Citizenship in India: Constitutional and Statutory provisions

Throughout our 73 years as an independent nation, Indian citizenship laws have seen constant changes and progression [and in some cases regression :) ]. We have continued working on the law on citizenship with a multitude of amendments to the Constitution of India and some defining landmark cases as a front for such operations.

But, before we delve into the multiple ways one can gain citizenship of India and what amendments shaped the laws that exist today, we need to understand what it means to be a “Citizen” and what typical citizenship of a country entails.

Defining Citizenship:

A citizen is simply a participatory member of a political system in a country. A Citizenship is typically gained by satisfying legal requirements defined by a country’s code on the same. A citizen is granted full rights and required to fulfill his/her responsibilities (duties) towards the nation. As a citizen of a country, you are also expected to contribute to the betterment of your nation and represent it with pride and honor as a part of your identity.

As T.H Marshall described it- Citizenship is constituted by three key elements- “full membership of community” be it civil, social, or political.

Modes of acquiring Indian Citizenship:

In India, there are two ways someone can acquire citizenship:

• If they satisfy the provisions in Part II (Article 5 to 11) of the Constitution of India.

• If they satisfy the provisions of The Citizenship Act of 1955. (downloadable)

Mode 1- Provisions under PART- II, Constitution of India:

The Constitution does not lay down a comprehensive list of provisions relating to citizenship in India. Article 5 to 8 of the Constitution just lays down the classes of persons that qualify to attain Indian citizenship at the very commencement of the Constitution i.e. on 26th Jan 1950 when India became a republic. The citizens under this part have been classified into:

1. Citizenship by DOMICILE

2. Citizenship by MIGRATION

3. Citizenship by REGISTRATION

1. Citizenship by Domicile:

The term “domicile” is itself not defined in the Constitution. In general, the domicile of a person resides in that country where he has either or deemed by law to have his permanent house. The key distinction of the term “residence” and “domicile” is that the latter stands for the intention to build/have a permanent home in a territory.

In Joshi v. Madhya Bharat (AIR 1955),

The Supreme Court opined that “when we speak of a person having domicile of a particular country, we mean that in certain matters such as succession, minority, and marriage, he is governed by the law of that country”.

Under Article 5, every person having domicile in India at the commencement of the Constitution as well as fulfilling ANY the following conditions is a citizen of India by Domicile:

1. He/ She was born in India

2. Either of the parents was born in India.

3. He/she has been an ordinarily resident in India for a minimum of 5 years before the commencement of the Constitution.

As for Domicile, matters like intention to leave the country become quite relevant to the case. Also, the burden of proof to prove such domicile exists lies solely on the petitioner.

In Central Bank of India v. Ram Narain (AIR 1955)

The Court held that the intention to reside in a country where one has taken residence is an essential element for the existence of domicile in that country.

#Note- A minor takes the domicile of his/her father (as held in Dawood Mohd. v. Union of India)

#Note- A married woman takes the domicile of her husband (as held in Karinum Nisa v. State of Madhya Pradesh)

2. Citizenship by Migration:

Under Article 6, an immigrant from Pakistan becomes an Indian citizen if he or either of his parents or any of his grandparents was born in India (as it was before independence) and fulfilled EITHER of the following two conditions:

1. In case he migrated to India before July 19,1948- he had been ordinarily resident in India since the day of his migration OR

2. In case he migrated on or after July 19, 1948, he had been registered as a citizen of India by a designated office.

#Termination of Citizenship:

Under Article 7, a citizen of India by domicile or by migration ceases to be a citizen if he has migrated to Pakistan after March 1, 1947. However, if he has returned from Pakistan with a permit and a view to resettling in India permanently can register himself as an Indian citizen provided they satisfy the provision of Article 6.

3. Citizenship by Registration:

Under Article 8, a person who, or either of whose parents or any of whose grandparents were born in India (before independence) but, he/she has been ordinarily resident or residing in any other country outside India and Pakistan can register themselves as an Indian Citizen by applying for the same at a consular representative’s office in any country.

