Chapter 7

CITIZENSHIP

1. CLASSIFICATION OF POPULATION.

THE population of a State is divided into two classes-citizens and aliens.

2.WHO ARE CITIZENS?

Citizens are members of the political community to which they belong. They are the people who compose the State.
Only a natural person can be a citizen, and not a juristic person like corporations.

3. CITIZENSHIP V/S NATIONALITY:

While all citizens are nationals of a State, the reverse is not always true because nationality is a concept of international
law while citizenship is a concept of municipal law."

4. CONSTITUTIONAL RIGHTS AND PRIVILEGES TO CITIZENS OVER ALIENS.

The question of citizenship became particularly important at the time of the making of our Constitution because the
Constitution sought to confer certain rights and privileges upon those who were entitled to Indian citizenship while
they were to be denied to "aliens". While citizens enjoy full civil and political rights, aliens do not enjoy all of them. In
other words, the latter were even placed under certain disabilities.

Thus, citizens of India have the following rights under the Constitution which aliens do not have:

(i) Some of the Fundamental Rights belong to citizens alone, such as Articles 15, 16, and 19.

(ii) Only citizens are eligible for certain offices, such as those of the President [Article 58(1)(a)); Vice-President [Article
66(3)(a)]; Judge of the Supreme Court [Article 124(3)] or of a High Court [Article 217(2)]; Attorney-General [Article
76(1): Governor of a State [Article 157]; Advocate-General [Article 165].

(iii) The right of suffrage for election to the House of the People (of the Union) and the Legislative Assembly of every
State (Article 326] and the right to become a member of Parliament [Article 84] and of the Legislature of a State [Article
191(d)] are also confined to citizens.

All the above rights are denied to aliens, whether they are "friendly" or "enemy" aliens. But "enemy aliens" suffer from
a special disability; they are not entitled to the benefit of the procedural provisions in clauses (1)-(2) of Article 22
relating to arrest and detention. An alien enemy includes not only subjects of a

State at war with India but also Indian citizens who voluntarily reside in or trade with such a State.

5. CONSTITUTIONAL AND STATUTORY BASIS OF CITIZEN-SHIP IN INDIA.:

The Constitution, however, did not intend to lay down a permanent of comprehensive law relating to citizenship in
India. It simply described the classes of persons who would be deemed to be the citizens of India at the date of the
commencement of the Constitution and left the entire law of citizenship to be regulated by some future law made by
Parliament [Article 17). In exercise of this power, Parliament has enacted the Citizenship Act (57 of 1955), making
elaborate provisions for the acquisition and termination of citizenship subsequent to the commencement of the
Constitution; the provisions of this Act are to be read with the provisions of Part II of the Constitution, in order to get
a complete picture of the law of Indian citizenship.

In view of the fact that the Act of Parliament only deals with the modes of acquisition of citizenship subsequent to the
commencement of the Constitution, it would be convenient to deal with them separately.

6. CONSTITUTIONAL PROVISIONS RELATING TO CITIZENSHIP:

Under Articles 5-8 of the Constitution, the following persons became citizens of India at the commencement of the
Constitution (ze, 26 January 1950)-
I. Every person who is born as well as domiciled in the "territory of India"-irrespective of the nationality of his parents
[Article 5(a)].

II. Every person who is domiciled in the "territory of India", either of whose parents was born in the territory of India-
irrespective of the nationality of his parents or the place of birth of such person [Article 5(6)].

III. Every person who or whose father or mother was not born in India, but who (a) had his domicile in the "territory
of India"; and (b) had been ordinarily residing in the territory of India for not less than five years' immediately preceding
the commencement of the Constitution. In this case also, the nationality of the person's parents is immaterial [Article
5(c)]. Thus, a subject of a Portuguese Settlement, residing in India for not less than five years immediately preceding
the commencement of the Constitution, with the intention of permanently residing in India, would become a citizen of
India at the commencement of the Constitution.

The expression "every person", under Article 5, includes: (i) a prisoner; (ii) a member of the armed forces (but subject
to Article 33). Mere domicile is not sufficient to confer the citizenship of India on a person.

