Constitution - Citizenship of India

Citizenship of India

Citizenship of India (Article 5-11)

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Meaning of Citizenship

The legal status of a person as a legitimate citizen of a state or as a member of a country is known as citizenship. The Indian Constitution’s Articles 5 to 11 deal with the concepts of citizenship.

There are two types of people in India: citizens and aliens (foreigners). Citizens are full members of the Indian State and have complete civil and political rights. Aliens (foreigners), on the other hand, are citizens of another country and hence do not have full civil and political rights. They are classified as either friendly or hostile aliens (foreigners). Friendly aliens (foreigners) are the subjects of those countries that have friendly relations with India. In contrast, enemy aliens (foreigners) are subjects of the country at war with India. They have less rights than friendly aliens, for example, they are not protected against arrest and detention (Article 22).

The following fundamental rights are available only for citizen:

The right not to be discriminated against any Citizen on Grounds of religion, race, caste, sex and place of birth (Article 15).
The right to equality of opportunity in the matter of public employment (Article 16)
The right to six freedoms enumerated in Article 19, freedom of speech, expression, assembly, association, movement, residence, profession.
Cultural and educational rights conferred by Articles 29 and 30.
There are certain offices under the constitution which can be occupied by citizens only e.g., office of the President, Vice President, Judges of the Supreme Court or of a High Court, Attorney- General, Governor of a State and Advocate General of State.
The right to vote for election to the House of the People and the legislative Assemblies of States is available to the citizens only and only they can become members of the Union and State legislatures.

Along with the rights mentioned above, citizens owe some duties to the Indian State, such as paying taxes, honouring the national flag and anthem, protecting the country, and so on.

The rights guaranteed by Article 14 and 21 are available to Alein too.

Indian Constitution- Part II (Articles 5-11) deals with Indian citizenship. Article 5 deals with Indian citizenship at the commencement of the Constitution (November 26, 1949).

Article 11 empowers Parliament of India to make laws for such matters (Citizenship). In exercise of its power the Citizenship Act was enacted by Parliament in 1955. There are the provision for acquiring and terminating Indian citizenship in this act.

At the commencement of the Constitution, the following persons shall be citizens of India under Articles 5 – 8 of the Constitution of India.

Citizenship by domicile ( Article 5).
Citizenship of emigrants from Pakistan ( Article 6).
Citizenship of migrants to Pakishtan ( Article 7).
Citizenship of Indians abroad ( Article 8).

1. Citizenship by domicile ( Article 5).

Article.-5 Citizenship by domicile at the commencement of the Constitution:

According to article 5 at the commencement of this Constitution, every person who has his domicile in the territory of India and-

who was born in the territory of India; or
either of whose parents was born in the territory of India; or
who has been ordinarily resident in territory of India for not less than five years immediately before the commencement of the Constitution, shall be a citizen of India.

Note : Two elements are necessary for the existence of domicile-

A residence of a particular kind, and
An Intention of a Particular kind.

Case Law: In Pradeep Jain v. Union of India AIR 1984 SC 142: ( 1984) 3 SCC 654.

The SC has held that in India Article 5 recognises only one domicile viz., domicile of India. It has only one citizenship viz. the Citizenship of India.

In Mohammad Raza v. State of Bombay, AIR 1956 SC 1436:

The Court held that though the appellant was original resident, but he did not acquire Indian Citizenship because he did not have a domicile in India.

In Louis De Raedt v. Union of India ( 1991) 3 SCC 554: The Court held that the Petitioners failed to establish that they had an intention to reside in India Permanently. The Petitioners did not have their domocile in India. For the acquisition of a domicile of choice, it must be shown that the person concerned had a certain state of mind, If he claims that he had

acquired a new domicile a particular time he must prove that he had formed the ‘ intention of making his permanent home in the country of residence’.

Naziranbai v. State of M.P., AIR 1957 MB 1

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 domocile of an infant generally follows the domicile of his father.

Prakash v. Shahni, AIR 1956 J & K 83

The Court held that A Widow retains the domicile of her husband until changed by her own act.

Karimunissa v. State of M.P., AIR 1955 Nag.6.

The Court held that A married woman takes the domicile of her husband.

Aslam Khan v Fazal Khan, AIR 1959 All. 79.

Intention is an important element in determining the domicile of a person It can be inferred from the conduct of persons. Thus a person in Government service, who was given the choice for opting for India or Pakistan, actually went to Pakistan, served there under the Government of Pakistan, but who subsequently resigned his job there and came to India cannot claim the benefit of Article 5 for he never became the Citizen of India.

2. Citizenship of emigrants from Pakistan ( Article 6).

Article 6. Rights of citizenship of certain persons who have migrated to India from Pakistan.

Persons who have migrated from Pakistan to India have been divided in two categories for the purpose of citizenship-

Those who came to India before July 19, 1948 and
Those who came on or after July 19, 1948.