More on Citizenship under the Constitution of India:

Article 9 provides that if a person voluntarily acquires the citizenship of a foreign country, he cannot claim citizenship under the Articles mentioned above. However, this article only deals with the voluntary acquisition of foreign citizenship before the commencement of the Constitution.

Article 10 simply provides that any citizen of India will continue to be a citizen of the same under any of the foregoing provisions but will be subject to the laws formulated/amended by the Parliament.

As per Article 11 nothing mentioned in Article 5-10 under Part II of the Constitution shall derogate the power of the Parliament to make any provision with respect to the acquisition or termination of citizenship of a certain class of persons and, on any and all matters regarding citizenship.

The Parliament did use its power to formulated laws for citizenship and therefore, passed the Citizenship Act of 1955 for the acquisition and termination of citizenship after the commencement of the Constitution of India.

Mode 2- Through the provisions of the Citizenship Act, 1955

This Act provides 5 ways for acquiring citizenship in India and does not apply to juristic people i.e. Company, association, or a body of individuals (whether they are incorporated or not). Here are the provisions:

1. Citizenship by Birth:

As per Section 3(1) of the Act, every person born in India

1. On or after 26th January 1950 but before the commencement of the Citizenship (Amendment) Act, 1986 i.e.1st July 1987 OR

2. On or after 1st July 1987 but before the commencement of the Citizenship (Amendment) Act, 2003 and either of his parents is a citizen of India at the time of his birth OR

3. On or after the commencement of the Citizenship (Amendment) Act, 2003 where both or at least one of the parents was an Indian citizen at the time of birth and the other was not an illegal migrant,

shall be a citizen of India by BIRTH provided,

1. His father/mother possesses diplomatic immunity and is not an Indian citizen.

2. His father/mother is an enemy alien or was born in a territory under enemy occupation.

2. Citizenship by Descent:

Section 4 provides for citizenship by descent. According to Section 4(1), a person born outside India on or after 26th January 1950 but before the commencement of the Citizenship (Amendment) Act, 1992 is a citizen by descent provided that the father was an Indian citizen at the time of his birth.

This section also provides that child will be an Indian citizen by descent if either of the parents is under service for the Govt. of India at the time of his birth. However, in such a scenario, for it to be complete citizenship for the child, the birth must be registered at an Indian consulate.

3. Citizenship by Registration:

Section 5 deals with citizenship by Registration. The following classes of people can register themselves as Indian citizens after taking an oath of allegiance:

1. Person of Indian origin ordinarily resident in India and residing here for 6 months immediately preceding the date of the application for registration.

2. Person of Indian origin who are ordinarily resident outside undivided India.

3. Women married to Indian citizens

4. Minor children of Indian citizens.

5. Persons of full age and capacity who are citizens of a commonwealth country.

4. Citizenship by Naturalization:

According to Section 6, a person of full age and capacity who is a citizen of a non-commonwealth country can become an Indian citizen by Naturalization provided he/she satisfies the following conditions:

1. He is not a citizen or subject of a country where Indian citizens are prevented from becoming citizens of that country by naturalization.

2. He renounces citizenship of any other country.

3. He has resided and/or been in Indian Government service for 12 months immediately preceding the date of application OR

4. During 7 years prior to the mentioned 12 months, he has been in Government service for at least 4 of them.

5. He is of good character.

6. He has adequate knowledge of any of the languages recognized by the Constitution of India.

7. After naturalization, he intends to reside in India or wants to enter government service, international organization, society, or a company of his choice.

Another key inclusion under this Section was the inclusion of Section 6A which gave effect to the Assam Accord of 1985.

5. Citizenship by incorporation of territory:

Section 7 of the Citizenship Act provides that if any territory becomes a part of India, the center shall specify the procedure and classes of person for the occupants of such territory to be citizens of India under this Section.

Don't forget to check out our comprehensive coverage of some core topics of Constitutional Law.

Hope this helps, good luck!