Indian Constitution | Citizenship Download PDF

Indian Constitution | Citizenship Download PDF

Meaning of Citizenship

THE population of a State is divided into two classes—citizens and aliens. While citizens enjoy full civil and political rights, aliens do not enjoy all of them. Citizens are members of the political community to which they belong. They are the people who compose the State.

Constitutional Rights and Privileges of citizens of India

The question of citizenship became particularly important at the time of Constitutional the making of our Constitution because the Rights and the Constitution sought to confer certain rights and privileges of Citizens of privileges upon those who were entitled to Indian India. citizenship while they were to be denied to ‘aliens’. The latter were even placed under certain disabilities.
Thus, citizens of India have the following rights under the Constitution which aliens shall not have:
(i) Some of the Fundamental Rights belong to citizens alone, such as,— Arts. 15, 16, 19.
(ii) Only citizens are eligible for certain offices, such as those of the President [Art. 58(1)(a)]; Vice-President [Art. 66(3)(a)]; Judge of the Supreme Court [Art. 124(3)] or of a High Court [Art. 217(2)]; Attorney-General [Art. 76(2)]; Governor of a State [Art. 157]; Advocate-General [Art. 165].
(iii) The right of suffrage for election to the House of the People (of the Union) and the Legislative Assembly of every State [Art. 326] and the right to become a member of Parliament [Art. 84] and of the Legislature of a State [Art. 191(d)] are also confined to citizens.
All the above rights are denied to aliens whether they are ‘friendly’ or ‘enemy aliens’. But ‘enemy aliens’ suffer from a special disability; they are not entitled to the benefit of the procedural provisions in Cls. (l)-(2) of Art. 22 relating to arrest and detention. An alien enemy includes not only subjects of a State at war with India but also Indian citizens who voluntarily reside in or trade with such a State.

Constitutional and statutory basis of citizenship in India

The Constitution, however, did not intend to lay down a permanent or comprehensive law relating to citizenship in India. It simply described the Constitutional and classes of persons who would be deemed to be the statutory basis of citizens of India at the date of the commencement of the Citizenship in Constitution and left the entire law of citizenship to be India. regulated by some future law made by Parliament. In
exercise of this power, Parliament has enacted the Citizenship Act (57 of 19551), making elaborate provisions for the acquisition and termination of citizenship subsequent to the commencement of the Constitution the provisions of this Act1 are to be read with the provisions of Part II of the Constitution, in order to get a complete picture of the law of Indian citizenship.
In view of the fact that the Act of Parliament only deals with the modes of acquisition of citizenship subsequent to the commencement of the Constitution, it would be convenient to deal with them separately.

A. Persons who beacme citizens on January 26, 1950

A. Under Arts. 5-8 of the Constitution, the became Citizens on following persons became citizens of India at the January 26, 1950. commencement of the Constitution—
I. Every person who born as well as domiciled in the ‘territory of India’—irrespective of the nationality of his parents [Art. 5(a)].
II. Every person who domiciled in the ‘territory of India’, either of whose parents was bom in the territory of India—irrespective of the nationality of his parents or the place of birth of such person [Art. 5(b)],
III. Every person who or whose father or mother was not bom in India, but who (a) had his domicile2, ^ in the ‘territory of India’, and (b) had been ordinarily residing within the territory of India for not less than 5 years immediately preceding the commencement of the Constitution. In this case also, the nationality of the person’s parents is immaterial. Thus, a subject of a Portuguese Settlement, residing in India for not less than 5 years immediately preceding the commencement of the Constitution, with the intention of permanently residing in India, would become a citizen of India at the commencement of the Constitution [Art. 5(c)].
IV. A person who had migrated from Pakistan, provided—
(i) He or either of his parents or grand-parents was born in ‘India as defined in the Government of India Act, 1935 (as originally enacted)’ and—
(ii) (a) if he had migrated before July 19, 1948—he has ordinarily resided within the “territory of India” since the date of such migration (in his case no registration of the immigrant is necessary for citizenship); or
(b) if he had migrated on or after July 19, 1948, he further makes an application before the commencement of this Constitution for registering himself as a citizen of India to an officer appointed by the Government of India, and is registered by that officer, being satisfied that the applicant has resided in the territory of India for at least 6 months before such application [Art. 6].
V. A person who migrated from India to Pakistan after the 1st March,
1947, but had subsequently returned to India under a permit issued under the authority of the Government of India for resettlement or permanent return or under the authority of any law provided he gets himself registered in the same manner as under Art. 6(b) (ii) [Art. 7]. ‘
VI. A person who, or any of whose parents or grand-parents was bom in ‘India’ as defined in the Government of India Act, 1935 (as originally enacted) but who is ordinarily residing in any country outside India (whether before or after the commencement of this Constitution), on application in the prescribed form, to the consular or diplomatic representative of India in the country of his residence [Art. 8], (Provision was thus made for Indians living in foreign countries at the date of commencement of the Constitution.)

