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Methods of Acquiring and Losing of Citizenship under Indian Citizenship Act

A Citizen of a State is a person who enjoys full civil and political rights. State and Citizens are duty bound towards each other. Citizenship in India is not only based upon constitutional provisions but on Parliament’s legislation too. No person shall be a citizen of India by virtue of Article 5, or deemed to be a citizen of India by virtue of Article 6 or Article 8, if he has voluntarily acquired the citizenship of any foreign state. Thus, for a complete understanding regarding law related to citizenship, we need to learn both, the constitutional provisions and the Act of 1955.

Constitutional Provisions

The Constitution of India is the primary legal instrument that lays down who is deemed to be a Citizen of India. The Constitution of India does not define the term ‘citizen’. Citizenship is listed in the Union List under the Constitution and thus is under the exclusive jurisdiction of Parliament. The Conferment of a person as a citizen of India is governed under Articles 5 to 11 by Part II of the Constitution of India.

  1. Citizenship by Domicile [Article 5]
    All those domiciled and born in India were given citizenship. Even those who were domiciled and not born in India, but either of whose parents were born in India were considered as citizens. Anyone who had been an ordinary resident for more than five years was entitled to apply for citizenship.

    In Pradeep Jain v. Union of India [i], the Supreme Court has held that in India, Article 5 recognizes only one domicile viz., domicile of India. It does not recognize the notion of State domicile.
     
  2. Citizenship of Migrants to India from Pakistan [Article 6]
    Since Independence was preceded by partition and migration, Article 6 laid down that anyone who migrated to India before 19th July 1949, would automatically become an Indian citizen if either of his/her parents or grandparents was born in India. But those who entered into India after this, have to register themselves.
     
  3. Citizenship of Migrants of Pakistan [Article 7]
    If a person has migrated to Pakistan after 1st March, 1947, he/she shall not be considered as a citizen of India. An exception is made in favour of a person who has returned to India on the basis of permit for resettlement in India.

    In Bhawanrao Khan v. Union of India [ii], the Supreme Court held that “a foreign lady cannot claim Indian citizenship merely on the ground of long stay and inclusion of her name in the voter’s list”.
     
  4. Citizenship of Persons of Indian Origin residing outside India [Article 8]
    If a person is residing outside India but either of the parents or grandparents have taken birth in India and if the person is registered as a citizen of India by the Diplomatic or Consular representative of India, shall be considered as a citizen of India.

  5. Persons voluntarily acquiring Citizenship of a Foreign State not to be Citizens of India [Article 9]
    If a person has voluntarily adopted the citizenship of any Foreign State, then he/she won’t be considered as a citizen of India.

    In State of U.P. v. Rehmatullah [iii], the Supreme Court held that the Central Government is authorized to take action against people who have acquired the foreign citizenship and have lost the citizenship of India, but they are still residing in the country.

  6. Continuance of the Rights of Citizenship [Article 10]
    Any person who is deemed to be a citizen of India under any of the foregoing provisions shall continue to be a citizen of India subject to the provisions of any law that may be made by Parliament.

    In Ebrahim Wazir v. State of Bombay [iv], the constitutional validity of Influx from Pakistan Control Act, 1949 was put forward. The Supreme Court held that Section 7 of this Act was ultra vires of Parliament because to allow the forcible removal of an Indian citizen from India would be tantamount to destroy the right of citizenship conferred by Part II of the Constitution.

  7. Parliament to regulate the Rights of Citizenship by Law [Article 11]
    The Parliament has the right to make any provision with regard to the acquisition and termination of citizenship and any other matter relating to citizenship.


3. Citizenship Under The Citizenship Act, 1955

Parliament, in exercise of the power given to it under Article 11 of the Constitution has passed the Indian Citizenship Act, 1955. This Act provides for the acquisition and termination of Citizenship in India. The Indian legislation has enacted the Citizenship (Amendment) Acts of 1986, 1992, 2003, 2005, 2015 and 2019.

  1. Modes Of Acquiring Indian Citizenship

    The Citizenship Act, 1955 provides for the acquisition of Indian Citizenship after the commencement of the Constitution in 5 modes,

    1. Acquisition Of Citizenship By Birth [Section 3]

      Section 3 provides citizenship on the basis of birth and the important ingredient is that our birth should take place in India. Firstly, this Section said that whoever is taking birth in India from 26th January, 1950 to 1st July, 1987 would automatically get Indian Citizenship. It doesn’t matter that his/her parents are Indians or non – Indians. But this happened till 1987 only.

      The Amendment Act of 1986 changed this provision from 1st July, 1987 to 3rd December, 2003 and it said that the persons birth should be in India as well as his/her one parent should be an Indian to acquire Indian Citizenship. But by this Act, the problem was not getting solved and a new Amendment Act was introduced in 2003.
      The Section 21-B of Citizenship Act defines Illegal Immigrant. It says that if any traveler comes to India without any valid passport and any valid travel document or if he is having valid passport but he has exceeded the permitted time limit to stay in India and if he or she is engaged in all that, then they will be called as Illegal Immigrants. The Amendment Act of 2003 said that if anybody is taking birth in India after 3rd December, 2003 will get Indian Citizenship when his/her both parents or atleast any one parent must be an Indian and other parent should not be an illegal immigrant.
       
