese citizens and that the
transfer of sovereignty did not extinguish preexisting citizenship rights.
These rights could be preserved, redeemed, or renounced. At least in the letter
of the laws and treaties, the option to choose was with the individual.
Following the wave of decolonization in
the 1970s, Portugal ensured that the right of preserving or redeeming
Portuguese citizenship was not eroded once Portuguese territories were
incorporated into newly-independent (and expanding) nations like India and
Indonesia. By enacting the Decree-Law 308-A/75 of 24 June 1974,
Portugal kept the option open for Goans to redeem their right of preexisting
Portuguese citizenship.
Goans effectively became Indian citizens
because a new territory was incorporated into the Union of India (a legal
provision available in the Act of 1955). Descent or naturalization did not
apply to the Goan case due to the armed intervention of the Indian army.
Conversely, in the case of Portuguese citizenship, Goans can legally claim
birth or descent because the Portuguese state, at least from the early
twentieth century if not earlier, recognized birth and descent as legitimate
means of granting citizenship.
Both the Order of 1962 (India) and the
Decree-Law of 1974 (Portugal) operate based on the will of the individual (or
at least that is the essence of the letter). While the Indian law required an
individual to give in writing to refuse Indian nationality, the Portuguese law
requires an individual to reclaim his citizenship by providing the appropriate
documents establishing descent to (former) Portuguese citizens. The Indian law
assumes the silence of the individual as tacit acceptance of Indian
citizenship, while the Portuguese law assumes that an individual or his
descendant would like to reclaim preexisting citizenship at any moment in time.
The CAA contradicts the legal history that
the Union of India shares with Goa and Goans since 1962. The state of India
cannot ask Goans to prove their citizenship as the legal basis for Indian
citizenship is not birth or naturalization but conquest. If at all the Indian
state can ask any question regarding citizenship, it is if Goans want to opt in
or out of Indian citizenship. More than 50 years after the armed annexation,
such a question is a fait accompli. Nevertheless, it does not change the fact
that Goans can enjoy multiple legal rights of citizenship that nation-states
should proactively protect.
As we have seen in the diplomatic
relations between New Delhi and Lisbon, citizenship in Goa is tied to national
and internal politics. Goans need to think of their citizenship rights in
broader terms. They must also think of citizenship historically. The benefits of
citizenship depend on knowing how citizenship was recognized in the past, what
is its status now, and what it should be in the future.
(First published in O Heraldo, dt: 8 January, 2020)