B. Acquisition of Citizenship after January 26, 1950

B. The various modes of acquisition of citizenship after prescribed by the Citizenship Act, 1955, are as January 26, 1950. follows;
(a) Citizenship by birth: Subject to S. 3(2) of the Citizenship Act, 1955 Every person bom in India—(i) on or after January 26, 1950, but before the 1st day of July 1987; (ii) on or after 1st day of July 1987 but before the commencement of the Citizenship (Amendment) Act, 2003 and either of whose parents is a citizen of India at the time of his birth; (iii) on or after the commencement of the Citizenship (Amendment) Act, 2003 where – (I) both of his parents are citizen of India; or (II) one of whose parents is a citizen of India and the other is not an illegal migrant at the time of his birth, shall be a citizen of India by birth. However a person shall not be a citizen of India by virtue of mere birth if at the time of his birth—(a) either his father or mother 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 a citizen of India; or (b) his father or mother is an enemy alien and the birth occurs in a place then under occupation by the enemy.
(b) Citizenship by descent. Broadly speaking, a person bom outside India (i) on or after January 26, 1950, but before the 10th day of December, 1992, if his father is a citizen of India at the time of his birth; or (ii) on or after the 10th day of December, 1992, if either of his parents is a citizen of India at the time of his birth shall be a citizen of India by descent. However A minor who is a citizen of India by virtue of descent and is also a citizen of any other country shall cease to be a citizen of India if he does not renounce the citizenship or nationality of another country within six months of attaining full age.
(c) Citizenship by registration. Several classes of persons (who have not otherwise acquired Indian citizenship) can acquire Indian citizenship by registering themselves to that effect before the prescribed authority, e.g., persons of Indian origin who are ordinarily resident in India and have been so resident for seven years28 immediately before making the application for registration; persons who are married to citizens of India; 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]2C before making an application for registration.
(d) Citizenship by naturalisation. A foreigner not being an illegal migrant can acquire Indian citizenship, on application for naturalisation to the Government of India.
(e) Citizenship by incorporation of territory. If any new territory becomes a part of India, the Government of India shall specify the persons of that territory who shall be the citizens of India.
(f) In 1985 a special provision was also added as to citizenship of persons of Indian Origin covered by the Assam Accord. Under Sub¬section 2 of Section 6A two conditions are required to be satisfied— (i) persons who are of Indian Origin (undivided India) came before 1-1-1966 to Assam from the specified territory, and (ii) have been “ordinarily resident” in Assam as it existed in 1985 since the date of entry in Assam. [State of Arunachal Pradesh v. Khudiram Chakma, AIR 1994 SC 1961]

Concept of overseas citizenship of India

The Government of India in 2005 bv amending The Citizenship Act, Concept of 1955, introduced concept Overseas Citizenship of India
Overseas which most people mistakenly refer to as ‘dual Citizenship of citizenship’. Persons of Indian Origin of certain India. categories who migrated from India and acquired citizenship of a foreign country, other than Pakistan and Bangladesh, are eligible to be granted an Overseas Citizenship of India on an application made in this behalf to the Central Government as long as their home country allow dual citizenship in some form or the other under their local laws. In 2015 the Citizenship (Amendment) Act, 2015 has been passed by the parliament substituting the words “overseas citizen of India” with the words “Overseas Citizen of India Cardholder” and making enabling provisions for registration of Overeas Citizen of India Cardholder, conferment of certain rights on such citizens, renunciation of overseas citizenship and cancellation of registration as Overseas Citizen of India Cardholder. The Act outlines certain qualifications for registering a person as an Overseas Citizen of India. The Act provides certain additional grounds for registering for an Overseas Citizen of India card. These are: (i) a minor child whose parent(s) are Indian citizens; or (ii) spouse of foreign origin of an Indian citizen or spouse of foreign origin of an Overseas Citizen of India cardholder subject to certain conditions; or (iii) greatgrandchild of a person who is a citizen of another country, but who meets one of several conditions (for example, the greatgrandparent must be a citizen of India at the time of commencement of the Constitution or any time afterwards). An Overseas Citizen of India is entitled to some benefits such as a multipleentry, multipurpose lifelong visa to visit India. The Citizenship Act provides that any person who is/has been a citizen of Pakistan or Bangladesh or any other country which is notified by the central government will be ineligible to apply for Overseas Citizenship of India. The amending Act 2015 extends this provision to cover persons whose parents/grandparents/greatgrandparents were citizens of any of the above countries. The Act also introduces a new provision which allows the central government to register a person as an Overseas Citizen of India cardholder even if she/he does not satisfy any of the listed qualifications. This is permissible if special circumstances exist Renunciation and cancellation of overseas citizenship: The Act provides that where a person renounces their overseas citizenship, their minor child shall also cease to be an Overseas Citizen of India. The amending Act extends this provision to cover spouses of Overseas Citizen of India cardholders. The amending Act also allows the central government to cancel the Overseas Citizenship of India card where it is obtained by the spouse of an Indian citizen or Overseas Citizen of India cardholder, if: (i) the marriage is dissolved by a court, or (ii) the spouse enters into another marriage even while the first marriage has not been dissolved.

