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constitutional_law:part-1:citizenship-under-constitution

Citizenship under Constitution of India

The Constitution provides for single citizenship. There is no separate citizenship of states. According to the Constitution the following three categories of persons are entitled to citizenship:

  1. persons domiciled in India
  2. refugees who migrated to India from Pakistan
  3. Indians living in other countries.

Indian Constitution ensures certain fundamental rights which are available to Indian citizens only. Aliens cannot enjoy these rights. Such fundamental rights as exclusively enjoyable by the Indian citizens are enumerated under Articles 15, 16, 18(2), 19 and 29. Also, citizens alone have the right to hold certain high offices such as those of President of India1), Vice-President 2), Governor of the State3), Judge of the Supreme Court4), High Court Judge5), Attorney General of India6) and Advocate General7).

Citizenship at the commencement of the Constitution

Articles 5 to 8 deal with the Citizenship of India at the commencement of the Constitution.

Citizenship by domicile

A person is entitled to citizenship by domicile if he fulfils two conditions laid down by Article 5.

First, he must, at the commencement of the Constitution, have his domicile in the territory of India.

Secondly, such person must fulfil any one of the three conditions laid down in the Article, namely,

  • (a) he was born in India,
  • (b) either of his parents was born in India,
  • (c) he must have been ordinarily resident in the territory of India for not less than 5 years immediately before the commencement of the Constitution.

Domicile is of two kinds domicile of origin and domicile of choice. Every person is born with a domicile of origin. It is domicile received by him at his birth. The domicile of origin of every person is the country in which at the time of his birth his father was domiciled. Thus the domicile of origin is a concept of law. It clings to a man till he abandons it and acquires a new domicile.

Every independent person can acquire a domicile of choice by a combination of-

  • actual residence in a particular place, and
  • intention to remain there permanently or for an indefinite period.

Citizenship of persons who migrated to India from Pakistan before the commencement of the Constitution

Persons who have migrated from Pakistan to India have been classified into two categories for the purposes of citizenship—

  • (a) those who migrated to India before July 19, 1948, and
  • (b) those who migrated on or after July 19, 1948.

Citizenship of migrants of Pakistan

Article 7 provides that anyone who has, after 1st March, 1947 migrated from India to Pakistan, cannot be a citizen of India. But, Article 7 also makes a special provision regarding the citizenship rights of persons who migrated to Pakistan after March 1, 1947 but returned to India subsequently. Such a person becomes entitled to Citizenship of India, provided they fulfil the conditions stated for Migrants from Pakistan stated in Article 6. An immigrant to Pakistan after 1st March, 1947, who has returned to India under a proper legal permit for resettlement or permanent return to India— such a person should fulfil all other conditions necessary for immigrants from Pakistan after July 19, 1948.

Citizenship of persons of Indian origin residing outside India

Article 8 provides that any person who or either of whose parents or grandparents was born in India as defined in Government of India Act 1955 but who is ordinarily residing in any country outside India, shall be deemed to be a citizen of India if he has been registered as an Indian Citizen by the diplomatic or consular representative of India in that country on an application made by him/her in the prescribed form to such diplomatic or consular representative, whether before or after the commencement of the Constitution.

A person residing outside India if he satisfies the following two conditions—

  1. he or either of his parents or any of his grand-parents must have been born in undivided India and
  2. he must have been registered as a citizen of India by the Diplomatic or Consular representative of India in the country where he is for the time being residing on an application made to such representative in prescribed form and manner.

Voluntarily Acquiring citizenship of foreign state

Article 9 provides that if a person voluntarily acquires the citizenship of any foreign State, he shall not remain a citizen of India under Article 5, 6 and 8. Article 9 does not disable Parliament from conferring Indian citizenship on a person who has voluntarily acquired the citizenship of any foreign state. The Citizenship Act was amended in 2003 and again in 2005 to introduce the concept of overseas citizenship for citizens of other countries.

Continuance of the rights of citizenship

Article 10 reads every person who is or is deemed to be a citizen of India under any of the foregoing provisions of Article 5-10 shall continue to be a citizen of India, subject to the provisions of any law that may be made by Parliament. In the other words, the right of citizenship cannot be taken away from a person except through express parliamentary legislation. Parliament is empowered under Article 11 to make any provision with respect to acquisition and termination of citizenship. In exercise of that power it may take away the right of citizenship which has accrued to a person under the foregoing provisions. But until that is done, a person who is or is deemed to be a citizen of India shall continue to be a citizen of India.

