Nonentity: An Identity Without An Address
It’s a familiar story in India. Whether it’s a mobile phone connection, a bank account, investments or an Internet connection, you must have “proof of address”. Not just any proof; it must be a passport or an electricity or landline telephone bill, and the address must be local. In an age of increased mobility, in a world where travel is this easy, at a time when people are used to shifting to different cities for jobs, this is just absurd.
At the passport office, this absurdity is elevated to imbecility. A school friend recounts a recent experience. Her son, who turns 18 later this year, is studying in a school outside Mumbai. His passport expires in a few months, too, and the family applied in the routine course for a renewal of his passport. They were asked where he lives. “Here, in Mumbai,” they said, and gave the address, accompanied by all manner of documents from his birth certificate to his school leaving certificate. So far, so good; till the next question, when they were asked where he was now. Innocently, they said he studies outside the city. File closed. “Sorry,” they were told. “He cannot get a passport from the Mumbai office. He must apply to the office in the city where he studies.” And how is that possible? That school is not his residence; he is there only for a brief period while he completes his studies. The consequences of this are, of course, beyond Kafkaesque: a person born and brought up in India is denied an Indian passport, or at least denied it in a timely manner, on some utterly bureaucratic mindless claptrap, and his entire educational career of studying abroad is in jeopardy.
Of necessity, our Constitution deals with citizenship.1 Of the four classes of persons entitled to citizenship, the first is the most important for our purposes, and Article 5 has two requirements. First, that a person must have his domicile in India; and second, that he, or either of his parents, must have been born in India (or, failing that, must have been “ordinarily resident” in India for at least five years before the commencement of the Constitution).2 Leaving aside the last ordinarily-resident clause, what this article therefore requires is domicile and birth, not a physical local address.
Domicile is a peculiar concept in law: it rears its head in all manner of situations, from college admissions to divorce proceedings and private international law. It is a bit of a jurisprudential mash-up. It isn’t the same as nationality, which is a link between a country and an individual; nor is it the same as the more modern concept of ‘habitual residence’. Domicile, with its origins perhaps in domus or house and colere, to dwell, speaks to two things: where you actually reside and where you intend to reside. This issue of intention is critical for legal stability. It didn’t matter much at a time when there was much less mobility and people stayed put; but as they began to cross boundaries and move between jurisdictions with different laws, the concept of domicile and its subsidiary concept of residential intent tied individuals to the laws of their country of birth, so that what was legal in a person’s own country wasn’t suddenly illegal at a border crossing. Everyone acquires a domicile at birth, but it can also be acquired in other ways, most often by choice; and that raises the issue of where you intend to reside.
It’s a difficult concept, and like so many others, a legal artifice: very often, the law will thrust a domicile on you. The Supreme Court said as much in 1954, when it said:
The truth is that the term domicile lends itself to illustrations but not to definition. Be that as it may, two constituent elements that are necessary by English Law for the existence of domicil are: (1) a residence of a particular kind, and (2) an intention of a particular kind. … The residence need not be continuous but it must be indefinite, not purely fleeting. … It is also a well established proposition that a person may have no home but he cannot be without a domicil and the law may attribute to him a domicil in a country where in reality he has not. A person may be a vagrant as when he lives in a yacht or wanderer from one European hotel to another, but nevertheless the law will arbitrarily ascribe to him a domicil in one particular territory. In order to make the rule that nobody can be without a domicil effective, the law assigns what is called a domicil of origin to every person at his birth. This prevails until a new domicil has been acquired, so that if a person leaves the country of his origin with an undoubted intention of never returning to it again, nevertheless his domicil of origin adheres to him until he actually settles with the requisite intention in some other country.3
Domicile is not related to a physical local address, but only to a country — perhaps not even a State or a city, though our college admissions all demand ‘domicile’ certificates. The Citizenship Act of 1955 is, as it must be, in line with these Constitutional provisions.
Our unthinking and absurd emphasis on a physical home address might have been quaint were it not for its near-catastrophic consequences. We live in a world where young students travel across the country to attend colleges far from their cities of birth. Jobs, too, force migrations: a person from Ahmedabad might take a job with a company headquartered in Mumbai and find himself seconded for many years to a project in Bangalore or Pune. His domicile has not changed; he still resides in India and intends to do so; and he should be at liberty to get any of the services he needs at any of these places, including a passport. This applies across every level of employment, from domestic servants and office help to CEOs. Proof of birth, and proof of an address anywhere in India should be sufficient; it surely cannot be that temporarily staying elsewhere forces you out of this queue and to the back of another in some other city. An insistence on proof of local addresses is a disservice to every citizen.
Article 5 says this:
5. Citizenship at the commencement of the Constitution.*—At the commencement of this Constitution, every person who has his domicile in the territory of India and—
(a) who was born in the territory of India; or
(b) either of whose parents was born in the territory of India; or
(c) who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement,
shall be a citizen of India.