Article 6 states that a person who has migrated to the India from the Pakistan shall be a citizen of India at the commencement of the Constitution on 26^th January, 1950 if he or either of his parents or any of his grand-parents were born in undivided India and-

In the case where he migrated to India before July 19, 1948 and he has been ordinarily residing in India since the date of his migration, or
In the case where he migrated on or after July 19, 1948 and he has been registered as a citizen of India.

(by an officer appointed by the Government of India on an application made by him in the form and manner prescribed by that Government for the purpose.)

But There is need to reside in India for at least six months immediately before the date of his application for registration.

Note – Undivided India means – India defined in the Government of India Act, 1935 (as originally enacted); July 19, 1948 means – ( The date on which the permit system for such migration was introduced)

3. Citizenship of migrants to Pakishtan ( Article 7).

Article .- 7 Rights of citizenship of certain migrants to Pakistan-

According to Article 7 A citizen by domicile (Article 5) or by migration (Article 6) shall not be deemed to be a citizen of India if he has migrated to Pakistan after March 1 1947.

But a person who has returned to India on the basis of permit for resettlement in India.if he fulfils other all conditions urgent for emigrants from Pakistan after July 19, 1948, under Article 6. He can register himself as citizen of India.

( in the same manner as a person migrating from Pakistan after July 19, 1948.)

Case :

Kulathi v. State of Kerala Air 1967 SC 1614, followed in Mashkurul Hassan v.Union of |India AIR 1967 SC 565.

In this case the Majority held that the word ‘ migrate’ was used in a wider sense of moving from one country to another with the qualification that such movement was for permanent residence.

The SC has overruled its earlier decision in Smt. Shanno Devi v. Mangal Sain, Air 1961 SC 58, in which it was held that the word ‘ migrated’ meant going from one place to another with the intention of permanently residing in the latter place.

In State of Bihar v. Kumar Amar Singh AIR 1955 SC 282

It was held that ‘ there could be no doubt that the lady must be held to have migrated from the territory of India after 1^st March, 1947, although her husband stayed in India.but she could not prove that she went to Pakistan for a temporary purpose.” The SC observed: “ Article 7 clearly overrides Article 5. It is pre- emptory in its scope and makes no exception for such a case of the wife migrating to Pakistan leaving her husband in India.”

In Bhaanrao Khan v. Union of India, AIR 2002 SC 1614.

The SC has held that those who had voluntatily migrated to Pakistan and became citizens of Pakistan cannot claim the citizenship of India on the ground that they had been living in the territory of India for a long time and their names have been included in the voters list also.

4. Citizenship of Indians abroad ( Article 8).

Article. 8 Rights of citizenship of certain persons of Indian origin residing outside India

Article 8 states that, any person who or either of whose parents or any of whose grand-parents was born in India as defined in the Government of India Act, 1935 (as originally enacted), and who is ordinarily residing in any country outside India, shall be deemed to be a citizen of India if he has been registered as a citizen of India by the Diplomatic or Consular representative of India in the country. where he is for the time being residing on an application made by him to such diplomatic or consular representative, whether before or after the commencement of the Constitution ( 26^th January,1950) in the form and manner prescribed by the Government of the Dominion of India or the Government of India.

In Short According to Article 8 any person who or either of whose parents or any of whose grand-parents was born in undivided India may be indians if they register themselves as a citizen of India by the Diplomatic or Consular representative of India in the country where he is for the time being residing.

Article. – 9 Persons voluntarily acquiring citizenship of a foreign State not to be citizens-

Article 9 states that If a person voluntarily acquires the citizenship of any foreign State he shall not be a citizen of India under Article 5,6 and 8.

Article.- 10 Continuance of the rights of citizenship

Article 10 states that every person who is or is deemed to be a citizen of India under any of the foregoing provisions of this Part, shall continue to be a citizen of India subject to the provisions of any law that may be made by Parliament.

Article. – 11 Parliament to regulate the right of citizenship by law

Article 11 empowers Parliament to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship.

Case In Ebrahim Wazir v. State of Bombay, AIR 1952 SC 229

The Supreme Court held that the right of citizenship could only be taken away by recourse to Article 11 of the Constitution. Thus in absence of any express law made for a different purpose.

Article 10 & 11 confers plenary power to Parliament

Citizenship Act 1955 and Citizenship Amendment Acts,

Parliament has passed the Citizenship Act, 1955 in exercise of the power given to it under Article 11 of the Constitution.

Provisions for Citizenship of India

Articles 5 – 11 (Part II) of the Constitution deal for Citizenship of India.
The Citizenship Act, 1955 has been passed by Parliament. It has been amended by
- the Citizenship (Amendment) Act 1986,
- the Citizenship (Amendment) Act 1992,
- the Citizenship (Amendment) Act 2003,
- the Citizenship (Amendment) Act, 2005,
- the Citizenship (Amendment) Act, 2015,
- the Citizenship (Amendment) Act, 2019.
In India, nationality is usually determined through jus sanguinis (citizenship by right of blood) rather than jus soli (citizenship by right of birth within the territory).

