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Ex-servicemen’s just demand
Government gets close to the goal
by Inder Malhotra
OF late the media, especially newspapers and social networks, have been full of articles on the armed forces and their “discontents”. Since the authors of most of these are retired generals, air marshals and, occasionally, admirals, they refer more to the complaints and disgruntlements of highest military officers rather than of Other Ranks. Yet rare is any writing on the subject that hasn’t lamented the government’s heartless and overlong failure to attend to the just demand of ex-servicemen for equal rank, equal pension, or OROP, for short.Over this period one has had to witness not just virulent agitation on the issue but also such heartrending scenes as the nation’s defenders marching to Rashtrapati Bhavan to return their gallantry medals to the Supreme Commander, the President. Thank God, this ordeal is now over. The government has at long last done justice to two and a half million ex-servicemen whose number increases by 70,000 every year. The key point is that these men retire an early age and have to exist on meager pensions while other retirees of the same rank get higher or lower pensions depending on their dates of retirement. A good proportion of the retirees could have been absorbed in the paramilitary forces, to great advantage both to them and the country. But this has not been possible, despite the best attempts of several defence ministers and others, because the monster of corruption has taken over the recruitment to not only the police forces in various states but also the Centre’s paramilitary organisations. Even the sleaziest of recruiters find it hard to ask retiring Army men for bribes, and so they are ineligible. Lest the Army should start assuming superior airs on this score, let me hasten to add that on the admission of the best and the brightest within its own higher ranks, corruption in recruitment has contaminated the Army, too. As for other form of graft and malfeasance in the uniformed world, the evidence is littered across the country’s law courts or is stacked on the desks of the Central Bureau of Investigation. On the merits of the government’s decision on OROP, there are two views. Some say that having gone thus far, the government could have gone a little farther and met the demand for one-rank-one-pension in full. They argue that this would not have added very much to the present package of Rs 2,300 crore which is a pittance compared with Rs 42,000 crore the government has generously offered the State Electricity Boards than which it is difficult to think of institutions more inefficient and corrupt. Having bankrupted themselves, they have run into debts amounting to the staggering figure of nearly Rs 2 lakh crore. The debt recasting, even if it is achieved — the states have yet to agree to bear half the burden — would not solve the problem. For, no chief minister would stop the overuse and misuse of free power guaranteed to the farmers. Moreover, nobody would dare say boo to the crooks with clout that are stealing a huge quantity of power with impunity. It is, of course, written off as part of “distribution and transmission losses”! Even so, there is a perfectly valid counter-argument to justify what the government has done. It has, it seems, gone as far as it could have or should have. After all, the amount of pension depends not only on the rank but also the last pay drawn. The salaries of the two men of the same rank and superannuating on the same day often differ because of the length of service in the last rank reached. The Cabinet on Monday could have decided also on several issues concerning the pay, perks and pensions of lt-colonels, colonels, brigadiers and even lt-generals that have also been pending. But evidently, the committee headed by the Cabinet Secretary that examined the entire issue has not been able to complete its recommendations on these points. What the government has got out of the way is very important, no doubt, but it was essentially a sideshow. The real problem, on which the armed forces’ resentment is perfectly legitimate, is the composition of the successive Pay Commissions appointed to fix the salaries and concomitant allowances of both the civilians and the military. In other democracies there always is a separate pay commission for the armed forces. If this country is determined to deviate from this sound practice, why does it always make an IAS officer the commission’s secretary and usually excludes from it any representative of the three services? It is no secret that at the root of the bad blood in civilian-military relations is the services’ intense dislike of the IAS bureaucracy that, they feel, lords over them. Other discontents of the services are a subject too large and would have to be discussed separately. But on one point, I am afraid the Army top brass is unnecessarily touchy is its place on the Warrant of Precedent. Some industrious scholar has discovered that, in the American pecking order, the position of the chairman, joint chiefs of staff is much lower than that of the three service chiefs here on the WoP. There is no heartburning there on this score. Here, it seems, two-thirds of a century after the departure of the British amidst farewell trumpets, wearers of khaki are harking back to the era when, next only to the Viceroy, the Commander-in-Chief (India) was the second most important man. This is just not possible in a democracy where the wholesome principle of civilian control over the military (which need not mean civil service control) is well established. Who sits where around the President’s banquet table is immaterial. What matters is that, in the US, the Chairman of the Joint Chiefs of Staff, together with the Defence Secretary, the Secretary of State, National Security Adviser, and the head of the CIA, is among the President’s main advisers and a member of the National Command. This country remains allergic to the concept of a Chief of Defence Staff for several reasons, including regrettably, stiff resistance within the armed forces, and the departing conduct of the previous Army Chief, General (retired) V. K.
