Citizenship Of India
A citizen can only enjoy all the civil and political rights of a state. If we see in Indian context, a citizen of India can vote for electing representatives or occupy public offices, which an alien cannot. A citizen enjoys all the fundamental rights while an alien enjoys limited fundamental rights.
Two major modes of acquisition of citizenship is jus soli and jus sanguinis. Under principle of Jus Soli, citizenship is acquired on the basis of birth within territory of state. Under principle of Jus sanguinis, citizenship is acquired on the basis of citizenship of parents. India follows a mix of these principles.
Article 5 to Article 11 of the Constitution deals with Citizenship. Article 5 to 10 deals with citizenship at the time of independence and as such it has not much relevance today. Parliament has been empowered exclusively to make laws in relation to citizenship under Article 11. Parliament has enacted Citizenship Act, 1955 which regulates provisions of citizenship after independence.
The Supreme Court has held in State Trading Corporation of India Ltd Vs. Commercial Tax Officer, Vishakhapatnam ( 1963 AIR 1811) that only a natural person can be a citizen. An artificial person cannot be a citizen.
Article 5 deals with citizenship at commencement of the Constitution. A person was treated as citizen of India at the time of commencement of the constitution who has his domicile in territory of India and who fulfilled one of the following conditions:
- Who is born in territory of India, or
- Either of his parents was born in India, or
- Who has been ordinarily resident in the territory of India for not less than five years immediately preceding commencement of constitution.
The Supreme Court has held in Pradeep Jain Vs. Union of India (1984 AIR 1420) that Art. 5 of the Constitution is very clear at this take and it only talks about one domicile, namely, “domicile in the territory of India.
Article 6 deals with rights of citizenship of persons who had migrated to India.
Persons, who had migrated to India before 19th July, 1948, were to be treated as citizen of India, if following conditions were fulfilled.
- If such person or either of his/her parents or any of his/her grand parents was born in undivided India.
- If such person has been ordinarily resident in territory of India since the date of his migration.
Persons, who had migrated to India after 19th July, 1948, were to be treated as citizen of India, if following conditions were fulfilled.
- If such person or either of his parents or any of his grand parents was born in undivided India
- Such person must be registered as a citizen by an officer appointed either by the Govt of India Act, 1935 or the Union Government under the present constitution.
- Such person should prove that he has resided in India for six months
- He must make an application for citizenship
Article 7 deals with migrants who have migrated to Pakistan. Persons who have migrated to Pakistan after 1st March, 1947 are not deemed to be citizens of India except such persons who have returned to the territory of India under a permit of resettlement or permanent return issued by or under authority of law.
Article 8 deals with rights of certain persons of Indian origin residing outside India. A person of Indian origin residing outside India was to be treated as citizen of India if following conditions were met.
- Any person who or either of whose parents or any of whose grandparents was born in undivided India
- Such person has been registered as citizen of India by diplomatic or consular representative of India
Article 9 provides that if a person has voluntarily acquired the citizenship of foreign state such person will not be deemed to be citizen of India
Article 10 provides that if a person is deemed to be citizen under Article 5 to Article 9, will continue to be citizen of India subject of law made by the Parliament.
Article 11 empowers the Parliament to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship.
CITIZENSHIP ACT, 1955
Parliament has enacted Citizenship Act, 1955 which regulates the acquisition and termination of citizenship and all other matters relating to citizenship. Citizenship of India can be acquired through birth, descent, registration or naturalization.
CITIZENSHIP BY BIRTH
Persons who are born between 26th January, 1950 and 1st July, 1987 in territory of India are citizens of India. Being born in India during this period is sufficient for citizenship.
Persons who are born between 1st July, 1987 and commencement of Citizenship Amendment Act, 2003 acquire citizenship of India only if either of his parents are citizen at the time of birth of such person.
Persons who are born on or after the commencement of Citizenship Amendment Act, 2003 are citizens of India only if both of his parents are citizens of India or one of parents is citizen of India and the other is not illegal migrant.
Illegal Migrants
The term “illegal migrants” have been introduced vide Citizenship (Amendment) Act, 2003 in light of issue of illegal migration to India.
Illegal migrants are such foreigners who have entered Indian Territory without valid passport or other requisite travel documents. Such foreigners are also illegal migrants who have entered Indian Territory with valid passport and other travel documents but remains in India beyond the permitted time.
An exception was carved out vide Citizenship (Amendment) Act, 2019 in respect of illegal migrants. A migrant who belong to Hindu, Sikh, Buddhist, Jain, Parsi, Christian Community from Afganistan, Bangladesh and Pakistan and who have migrated to India before 31st December, 2014 will not be treated as illegal migrants.
CITIZENSHIP BY DESCENT
A person born outside India can acquire citizenship of India by descent if following conditions are fulfilled.
A person born outside India between 26th January, 1950 and 10th December, 1992 can acquire Indian Citizenship if father of such person is citizen of Indian at the time of birth of the child.
A person born after 10th December, 1992 acquire Indian Citizenship if either of his parents is a citizen of India.
