Lawwatch

Indian Citizenship & the Laws Governing it

The people in Indian Territory are divided into two categories: citizens
and non-citizens. Indian Constitution provides distinct rights for
citizens and non-citizens. In fact citizenship defines the relationship
between an individual and the State. Domicile coupled with birth or
descent is the main factor for citizenship in India. During the making
of the Constitution, some members argued for adopting religion as a
factor for granting citizenship in India. But the Constituent Assembly
sternly refused to accept the proposal, because India was visualised as
a secular republic.

Citizens have political rights but others don’t

An Indian citizen under Indian Constitution is entitled to all civil and
political rights. A non-citizen, on the other hand, doesn’t enjoy all
those rights but have some of them.

Indian constitution ensures some fundamental rights available only to
Indian citizens. They are:

  • 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.

Some offices can only be occupied by citizens: President (Article
58(1)(a), Vice-President (Article 66(2)), Judges of the Supreme Court
(Article 124(3)) and the High Court (Article 217(2)), Governor of a
State (Article 157), Attorney General (Article 76(1)) and Advocate
General (Article 165).

However, both citizens and non-citizens can enjoy 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)
under Indian Constitution.

Constitutional provisions on citizenship

The Indian Constitution doesn’t prescribe any permanent provision
relating to citizenship in India. It describes some categories of
persons who are deemed to be citizens of India on the day of
commencement of the Indian on January 26, 1950. It however leaves the
matter of making laws for acquisition and termination of citizenship to
Indian Parliament.

It is the Article 11 of the Constitution which confers power on
Parliament to make laws regarding citizenship. It was under this
authority Indian Parliament enacted the Indian Citizenship Act, 1955.

Categories of persons Indian Constitution holds as citizens

There are four categories of persons, as per the Articles 5 to 8 of the
Indian Constitution, who were deemed to be citizens of India at the time
of the commencement of the Constitution.

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
are citizens of India.

The term domicile means the place where someone lives, especially when
it is stated for official or legal purposes.

Citizenship of migrants to India from Pakistan (Article 6): Persons
who have migrated from Pakistan to India have been classified into
following categories in the matter of citizenship:

  1. If the person so migrated or either of his parents or any of his
    grandparents was born in areas under Government of India Act 1935,
    he shall be deemed to be a citizen of India.

  2. In the case of persons migrated before 19^th^ July 1948, if the
    person has been ordinarily residing in India since the date of her
    migration, he shall be deemed to be a citizen of India.

  3. In case of a person migrated on or after July 19, 1948, if he/she
    has been registered as a citizen of India, after residing in India
    for at least six months immediately before the date of applying for
    registration, by an officer appointed by the government of India, he
    shall be deemed to be a citizen of India.

Citizenship of certain migrants to Pakistan (Article 7): If a
citizen of India has migrated to Pakistan after 1^st^ March, 1947, but
returned to India under a permit for resettlement in India or permanent
return issued under law, the person is entitled to become a citizen of
India if he/she registers herself as a citizen of India, after residing
in India for at least six months immediately before the date of applying
for registration, before an officer appointed by the government of
India.

Citizenship of persons of Indian origin residing outside India
(Article 8)
: Any person (whose either parent or any grandparents were
born in the area of India as defined in the Government of India Act,
1935) residing in any other country shall be deemed to be an Indian
citizen, if he has been registered as a citizen of India by the
Diplomatic or Consular Representative of India in the country where they
are residing, before or after the commencement of the Constitution.

Modes of acquiring Citizenship under the Citizenship Act, 1955

There are four modes of acquiring citizenship under the Citizenship Act,
1955.

  1. Citizenship by birth

  2. Citizenship by descent

  3. Citizenship by registration.

  4. Citizenship by naturalization.

Citizenship by birth: Anyone born in India on or after 1^st^ January
1950 would be deemed a citizen by birth as per the original act. This
deadline was further amended in 1986 to include those born between 1^st^
January, 1950 and 1^st^ July 1987.

The amendment in 1986 added one more condition that one of the parents
must also be an Indian citizen for granting citizenship to those who
were born in India after January 1, 1987. It also excluded persons whose
grand-parents, but not parents, were born in India.

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.

An “Illegal migrant” means a foreigner who has entered India either
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. An illegal migrant is prohibited from acquiring citizenship
through birth, registration, or naturalization. Citizenship to migrants
(but not to illegal migrants) or their children can be given as per law
in force.

