Citizenship is man’s basic right, for it is nothing less than the right to have the rightSupreme Court of U.S.A
A citizen is a participatory member of a political community. A nation grants certain rights and privileges to its citizens. In return, citizens are expected to obey their country’s laws and defend it against its enemies.
Such as, there are certain fundamental rights which are available only to the citizens of India.
(Article- 15, 16,19,29,30 of the constitution)
Again citizens alone have the rights to hold certain office e.g. office of the President, vice-president, Judges of Supreme court or of a High court, Attorney-General, Governor of a state, Advocate General of a state. The right to vote for the election to the House of the people and the Legislative Assemblies of state is available to the citizens only they can become members of the union and the state legislatures.
Citizenship carries with its certain obligation as well. For example, the fundamental Duties contained in Article 51-A are addressed to the citizens of India only.
Beginning of Indian Citizenship
During the British rule, the resident in British India were British Subjects governed by the British Nationality Act, 1948, princely states had no International personality and their subjects had the status of British protected persons.
From 26 November 1949, Indian domiciled in Indian Citizens with promulgation of the Indian Constitution on 26 January 1950, with establishing the Republic of India. Finally, the citizenship Act, 1955, extended Indian citizenship to all Indians, regardless of whether they had born in a former princely state or not.
The conferment of a person, as a citizen of India, is governed by Article 5 to 11 (Part II) of the Constitution of India. The legislation related to this matter is the Citizenship Act 1955 (57 of 1955), which has been amended by the Citizenship (amendment) Acts, 1986, 1992, 2003, 2005, 2015, 2019.
Indian nationality law largely follows the Jus Sanguinis (citizenship by right of blood) as opposed to the Jus Soli (citizenship by right by birth with in the territory)
The President of India is termed as the ‘first citizen of India’.
Citizenship of India at the commencement of the constitution
On partition of the country, some people were living in India, some people came from Pakistan, some others were living abroad. The problem relating to citizenship pf India, is, therefore, tackled by three-fold provisions.
A person, at the commencement of the constitution, could be a citizen of India in the following ways-
- By domicile
- By migration
- By registration
1. Citizenship by Domicile
According to Article 5, a person shall be a citizen of India, if, he fulfills the following two conditions-
- He at the commencement of the Constitution, has his domicile, in the territory of India; and
- Such person must fulfill any one of the following three conditions-
- he was born in the territory of India; or
- either of his parents was born in the territory of India; or
- he must have been ordinarily resident in the territory of India or not less than 5 years immediately preceding the commencement of the constitution.
Conditions contained in (a), (b) and (c) are alternative and anyone of them needs to be fulfilled by a person having domicile in India, to be a citizen of India.
The expression territory of India meant the territory of India as is defined under Article 1(3), at the commencement of the constitution.
Ordinarily Resident means, the place wherein the settled routine of an individual’s life, he or she regularly normally or customarily lives.
The term ‘DOMICILE’ is not defined in the Constitution. Ordinarily, two elements are necessary for constituting the domicile of a person-
- actual residence at the place and
- the present intention to remain there permanently.
Thus, there must be both, the factum and animus, to constitute the existence of domicile.
There are two main classes of domicile viz.
- Domicile of origin
- Domicile of choice
While the former attaches to the individual by birth, the latter is acquired by residence in territory subject to a distinctive legal system with the intention to reside there permanently.
In Michel v. state of Bombay AIR 1956 Bom. 729, Mohammad Raza v. State of Bombay 1966 AIR 1436, Louis de raedt v. Union of India 1991 SCR (3) 149, Aslam khan v. Fazal khan AIR 1959 All 79, it was held that intention may be express or it may be inferred from the conduct or circumstances of the person.
A minor or married woman is not independent person. Neither of these classes has the legal capacity to make a change of domicile. Therefore, the domicile of an infant generally follows the domicile of his father. (Naziranbai v. state of M.P).While married woman takes the domicile of her husband. (Karimunnisa v. state of M.P 1955 CriLJ 28)
A widow retains the domicile of her husband until changed by her own act. (Prakash v. Shahi)
Article 5 recognizes only one domicile viz., domicile of India. It does not recognize the notion of state domicile as held in ‘Pradeep Jain v. union of India1984 AIR 1420’. In ‘Dr. Yogesh Bhardwaj v. state of U.P1991 AIR 356 ‘ the Supreme Court ruled that there was no state-wise domicile within the territory of India.
