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The Nuts And Bolts Of Indian Citizenship

In this we are going to discuss about the part II of the Indian constitution i.e., Citizenship and various amendments that had been amended in The Citizenship Act, 1955.
The nationality law of India is primarily based on citizenship by right of blood (jus sanguinis) and not a citizenship by right of birth within a territory (jus soli). Article 5 to Article 11 of the Indian Constitution governs Indian citizenship and the law in regard to this is the Citizenship Act of 1955.

The 1955 Act was amended six times — 1986, 1992, 2003, 2005, 2015 and 2019. While the 2003 amendment mandated the government to have a National Register of Citizens, the latest one seeks to ease the citizenship process for the persecuted minorities — Hindu, Sikh, Buddhist, Jain, Parsi and Christian — of Pakistan, Bangladesh and Afghanistan.

Meaning Of Citizenship:

The population of state is divided into two classes- Citizens & Aliens. A citizen of a state is a person who enjoys full civil and political rights. Citizens are different from aliens who do not enjoy all these rights.

Under the Indian constitution, certain fundamental rights are available only to the citizens, namely: Right against discrimination on the grounds of religion, race, caste, sex or place of birth (Article 15); right to equality of opportunity in matter of public employment (Article 16); freedom of speech and expression, assembly, association, movement, residence and profession (Article 19); cultural and educational rights (Article 29 and 30); and right to vote and become members of the union and state legislatures.

Several offices can also be occupied exclusively by citizens: president (Article 58(1)(a), vice-president (Article 66(2)), judges of the Supreme Court (Article 124(3)) and high court (Article 217(2)), governor of a state (Article 157), attorney general (Article 76(1)) and advocate general (Article 165).

Equality before the law or equal protection of the laws within the territory of India (Article 14) and protection of life or personal liberty (Article 21) are applicable to non-citizens as well.

Constitutional Provisions:

The Indian constitution doesn’t prescribe a permanent provision relating to citizenship in India. It simply describes categories of persons who are deemed to be citizens of India on the day the Indian constitution was promulgated on January 26, 1950, and leaves citizenship to be regulated by law made by the parliament. Article 11 of the constitution confers power on the parliament to make laws regarding citizenship. The Indian Citizenship Act, 1955 was enacted in exercise of this provision.

Citizenship At The Commencement Of Constitution:

There are four categories of persons, identified between Articles 5 and 8 of the constitution, who were deemed eligible to become citizens of India when the constitution came into effect.
  1. Citizenship by domicile (Article 5):
    A person who was born in India or either of the person’s parents was born in India or the person must have been an ordinarily resident in the territory of India for not less than five years immediately before the commencement of the constitution. Domicile of a person is in that country in which the person either has or is deemed by law to have his/her permanent house. In Pradeep Jain v. Union of India the Supreme Court held that in India Article 5 recognizes only one domicile viz., domicile of India.

    In Mohammad Raza v. State of Bombay, the appellant came to India in 1938. He went on pilgrimage to Iraq in 1945. On return, he was registered as a foreigner and several times his stay in India was extended. In 1957 his request to extend the stay period was refused. He contended that he must be regarded as a citizen of India under Article 5, but his appeal was dismissed. The court held that though he was original resident, he did not acquire Indian citizenship because he did not have a domicile in India.
     
  2. Citizenship of migrants to India from Pakistan (Article 6):
    Persons who have migrated from Pakistan to India have been classified into two categories:
    1. Those who came to India before July 19, 1948, and
    2. Those that came on or after July 19, 1948.
      In the case of persons migrating before July 19, 1948, if the person has been ordinarily residing in India since the date of her migration, and in case of a person migrating on or after July 19, 1948, if he/she has been registered as a citizen of India, after residing for at least six months immediately before the date of applying for registration, by an officer appointed by the government of India, shall be deemed to be a citizen of India.

      Reason behind the date July 19, 1948,
      There were no restrictions on the movement of persons from India to Pakistan or vice-versa after the partition of country in 1947 till 19-07-1948, when the influx from West Pakistan (control) ordinance, 1948, was promulgated. By the rules framed under the ordinance a system of permits was introduced authorizing the visitors and immigrants to go to Pakistan. On 15 Feb. 1949 a notification was issued by the central govt. under which any person, who had entered India unlawfully in contravention of the rules, could be removed. The permit rules continued till 29 April, 1950 when Indian Passport Rules, 1950 framed under the Passport Act, 1920 were introduced. According, to these rules it was necessary for any person coming from Pakistan to India to hold a passport with a necessary visa.
       
  3. Citizenship of migrants of Pakistan (Article 7):
    If a citizen of India has migrated to Pakistan after March 1, 1947, but returned to India on the basis of permit for resettlement in India, the person is entitled to become a citizen of India if he/she registers herself as a citizen of India, after residing for at least six months immediately before the date of applying for registration, by an officer appointed by the government of India.

    In Bhawanrao Khan v. Union of India, the SC held that those who had voluntarily migrated to Pakistan and became citizens of Pakistan cannot claim the citizenship of India on the ground that they had been living in India for a long time and their names have been included in the voters list.
     
  4. Citizenship of persons of Indian origin residing outside India (Article 8):
    Indian nationals (whose parents or any grandparents were born in India as defined in the Government of India Act, 1935) residing abroad shall be conferred Indian citizenship, as if they have been registered by the diplomatic or consular representatives of India in the country where they are residing.

