Citizenship

Posted on Posted in Indian Polity

MEANING AND SIGNIFICANCE

Like any other modern state, India has two kinds of people—citizens and aliens. Citizens are
full members of the Indian State and owe allegiance to it. They enjoy all civil and political
rights. Aliens, on the other hand, are the citizens of some other state and hence, do not enjoy
all the civil and political rights. They are of two categories—friendly aliens or enemy aliens.
Friendly aliens are the subjects of those countries that have cordial relations with India. Enemy
aliens, on the other hand, are the subjects of that country that is at war with India. They enjoy lesser
rights than the friendly aliens, eg, they do not enjoy protection against arrest and detention (Article 22).

The Constitution confers the following rights and privileges on the citizens of India (and denies the same to aliens):

1. Right against discrimination on grounds of religion, race, caste, sex or place of birth (Article 15).

2. Right to equality of opportunity in the matter of public employment (Article 16).

3. Right to freedom of speech and expression, assembly, association, movement, residence and profession (Article 19).

4. Cultural and educational rights (Articles 29 and 30).

5. Right to vote in elections to the Lok Sabha and state legislative assembly.

6. Right to contest for the membership of the Parliament and the state legislature.

7. Eligibility to hold certain public offices, that is, President of India, Vice-President of India,
judges of the Supreme Court and the high courts, governor of states, attorney general of India
and advocate general of states.

Along with the above rights, the citizens also owe certain duties towards the Indian State, as for
example, paying taxes, respecting the national flag and national anthem, defending the country and so on.

In India both a citizen by birth as well as a naturalised citizen are eligible for the office of President
while in USA, only a citizen by birth and not a naturalised citizen is eligible for the office of
President.

CONSTITUTIONAL PROVISIONS

The Constitution deals with the citizenship from Articles 5 to 11 under Part II. However, it contains
neither any permanent nor any elaborate provisions in this regard. It only identifies the persons who
became citizens of India at its commencement (i.e., on January 26, 1950). It does not deal with the
problem of acquisition or loss of citizenship subsequent to its commencement. It empowers the
Parliament to enact a law to provide for such matters and any other matter relating to citizenship.
Accordingly, the Parliament has enacted the Citizenship Act, 1955, which has been amended in 1986,
1992, 2003 and 2005.

According to the Constitution, the following four categories of persons became the citizens of India at
its commencement i.e., on 26 January, 1950:

1. A person who had his domicile in India and also fulfilled any one of the three conditions, viz.,
if he was born in India; or if either of his parents was born in India; or if he has been
ordinarily resident in India for five years immediately before the commencement of the
Constitution, became a citizen of India (Article 5).

2. A person who migrated to India from Pakistan became an Indian citizen if he or either of his
parents or any of his grandparents was born in undivided India and also fulfilled any one of
the two conditions viz., in case he migrated to India before July 19, 19481, he had been
ordinarily resident in India since the date of his migration; or in case he migrated to India on
or after July 19, 1948, he had been registered as a citizen of India. But, a person could be so
registered only if he had been resident in India for six months preceding the date of his
application for registration (Article 6).

3. A person who migrated to Pakistan from India after March 1, 1947, but later returned to India
for resettlement could become an Indian citizen. For this, he had to be resident in India for six
months preceding the date of his application for registration2 (Article 7).

4. A person who, or any of whose parents or grandparents, was born in undivided India but who
is ordinarily residing outside India shall become an Indian citizen if he has been registered as
a citizen of India by the diplomatic or consular representative of India in the country of his
residence, whether before or after the commencement of the Constitution. Thus, this provision
covers the overseas Indians who may want to acquire Indian citizenship (Article 8).

To sum up, these provisions deal with the citizenship of

(a) persons domiciled in India;

(b) persons migrated from Pakistan;

(c) persons migrated to Pakistan but later returned; and

(d) persons of Indian origin residing outside India.

The other constitutional provisions with respect to the citizenship are as follows:

1. No person shall be a citizen of India or be deemed to be a citizen of India, if he has
voluntarily acquired the citizenship of any foreign state (Article 9).

2. Every person who is or is deemed to be a citizen of India shall continue to be such citizen,
subject to the provisions of any law made by Parliament (Article 10).

3. Parliament shall have the power to make any provision with respect to the acquisition and
termination of citizenship and all other matters relating to citizenship (Article 11).

CITIZENSHIP ACT, 1955

The Citizenship Act (1955) provides for acquisition and loss of citizenship after the commencement
of the Constitution. This Act has been amended so far four times by the following Acts:

1. The Citizenship (Amendment) Act, 1986.
2. The Citizenship (Amendment) Act, 1992.
3. The Citizenship (Amendment) Act, 2003.
4. The Citizenship (Amendment) Act, 2005.\

Originally, the Citizenship Act (1955) also provided for the Commonwealth Citizenship. But, this
provision was repealed by the Citizenship (Amendment) Act, 2003.

