Domicile is a complicated subject in India that has vexed States and its authorities across the India. Suprisingly, the domicile laws in India are very clear but the confusion is still persisting. Till now various States in India are confused between the concepts of Domicile and Residence. These concepts are totally different and so is their purpose and treatment. If a person is interested in obtaining a domicile certificate in India he ends up reading the procedure for obtaining a residence certificate.
The main difference between a domicile certificate and residence certificate is that a domicile certificate, wherever available, is applicable to whole of India whereas a residence certificate is limited to the territorial jurisdiction of a particular State. A person cannot have more than one domicile certificate but the same individual may try to obtain more than one residence certificate in different States. However, obtaining more than one residence certificate is a punishable offence in India.
So the crucial question is how to obtain a domicile certificate in India. The answer is not a simple one as there is no set procedure for the same. However, one thing is clear. A domicile certificate can be obtained from the Central Government and State Government is not the suitable authority for that purpose. Till now the legal position in this regard is not clear and this interpretation seems to be the applicable rule in India.
However, before a domicile certificate can be issued in India, it is pertinent to prove the factum of residence and the intention to make India a permanent place of residence. Mere residence in India for many number of years, even if continuous in nature, is not sufficient to claim the domicile status in India. To a great extent domicile and citizenship are synonymous as per Indian legal system. The Constitution of India prescribes a single domicile system and States cannot modify this legal position.
The burden of proof is upon the applicant of the domicile certificate to show that he intends to settle in India permanently. This intention can be proved from past, present and future course of action on the part of the applicant. This proof of intention cannot be taken lightly by the Central Government as an improperly issued domicile certificate can be used for tax evasion, illegal and irregular succession dealings, inheritance related irregularities, etc. This is more so when inter country legal issues are involved.
This is so because Domicile is a Conflict of Laws principle and ascertainment of Domicile status becomes very complicated when foreign jurisdiction is also involved. It is very difficult to ascertain the true intention of the applicant of the Domicile certificate from the limited set of facts. Domicile is a question of fact and laws and this is the reason that the appropriate authority must be very vigil while issuing a Domicile certificate.
Till now the Central Government has not issued any guidelines or rules that can be referred to while issuing a Domicile certificate. There are different Central Government Ministries/Departments that can be approached for issuance of a Domicile certificate. However, when the Domicile certificate is requested by a person of Indian origin (PIO) or non resident Indian (NRI) or Overseas Citizens of India Cardholder (OCI cardholder), then the complications are significantly increased. These legal complications are further increased when such PIO/NRI/OCI has become a citizen of a foreign nation.
It is clear that there is no set procedure to obtain a Domicile certificate, especially by a PIO/NRI/OCI who has become a citizen of a foreign nation. At Perry4Law Organisation (P4LO) we strongly recommend that the Central Ministries like Ministry of Home Affairs, Ministry of External Affairs, Bureau of Immigration (BOI), etc must come out with clear cut guidelines and rules pertaining to issuance of a Domicile and residence certificate. Such guidelines or rules must not be narrowly drafted but must be drafted keeping in mind the widest possible techno legal implications.
As India is embracing the Digital India project, it is imperative to consider the techno legal issues as well because in future many citizen centric services would be delivered through electronic mode and use of Internet related technologies. The Domicile policy of India needs to be techno legal on the one hand and covering the Conflict of Laws principles on the other. We hope the Indian Government would come up with a techno legal Domicile policy of India very soon.