Examining India’s Bar on Dual Citizenship in View of Judgment by the Apex Court of South Africa

On 06 May 2025, the Constitutional Court Of South Africa delivered a Judgment invalidating South Africa’s laws restricting dual citizenship. As a consequence, South Africa Citizenship of all those who were deemed have ceased to be South Africa Citizenship by virtue of having acquired foreign citizenship (since commencement of their constitution), was restored.

This article explains in the form of questions and answers how key aspects of that Judgment are potentially applicable to constitutionality of section 9(1) of India Citizenship Act 1964, which also bars dual citizenship.

Q1.  What did the Constitutional Court of South Africa Rule?

Two important parts: (a)  that section 6(1)(a) of the South African Citizenship Act 88 of 1995 is inconsistent with the Constitution and is invalid from its promulgation on 6 October 1995; and (b) that those citizens who lost their citizenship by operation of section 6(1)(a) of the South African Citizenship Act 88 of 1995 are deemed not to have lost their citizenship.

Q2. What would similar rule in India mean?

It would mean that section 9(1) of the India Citizenship Act would be unconstitutional, opening up dual citizenship at least for India Nationals (as defined by those whose claim to India is by birth/descent, as with recognized Citizens).  The government of India would be required to recognize as citizens everyone who is deemed to have lost India citizenship by operation of section 9(1) since 1955 in having voluntarily acquired foreign citizenship. For those who do not want dual citizenship, it will be a choice for each such dual citizen to renounce India Citizenship under section 8 of the India Citizenship Act 1954 (and perhaps consider OCI status, which is an appropriate law for such persons).

Q3. Are there any cases in India that challenge the Constitutionality of section 9(1)?

The below cases are known to raise that question of constitutionality of section 9(1):

1. Narendra Reddy Thappeta vs. Union of India (WP 37535, Filed 2013) at the High Court in Bangalore;

2. Radhika Thappeta et al vs. Union of India (W.P.(C) No. 1397, Filed 2020) at Supreme Court of India; and

3. Prof. Tarunabh Khaitan vs. Union of India & ORS. W.P. (C) No. 1074, Filed 2023) at Supreme Court of India.

Q4. How clear was the ‘procedure’ adapted in South Africa in reaching the above conclusions of unconstitutionality?

The Constitutional Court is the apex/highest court of South Africa.  The Constitutional Court simply affirmed ruling of ‘Supreme Court of Appeal’ finding unconstitutionality of section 6(1)(a).  It is interesting that the case was first filed in ‘High Court of South Africa’, which the Supreme Court of Appeal overturned. In other words, the lowest level court found that section 6(1)(a) was constitutional, but the two higher courts found the same section unconstitutional.

Q5. Did the Constitutional Court use assistance of experts in the process?

Yes, Dr Steven Spadijer, a dual citizen of Australia and Montenegro, was admitted as amicus curiae (friend of the court) at the Constitutional Court, and was confined to making written submissions. His written submissions covered two central topics:

(a) first, foreign and international legal principles as they relate to dual citizenships, including the number of states that allow dual citizenship, foreign jurisdictions that have struck down prohibitions on dual citizenships, and international human rights implications for prohibitions on dual citizenships; and

(b) second, the South African human rights implications of the impugned provision. The submissions consider how the impugned provision limits, among others, the rights in sections 9, 10, and 33 of the Constitution.

Research from the web informs us that Section 9 guarantees everyone’s right to equality, prohibiting discrimination on various grounds. Section 10 protects the right to human dignity, and Section 33 deals with the right to freedom of movement and residence.  It is pertinent to remember these general principles are recognized as being integral to India Constitution as well.

Q6. What was the South Africa Government’s primary argument?

Section 6(2) enables a South African citizen to retain citizenship on application to the Minister. The fact that one had to follow a simple procedure to apply to the Minister to retain dual citizenship, did not save the government’s position of constitutionality. In India’s context, that flexibility is not provided by law, and therefore under the scales employed by the South Africa Constitution Court, an even stronger case of unconstitutionality of section 9(1) is made.

Similar to in India context, South Africa government made an argument that there is no ‘statelessness’ that results from bar on dual citizenship. That argument also did not help the government there.

Q7.  What was the basis on which the Supreme Court of Appeal held that section 6(1)(a) to be unconstitutional?

The crux of Supreme Court of Appeal is noted as, “[20] The Supreme Court of Appeal granted leave to appeal to it and upheld the appeal. It held that, to meet the standard of rationality, the Minister was required, in the first place, to explain the specific and legitimate purpose that the impugned provision was designed to foster. In the absence of specified reasons, the Court held that the impugned provision is arbitrary and irrational. The Court held that there is no rationale for why an individual adult citizen who applies for citizenship of another country must, by operation of law, lose their South African citizenship. Rationality is tested against substantively legitimate objects and not by saying that, because the power may be one that the state could exercise legitimately, its existence makes its exercise legitimate. It held further that the impugned provision is irrational, because it treats South African citizens who already have dual citizenship differently from those who intend to acquire citizenship or nationality of another country.”  (Emphasis Added)

The Constitutional court further declared, “[44] … The rationale behind this legislation remains unexplained. That legislative scheme not only flies in the face of the respondents’ avowed lack of aversion to dual citizenship but also bears no discernible legitimate purpose. [45] Legislation is constitutionally required to be rationally related to a legitimate government purpose – if not, it is invalid….  [48]  ” (Emphasis Added)

This is  the crucial point we have been making for the past decade or so!  There is no rational reason for removing India citizenship (of India nationals) also merely upon someone (voluntarily) acquiring foreign citizenship. India Judiciary also scrutinizes laws for rational basis all the time.  Even if Article 11 of Constitution of India permits removal of citizenship, it will at least be challenging for India government to show legitimate state interest in removing India citizenship of many India Nationals by a simple rule.