2. Citizenship by Migration (Article 6-7)
The independence of India was accompanied by a large scale migration of people from Pakistan, So, special provisions under Article 6 and 7 had, therefore, been made for them.
Citizenship of migrants to India from Pakistan (Article 6)
Article 6 provides that a person who has migrated to India from Pakistan shall be deemed to be a citizen of India at the commencement of the constitution i.e. on 26th January 1950, if he or either his parents or any of his grandparents were born in India as defined in the Government of India Act, 1935, and in addition to above condition, which applies in both cases fulfills one of the following two conditions-
- in case he migrated to India before July 19, 1948 (the date on which, ‘Influx from Pakistan (control) ordinance, 1948’ promulgated that allows the permit system) he has been ordinarily residing in India since the date of his migration; or
- in case he migrated on or after July 19, 1948, he has been registered as a citizen of Indian by an officer appointed by the central government of India for the purpose, he should also residing in India at least six months immediately before the date of his application for registration.
Citizenship of migrants to Pakistan (Article 7)
Under article 7 a citizen by domicile (Article 5) or by migration (Article 6) cease to be a citizen if he has migrated to Pakistan after March 1, 1947. An exception is, however, made in favour of a person who has returned to India on the basis of permit for resettlement in India. He fulfills other conditions necessary for immigrants from Pakistan after July 19, 1948.
The meaning of ‘migrated’ came for consideration before the supreme court in ‘kulathimama v. state of kerala’. The majority held that the word ‘migrate’ was used in wider sense of moving from one country to another with the qualification that such movement was not for a short visit or for a special purpose.
Citizenship by Registration (Article 8)
Article 8 deals with the right of citizenship of persons of India origin, residing outside undivided India (India+Pakistan).
It provides that,
”1) any person who or either of his parents or any of his grandparents was born in the territory of India as defined in the Government of India Act 1935; and
2) who was ordinarily resident in any country outside India as so defined, would be deemed to be a citizen of India, if he was registered as a citizen of India, by the Diplomatic or consular representative of India in the country where, for the time being, he was residing.”
Article 8 is to cover overseas Indians having no domicile in the territory of India. Unlike Article 5 and 6, a person could become a citizen of India, not only at the commencement of the constitution bat also subsequent to such commencement.
No dual citizenship (Article 9)
Article 9 enacts that
” a person who has voluntarily acquired the citizenship of a foreign state shall not be deemed to be a citizen of India”
It deals with the voluntarily acquisition before the commencement of the constitution.
The question whether an Indian citizen has acquired the citizenship of a foreign country is one for the determination by the central government and not by the court. (Akbar khan v. Union of India 1962 AIR 70, Yakub Ibrahim v. state of gujrat 1974 AIR 645)
Continuance of the right of citizenship (Article 10)
Article 10 provides that
” every person who is or is deemed to be a citizen of India under the provisions of Article 5 to 8, shall continue to be a citizen of India, subject, however, to the provisions of any law that may be made by the parliament”
In Ebrahim wazir v. state of Bombay AIR 1954 S.C. 299, it was held that the right to citizenship of India given under the provisions of the constitution can only be taken away by an express law made by the union parliament for the purpose.
For this purpose, parliament enacted ‘Indian citizenship Act’ 1955.
Parliament to regulate the right of citizenship by law (Article 11)
Article 11 deals with the power of parliament to regulate the right of citizenship (acquisition and termination) and all other matters relating to citizenship.
Citizenship of India after the commencement of the constitution (The Citizenship Act, 1955)
Under Citizenship Act, 1955, citizenship provided in five ways: birth, descent, registration, naturalization and incorporation of territory.