Acquisition of Citizenship

The Citizenship Act of 1955 prescribes five ways of acquiring citizenship, viz, birth, descent,
registration, naturalisation and incorporation of territory:

1. By Birth

A person born in India on or after 26th January 1950 but before 1st July 1987 is a citizen
of India by birth irrespective of the nationality of his parents.

A person born in India on or after 1st July 1987 is considered as a citizen of India only if either of his
parents is a citizen of India at the time of his birth.
Further, those born in India on or after 3rd December 2004 are considered citizens of India only if
both of their parents are citizens of India or one of whose parents is a citizen of India and the other is
not an illegal migrant at the time of their birth.
The children of foreign diplomats posted in India and enemy aliens cannot acquire Indian citizenship
by birth.

2. By Descent

A person born outside India on or after 26th January 1950 but before 10th December
1992 is a citizen of India by descent, if his father was a citizen of India at the time of his birth.
A person born outside India on or after 10th December 1992 is considered as a citizen of India if
either of his parents is a citizen of India at the time of his birth.
From 3rd December 2004 onwards, a person born outside India shall not be a citizen of India by
descent, unless his birth is registered at an Indian consulate within one year of the date of birth or
with the permission of the Central Government, after the expiry of the said period. An application, for
registration of the birth of a minor child, to an Indian consulate shall be accompanied by an
undertaking in writing from the parents of such minor child that he or she does not hold the passport of
another country.

3. By Registration

The Central Government may, on an application, register as a citizen of India any
person (not being an illegal migrant) if he belongs to any of the following categories, namely:-

(a) a person of Indian origin who is ordinarily resident in India for seven years before making an
application for registration;

(b) a person of Indian origin who is ordinarily resident in any country or place outside undivided
India;

(c) a person who is married to a citizen of India and is ordinarily resident in India for seven years
before making an application for registration;

(d) minor children of persons who are citizens of India;

(e) a person of full age and capacity whose parents are registered as citizens of India;

(f) a person of full age and capacity who, or either of his parents, was earlier citizen of
independent India, and has been residing in India for one year immediately before making an
application for registration;

(g) a person of full age and capacity who has been registered as an overseas citizen of India for
five years, and who has been residing in India for one year before making an application for
registration.

An applicant shall be deemed to be ordinarily resident in India if –
(i) he has resided in India throughout the period of twelve months immediately before
making an application for registration; and
(ii) he has resided in India during the eight years immediately preceding the said period of
twelve months for a period of not less than six years.
A person shall be deemed to be of Indian origin if he, or either of his parents, was born in undivided
India or in such other territory which became part of India after the 15th August, 1947.
All the above categories of persons must take an oath of allegiance before they are registered as
citizens of India. The form of the oath is as follows:
I, A/B………………. do solemnly affirm (or swear) that I will bear true faith and allegiance to the
Constitution of India as by law established, and that I will faithfully observe the laws of India and
fulfill my duties as a citizen of India.

4. By Naturalisation

The Central Government may, on an application, grant a certificate of
naturalisation to any person (not being an illegal migrant) if he possesses the following qualifications:
(a) that he is not a subject or citizen of any country where citizens of India are prevented from
becoming subjects or citizens of that country by naturalisation;
(b) that, if he is a citizen of any country, he undertakes to renounce the citizenship of that country
in the event of his application for Indian citizenship being accepted;
(c) that he has either resided in India or been in the service of a Government in India or partly the
one and partly the other, throughout the period of twelve months immediately preceding the
date of the application;
(d) that during the fourteen years immediately preceding the said period of twelve months, he has
either resided in India or been in the service of a Government in India, or partly the one and
partly the other, for periods amounting in the aggregate to not less than eleven years;
(e) that he is of good character;
(f) that he has an adequate knowledge of a language specified in the Eighth Schedule to the
Constitution3, and
(g) that in the event of a certificate of naturalisation being granted to him, he intends to reside in
India, or to enter into or continue in, service under a Government in India or under an
international organisation of which India is a member or under a society, company or body of
persons established in India.
However, the Government of India may waive all or any of the above conditions for naturalisation in
the case of a person who has rendered distinguished service to the science, philosophy, art, literature,
world peace or human progress. Every naturalised citizen must take an oath of allegiance to the
Constitution of India.

5. By Incorporation of Territory If any foreign territory becomes a part of India, the Government of
India specifies the persons who among the people of the territory shall be the citizens of India. Such
persons become the citizens of India from the notified date. For example, when Pondicherry became a
part of India, the Government of India issued the Citizenship (Pondicherry) Order, 1962, under the
Citizenship Act, 1955.