IV. A person who had migrated from Pakistan, provided [Article 6)-

(a) he or either of his parents or grand-parents was born in "India" as defined in the Government of India Act, 1935 (as
originally enacted); and

(b) (i) if he had migrated before 19 July 1948 he has ordinarily resided within the "territory of India" since the date of
such migration (in this case, no registration of the immigrant is necessary for citizenship); or

(b) (ii) if he had migrated on or after 19 July 1948-he further makes an application before the commencement of this
Constitution for registering himself as a citizen of India to an officer appointed by the Government of India, and is
registered by that officer, being satisfied that the applicant has resided in the territory of India for at least six months
before such application.

V. A person who migrated from India to Pakistan after 1 March 1947, but had subsequently returned to India under a
permit issued under the authority of the Government of India for resettlement or permanent return or under the authority
of any law provided he gets himself registered in the same manner as under Article 6(b)(ii), as stated above [Article 7].

By 'migration' is meant voluntarily moving to India but not for a specific purpose and for a limited period of time.
Migration, referred to in Article 7, refers to migration between 1-3-1947 and 26-1-1950; and does not extend to
migrations after that date, which will be governed by the Citizenship Act, 1955.

VI. A person who, or any of whose parents or grand-parents, was born in "India" as defined in the Government of India
Act, 1935 (as originally enacted) but who is ordinarily residing in any country outside India (whether before or after
the commencement of this Constitution) on an application to the diplomatic or consular representative of India in the
country of his residence [Article 8]. Provision was, thus, made for Indians living in foreign countries at the date of
commencement of the Constitution.

Every person who is, or is deemed to be, a citizen of India under Articles 5 to 8 shall, subject to the provisions of the
Citizenship Act, 1955, continue to be such citizen [Article 10]. This means that the law enacted by Parliament can make
changes even in Articles 5 to 8.

6A. ONE CITIZENSHIP IN INDIA:

It should be noted in this context, that our Constitution, though federal, provides for one citizenship only, namely, the
citizenship of India. In federal States like the USA and Switzerland, there is a dual citizenship, namely, federal or
national citizenship and citizenship of the State where a person is born or permanently resides, and there are distinct
rights and obligations flowing from the two kinds of citizenship. In India, a person born or resident in any State can
acquire only one citizenship, namely, that of India and the civic and political rights which are conferred by the
Constitution upon the citizens of India can be equally claimed by any citizens of India, irrespective of his birth and
residence in any part of India.
Permanent residence within a State may, however, confer advantages in certain other matters, which should be noted
in this context:
(a) So far as employments under the Union are concerned, there shall be no qualification for residence within any
particular territory, but by Article 16(3) of the Constitution, Parliament is empowered to lay down that as regards any
particular class or classes of employment under a State or a Union Territory residence within that State or Territory
shall be a necessary qualification. This exception in the case of State employments has been engrafted for the sake of
efficiency, insofar as it depends on familiarity with local conditions.

It is to be noted that it is Parliament which would be the sole authority to legislate in this matter and that State
Legislatures shall have no voice. To this extent, invidious discrimination in different States is sought to be avoided.
Parliament, in the exercise of this power, enacted the Public Employment (Requirement as to Residence) Act, 1957, for
a temporary duration. By this Act, Parliament empowered the Central Government to make rules, having force for a
specified period, prescribing a residential requirement only for appointment to non-Gazetted posts in Andhra Pradesh,
Himachal Pradesh, Manipur and Tripura. Since the expiry of this Act in 1974, nobody can be denied employment in
any State on the ground of his being a non-resident in that State."

(b) As will be seen in the chapter on Fundamental Rights, Article 15(1), which prohibits discrimination on grounds only
of race, religion, caste, sex or place of birth, does not mention residence. It is, therefore, constitutionally permissible
for a State to confer special benefits upon its residents in matters other than those in respect of which rights are conferred
by the Constitution upon all citizens of India. One of these, for instance, is the matter of levying fees for admission to
State educational institutions. The Supreme Court has held that because discrimination on the ground of residence is
not prohibited by Article 15, it is permissible for a State to offer a concession to its residents in the matter of fees for
admission to its State Medical College.

6B. DOMICILE:
"Domicile" has been defined to be the country which is taken to be a man's permanent home. In other words, "domicile"
means the place where a person's habitation is fixed without any present intention of moving therefrom.