    2. Acquisition Of Citizenship By Descent [Section 4]

      Section 4 says that after 26th January 1950, whoever is taking birth outside India can also acquire Indian Citizenship by the help of their descent i.e., if his/her father is an Indian citizen, they would get Indian Citizenship. But this was till 10th December 1992, after that the Amendment Act of 1992 came into existence and it says about the gender neutrality. It ended the discrimination against women. After this amendment, either father or mother being Indian citizen, he/she could get Indian Citizenship.
      But this was still 3rd December 2004 only. The current law says that after 3rd December 2004, if anyone’s birth place is outside India then they will not get Indian Citizenship as before. Under 1 year of that child’s birth, their parents should go to that Country’s Indian Consulate and should register their child as Indian Citizen. Their child who is a minor doesn’t have any other country’s passport and currently this law only applies. So by birth and descent, very limited people were able to acquire Indian Citizenship now.
       
    3. Acquisition Of Citizenship By Registration [Section 5]

      To widen up the process of Indian Citizenship, Section 5 has been introduced, which is a registration process, which specifies some people’s categories and it says that the particular categories of people want to submit an application to the Central Government and they can also be registered as Indian Citizens.
      Persons of Indian Origin (PIO) are those people whose birth or whose parent’s birth took place in undivided India (British India) or on that territory of India which has been included after 15th August 1947, like Sikkim and Pondicherry were part of India after the Independence. So these people will be the Persons of Indian origin (PIO).
      Categories of PIO:
      1. people who is residing in India since last 7 years before making an application for registration;
      2. people of Indian origin who is residing outside India;
      3. persons who is married to Indian citizens;
      4. the minor children of Indian citizens;
      5. a person of full age and capacity who is residing in any common wealth country or in Republic of Ireland.
         
    4. Acquisition Of Citizenship By Naturalization [Section 6]

      Where an application is made in the prescribed manner by any person of full age and capacity, “not being an illegal migrant”[v] for the grant of a certificate of naturalization, the Central Government may, if satisfied that the applicant is qualified for naturalization, under the provisions of Third Schedule grant him a certificate of naturalization.

      The qualifications for naturalization of a person are:
      1. He should not be a subject of any country where Indians are prevented for being a citizen;
      2. If he already acquires other country’s citizenship, then he has to renounce that citizenship for acquiring Indian Citizenship;
      3. He has either resided in India or been in government service for 12 months immediately preceding the date of application;
      4. During the period of 14 years[vi] prior to these 12 months, he has either resided in India or been in government services for not less than 11 years;
      5. He should be of good character and he should have the adequate knowledge of a language specified in the Eighth Schedule;
      6. After that if he has been granted the certificate of naturalization, then he should intent to reside in India.
        If the Central government is of the opinion that the applicant has rendered distinguished service in the field of science, philosophy, art, literature, world peace or human progress generally, he may waive all or any of the above conditions for naturalization in his case.
         
    5. Acquisition Of Citizenship By Incorporation Of Territory [Section 7]

      This provision says that if any foreign territory becomes the part of India, then the Government of India will specify that who will known as Indian citizens of that foreign territory like when Pondicherry became the part of India, then the Government of India issued an order to tell that who all be qualified to become the Indian citizens.


3.ii. Modes Of Losing Indian Citizenship

The Citizenship Act, 1955 also lays down the three modes by which an Indian citizen, whether a citizen at the commencement of the Constitution or subsequent to it, may lose his/her citizenship. It may happen in any of the three ways : renunciation, termination and deprivation.

  1. Renunciation Of Citizenship [Section 8]

    An Indian Citizen of full age and capacity can renounce his Indian citizenship by making a declaration to that effect and having it registered. But if such a declaration is made during any war in which India is engaged, the registration shall be withheld until the Central Government otherwise directs. When a male person renounces his citizenship, every minor child of him ceases to be an Indian citizen. Such a child may, however, resume Indian citizenship if he makes a declaration to that effect within a year of his attaining full age, i.e. 18 years.
     
  2. Termination Of Citizenship [Section 9]

    If a citizen of India voluntarily acquires the citizenship of another country, he shall cease to be a citizen of India. During the war period, this provision does not apply to a citizen of India, who acquires the citizenship of another country in which India may be engaged voluntarily. If any question arises as to whether, when or how any person has acquired the citizenship of another country, it is to be determined by such authority and in such manner as may be prescribed by the rules.
     
  3. Deprivation Of Citizenship [Section 10]

    Deprivation is a compulsory termination of citizenship of India. A citizen of India by naturalization, registration, domicile and residence, may be deprived of his citizenship by an order of the Central Government if it is satisfied that:
    1. The citizen has obtained the citizenship by means of fraud, false representation or concealment of any material fact;
    2. The citizen has shown disloyalty to the Constitution of India;
    3. The citizen has unlawfully traded or communicated with the enemy during a war;
    4. The citizen has, within five years after registration or neutralization, been imprisoned in any country for two years;
    5. The citizen has been ordinarily resident out of India for seven years continuously.


Conclusion
Citizenship once acquired exists as a right of citizens, which cannot be otherwise taken away. Of course, ultimate powers rest with Parliament and it can terminate citizenship of any citizen through a law, but it has to be done through a valid Act of Parliament. Nothing less than that can affect the status of a person as a citizen. This has been provided under Article 10 of the Constitution of India.

End Notes:

  1. AIR 1984 SC 142 : (1984) 3 SCC 654.
  2. AIR 2002 SC 1614.
  3. AIR 1971 SC 1382
  4. AIR 1952 SC 229
  5. Substituted by the Citizenship (Amendment) Act, 2003
  6. Substituted by Act 6 of 2004, Section 18, for “twelve years” (w.e.f. 3-12-2004)

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