Singh.
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Passport violation and fundamental rights
Laws instituted after Independence guarantee a hearing to a person accused of being in the country without Indian citizenship, but
pre-Independence Acts also exist that give arbitrary powers to the government to deport such a person. Reconciliation is required
Anil Malhotra
AS debates continue in India regarding the utility of laws made during the British Raj, Great Britain itself is in the process of repealing 38 enactments which were legislated between 1849 and 1942 relating to the construction and maintenance of the Indian Railways network during British rule. India needs to take steps too to remove certain redundant laws hampering justice.

The presence of 30 million NRIs in almost 180 countries has led to compromises on dual nationality, which is prohibited under Article 9 of the Constitution, and Section 9 of the Citizenship Act, 1955. |
Even though Parliament enacted the Passports Act, 1967, the Citizenship Act, 1955, and in 2005 created the concept of Overseas Citizen of India, we continue to rely on the Passport (Entry into India) Act, 1920; the Registration of Foreigners Act, 1939, and the Foreigners Act, 1946, for various purposes. Most of these archaic legislations made during colonial rule are today outdated, and do not stand the test of principles of natural justice, and confer unfettered, arbitrary and draconian powers. As such, these need to be promptly removed from the statute book. The Passports Act, 1967, which is a comprehensive and wholesome law relating to the issuance of passports and travel documents, provides a statutory safeguarded procedure for variation, impounding and revocation of passports, with rights of appeal to aggrieved persons against offences and penalties levied under this Act. The simultaneous existence of the Passport (Entry into India) Act, 1920, and the Foreigners Act, 1946, conferring absolute and unlimited powers to remove or deport a person from India summarily without following the due process of law, are an anathema and antithesis to the rule of law in a democratic country. There is ample scope for judicial review. Powers of house arrest, detention, solitary confinement and summary removal from India under these 1920 and 1946 laws clearly infringe upon the fundamental rights to life and personal liberty guaranteed under the Indian Constitution. The reasons for retaining these pre-Independence laws seem to be misplaced and defy fundamental freedoms.
New categoriesThe 1.2 billion Indians contributing 30 million non-resident Indians (NRIs) in almost 180 countries across the globe has led to compromises on dual nationality, which is otherwise prohibited under Article 9 of the Constitution, and Section 9 of the Citizenship Act, 1955. Two categories of "Persons of Indian Origin" (PIO) and "Overseas Citizen of India" (OCI) were carved out to confer limited benefits on persons of Indian origin. Subsequently, PIOs and OCIs enjoy limited rights in India and can enjoy residence rights in India without any visa, registration, sanction or other permissions. Moreover, under Article 5 of the Constitution, every person who has domicile in India and was born in India, whose parents were born in India, or who has been ordinarily residing in India for not less than five years may be a citizen of India. Hence, inherent rights flow to presumption of Indian nationality.
Determination of nationalityUnder the 1946 Act, disputes relating to questions of determination of nationality when a foreigner is recognised as a national of more than one country - or it is uncertain as to what nationality is to be ascribed to a foreigner - such person may be treated as the national of the country with which he appears to be most closely connected. The 1920 and 1946 Acts permit removal or deportation of a person from India without providing any forum or procedure for determination of the question of the nationality of a foreigner or giving any statutory rights in this process. Tribunals to determine these questions do not exist. However, at the same time, the Citizenship Act, 1955, and the Citizenship Rules, 2009, prescribe that if any question arises as to whether, when or how any person acquired the citizenship of another country, the Central government would first determine the matter. The Supreme Court, interpreting these provisions, has held that a person could not be ordered to be deported or removed from India unless the Central government takes a conscious decision upon holding a quasi-judicial inquiry that a person has ceased to be an Indian citizen. A person cannot be summarily labelled foreigner and determination of his nationality is his fundamental right. It is time our Parliament reconciles this concept of freedom, personal liberty and natural justice with determination of nationality.