Domicile is basically a legal concept for the purpose of determining what is the personal law applicable to an individual
and even if an individual has no permanent home, he is invested with a domicile by law. There are two main classes of
domicile: domicile of origin that is communicated by operation of law to each person at birth, that is the domicile of
his father or his mother according as he is legitimate or illegitimate and domicile of choice which every person of full
age is free to acquire in substitution for that which he presently possesses. The domicile of origin attaches to an
individual by birth while the domicile of choice is acquired by residence in a territory subject to a distinctive legal
system, with the intention to reside there permanently or indefinitely. Now the area of domicile, whether it be domicile
of origin or domicile of choice, is the country

which has the distinctive legal system and not merely the particular place in the country where the individual resides."

The Constitution recognises only one domicile, namely, the domicile in India. Article 5 of the Constitution is clear and
explicit on this point and it refers only to one domicile, namely, "domicile in the territory of India". The legal system
which prevails throughout the territory of India is one single indivisible system Though different domicile rules in
different States actually defeat the advantages of single-citizenship. It engenders provincialism. The concept of
"domicile" has no relevance to the applicability of municipal laws, whether made by the Union of India or by the States.
It would not, therefore, be right to say that a citizen of India is domiciled in one State or another, forming part of the
Union of India. The domicile which he has, in only one domicile, namely, domicile in the territory of India. When a
person who is permanently resident in one State goes to another State with the intention to reside there permanently or
indefinitely, his domicile does not undergo any change he does not acquire a new domicile of choice. His domicile
remains the same, namely, Indian domicile. Moreover, to think in terms of state domicile will be highly detrimental to
the concept of unity and integrity of India."

7. The Citizenship Act,1955:

The various modes of acquisition of citizenship prescribed by the Citizenship Act, 1955, are discussed in the ensuing
paragraphs.

7a. Citizenship by Birth:

Every person born in India-(1) on or after 26 January 1950, but before the 1 July 1987; (ii) on or after I July 1987 but
before the commencement of the Citizenship (Amendment) Act, 2003 (i.e., up to 2-12-2004) and either of whose
parents is a citizen of India at the time of his birth: (m) on or after the commencement of the Citizenship (Amendment)
Асt, 2003 (i.e.., 3-12-2004) where (1) both of his parents are citizen of India, or (II) one of whose parents is a citizen
of India and the other is not an illegal migrant at the time of his birth, shall be a citizen of India by birth. However, a
person shall not be a citizen of India by virtue of mere birth if at the time of his

birth-(a) either his father or mother possesses such immunity from suits and legal process as is accorded to an envoy of
a foreign sovereign power accredited to the President of India and he or she, as the case may be, is not a citizen of
India; or (b) his father or mother is an enemy alien and the birth occurs in a place then under occupation by the enemy
[section 3 of the 1955 Act).

7B. CITIZENSHIP BY DESCENT:

Broadly speaking, a person born outside India (1) on or after 26 January 1950, but before the 10 December 1992, if his
father is a citizen of India at the time of his birth, or (ii) on or after the 10 December 1992, if either of his parents is a
citizen of India at the time of his birth, shall be a citizen of India by descent. However, a minor" who is a citizen of
India by virtue of descent and is also a citizen of any other country shall cease 10 be a citizen of India if he does not
renounce the citizenship or nationality of another country within six months of attaining full age" [section 4 of the 1955
Act].

7C. CITIZENSHIP BY REGISTRATION:

Several classes of persons (who have not otherwise acquired Indian citizenship) can acquire Indian citizenship by
registering themselves to that effect before the prescribed authority, eg. persons of Indian origin who are ordinarily
resident in India and have been so resident for seven years immediately before making the application for registration,
persons who are married to citizens of India, a person of full age and capacity who has been registered as an Overseas
Citizen of India for fire years and who has been residing in India for one year before making an application for
registration [section 5 of the 1955 Act).

7D. CITIZENSHIP BY NATURALISATION:

A foreigner, not being an illegal migrant, can acquire Indian citizenship, on application for naturalisation to the
Government of India [section 6 of the 1955 Act.]

7E. CITIZENSHIP BY INCORPORATION OF TERRITORY.:

If any new territory becomes a part of India, the Government of India shall specify the persons of that territory who
shall be the citizens of India (section 7 of the 1955 Act].