Merger of Overseas Citizen of India and Persons of Indian origin schemes

Currently, the central government provides for two schemes for Indian origin persons, and their families, the’ Persons of Indian Origin card and the Overseas Citizen of India card. Persons of Indian Origin enjoy fewer benefits than Overseas Citizens of India. For example, they are entided to visa free entry into India for 15 years, while Overseas Citizens of India are provided a lifelong visa. The amending Act provides that the central government may notify that Persons of Indian Origin cardholders shall be considered to be Overseas Citizen of India cardholders from a specified date i.e. 6 January, 2015.
In exercise of the powers conferred by s. 18 of the Citizenship Act, 1955, the Central Government made the Citizenship Rules, 2009, which has further been amended vide the Citizenship (Amendment) Rules, 2015. It provides that the central government may notify that, Persons of Indian Origin cardholders shall be considered to be Overseas Citizen of India cardholders from a specified date.

Loss of Indian citizenship

The Citizenship Act, 1955, also lays down how the citizenship of India may be lost—whether it was acquired under the citizenship Indlan Citizenship Act, 1955, or prior to it—under the provisions of the Constitution (i.e., under Arts. 5-8). It may happen in any of the three ways—renunciation, termination and deprivation.
(a) Renunciation is a voluntary act by which a person holding the citizenship of India as well as that of another country may abjure one of them.3 ’
(b) Termination shall take place by operation of law as soon as a citizen of India voluntarily acquires the citizenship of another country.
(c) Deprivation is a compulsory termination of the citizenship of India, by an order of the Government of India, if it is satisfied as to the happening of certain contingencies, e.g., that Indian citizenship had been acquired by a person by fraud, or that he has shown himself to be disloyal or disaffected towards the Constitution of India.

One citizenship in India

It should be noted in this context, that our Constitution, though federal, provides for one citizenship only, namely, the citizenship of India. In federal States like the U.S.A. and Switzerland, there is a dual citizenship, namely, federal or national citizenship and citizenship of the State where a person is bom or permanendy resides, and there are distinct rights and obligations flowing from the two kinds of citizenship. In India, a person bom or resident in any State can acquire only one citizenship, namely, that of India and the civic and political rights which are conferred by the Constitution upon the citizens of India can be equally claimed by any citizens of India irrespective of his birth and residence in any part of India.
Permanent residence within a State may, however, confer advantages in certain other matters, which should be noted in this context:
(a) So far as employments under the Union are concerned, there shall be no qualification for residence within any particular territory, but by Art 16(3) of the Constitution, Parliament is empowered to lay down that as regards any particular class or classes of employment under a State or a Union Territory residence within that State or Territory shall be a necessary qualification. This exception in the case of State employments has been engrafted for the sake of efficiency, insofar as it depends on familiarity with local conditions.
It is to be noted that it is Parliament which would be the sole authority to legislate in this matter and that State Legislatures shall have no voice. To this extent, invidious discrimination in different States is sought to be avoided. Parliament, in the exercise of this power, enacted die Public Employment (Requirement as to Residence) Act, 1957, for a temporary duration. By this Act, Parliament empowered the Central Government to make rules, having force for a specified period, prescribing a residential
requirement only for appointment to non-Gazetted posts in Andhra Pradesh, Himachal Pradesh, Manipur and Tripura. Since die expiry of this Act in 1974, nobody can be denied employment in any State on the ground of his being a non-resident in that State.
(b) As will be seen in the Chapter on Fundamental Rights, Art. 15(1), which prohibits discrimination on grounds only of race, religion, caste, sex or place of birth, does not mention residence. It is, therefore, constitutionally permissible for a State to confer special benefits upon its residents in matters other than those in respect of which rights are conferred by the Constitution upon all citizens of India. One of these, for instance, is the matter of levying fees for admission to State educational institutions. The Supreme Court has held that because discrimination on the ground of residence is not prohibited by Art. 15, it is permissible for a State to offer a concession to its residents in the matter of fees for admission to its State Medical College.
(c) So far as the State of Jammu and Kashmir is concerned, the Legislature of the State is authorised to confer special rights and privileges upon persons permanently resident in the State as respects—
(i) employment under the State Government;
(ii) acquisition of immovable property in the State;
(iii) settlement in the State; or
(iv) right to scholarships and such other forms of aid as the State Government may provide.
The Constitution recognises only one domicile, namely, the domicile in India. Article 5 of the Constitution is clear and explicit on this point and it refers only to one domicile, namely, “domicile in the territory of India.” The legal system which prevails throughout the territory of India, is one single indivisible system. Though different domicile rules in different states actually defeat the advantages of single-citizenship. It engenders provincialism. The concept of ‘domicile’ has no relevance to die applicability of municipal laws, whether made by the Union of India or by the States. It would not, therefore, be right to say that a citizen of India is domiciled in one state or another, forming part of the Union of India. The domicile which he has, is only one domicile, namely, domicile in the territory of India. When a person who is permanently resident in one State goes to another State with the intention to reside there permanently or indefinitely, his domicile does not undergo any change: he does not acquire a new domicile of choice. His domicile remains the same, namely, Indian domicile. Moreover, to think in terms of state domicile will be highly detrimental to the concept of unity and integrity of India.