In connection with provisions relating to citizenship in the Constitution of India, the framers of Indian Constitution did not actually intended to frame comprehensive rules regarding citizenship. Constitution has simply described the persons who would be deemed to be citizens of India at the date of the commencement of the Constitution.

Parliament has been empowered to make laws relating to citizenship. In exercise of this power the Parliament has enacted the Citizenship Act, 1955. This Act contains elaborate provisions relating to Citizenship. The Citizenship Act, 1955 that came into force with effect from 30th December, 1955 deals with matters relating to the acquisition, determination and termination of Indian citizenship. The act has been amended by the Citizenship (Amendment) Act 1986, the Citizenship (Amendment) Act 1992, the Citizenship (Amendment) Act 2003, and the Citizenship (Amendment) Act, 2005.

Acquisition and Termination of Citizenship

Rules regarding acquisition and termination of Indian citizenship have been laid down in the Citizenship Act of 1955.

A person can acquire citizenship of India in five ways:

  1. Citizenship by birth
  2. Citizenship by descent
  3. Citizenship by registration
  4. Citizenship by naturalization
  5. Citizenship by incorporation of territory.

Loss of Indian Citizenship

  1. Renunciation
  2. Termination
  3. Deprivation

Citizenship by Birth

Every person born in India on or after the 26th January, 1950, is a citizen of India by birth except if at the time of his birth

  • A. his father 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 is not a citizen of India; or
  • B. his father is an enemy alien and the birth occurs in a place than under occupation by the enemy.

From 1st July, 1987 i.e. the date of enforcement of the Citizenship (amendment) Act, 1986, except as provided at 9a) & 9b) above, every person born in India on or after 26th January, 1950 but before the commencement of the act and on or after such commencement and either of whose parents a citizen in India at the time of his birth, shall be citizen of India by birth.

Citizenship by Descent

A person born outside India

  • (a) On or after 26th January, 1950, but before the commencement of the Citizenship ( Amendment ) act, 1992, shall be a citizen of India by descent if his father is a citizen of India at the time of his birth; or
  • (b) On or after such commencement, shall be a citizen of India by descent if either of his parents is a citizen of India at the time of his birth:

Provided further if either of the parents of such a person referred to in clause (b) was a citizen of India by descent only, that person is not be a citizen of India by virtue of this section unless

  • (a) his birth is registered at an Indian Consulate within one year of its occurrence or the commencement of the Citizenship ( amendment ) act, 1992, whichever is later , or, with the permission of the Central Government, after the expiry of the said period; or
  • (b) either of his parents is at the time of his birth, in service under a Government of India.

Citizenship by Registration

Subject to certain conditions and restrictions, the Central Government, in the Ministry of home Affairs, may, on application made in this behalf, register as a citizen of India any person who is not already such citizen and belongs to any of the following categories

  • (a) Persons of Indian origin who are ordinarily resident in India and have been so resident for five years immediately before making an application for registration. Prior to the coming into force of the Citizenship (Amendment) Act, 1986 i.e. 1st July 1987, this period was six months.
  • (b) Persons of Indian origin who are ordinarily resident in any country or place outside undivided India;
  • (c) Persons who are or have been married to citizens of India and are ordinarily resident in India and have been so resident for five years immediately before making an application for registration.Prior to the Citizenship ( amendment ) act, 1986 the clause read “ women who are or have been married to citizens of India”
  • (d) Minor children of persons who are citizens of India; and e. Persons of full age and capacity who are citizens of a country specified in the first Schedule of the citizenship Act, 19558)

Citizenship by Naturalization

Where an application is made in the prescribed manner by any person of full age and capacity who is not a citizen of a country specified in the First Schedule 14.I for the grant of a certificate of a naturalization to him, the Central Government may, if satisfied that the applicant is qualified for naturalization under the provisions if the Third Schedule, grant to him a certificate of naturalization. Provided that, if in the opinion of the Central Government, the applicant is a person who has rendered distinguished services to the cause of science, philosophy, art, literature, world peace or human progress generally, it may waive all or any of the conditions specified in the Third Schedule of Citizenship act, 1955. The person to whom a certificate of naturalization is granted shall, on taking a oath of allegiance in the form specified in the Second Schedule, be a citizen of India by naturalization as from the date on which that certificate is granted.

