NEW INDIAN GOVERNMENT RULE REQUIRING RENUNCIATION OF INDIAN CITIZENSHIP AND SURRENDER OF INDIAN PASSPORTS OUTRAGES OVERSEAS INDIANS

By Cyrus D. Mehta

The new rules requiring overseas Indians to renounce Indian citizenship and surrender the Indian passport after they have taken up the citizenship of another country misinterpret the provisions of the Indian Citizenship Act, 1955. The guidance, including Frequently Asked Questions, can be found on the website of the Indian Consulate in New York, http://www.indiacgny.org/php/showHighLightDet.php?h_id=138&key.

According to the guidance, the Indian passport must be surrendered within 90 days of US naturalization even if the US passport is obtained later. A fee of $175 has been imposed to surrender the Indian passport. Additional monetary penalties are imposed on those who failed to surrender the passport within three years of acquiring US citizenship or for travelling on the Indian passport or applying for its reissuance after US citizenship. The new rules are especially harsh on those who may have obtained US citizenship many decades ago and who may have lost their Indian passports. An applicant who has lost, damaged or surrendered his or her Indian passport to a foreign government must furnish certified copies of the following documents:

1. Details of last held Indian passport (Passport No., Date of Issue & Place of issue). The onus of providing details rest on the applicant.

2. Official documents submitted to authorities of new country at the time of obtaining citizenship/naturalization & documents used for entry such as US Form I -130.

3. Notarized letter explaining reasons for loss.

4. Police report.

Failure to comply with the surrender policy will likely deprive a person of Indian origin to obtain an Indian visa, an OCI/PIO card or other consular services.

The provision for termination of Indian citizenship is separate and distinct from the provision for making a declaration of renunciation. While renunciation of citizenship is covered in Section 8 of the Citizenship Act 1955 and has to be applied on a prescribed form by a citizen of India, automatic termination of citizenship, which occurs when one takes up the citizenship of another country, is covered under Section 9 and requires no formal application to the Indian government.

It is clear that a person cannot use the Indian passport to travel when he or she becomes a US citizen as Indian citizenship has automatically terminated under Section 9. There may also probably be a basis for establishing rules requiring surrender of the passport that has been rendered invalid under Section 9, although it is unfair to penalize a person for failing to surrender the passport when there was no established procedure to do so prior to the recent guidance. However, the Surrender Form, http://www.indiacgny.org/UserFiles/Renunciation%20Form(2).pdf, requiring renunciation of Indian citizenship, does not make sense. One cannot renounce citizenship when it has ceased to exist. Under Section 9, Indian citizenship was automatically terminated when the person took up the citizenship of another country. On the other hand, Section 8 provides for a citizen of India to renounce Indian citizenship, and it should be noted that the words “who is also a citizen or national of another country” were deleted from Section 8 by Act 6 of 2004. Thus, a person who is no longer a citizen of India cannot renounce Indian citizenship.

Rule 13 of the Passport Rules, 1980 states that “[a] person holding a passport or travel document shall not be entitled to another passport or travel document unless he surrenders to the passport authority the passport or travel document already held by him.” Rule 13 further states, “Provided that separate passports or travel documents may be issued to the same person in respect of different countries if it is necessary so to do for facilitating his visits to such countries.” Section 12 (3) of the Passport Act, 1967 states that “[w]hoever contravenes any condition of a passport or travel document or any provision of this Act or any rule made thereunder for which no punishment is provided elsewhere shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.”

This rule, which the Indian government appears to be relying on, is ambiguous and appears to apply more readily to one who holds a valid Indian passport and is applying for another, rather than one who ceases to have a valid Indian passport by operation of Section 9 of the Citizenship Act and has been issued a US passport. In any event, the Indian consulates in the US never had a formal procedure for surrendering a passport until the recent guidance. Even when a person applied for the OCI card and handed in the Indian passport with the intention to surrender the document, the Indian Consulate merely cancelled it. We are now told that such a cancellation will not be considered a valid surrender of the Indian passport, and a person who in good faith handed in the Indian passport earlier will have to pay additional penalties above the $175 basic fee for surrender.

It is important that the Indian government continues to maintain goodwill with the overseas Indian community. The new rules merely antagonize the community and there is absolutely no need for this. There surely is a better way to implement a surrender policy of invalid Indian passports on a prospective basis, without also requiring renunciation, rather than the clumsy and arbitrary way it has been handled so far. The Global Organization of People of Indian Origin has launched a campaign requesting the government to reconsider the retroactive enforcement of the new rule, http://www.gopio.net/news_052510.htm.

(The author thanks Ramya Mahesh, associate at Little & Co., Advocates and Solicitors, Mumbai, India, for her invaluable assistance)

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13 replies
  1. Anonymous
    Anonymous says:

    The rules explained by various Indian consulates are also different – Indian Consulate in San francisco states that if the passport has already been canceled, no surrender certificate will be issued nor a fee will be collected. New York Consulate states that a fee and surrender certificate is required of everyone, even those who obtained visas several months/years ago.

    Reply
  2. Anonymous
    Anonymous says:

    Consulates never used to cancel the passports. We got the PIO cards, but passports were not cancelled (our passports expired well before 2005). For passports expired before 2005 some consulates suggest it is free and others suggests that the fee applies.