Loss of Citizenship

The Citizenship Act, 1955, prescribes three ways of losing citizenship whether acquired under the
Act or prior to it under the Constitution, viz, renunciation, termination and deprivation:

1. By Renunciation Any citizen of India of full age and capacity can make a declaration renouncing
his Indian citizenship. Upon the registration of that declaration, that person ceases to be a citizen of
India. However, if such a declaration is made during a war in which India is engaged, its registration
shall be withheld by the Central Government.

Further, when a person renounces his Indian citizenship, every minor child of that person also loses
Indian citizenship. However, when such a child attains the age of eighteen, he may resume Indian
citizenship.

2. By Termination When an Indian citizen voluntarily (consciously, knowingly and without duress,
undue influence or compulsion) acquires the citizenship of another country, his Indian citizenship
automatically terminates. This provision, however, does not apply during a war in which India is
engaged.

3. By Deprivation It is a compulsory termination of Indian citizenship by the Central government, if:
(a) the citizen has obtained the citizenship by fraud:
(b) the citizen has shown disloyalty to the Constitution of India:
(c) the citizen has unlawfully traded or communicated with the enemy during a war;
(d) the citizen has, within five years after registration or naturalisation, been imprisoned in any
country for two years; and
(e) the citizen has been ordinarily resident out of India for seven years continuously.4

SINGLE CITIZENSHIP

Though the Indian Constitution is federal and envisages a dual polity (Centre and states), it provides
for only a single citizenship, that is, the Indian citizenship. The citizens in India owe allegiance only
to the Union. There is no separate state citizenship. The other federal states like USA and
Switzerland, on the other hand, adopted the system of double citizenship.

In USA, each person is not only a citizen of USA but also of the particular state to which he belongs.
Thus, he owes allegiance to both and enjoys dual sets of rights—one set conferred by the national
government and another by the state government. This system creates the problem of discrimination,
that is, a state may discriminate in favour of its citizens in matters like right to vote, right to hold
public offices, right to practice professions and so on. This problem is avoided in the system of single
citizenship prevalent in India.

In India, all citizens irrespective of the state in which they are born or reside enjoy the same political
and civil rights of citizenship all over the country and no discrimination is made between them.
However, this general rule of absence of discrimination is subject to some exceptions, viz,

1. The Parliament (under Article 16) can prescribe residence within a state or union territory as
a condition for certain employments or appointments in that state or union territory, or local
authority or other authority within that state or union territory. Accordingly, the Parliament
enacted the Public Employment (Requirement as to Residence) Act, 1957 and thereby
authorised the Government of India to prescribe residential qualification only for appointment
to non-Gazetted posts in Andhra Pradesh, Himachal Pradesh, Manipur and Tripura. As this
Act expired in 1974, there is no such provision for any state except Andhra Pradesh.5

2. The Constitution (under Article 15) prohibits discrimination against any citizen on grounds of
religion, race, caste, sex or place of birth and not on the ground of residence. This means that
the state can provide special benefits or give preference to its residents in matters that do not
come within the purview of the rights given by the Constitution to the Indian citizens. For
example, a state may offer concession in fees for education to its residents.

3. The freedom of movement and residence (under Article 19) is subjected to the protection of
interests of any schedule tribe. In other words, the right of outsiders to enter, reside and settle
in tribal areas is restricted. Of course, this is done to protect the distinctive culture, language,
customs and manners of schedule tribes and to safeguard their traditional vocation and
property against exploitation.

4. In the case of Jammu and Kashmir, the state legislature is empowered to define the persons
who are permanent residents of the state and confer any special rights and privileges in
matters of employment under the state government, acquisition of immovable property in the
state, settlement in the state and scholarships and such other forms of aid provided by the state
government.6

The Constitution of India, like that of Canada, has introduced the system of single citi-zenship and
provided uniform rights (except in few cases) for the people of India to promote the feeling of
fraternity and unity among them and to build an integrated Indian nation. Despite this, India has been
witnessing the communal riots, class conflicts, caste wars, linguistic clashes and ethnic disputes.
Thus, the cherished goal of the founding fathers and the Constitution-makers to build an united and
integrated Indian nation has not been fully realised.

                                                      NOTES

1. On this date, the permit system for such migration was introduced.

2. This provision refers to migration after 1 March, 1947 but before 26 January, 1950. The
question of citizenship of persons who migrated after 26 January, 1950, has to be decided
under the provisions of the Citizenship Act, 1955.

3. The 8th Schedule of the Constitution recognises presently 22 (originally 14) languages.

4. This will not apply if he is a student abroad, or is in the service of a government in India or an
international organisation of which India is a member, or has registered annually at an Indian
consulate his intention to retain his Indian citizenship.

5. By virtue of Article 371-D inserted by the 32nd Constitutional Amendment Act, 1973.

6. Article 35-A in the Constitution (Application to Jammu and Kashmir) Order, 1954. This was
issued by the President of India under powers conferred on him by Article 370 of the Constitution.

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