- citizenship by birth (Section 3)
Section 3 provides that, every person born in India,
- on or after 26th January, 1950 but before 1st July 1987,
- on or after 1st July, 1987 but before the commencement of the citizenship(amendment) Act 2003and either of whose parents is a citizen of India at the time of his birth,
- on or after the commencement of the citizenship (amendment) Act, 2003, where
- both of his parents are citizen of India, or
- one of whose parents is a citizen of India and other is not an illegal migrant at the time of his birth, shall be aa citizen of India by birth,
However, no such person as above said shall be a citizen of India, if at the time of his birth-
- his father [or mother (as inserted by the citizenship (amendment) Act, 1986)] possesses such immunity from suits and legal process as is accorded to an envoy of a foreign sovereign power accredited to the President of India and he or she, as the case may be, is not an Indian citizen; or
- his father or mother is an enemy alien and his birth takes place in a territory then under enemy occupation.”
II. Citizenship by descent (Section 4)
According to section 4,
” A person born outside India shall be citizen of India by descent,
- on or after 26 january,1950 but before 10th of December, 1992, if his father is a citizen of India at the time of his birth, or
- on or after 10th day of December, 1992 if either of his parents is a citizen of India at the time of his birth.
However, if the father of such a person is himself a citizen of India by descent, then, such a person shall not be a citizen of India unless-
- his birth is registered at the Indian consulate [(within one year of its occurrence or the commencement of the citizenship (amendment) Act, 2003 whichever is later or with the permission of the central government, after the expiry of said period) as inserted by citizenship (amendment) Act, 2003],
- his father, at the time of his birth, in the service under the Government of India.
A minor who is citizen of India by virtue of this section and is also citizen of another country shall cease to be a citizen of India if he does not renounce the citizenship of another country within six months of his attaining full age.
Citizenship by Registration (Article 5)
The central Government may, on the application, register as a citizen of India under section 5 of the citizenship Act 1955 any person (not being an illegal migrants) if s/he belongs to any of the following categories-
- a person of Indian origin who is ordinarily resident in India for seven years before making application 5 (1) (a) ( throughout the period of twelve months immediately before making application and for six years in the aggregate in the eight years preceding the 12 months)
- a person of Indian origin who is ordinarily resident in any country or place outside undivided India.
- a person who is married to a citizen of India and is ordinarily resident in India for seven years before making an application for registration,
- minor children of persons who are citizens of India,
- category (e) is substituted by the citizenship (amendment) Act 2003 by the following categories-
e. a person of full age and capacity whose parents are registered as citizen of India,
f. a person of full age and capacity who, or either of his parents, was earlier citizen of independent India; and has been residing in India for one year immediately before making an application for registration.
g. a person of full age and capacity who has been registered as an overseas citizen of India for five years, and who has been residing in India for one year before making an application for registration.
Citizenship by Naturalization (Section 6)
Citizenship of India by naturalization can be acquired by a foreigner who is a person of full age and capacity, ”not being an illegal migrant” is ordinarily resident in India for 14 years (throughout the period 12 months immediately preceding the date of application and for 11 years in the aggregate of 14 years preceding the 12 months) and other qualification as specified in section 6 (1) of the citizenship act, 1955.
Citizenship by incorporate of territory (Section 7)
Section 7 provides that if any territory, not being part of the territory of India, becomes a part of the territory of India, the Government of India may, by order, notified in the official Gazette specify the persons, who are residents of such territory, to be citizens of India from the date to be specified in the order.
Citizenship of persons covered by Assam Accord (1985)
The citizenship (amendment) Act, 1985, inserted 6-A in the Citizenship Act, 1955, to give effect to the Memorandum of Settlement relating to the foreigners issue in Assam. This section provides citizenship for persons of Indian origin who had come to Assam before 1st January 1966, persons, who came to India before 25th March 1971, and after 1st January would have to register themselves. But who came after 24 March 1971 meant ‘ illegal migrants’ would be detected and deported from the state.