Acquisation & Termination of Indian Citizenship

Indian Citizenship can be obtained in the following ways:

By Birth
By Descent
By Registration
By Naturalisation (at the commencement of the Constitution, and
Incorporation of Territory

Citizenship by birth (Section – 3)

Every individual born in India on or after 26.01.1950 but before 01.07.1987 is an Indian citizen, regardless of his or her parents’ nationality.
Every individual born in India between July 1, 1987, and December 2, 2004, is a citizen of India if either of his or her parents are a citizen of the country at the time of his or her birth.
Every individual in India on or after December 3, 2004, is a citizen of the country if both parents are Indians or if at least one parent is a citizen and the other is not an illegal migrant at the time of birth.
The children of foreign diplomats stationed in India, as well as enemy aliens, are not eligible for Indian citizenship by birth.

Acquisition Citizenship by Registration:

On application, the Central Government may register any person (other than an illegal migrant) as a citizen of India if he falls into one of the following categories:
- A person of Indian origin who has lived in India for seven years prior to registering for registration.
- A person of Indian origin who resides in any country other than undivided India.
- A person who is married to an Indian citizen and has lived in the country for at least seven years before applying for registration.
- Children of Indian citizens who are minors.
- A person of full age and capacity whose parents are Indian citizens;
- A person of full age and capacity who was an earlier citizen of independent India, or either of his parents, and is ordinarily resident in India for twelve months prior to making an application for registration;
- A person of full age and capacity who has been registered as an overseas citizen of India cardholder for five years and has been ordinarily residing in India for twelve months prior to applying for registration.
A person is considered to be of Indian descent if he or either of his parents was born in undivided India or in any other territory that became part of India after August 15, 1947.
Before they can be enrolled as citizens of India, all of the above categories of people must take an oath of allegiance.

By Descent:

A person born outside India on or after January 26, 1950, is a citizen of India by descent if his or her father was born in India.
A person born outside India on or after December 10, 1992, but before December 3, 2004, if either of his or her parents was a citizen of India by birth.
If a person born outside India or after December 3, 2004, wants to become a citizen, his or her parents must state that the minor does not have another country’s passport and that his or her birth is recorded at an Indian consulate within one year of birth.

By Naturalisation

A person can obtain citizenship by naturalisation if he or she has been usually resident in India for 12 years (during the 12 months preceding the date of application and 11 years in total) and fulfils all the qualifications listed in the third schedule of the Citizenship Act.

By Territorial Incorporation:

If a foreign territory becomes a part of India, the Government of India specifies who among the population of the territory will be Indian citizens. Such individuals become citizens of India from the notified date.

The Act does not permit dual nationality or citizenship. It only permits citizenship for those individuals who acquired citizenship through birth, descent, registration, naturalisation and territorial incorporation.
The act has been amended six times in 1986, 1992, 2003, 2005, 2015 and 2019.

Important amendments are:

1986 Amendment: The 1986 amendment to Section 3 was less inclusive as it added the requirement that those who were born in India on or after January 26, 1950 but before July 1, 1987, shall be an Indian citizen. This is in contrast to the constitutional provision and the original Citizenship Act, which granted citizenship on the principle of jus soli to everyone born in India.
In addition to being born in India, a person can only obtain citizenship if either of his parents was an Indian citizen at the time of birth if they were both born after July 1, 1987, and before December 4, 2003.

2003 Amendment: The amendment enhanced the aforementioned requirement in light of Bangladeshi infiltration.
For those born on or after December 4, 2004, the legislation now stipulates that in addition to the fact that they were born, either one or both of their parents must be citizens of India, and that no other family members may be illegal immigrants.
With these limiting revisions, India has almost entirely adopted the constricting jus sanguinis (blood relationship) premise.

This states that even if a person has lived in India for seven years, they cannot apply for citizenship by Naturalisation or registration.

2015 Amendment – The provisions in the Principal Act relating to Overseas Citizens of India (OCI) have been updated by the Citizenship (Amendment) Act, 2015, which was passed. The Persons of Indian Origin (PIO) card scheme and the OCI card scheme have been combined to form a new scheme named “Overseas Citizen of India Cardholder.”

2019 Amendment – Persecuted religious minorities from Pakistan, Bangladesh, and Afghanistan who entered India prior to December 31, 2014 are granted Indian citizenship under the Citizenship Amendment Act, 2019. Muslims are not included but Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians are covered under the statute. Additionally, the law reduces residency requirement for citizenship from 11 to 5 years for certain immigrants.

Constitution – Citizenship of India