Citizenship by Incorporation of Territory

If any territory becomes a part of India, the Central Government, may by orders notified in the Official Gazette, specify the persons who shall be citizens of India by reasons of their connection with that territory, and those persons shall be citizens of India as from the date to be specified in the order.

Renunciation of Citizenship

If any citizen of India of full age and capacity, who is also a citizen or national of another country, makes in the prescribed manner a declaration renouncing his Indian citizenship; the declaration shall be registered by the prescribed authority, and upon such registration, that person shall cease to be a citizen of Indian. Provided that if any such declaration is made during any war in which India may be engaged, registration thereof shall be withheld until the Central government otherwise directs.

Where a person ceases to be a citizen of India every minor child of that person shall thereupon cease to be a citizen of India, provided that any such child may, within one year after attaining full age, make a declaration that he wishes to resume Indian citizenship and shall thereupon again become a citizen of India.

For this purpose any woman who is, or has been, married shall be deemed to be of full age.

Acquisition of Citizenship of Another Country

Any citizen of India who by naturalization, registration or otherwise voluntarily acquires, or has at any time between the 26th January 1950 and the commencement of this Act voluntarily acquired, the citizenship of another country, cease to be a citizen of India. However, this does not apply to a citizen of India, during any war in which India may be engaged, voluntarily acquires the citizenship of another country, until the Central Government otherwise directs.

If any question arises as to whether, when or how any person has acquired the citizenship of another country, it shall be determined by such authority, in such manner, and having regard to such rules of evidence, as may be prescribed in this behalf.

Deprivation

The Central government under section 10 of the Indian citizenship Act, 1955 deprives any citizen of Indian Citizenship if it is satisfied that

  • (a) the registration or certificate of naturalization was obtained by means of fraud, false representation or concealment of any material fact; or
  • (b) that citizen has shown himself by act or speech to be disloyal or disaffected towards the Constitution of India as by law established; or
  • (c) that citizen has, during the war in which India may be engaged, unlawfully traded or communicated with an enemy or been engaged in or associated with, any business that was to his knowledge carried on in such manner as to assist any enemy in that war; or
  • (d) that citizen has, within five years after registration or naturalization, been sentenced in any country to imprisonment for a term of not less than two years; or
  • (e) That citizen has been ordinarily resident out of India for a continuos period of seven years, and during that period, has neither been at any time a student of any educational institution in a country outside India or in the service of a Government of India or of an International organization of which India is a member, nor registered annually in the prescribed manner at an Indian consulate his intention to retain his citizenship of India.
  • (f) The Central Government shall not deprive a person of citizenship unless it is satisfied that it is not conducive to the public good that person should continue to be a citizen of India.

Is Company a citizen?

Question whether a juristic person like the 'Company' was a citizen arose in State Trading Corporation of India vs C.T.O. The S.T.C. was a registered company, and its sales were taxed. The company challenged this tax, as infringement of its fundamental right to do business in Art.l9(l)(g). As Art 19 (1) (g) is a fundamental right available to a citizen, question arose whether the company was a citizen.

Court held that, the company was not a citizen. The fundamental rights were available only to natural born persons, and not to companies.

In Tata Engineering & Locomotive Co. V. State of Bihar it was argued that if all the share-holders are citizens of India, then the company's veil can be lifted and the fundamental rights of the citizens be protected. But the court disagreed with this argument and held that, with this the company would achieve indirectly what it cannot do directly,so company was not a citizen even if all shareholders were citizens.

However, the above cases are neutralised by the Supreme Court in Bank Nationalisation Case (1970). The view of the court is that shareholders are citizens and are entitled to Fundamental rights of Article 19. If they associate themselves, and form a Company, their rights are not lost. If the shareholders' rights are to be protected, it necessarily means that the company's rights should be protected.

In DC & GM V Union of India (1983), the Court held that writ by the company was maintainable for violation of Fundamental Rights under Art. 19. Denial of this right to the company would be denial to the shareholders. Hence, a company can maintain a writ petition.

1)
Article 58 (1)(a)
2)
Article. 66(3)(a)
3)
Article 157
4)
Article 124(3)
5)
Article 217(2)
6)
Article 76(1)
7)
Article 165
8)
appendix 14.I