Q8. What were the interests of the dual citizens recognized by the Judiciary in South Africa?

The Judgement notes, “[22] Finally, the Supreme Court of Appeal held that the impugned provision unjustifiably limits political rights, the right to enter and remain in the Republic, and the right to freedom of trade, occupation and profession, guaranteed by the Constitution and it declared the section inconsistent with the Constitution.”

This is a fairly important point to remember. Sound constitutional foundations require governments to frame narrow laws to contain undesirable conduct.  Diaspora will unquestionably support laws that seek to protect India’s national security and interests in accordance with laws passed by Parliament and that can be overseen by Courts in accordance with the constitutional structure.  It is impermissible to use ‘removal of citizenship’ status as a basis for exercising broad ‘legal’ control (i.e., deprivation of the list of basic interests in the preceding paragraph) over many India Nationals broadly.  That is what the Judiciary in South Africa emphasized in the above paragraph.  It is worth remembering that Article 326 of the Constitution of India requires voting rights to be granted to India resident dual citizens, and India Constitution already bars dual citizens from contesting any elections.

Q9.  Does South Africa have an equivalent of India’s OCI scheme and did the judgement have any bearing on the foundations of OCI scheme?

South Africa does not seem to have any equivalent of a OCI scheme.  However, the Court disapproved Minister having the arbitrary power to permit one to have dual citizenship, and interestingly quoted another prior case, “There is . . . a difference between requiring a court or tribunal in exercising a discretion to interpret legislation in a manner that is consistent with the Constitution and conferring a broad discretion upon an official, who may be quite untrained in law and constitutional interpretation, and expecting that official, in the absence of direct guidance, to exercise the discretion in a manner consistent with the provisions of the Bill of Rights. Officials are often extremely busy and have to respond quickly and efficiently to many requests or applications. The nature of their work does not permit considered reflection on the scope of constitutional rights or the circumstances in which a limitation of such rights is justifiable. It is true that as employees of the State they bear a constitutional obligation to seek to promote the Bill of Rights as well. But it is important to interpret that obligation within the context of the role that administrative officials play in the framework of government, which is different from that played by judicial officers.”

A careful reading of the above clearly points to the problem with OCI scheme. The officials have been given (or are asserting) broad powers as both judges and officials, which they should not be permitted to.  That is one of the points clearly raised in the Supreme Court writ petition noted above.

The Court there accordingly concluded, “[53] The impugned provision therefore cannot pass constitutional muster. First, section 6(2) cannot save it from unconstitutionality, because the section does not address the question why there is automatic loss of citizenship in the first place. Second, section 6(2) affords the Minister broad, unchecked power without any guidelines as to how the Minister’s decisions are to be made. This is untenable, given the infringement of citizenship as a fundamental right. This is exacerbated by the consequential loss of the enjoyment of other fundamental rights.”

Q10. Did the South Africa Court take into account the global practices?

One good paragraph summarizes what the court there found, “[56] As the amicus’ comprehensive submissions demonstrate, the High Court’s reasoning is out of step with international instruments and international law. There are no specific provisions in international law on dual citizenship, and in accordance with the principle of state sovereignty each state may make provision for this. Many have done so. The amicus’ affidavit and written submissions provide useful insight into the global position. In 1960, some 62% of countries prohibited dual citizenship. However, by 2020, 76% of countries allow its ethnic citizens to voluntarily acquire the citizenship of another country, without automatic repercussions for their citizenship of origin. A breakdown of these figures shows that dual citizenship is allowed as follows: 93% of countries in Oceania; 91% in the Americas; 70% in Africa; 65% in Asia; and 80% of European countries. In the European context, the entire European Union (EU) project presupposes dual loyalty, that is, loyalty to the EU and its institutions through EU citizenship, and loyalty to the nation state. According to legal commentators, in a world of increasing globalisation and transnational mobility, permitting dual citizenship is the norm and not the exception.”  (Emphasis Added)

The Court further examined the detailed cases and practices in various countries, including USA and Europe.

Q11. Did the South Africa Court Consider the question of loyalty?

The Court quoted a book by Spiro entitled, “Citizenship: What Everyone Needs to Know (Oxford University Press, New York 2020) at 98” in which it was explained, “Today the loyalty objection to dual citizenship is flimsy. Competition among nation-states may once have been zero-sum. In that context, there was at least a possible theoretical foundation for the loyalty objection: what was good for one country of nationality would necessarily be bad for the other. But that is hardly a sustainable perspective on interstate relations today. There are few issues on which a win for one state represents a loss for another. On the contrary, global issues are now mostly common issues, in which coordinated international action results in aggregate gains for all states.” (Emphasis Added)

The Court further quotes Bilchitz and Ziegler, “It is increasingly recognised that loyalty to one political community in no way precludes loyalty to another”.

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