TERMINATION OF CITIZENSHIP OF INDIA
As regards the termination of citizenship of India subsequent to the commencement of the constitution, the citizenship Act, 1955 provides the following ways-
- by renunciation
- by termination
- by deprivation
a. Renunciation of citizenship (section 8)
Renunciation is covered in section 8 of the Citizenship Act, 1955. If an adult makes a declaration of renunciation of Indian citizenship s/he lose Indian citizenship from the date of renunciation. When the child reaches the age of 18, he or she have the right to have his or her Indian citizenship restored if his or her citizenship have lost by their parents’ renunciation.
b. Termination of citizenship (Section 9)
If a citizen voluntarily acquires the citizenship of another country he shall cease to be a citizen of India. This provision however not apply to a citizen who during a war in which India may be engaged voluntarily acquires the citizenship of another country, if any question arises as to whether, when or how, the Indian citizen has acquired the citizenship of other country, that has to be determined by central government (section 9) and not by the court.
Section 11 of the Citizenship Act, provided for commonwealth citizenship. It lays down that every person who is a citizen of commonwealth country, shall by virtue of that will be citizen of India.
Section 12 provides that the central government will make provisions, on the basis of reciprocity, of the conferment of all or any of the rights of an Indian citizen, on a citizen of commonwealth country.
Section 11 and 12 are omitted by the Citizenship (amendment) act, 2003.
Overseas citizenship of India
On a recommendation of high level committee of Indian diaspora, the Government of India decided to register persons on Indian origin (PIOs) of a certain category, as has been specified in the section 7A of the citizenship Act 1955, as overseas citizenship of India (OCI) cardholders.
The scheme was launched during ‘ the pravasi bhartiye sammelan divas’ convention in Hyderabad in 2006.
The aim of OCI was to encourage Indians who have gained citizenship abroad in terms of easing travel restrictions and aid the economic development of India. This is not dual citizenship as they have not right to vote and to be elected in Government posts. The acquisition of other country’s passport is also deemed under the citizenship rules, 1956 to be voluntarily acquisition of another country’s nationality.
Deprivation of citizenship
Section 10 provides that a citizen of India, whether by naturalization or by registration or by domicile or by residence may be deprived of his citizenship of India, by an order of the central government, if it is satisfied-
- that the registration or certificate of naturalization was obtained by him by means of fraud, false representation or concealment of any material fact; or
- that he has shown himself, by act or speech to be disloyal or disaffected towards the constitution of India; or
- that he, during the war in which India may be engaged, unlawfully traded or communicated with the enemy; or
- that within five years of his registration, he has been sentenced to the imprisonment for not less than two years; or
- he has been ordinarily resident out of India for 7 years continuously and during that period, he has been not student of country, nor in the service of Government of India.
PERSONS OF INDIAN ORIGIN (PIO) CARD
This was a form of identification issued to an individual who held a passport in a country other than Afghanistan, Srilanka, Bangladesh and could prove their Indian origin up to three generations before. In early 2011, the then prime minister, Manmohan Singh, announced that the person of Indian origin card will be merged with the OCI cardholder, this was proposed to be called the overseas Indian Card.
As of 9 January 2015, the PIO Cards scheme has been discontinued and applicants are to apply for OCI only.
Dual Citizenship of India
It is generally difficult to have dual citizenship of India. There are still some ways in which a person may have dual citizenship of India and another country including:
- Children of foreign diplomats, who are born in India, are also given dual citizenship during the period of their parents’ service in India,
- A minor child of Indian origin may hold dual citizenship of India and another country so that the minor can decide within six months of completing 18 years of age as to whether s/he preferred Indian citizenship.
A Company or Corporation under Article 19
In State Trading Corporation v. Commercial Tax Officer 1963 AIR 1811, the Supreme Court held that a company or a corporation could not be a citizen of India, and, therefore, could not claim, such of the fundamental rights, as had been conferred upon the citizens only.
The court observed that part II of the constitution dealt with citizenship uncertain circumstances only, but the tenor of these provisions was such that they could not apply to a juristic person like a corporation.
In R.C.Cooper v. Union of India 1970 AIR 564, it was held that if the action of the state impairs the rights of the company thereby affecting the rights of shareholders who are the citizen of India, the protection of Article 19 will be available to them.
New Addition in Citizenship Act
The Citizenship (Amendment) Act, 2019 [hereinafter referred to as CAA] inserted some provisions in citizenship act.