7F. CITIZENSHIP BY ASSAM ACCORD:

In 1985, a special provision was also added as to citizenship of persons of Indian Origin covered by the Assam Accord.
Under sub section 2 of section 6A, two conditions are required to be satisfied-(i) persons who are of Indian Origin
(undivided India) came before 1 January 1966 to Assam from the specified territory; and (in) have been "ordinarily
resident" in Assam as it existed in 1985 since the date of entry in Assam [section 6A of the 1955 Act).

7G. OVERSEAS CITIZENSHIP:

The Government of India in 2005 and 2005, by amending the Citizenship Act. 1955, introduced the concept of Overseas
Citizenship of India, which most people mistakenly referred to as "dual citizenship provision. Persons of Indian Origin
of certain categories who migrated from India and acquired citizenship of a foreign country. other than Pakistan and
Bangladesh, are eligible to be granted an Overseas Citizenship of India on an application made in this behalf to the
Central

Government as long as their home country allow dual citizenship in some form or the other under their local laws.
Citizenship (Amendment) Act, 2015: In 2015, the Citizenship (Amendment) Act, 2015 was passed by Parliament
substituting the words "overseas citizen of India" with the words "Overseas Citizen of India (OCI) Cardholder" and
making enabling provisions for registration of OCI Cardholder, conferment of certain rights on such citizens,
renunciation of overseas citizenship and cancellation of registration as Overseas Citizen of India Cardholder [sections
7A-7D of the 1955 Act]:

(i) Registration and conferment of rights on OCI Cardholder: The Act outlines certain qualifications for registering a
person as an Overseas Citizen of India. The Act provides certain additional grounds for registering for an Overseas
Citizen of India Card. These are: (i) a minor child whose parent(s) are Indian citizens; or (ii) spouse of foreign origin
of an Indian citizen or spouse of foreign origin of an Overseas Citizen of India cardholder subject to certain conditions;
or (iii) great grandchild of a person who is a citizen of another country, but who meets one of several conditions (for
example, the great grandparent must be a citizen of India at the time of commencement of the Constitution or any time
afterwards).

An Overseas Citizen of India is entitled to some benefits such as a multiple-entry, multi-purpose lifelong visa to visit
India. However, he is not entitled to certain rights conferred on an Indian citizen, such as equality of opportunity in
matters of public employment; election as President and Vice-President; appointment as a Judge of the Supreme Court
and High Courts; registration as a voter. 19

The Citizenship Act provides that any person who is/has been a citizen of Pakistan or Bangladesh or any other country
which is notified by the Central

Government will be ineligible to apply for Overseas Citizenship of India. The Amending Act 2015 extends this
provision to cover persons whose parents/grandparents/great grandparents were citizens of any of the above countries.

The Act also introduces a new provision which allows the Central Government to register a person as an Overseas
Citizen of India cardholder even if she/he does not satisfy any of the listed qualifications. This is permissible if special
circumstances exist. 20

(ii) Renunciation and cancellation of overseas citizenship: The Act provides that where a person renounces their
overseas citizenship, their minor child shall also cease to be an Overseas Citizen of India. The Amending Act extends
this provision to cover spouses of Overseas Citizen of India cardholders. The Amending Act also allows the Central
Government to cancel the Overseas Citizenship of India card where it is obtained by the spouse of an Indian citizen or
Overseas Citizen of India cardholder, if: (i) the marriage is dissolved by a court; or (ii) the spouse enters into another
marriage even while the first marriage has not been dissolved.

(iii) Merger of Overseas Citizen of India and Persons of Indian Origin schemes Currently, the Central Government
provides for schemes for Indian origin persons, and their families, the Persons of Indian Origin card and the Overseas
Citizen of India card. Persons of Indian Origin enjoy fewer benefits than Overseas Citizens of India. For example, they
are entitled to visa free entry into India for 15 years, while Overseas Citizens of India are provided a lifelong visa. The
Amending Act provides that the Central Government may notify that Persons of Indian Origin cardholders shall be
considered to be Overseas Citizen of India cardholders from a specified date, ie., 9 January 2015 vide Ministry of Home
Affairs, Notification, F. No. 26011/01/2014-IC, dated 9-1-2015.