Citizenship Act, 1955:

The Act provides for acquisition of Indian citizenship in the following ways:
  1. Citizenship by birth: Anyone born in India on or after January 1, 1950, would be deemed a citizen by birth. This limit was further amended to include those born between January 1, 1950 and July 1, 1987.
    By the Citizenship Amendment Act, 2003, persons born after December 3, 2004, would be deemed to be citizens of India if either of the parents is Indian or one of the parents is a citizen of India and the other was not an illegal migrant at the time of the person’s birth. “Illegal migrant” means a foreigner who has entered India: without a valid passport or travel documents; or with a valid passport or travel documents but remained in the country beyond the permitted period of time.
     
  2. Citizenship by descent:
    A person born outside India shall be deemed to be a citizen of India if either of the person’s parents was a citizen of India at the time of his/her birth provided that the birth is registered within one year of its occurrence or commencement of the Act, whichever is later, at the Indian consulate.
     
  3. Citizenship by registration:
    A person may be registered as a citizen of India, if the person is married to a citizen of India or has been a resident of India for five years immediately before making an application for registration.
     
  4. Citizenship by naturalization:
    A person is granted a certificate of naturalization if the person is not an illegal migrant and has resided in India for 12 months before making an application to seek the certificate. Of the 14 years preceding this 12-months duration, the person must have stayed in India for 11 years.
     
  5. Citizenship by incorporation of territory:
    If any new territory becomes a part of India, the government of India shall specify the persons of the territory to be citizens of India.
If the central government is of the opinion that an applicant is a person who has rendered distinguished service to the cause of science, philosophy, art, literature, world peace or human progress generally, it may waive all or any conditions specified to attain Indian citizenship.

Amendments:

The Citizenship Act, 1955 had been amended six times — 1986, 1992, 2003, 2005, 2015 and 2019.
The 1986 amendment
The 1986 amendment stipulates that in order to be a citizen of India, one of the parents had to be an Indian citizen during the time of birth.

The 1992 amendment
The 1992 amendment states a person born outside India shall be a citizen of India by descent, on or after January 26, 1950, but before December 10, 1992, if his father is a citizen of India at the time of his birth.

The 2003 amendment
The 2003 amendment introduced the notion of “illegal immigrants” and also mandated the Government of India to conduct a National Register of Citizens (NRC).

National Register Of Citizens:

The National Register of Citizens (NRC) is a list of people who can prove they came to the state by 24 March 1971, a day before neighboring Bangladesh became an independent country

Enacted under the then Prime Minister Atal Bihari Vajpayee, the amendment inserted Section 14A that provided for conducting headcount of Indian citizens and preparation of the NRC.

The 2005 amendment
To accommodate the growing overseas Indian population, at the turn of the millennium, the parliament introduced the concepts of Person of Indian Origin (PIO) and Overseas Citizen of India (OCI). They were granted certain limited citizenship rights through an amendment made in 2005.

For example: OCI card holders were granted multiple entries, multi-purpose lifelong visa to visit India, exempted from registration with Foreigners Regional Registration Office (FRRO) for any length of stay in India and could participate in financial, economic and educational fields.

Whereas PIO cardholders were exempted from reporting to the police during their period of stay in India. They were also entitled to visa-free entry into India during the validity of the card i.e. 15 years, provided they carried valid national passports.

The 2015 amendment
The 2015 amendment introduced the concept of an ‘Overseas Citizen of India Cardholder’ (an “OCC”) that essentially replaced and merged OCIs and PIOs. The merging of the two schemes provided PIO cardholders the benefits extended to OCIs, such as visa-free travel to India, rights of residency and participation in business and educational activities in the country.

The 2019 amendment
The latest amendment to the Citizenship Act will make it easier for non-Muslims to become citizens of India. Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan who escaped religious persecution and arrived in India before December 31, 2014, will be eligible for Indian citizenship. Muslims, however, have been left out.
The duration of residence in India for those seeking citizenship has also been reduced. Earlier, it was compulsory for an individual to have stayed in India for at least 11 years to become a citizen naturally. It has been reduced to six years.

It also says people holding Overseas Citizen of India (OCI) cards - an immigration status permitting a foreign citizen of Indian origin to live and work in India indefinitely - can lose their status if they violate local laws for major and minor offences and violations.

Termination Of Citizenship:

The Citizenship Act, 1955 cites three reasons for the termination of citizenship;
  1. Voluntary Renunciation
  2. By Termination
  3. By Deprivation

Voluntary Renunciation Of Citizenship:

If an Indian citizen wishes, who is of full age and capacity, he can relinquish citizenship of India by his will. When a person relinquishes his citizenship, every minor child of that person also loses Indian citizenship. However, when such a child attains the age of 18, he may resume Indian citizenship.

Termination Of Citizenship:

The Constitution of India provides single citizenship. It means an Indian person can only be a citizen of one country at a time. If a person takes the citizenship of another country, then his Indian citizenship ends automatically. However, this provision does not apply when India is busy in war.

By Deprivation Of Government:

The Government of India may terminate the citizenship of an Indian citizen if;
  1. Citizen has disrespected the Constitution
  2. has obtained citizenship by fraud
  3. the citizen has unlawfully traded or communicated with the enemy during a war.
  4. within 5 years of registration or naturalisation, a citizen has been sentenced to 2 years of imprisonment in any country.
  5. Citizen has been living outside India for 7 years continuously.

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