In short, Indian citizens include

  • Persons who were domiciled in India as on 26th November 1949

  • Persons who were born in India on or after 26th January 1950 but
    before 1st July 1987

  • A person born after 1st July 1987 if either of the parents was a
    citizen of India at the time of birth

  • Persons born after 3rd December 2004 are Indian citizens if both
    parents are Indian citizens or if one parent is an Indian citizen
    and the other is not an illegal migrant at the time of birth

Citizenship by descent: A person born outside India on or after 26th
January 1950 but before 10th December1992 shall be deemed to be a
citizen of India if his father is a citizen of India at the time of his
birth.

For a person born outside India on or after 10^th^ December 1992, either
of his/her parents should be a citizen of India at the time of his/her
birth.

In both the above cases, citizenship would be granted only if the birth
is registered at the Indian consulate within one year of its occurrence
or commencement of the Act, whichever is later. While registering it
should be declared that the minor does not hold a passport of any other
country.

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 seven years immediately before making an
application for registration. The applicant has to complete the
prescribed period of domicile in India before registration. Mrs Sonia
Gandhi obtained Indian citizenship through this mode.

A person who is a normal resident of India for a prescribed period can
register his name as a citizen of India if he is not able to get
citizenship under any other provision of the Constitution or citizenship
act, provided he is not an illegal migrant.

Citizenship by naturalisation: Before 2019 amendment of the act, a
person was granted a certificate of naturalisation, if the person was
not an illegal migrant, he had resided in India for 12 months before
making an application, and he must have stayed in India for 11 years, of
the 14 years preceding such 12-months.

The persons, who have no link with India by way of blood, soil or
marriage, can use this method of naturalisation to become Indian
citizens. The conditions for naturalization are described in the Third
Schedule of the Act. One such condition is that those who seek
citizenship by registration and naturalization have to declare an oath
of allegiance to India, and should renounce their previous citizenship.
Dalai Lama got citizenship under this provision of naturalisation.

Exemption for migrants from three countries: However the Citizenship
Amendment Act 2019 makes an exemption from this disability to migrants,
belonging to six communities (Hindus, Sikhs, Jains, Buddhists, Parsis
and Christians) migrated to India from three countries (Pakistan,
Bangladesh and Afghanistan) before December 31, 2014, by not treating
them as illegal migrants, unlike in the past.

Citizenship by naturalisation not a right: An individual cannot
claim citizenship by way of naturalization as a matter of right. It is
the discretion of the Government of India to grant or not to grant it.
An illegal migrant in general is disabled from seeking Indian
citizenship by way of naturalization.

The law does not give any exemption in granting Indian citizenship to
Rohingya Muslims persecuted in Myanmar, Shia and Ahmadiyya Muslims in
Pakistan, Hazaras/ Tajiks/Uzbeks in Afghanistan, Tamils in Sri Lanka,
and atheists in Bangladesh.

Major demerits of the 2019 amendment act

Indian Citizenship Act, 1955 has never before chosen religion as a
criterion for granting citizenship or denying it to illegal migrants.
When we discriminate citizens on the basis of religion it violates the
Article 14 of the Indian Constitution that guarantees equal protection
of laws, even to the non citizens, within the territory of India.

Unfortunately the citizenship act, as it stands today after the 2019
amendment, excludes Muslims from Pakistan, Bangladesh, Afghanistan and
every other country, while including some other communities from some
arbitrarily chosen countries in its fold in granting citizenship.

Citizenship by incorporation of territory: If any new territory
becomes a part of India by any means, the Government of India shall
specify the persons of the territory to be citizens of India.

Power to grant citizenship to distinguished persons: If the central
government is of the opinion that an applicant for Indian citizenship is
a person who has rendered distinguished service to the cause of science,
philosophy, art, literature, world peace or human progress generally, it
has the authority to waive all or any conditions specified to attain
Indian citizenship.

Areas where the law is not in operation

The citizenship act, since its 2019 amendment, excludes its operation
from the parts of north-east under the Inner Line Permit (ILP) which
provides a permission to enter in some states and those areas included
in the Sixth Schedule to the Indian Constitution.

So, it does not apply to tribal areas of Assam, Meghalaya, Mizoram or
Tripura comes under the Sixth Schedule to the Constitution. It also does
not apply to the area covered under ‘The Inter Line Permit’ notified
under the Bengal Eastern Frontier Regulation, 1873 - such as the states
of Arunachal Pradesh, Nagaland (excluding Dimapur) and Mizoram.

Exempted persons are not illegal migrants: A person who has been
exempted by the Central Government by or under the Passport (Entry
into India) Act, 1920
or from the application of the provisions of the
Foreigners Act, 1946 or any rule or order made thereon, shall not be
treated as illegal migrant for the purposes of the Citizens Act.

The Central Government or a specified authority can, on an application,
grant a Certificate of Registration or Certificate of Naturalisation
to an exempted person when he is eligible for it. Such a certificate
holder shall be deemed to be a citizen of India from the date of his
entry into the country.