Thus, the concept of OCI Cardholder is distinct from Indian citizenship not only with regard to the procedure for grant
of citizenship and the privileges consequent u upon registration but also with regard to the cancellation of the
citizenship.

7H. ACCELERATED CITIZENSHIP TO PERSECUTED RELIGIOUS MINORITIES FROM

AFGHANISTAN, PAKISTAN OR BANGLADESH:

The migrants from Hindu, Sikh, Buddhist, Jain, Parsi or Christian communities from Afghanistan, Pakistan or
Bangladesh, who had entered into India without valid travel documents or if the validity of their documents had expired,
were regarded as "illegal migrants" and were ineligible to apply for Indian citizenship under section 5 or section 6 of
the Citizenship Act, 1955.
Before the enactment of the Citizenship Amendment Act, 2019, the said migrants had been exempted from the adverse
penal consequences of the Passport (Entry into India) Act, 1920 and the Foreigners Act, 1946. Subsequently Pa 2016,
the Central Government made them eligible for long term visa to stay in India.

The Citizenship Amendment Act, 2019 (47 of 2019) has amended the Citizenship Act, 1955, with effect from 10
January 2020, to provide for Indian Citizenship to migrants from persecuted religious minority communities [Le,
Hindu, Sikh, Buddhist, Jain, Parsi or Christian] from Afghanistan, Pakistan or Bangladesh, who have entered into India
up to the cut of date of 31 December 2014 [section 2(1)(b), proviso). The Central Government or an authority specified
by it shall grant the certificate of registration or certificate of naturalization, subject to such conditions, restrictions and
manner as may be prescribed [section 6B(1)]. However, the provisions of section 6B shall not apply to tribal area of
Assam, Meghalaya, Mizoram or Tripura as included in the Sixth Schedule to the Constitution and the area covered
under "The Inner Line"" notified under the Bengal Eastern Frontier Regulation, 1873.

On 11 March 2024, the Ministry of Home Affairs officially announced the rules for the Citizenship Amendment Act,
2019 vide Ministry of Home Affairs, Notification No. GSR 172(E), dated 11-3-2024. The Citizenship (Amendment)
Rules, 2024 amended the Citizenship Rules, 2009, inter alia, by inserting rules 10A, 11A and 13A, and amending rules
14, 15, 17 and 38.

8. LOSS OF INDIAN CITIZENSHIP:

The Citizenship Act, 1955, also lays down how the citizenship of India may be lost-whether it was acquired under the
Citizenship Act, 1955, or prior to it under the provisions of the Constitution (ie, under Articles 5-8). It may happen in
any of the three ways-renunciation, termination and deprivation:

(a) Renunciation is a voluntary act by which a person holding the citizenship of India as well as that of another country
may abjure one of them [section 8].

(b) Termination shall take place by operation of law as soon as a citizen of India voluntarily acquires the citizenship of
another country. However, this provision shall not apply to a citizen of India who, during any war in which India may
be engaged, voluntarily acquires the citizenship of another country, until the Central Government otherwise directs.
[section 9].

(c) Deprivation is a compulsory termination of the citizenship of India, by an order of the Government of India, if it is
satisfied as to the happening of certain contingencies, e.g., that Indian citizenship had been acquired by a person by
fraud, or that he has shown himself to be disloyal or disaffected towards the Constitution of India [section 10].

If a person has acquired citizenship of India and a question arises whether or not he has lost the citizenship by
acquisition of the citizenship of another country, that question has to be resolved by the authority prescribed under the
Citizenship Act, 1955. The Central Government is vested with exclusive

jurisdiction to determine the foregoing question, and that question cannot be determined by any Court, either by suit or
in a proceeding under Article 226 or under Article 32.

If a person voluntarily migrates to a foreign State after 26-1-1950, he will lose his Indian citizenship under the
provisions of the 1955 Act.

9. NATIONAL REGISTER OF CITIZENS (NRC).:

As per section 14A of the Citizenship Act, 1955, the Central Government may compulsorily register every citizen of
India and issue national identity card to him. The Central Government may maintain a National Register of India
Citizens and for that purpose establish a National Registration Authority. Procedure to be followed for compulsory
registration of citizens shall be such as may be prescribed.

As of January 2020, it has only been implemented for the State of Assam. The experience with Assam NRC shows that
many people were declared "foreigners" because their documents were deemed insufficient.