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Citizenship Under The Indian Constitution

The origin of citizenship can be traced back to Ancient Greece, when "citizens" were those who had a legal right to participate in the affairs of the state. However, by no means was everyone a citizen: slaves, peasants, women, or resident foreigners were mere subjects. For those who did have the privileged status of being citizens, the idea of "civic virtue" or being a "good" citizen was an important part of the concept, since participation was not considered only a right but also, first of all, a duty.[1]

Like any other modern democratic state, India also has two types of people- citizens and aliens. Citizens are the ones who are legitimate citizens of any state and enjoy all political and social rights whereas aliens are those who though residing in the territory of the state do not enjoy the same privileges and rights as citizens.

However, there are two types of citizenship-Single citizenship and Dual citizenship. The former one implies that all the people in a country irrespective of the state or territory they reside in. It implies uniform citizenship throughout the country while the latter indicates that despite being a citizen of the country one also has to acquire the citizenship of the state or territory, in which they reside.

The USA being a coming together federation follows the system of dual citizenship whereas India being a union of states follows the system of single citizenship. It ensures a sense of uniformity and a feeling of togetherness.

Under the Indian Constitution, citizenship is dealt with under Chapter II extending from Article 5 to Article 11.

Constitutional Provisions Relating To Citizenship

The constitution of India does not lay comprehensive permanent provisions relating to citizenship. However, the duty in this regard has been left to the Parliament to regulate and enact suitable legislation.

Part II of the Indian Constitution merely describes as who may be deemed to be a citizen of India at the commencement of the Constitution. The following may become the citizens of India at the commencement of the Indian Constitution:
  1. Citizenship by domicile
  2. Citizenship of emigrants from Pakistan
  3. Citizenship of migrants to Pakistan
  4. Overseas citizens of India

Citizenship By Domicile

Article 5 of the Indian Constitution lays down three criteria for a person to be a citizen at the commencement of the Constitution. Every person who satisfies any of the three criteria shall be a citizen of India. The three conditions are:
  1. Who was born in the territory of India
  2. Either of whose parents were born in the territory of India
  3. Who has been ordinarily resident in the territory of India[2]
Domicile in India is one of the key elements for the acquisition of Indian citizenship. However, the term domicile is nowhere defined in the Indian Constitution. The domicile of a person is considered to be that place where a person owes a permanent house. Thus, two elements are necessary for the existence of domicile;
  1. Permanent and indefinite residence of a particular kind
  2. An intention to reside permanently[3]

How to determine the domicile of a person-The Supreme Court in Aslam Khan v. Fazal Khan[4] held that intention is important in determining the domicile of a person. It can be inferred from the conduct of a person.

The intention must be a permanent intention to reside forever in the country where the residence has been taken up. Domicile is not the same thing as residence. Mere residence in a place is not sufficient to constitute a domicile. It must be accompanied by the intention to make it his permanent house. Thus, there has to be both the factum and animus to constitute the existence of a domicile.[5]

Citizenship Of Emigrants From Pakistan

Under Article 6 of the Indian Constitution emigrants from Pakistan are classified in two categories:
  1. Those who came to India before July 19, 1948
  2. Those who came to India after July 19, 1948
Article 6 of the Indian Constitution provides that a person who migrated from Pakistan to India shall be deemed to be a citizen of India at the commencement of the Constitution i.e. on 26 Jan 1950 if he or either of his parents or his grandparents were born in the undivided India and in addition to it, any of the two conditions enumerated here must be fulfilled:
  1. In case of migration before July 19, 1948 the person has been ordinarily residing in India
  2. In case of migration after July 19, 1948 the person must be registered as an Indian citizen by an Indian officer appointed for the purpose of registration.

Citizenship Of Migrants To Pakistan

Article 7 of the Indian Constitution overrides the above two articles. It states that a citizen by domicile or by migration to India ceases to be a citizen of India if he migrates back to Pakistan.

The proviso to Article 7 lays down an exception in favor of citizens who came back to India based on resettlement in India. Such a person is entitled to become a citizen of India if he fulfills the other conditions for emigrants from Pakistan laid down in Article 6 of the Indian Constitution.[7]

Thus article 7 overrides Articles 5 and 6. [8]Both article 6 and 7 uses the term 'migration'.

What does the expression migration include and convey? - The Supreme Court held that the term migrated has to be used construed concerning the context the purpose and the prevailing political condition at the time of the commencement of the Constitution. Thus, the term migrated means nothing except voluntarily leaving India and going to Pakistan permanently or temporarily[9].

Overseas Citizens Of India

Article 8 of the Indian Constitution grants citizenship to Indian nationals residing abroad provided they comply with the conditions laid down herein;

It lays down two conditions for the acquisition of citizenship by overseas nationals;
  1. Such a person who applies for citizenship under this article must be one who or either of whose parents or grandparents were born in India and is ordinarily residing in any country outside India.
  2. Such a person may be allowed to acquire citizenship at the commencement of the Constitution only if he is a registered citizen of India by any consular or diplomatic representatives of India.
An important condition in this regard is that the application for registration may be made before or after July 26, 1950, in the manner prescribed by the government of India.[10]

Termination of citizenship acquired under Article 5, 6 or 8:
Article 9 of the Indian Constitution provides that if a person voluntarily acquires the citizenship of any foreign state, he shall not be able to claim citizenship Article 5, 6 and 8[11].

It deals with only the voluntary acquisition of citizenship of a foreign State before the commencement of the Constitution and not afterward. Cases of voluntary acquisition after the commencement of the Constitution are to be dealt with by the government of India under the Citizenship Act of 1955.[12]

Continuance of the Rights of Citizenship[13]:
Article 10 of the Indian Constitution provides that any person who is deemed to be a citizen under the foregoing provisions shall continue to be a citizen subject to any legislation passed by the Indian Constitution.

Thereby, these provisions only lay down structured provisions as to who may be a citizen of India at the commencement of the Indian Constitution and not who may acquire citizenship after the commencement of the Constitution. In this regard, article 11 of the Indian Constitution empowers the government to make provisions for such acquisitions and terminations and other matters related to citizenship.[14]

Thus, the government of India passed a new legislation (Citizenship Act, 1955) with provisions relating to the acquisition termination and other related provisions of citizenship after the commencement of the Indian Constitution.

  1. 'Citizenship And Participation'<> accessed 9 November 2023
  2. Article 5 of the Indian Constitution
  3. Pradeep Jain v. Union of India (1984) SC 142
  4. (1959) J&K 83
  5. Michael v. State of Bombay, (1956) Bom. 729
  6. Indian Constitution Law of India 1950, art 6
  7. Constitution Law of India 1950, art 7
  8. State of Bihar v. Kumar Amar Singh (1955) SC 282
  9. Court in Kulathi v. State of Kerela (1967) SC 1614
  10. Constitution Law of India 1950, art 8
  11. Constitution Law of India 1950, art 6
  12. DR. J.N. Pandey Constitutional Law of India (59th edn, Central Law Agency 2022)
  13. Constitution Law of India 1950, art 10
  14. Constitution Law of India 1950, art 11

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