    Reply
  3. Anonymous
    Anonymous says:

    1. https://indiavisa.travisaoutsourcing.com/consular-fees?id=1 This Truvista San Francisco web page states that " Persons of Indian Origin, his/her spouse and dependent children will be granted only an Entry visa and should not apply for a Tourist visa." It seems US citizens of Indian origin cannot now obtained Tourist Visa for 10 years with multiple entries! They are only given so called entry VISA of maximum duration of 5 years at much higher fees than Tourist VISA of 10 years at lower fees available to all US citizens who are not of Indian origin. This is discrimination against US citizens who may be of Indian origin and goes against bilateral agreement between India and US for all citizens of US. US state department should not allow such discrimination and they should be asked to intervenne on behalf of all US citizens of Indian origin. Do Indian rule maker know that they are discriminating against US citizens of Indian origin in a negative way.

    2. https://indiavisa.travisaoutsourcing.com/guidelines?id=5
    For entry visa they are asking for Most recent Indian passport. Applicant must provide photocopies of the first three pages of the passport and the last two pages of the passport.
    In addition again a new local requirement:
    If you are applying in the San Francisco jurisdiction, you must also supply the passport in which you entered the US and a copy of any pages containing an entry stamp into the US. If you cannot provide this passport, you must supply a copy of your Green Card or Employment Authorization Document; or you must fill file form I-130 with the US Immigration Servics at http://www.uscis.gov.
    This creats serious problem for many of us who arrived more than 45 years ago as students and the first passport is not kept. Also many of us became citizens many yeras ago and have surrendered green card in exchange of naturalization certificate. They are asking for US passport and also a copy of naturaliztion certificate(which by the way states that it must not be photocpoied!)It seems US passport is not enough proof that the applicant who is submitting Indian passport or has clearly stated as place of Birth in India as required in US passport is not enough. It seems they are not trusting even US passport agency which does not issue US passport without veryfying the naturalization certificate ans asking for both! Can someone with legal background and common sense straighten out the foolish implementers of what prompted this sudden new requirements for some newfound security issue.
    3 For those wanting to use unexpired Indian passport illegally, there are many (about a billion)available in India for any citizen of India. Why bother NRIS , most of them with good will towards India?!They will loose a lot of this good will

    Reply
  4. Cyrus D. Mehta & Associates, PLLC
    Cyrus D. Mehta & Associates, PLLC says:

    The San Francisco Consulate suggests that if you do not have the Indian passport or a US immigration document, such as a Form I-130 or EAD, one of the requirements for the Entry Visa, one should apply for them under the Freedom of Information Act. But a FOIA request can take upwards of six months and often times over a year.

    Reply
  5. Anonymous
    Anonymous says:

    Whenever a Indian Passport holder, ask to Indian Embasy on his or her US Passport for Visa to go India, the ambasy issueed the Visa, because the person is not a Indian Citizen. This situation prove that the Indian & Us Passport holder is an US Citizen. He or she has not to provide any Surrender Cirtificate. The matter is over.

    Reply
  6. Anonymous
    Anonymous says:

    This is ridiculous. How can anyone surrender a citizenship which is automatically terminated by law upon acquiring foreign citizenship. This looks like a money making business. Ex-pat Indins should stop working for India's interests. All we get in return is insult and harassment.

    Reply
  7. Cyrus D. Mehta & Associates, PLLC
    Cyrus D. Mehta & Associates, PLLC says:

    Here's the latest news:

    Fees for Obtaining Surrender / Renunciation Certificate Waived

    In view of a large number of representations received from Persons of Indian Origin, it has been decided that the fees for obtaining Renunciation/Surrender Certificate from applicants who have acquired US citizenships before June 1, 2010 will be waived. However, a miscellaneous service fee of US$ 20/- will be charged for surrender of passport for cancellation. No penalties will be charged. Already decided cases will, however, not be reopened.

    Indian passport holders who acquire US/foreign citizenships on or after June 1, 2010 will, however, be required to pay the fees of US$ 175/- for obtaining Renunciation/Surrender certificate.

    Reply
  8. Anonymous
    Anonymous says:

    Naturalized Indian born citizens of the USA should write to their congressmen and senators to appraise the US Ambassador in India of the discrimination that requires a different kind of visa for persons of Indian origin. (entry visa versus tourist visa).

    Reply
  9. Anonymous
    Anonymous says:

    I am an Indian born person. I acquired British Passport because of marriage. thus I never had an Indian passport. I became a U S Citizen. Do you know the requriements for an individual like me. Does this mean that since I did not have an Indian passport I am excluded from the requirements.
    Thanks

    Reply
  10. Anonymous
    Anonymous says:

    It appears children of Indian Origin Born US citizens are penalized that they are required to pay way higher fee for Entry Visa since they can't apply for Visitor Visa. STUPID …STUPID…STUPID…. it's so pathetic and ridiculous. No other country in the world discriminate their owns like India. Why can't the India govt or the consulate have the courage to say that "we believe in screwing up our own people" and will hold you visiting your family back in home and your home birth country until you pay us "bribe". RISE UP ALL INDIANS WHO HAVE MIGRATED TO USA MORE THAN 30 YEARS AGO AND LET THE PRIME MINISTER AND OTHERS HEAR WHAT WE THINK OF THEM which might and might not help…………….

    Indian mentality never would change regardless how much we have grown up in today's technology.

    Reply
  11. Richard
    Richard says:

    I agree, no Indian American would agree to this nonsense requirement of renunciation when Indian nationality is automatically cancelled when US Citizenship is acquired. Also, those who were naturalized 20 or 30 years ago now have to dig up where their travel documents and records are? I am writing to local congressman and senators to address this discriminatory rule that ONLY applies to Indian naturalized US citizens.

    Reply
  12. Anonymous
    Anonymous says:

    I have the same issue….applying for tourist visa on us passport. Because I am. Born in india never had indian passport…got uk citizenship automatically as India was a colony.
    Now I can't get a visa because I can't prove I never had an indian passport. It never existed. Its ridiculous! I guess they don't want us back.

    Reply

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