Modes of losing Indian citizenship

An Indian citizen can lose her/his citizenship by renunciation,
termination and deprivation under the Citizenship Act.

Renunciation (Sec 8): A person may renounce their Indian citizenship,
by submitting a declaration to the prescribed authority. On registration
of the declaration, the individual and her minor child will cease to be
citizens of India. The minor child on attaining majority has the option
of resuming the Indian citizenship by submitting an application to the
concerned authority, within a year of attaining majority.

Termination (Sec 9): Indian law does not recognize dual citizenship.
So an individual ceases to be an Indian citizen on acquiring citizenship
of another country.

Deprivation (Sec 10): The citizenship, which has been acquired by way
of registration or naturalization, can be cancelled, after giving a fair
opportunity, on specified conditions or circumstances.

Overseas Citizenship of India (OCI)

Indian law on citizenship does not permit dual citizenship. However,
persons of Indian origin who have acquired foreign citizenship are given
Overseas Citizenship of India (OCI) since the 2005 amendment to the
Citizenship Act.

OCI is not actual citizenship of India. It is a status, which gives
certain privileges such as multiple-entry & multipurpose lifelong visa,
exemption for registration under Foreigners Act, parity with
Non-Resident Indians etc.

The Section 7A of the Act provides for issuing OCI card for Persons of
Indian origin. OCI card is issued to persons who:

  • Was a citizen of India on or after 26th January 1950, or

  • Was eligible to become a citizen of India on 26th January 1950, or

  • Is a child or grandchild of such a person, satisfying some other
    eligibility criteria

OCI card holder has some restrictions as well. They have no right to
vote, no right to hold constitutional offices, and no right to buy
agricultural properties in India.

Laws that deal with illegal non-citizens

Foreigners Act, 1864: The first Indian law enacted to deal with
foreigners was the Foreigners Act, 1864. It provides for the expulsion
of foreigners, their arrest, detention, removal and a ban on their entry
into India after removal.

The Passport (Entry into India) Act, 1920: The act empowers the
government to make rules requiring persons entering India to be in
possession of passports. This law empowers the government to remove from
India any person who entered it without a passport.

The Foreigners Act: In 1940, the Imperial Legislative Assembly
enacted the Foreigners Act, 1940, under which the concept of “burden of
proof” was introduced. The Section 7 of the Act provided that whenever a
question arose with regard to the nationality of a person, the onus of
proving that he was not be a foreigner lays upon the person.

The legislature enacted the Foreigners Act, 1946, by repealing the 1940
Act. It confers wide powers to deal with all foreigners. It defined a
‘foreigner’ as a person who is not a citizen of India. It empowered the
government to make provisions for prohibiting, regulating or restricting
the entry of foreigners into India. It restricts the rights enjoyed by
foreigners during their stay in the country. One key provision of the
1946 law is that the ‘burden of proof‘ lies with the person, and not
with the authorities.

Foreigners (Tribunals) Order: The Foreigners (Tribunals) Order
brought in by the government in 1964, under Section 3 of the Foreigners
Act 1946, envisages creation of tribunals that have authority to decide
whether a person is a foreigner, under the Foreigners Act, 1946. It is
applicable to the whole country. All its orders are applicable to the
whole country and are not specific to any state.

The tribunal has two or more members having prescribed judicial
experience. It has powers similar to those of a civil court. It lays
down that the person alleged to be a foreigner would be given due
opportunity to produce evidence in support of his case, before it passes
its order.

Amendments to Foreigners (Tribunals) Order in 2019

On 30^th^ May 2019, some amendments were made in the Foreigners
(Tribunals) Order, 1964. The order now empowers District Magistrates in
all States and Union Territories to set up tribunals.

However it is practically applicable only to Assam at present where
National Register of Citizens (NRC) is being prepared. The amendment
authorises the District Magistrates to set up Tribunals and lays down a
provision for reference by District Magistrate to the Tribunal for its
opinion as to whether a person is a “foreigner” or not under the
Foreigners Act

So far Tribunals were established only in Assam. In other parts, once a
‘foreigner’ is apprehended by the police for staying illegally, he or
she would be produced before a local court under the Passport Act, 1920,
or the Foreigners Act, 1946. The court can impose a punishment ranging
from three months to eight years in jail. Once the accused has been
served the sentence, the court orders their deportation. Then such
persons are shifted to detention centres for illegal migrants being set
up till the country of their origin accepts them.

The Foreigners Tribunals place the burden of proving that a person in
question is an Indian citizen lies on the person suspected of doubtful
nationality. The tribunal has no appellate body. Its procedures do not
lay down how a reference can be made against a person to the Tribunal.
Reports say that the tribunal leaves much to be desired.