- Section 2 of CAA inserted a proviso in section 2 (1) (b) of Citizenship Act, 1955 [hereinafter referred to as Act, 1955]. Section 2(1) (b) defines ‘illegal migrant’.
According to this provision, Hindus, Sikhs, Parsis, Jains, Christians and Buddhists who entered India from Afghanistan, Pakistan and Bangladesh on or before 31 December 2014 will not be considered as illegal migrants. Since CAA only exempts persons from these 6 religions & 3 countries, migrants in India who do not belong to those religions and countries will be deemed illegal if they do not have valid documents or have overstayed in India.
- Section 3 of CAA inserted section 6B after section 6A in Act, 1955. Section 6A was inserted after ‘Assam Accord’ in 1985. Section 6A of Citizenship Act specifies the provisions concerning citizenship of persons as per the Assam Accord of 1985. According to Assam Accord and Section 6A of the Citizenship Act, Those who entered Assam prior to 1966 are deemed, legal citizens. Those who entered between 1966 and 24 March 1971 had to register themselves as foreigners and were eligible to vote in elections after ten years. Appropriate action was to be taken against those who entered Assam on or after 25 March 1971, as per relevant laws and be deemed as illegal migrants.
- ‘Section 6B provides that
(1) The Central Government or an authority specified by central Government to work on its behalf may, according to such conditions, restrictions and manner as may be prescribed, on an application made in this behalf, can grant a certificate of registration or certificate of naturalization to an illegal migrant
(2) A person granted the certificate of registration or certificate of naturalisation under sub-section (1) shall be deemed to be a citizen of India from the date of his entry into India.
(3) On and from the date of commencement of the Citizenship (Amendment) Act, 2019, any proceeding pending against a person in respect of illegal migration or citizenship shall stand abated on conferment of citizenship to him:
And any such person shall not be disqualified for making application for citizenship on the ground that the proceeding is pending against him and the Central Government or authority specified by it in this behalf shall not reject his application on that ground if he is otherwise found qualified for grant of citizenship under this section:
- The person who makes the application for citizenship under this section shall not be deprived of his rights and privileges to which he was entitled on the date of receipt of his application on the ground of making such application.
- Tribal areas of Assam, Meghalaya, Mizoram are exempted from these provisions of citizenship, According to sub-section (4) These all provisions of citizenship shall not apply to tribal area of Assam, Meghalaya, Mizoram or Tripura as included in the Sixth Schedule to the Constitution and the area covered under “The Inner Line” notified under the Bengal Eastern Frontier Regulation, 1873.’.
- Section 4 enacts the provisions relating to Overseas Citizen of India.
- Section 5 empowers central government to make the conditions, restrictions and manner for granting certificate of registration or certificate of naturalisation. Section 5 inserted clause (eei) in section 18 of Act, 1955 after sub-section (2).
Section 18 (ee) of Act, 1955 empowers central government to make rules for the purpose of Act, 1955.
- Section 6 inserted a proviso in the Third Schedule to the Act, 1955 after clause (d) that the person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community in Afghanistan, Bangladesh or Pakistan, the aggregate period of residence or service of Government in India as required under this clause shall be read as “not less than five years” in place of “not less than eleven years”.’.
At this time, Citizenship is most important issue in India. Perhaps after Independence, such a big protest not occurred as occurred for citizenship. This is all done against Citizenship (Amendment) Act, 2019, which grants citizenship whimsically to some community only except Muslims (explained above).
However, it will be better if government has to focus to prevent illegal migrants from boarders by implementing strict rules and fences rather than deporting them and implementing such illogical ways. Because it is just wastage of time, resources, and especially of money. And also it will just create hue and cry in country. It will also against humanity to do such act, to deport them there, where they have no home, and no resource.
We are developing country, where a large number of people have no means to get food, instead to focus on issues of poverty, job, education, and development of infrastructure, we are fighting on these irrelevant issues, just for politics, just for polarization, only for vote banks.
Author: Arshi Hayat Gangohi, ll.b 2nd year, Department of Laws, Panjab University Chandigarh
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