Debatable question In the social milieu today, international Indians qualify to be PIOs or OCIs. If they wish to reconnect with their homeland, they ought not to be bundled out as foreigners by invoking the colonial provisions of the 1920 and 1946 Acts, which offend fundamental freedoms. The Citizenship Act, 1955, itself creates harmony. The retention of a foreign passport today cannot lead to deportation and summary removal from India. Why then do we need to retain the 1920 and 1946 enactments, which were enacted to regulate the entry of foreigners into India in circumstances prevailing in 1946? This is a serious issue which must engage the attention of Parliament.
Today, PIOs have matters relating to matrimonial differences between spouses of global origin, or nationality issues arising out of foreign domiciles. The desirable approach, therefore, would be to create appropriate forums or authorities within the legal system who may address such resolvable issues by granting opportunity of hearing and redress. Accordingly, deportation or removal of a person to a foreign jurisdiction would be an abject surrender to a foreign dominion. Having resolved to be a sovereign, socialist, secular, democratic republic, we in India are very capable and competent of adjudicating our nationality issues to provide redress for indigenous Indians. Our post-Independence laws provide the solutions which our vibrant judiciary interprets to protect fundamental freedoms guaranteed under the Constitution. Hence, pre-Independence laws in conflict with assured rights today must go off the statute book. The writer practises law at the Punjab and Haryana High Court
Citizenship laws in forceThe Registration of Foreigners Act, 1939: A law meant to provide for the registration of foreigners in India. The Registration of Foreigners Rules, 1992: Issued in supersession of the Registration of Foreigners Rules 1939, rules made under the 1939 Act. The Foreigners Act, 1946: An Act to confer upon the Central government certain powers in respect of foreigners. The Foreigners Order, 1948: An Order made under Section 3 of the 1946 Act for power to grant permission to depart from India. The Foreigners (Tribunals) Orders, 1964: An Order made under Section 3 of the 1946 Act to constitute tribunals to determine if a person is a foreigner. The Passport (Entry into India) Act, 1920: An Act to take powers to require passports of persons entering India. The Passport (Entry into India) Rules, 1950: Rules made under the 1920 Act. The Passports Act, 1967: An Act to provide for the issuance of passports and travel documents to regulate departure from India. The Citizenship Act, 1955: An Act to provide for the acquisition and determination of Indian citizenship. The Citizenship Rules, 2009: Rules made under the Citizenship Act, 1955.
Revoking a passport A passport is a document which by its nature and purpose recognises a person as a citizen of the country granting it and is in the nature of a request to other countries for his free passage. It contains recognition of the officially authorised agencies giving nationality to the citizen of the State issuing the passport upon necessary declarations being made to it by the holder. Therefore, a citizen is granted an Indian passport upon confirmation of Indian nationality. A passport can be impounded, revoked or cancelled under the Passports Act, 1967, upon certain prescribed conditions and following the requisite procedure under law.
In Satwant Singh Sawhney vs APO, New Delhi, All India Reporter 1967 Supreme Court, 1836, the apex court has held that deprivation of a passport amounts to infringement of right to personal liberty under Article 21 of the Constitution of India, and in Maneka Gandhi vs Union of India, All India Reporter 1978 Supreme Court 597, it was reiterated that an order impounding a passport must not contravene any fundamental rights.
Law settled by Supreme Court
The Central government is vested with powers under Section 9 (2) of the Citizenship Act, 1955, read with Rule 30 of the Citizenship Rules, 1956, as exclusive jurisdiction to determine the question whether a person, who was a citizen of India, has lost that citizenship by having voluntarily acquiring the citizenship of a foreign state. Under Section 9 (2) and Rule 30, mere proof of the fact that the person has obtained a passport from a foreign country is not sufficient to sustain an order for deportation or prosecution, unless there has been a decision of the Central government under Section 9 (2) of the Act. Moreover, inquiry by the Central government under Section 9 (2) of the Act is quasi-judicial. This proposition of law is settled by the following judgements of the apex court: State of A.P. vs. Abdul Khader, AIR 1961 SC 1467; Government of A.P. vs. Syed Md., AIR 1962 SC 1778; State of UP vs. Rehmatullah AIR 1971 SC 1382.
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