After commencement of the Citizenship (Amendment) 2003, a person will not acquire citizenship by descent unless his birth is registered at Indian Consulate within one year of birth or commencement of Citizenship (Amendment) Act, 2003, whichever is later or with permission of central govt. after expiry of such period.
No birth will be registered unless parents of such person declare that the minor does not hold passport of any other country.
If a minor is citizen of India as well as another country, he will cease to be citizen of India if such minor does not renounce the citizenship of another country within six months of attaining majority.
CITIZENSHIP BY REGISTRATION
Certain persons, who are not illegal migrants, can acquire citizenship by registration. Such persons have to take oath of allegiance to India. Persons who have renounced their citizenship or whose citizenship has been deprived of or terminated cannot acquire citizenship by registration. Following category persons can be granted citizenship by Registration.
- A person of Indian Origin who is ordinarily resident in India for seven years before making an application.
- A person of Indian Origin who is ordinarily resident in any country or place outside undivided India
- A person who is married to Indian Citizen and ordinarily resident in India for seven years before making an application
- Minor children of persons who are citizens of India
- Such person whose parents are registered as citizens of India
- Such person, who or either of his parents was citizen of independent India and is ordinarily resident in India for twelve months immediately before making an application for registration.
- Such person, who has been registered as an Overseas Citizen of India Cardholder for five years and who is ordinarily resident in India for twelve months before making an application for registration.
CITIZENSHIP BY NATURALISATION
If a person applies for citizenship by naturalization, Central Govt can grant certificate of naturalization if conditions under Schedule III of Citizenship Act is made. If a person has contributed substantially in art, science, philosophy, world peace, literature or human progress conditions in Schedule III may be waived by the Central Government.
CITIZENSHP BY INCORPORATION OF TERRITORY
If certain territory is acquired, Central Govt. by notification can grant citizenship to such persons of acquired territory.
RENUNCIATION OF CITIZENSHIP
A person can renounce citizenship by making a declaration. Central Government may not accept renunciation during war. A minor child of such person also loses citizenship with such declaration. A minor child after within one year of attaining majority may apply for citizenship.
TERMINATION OF CITIZENSHIP
Any person who voluntary acquired citizenship of another country by naturalization, registration or otherwise, such person ceases to be citizen of India.
DEPRIVATION OF CITIZENSHIP
If a person has acquired citizenship by registration or naturalization, such person can be deprived of citizenship in certain conditions as under:
- Citizenship by registration of naturalization has been acquired through fraud, misrepresentation and concealment of material fact
- Citizen has shown by his/her act or speech disloyality to the constitution
- Has traded or communicated with enemy country during war
- Has been sentenced for an imprisonment of two years within five years of registration as citizen
- Such citizen has ordinarily resided outside India for continuous period of seven years
OVERSEAS CITIZENHIP
Government of India launched the Overseas Citizenship of India (OCI) card scheme in August 2005 for persons of Indian Origin. OCI card is a lifelong visa for visiting India. The erstwhile Person of Indian Origin (PIO) card scheme which was started in the year 1999 was merged with OCI scheme in 2015. The deadline for conversion of PIO cards into lifelong OCI cards has been extended up to 31 December 2022. A foreign citizen can become OCI cardholder if following conditions are met
- Such person has been citizen of India on 26.01.1950 or thereafter
- Such person was eligible to become citizen of India on 26.01.1950;
- Such person who belonged a territory which became part of India after 15.08.1947
- Such person who is child, grand child or great grand child of such persons
- Minor child of such persons are also eligible persons to become OCI card holder.
- Spouse of foreign origin of Indian Citizen or OCI card holder is also eligible to become OCI card holder if such marriage has subsisted for at least two years.
Benefits of OCI
OCI card holder enjoy following rights.
- Multi-purpose, multiple entry, lifelong visa for visiting India.
- Exemption from registration with local police authority for any length of stay in India.
- Parity with NRIs in respect of economic, financial and education fields except in matters relating to the acquisition of agricultural/plantation properties.
Limitation of OCI
OCI cardholder do not have full rights like that of a citizen. OCI cardholder does not enjoy following rights:
- Do not have right of equality of employment
- Can not be elected as president or vice president
- Can not be appointed judge of High Court or Supreme Court
- Can not become a voter
- Can not become MLA or MP
- Can not be appointed to public service
NATIONAL REGISTER OF CITIZENS
Citizenship Act, 1955 was amended in 2003 whereby provisions of National Register of Citizens and National Identity Cards were introduced.
National Register of Citizen
Every citizen has to be compulsorily registered under National Register of Citizen. Every person has to be issued National Identity Cards. For this purpose provision has been also made for National Registration Authority.
National Population Register
National Population Register was introduced in Citizenship ( Registration of Citizens and issue of National Identity Cards) Rules, 2003. This Register has to contain data of all the persons who are usual residents of India. Thus, National Population Register includes both citizens and non-citizens. On the other hand National Register of Citizens only includes citizens of the country.
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Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.