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Citizenship in India

August 03, 2019
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This article is written by Soma-mohanty of KIIT School of Law, Bhubaneswar. In this article, she has mentioned about the eligibility to hold citizenship of India.

History

When there was a declaration of independence, the country was divided into two parts one was India and the other was Pakistan. The people were provided independence to join any country they want to get the nationality of. Thus the situation demanded strict provisions to frame the nationality policy of India before the commencement of the constitution.

Constitutional Provisions governing citizenship

After the partition it was seen that people were migrating from one border to another, thus it was difficult to frame the provision for citizenship in India.

 

Article 

Provision 

Case laws

Article 5

It says that certain conditions are to be fulfilled to be a citizen of India

  • The person should have taken birth in the Indian territory.
  • In case either of the parents has taken birth in the Indian territory.
  • If a person has been staying for more than five years in the territory of India.

In the case of Mohd. Reza Debestani v. State of Bombay[1], it was seen that the appellant’s request for citizenship of India was rejected. The appellant had come to India with his uncle and after several years of stay, he went to Iraq on pilgrimage. Then he was permitted to stay in India for years with repeated extension. But then he was denied and thus he pleaded. Then he returned to Iraq a got employed, this fact was enough to satisfy that he can’t be granted citizenship of India according to the provisions made. 

Article 6

When a citizen of Pakistan has migrated to the territory of India, would be entitled to a right of citizenship under these conditions

  • If the person’s parents or grandparents were born in India, according to the Government of India Act,1935
  • If a person has migrated and is ordinarily residing in India before the nineteenth day of July 1948

In the case of Kulathil Mammu v. State of Kerela[2], the term “migrated” in this section was defined. It was held that the term means voluntary and permanently leaving from India to Pakistan.

Article 7

If a person has migrated to the territories of Pakistan after the first day of March 1947, shall not be considered as a citizen of India.

Exception 

  • A person who has migrated to the Pakistan territory and then returns back with the permission from the requisite authority.

In the case of State of Bihar v  Kumar Amar Singh[3], the wife left her husband and went to Karachi. According to her statement, she went to Karachi temporarily for treatment. Then she returned back to India and was permitted to stay as she stated that she was Pakistan domicile. Then after the expiry of the period, she returned back to Pakistan. Then she wanted to get the permanent citizenship of India, when her property in India was to be taken under custody.it was held that as she had migrated before the date stated in the provision, she won’t be given permanent citizenship.

Article 8

If a person is residing in a different country but either of the parents or grandparents have taken birth in the Indian territory and if the person is registered as a citizen of India by the diplomatic or consular representative of India, shall be considered as a citizen of India.

 

Article 9

If a person has voluntarily adopted the citizenship of any Foreign State, then we won’t be considered as a citizen of India.

In the case of State of U.P. v. Rehmatullah[4], it was held that the Central Government is authorised to take action against people who have acquired the foreign citizenship and have lost the citizenship of India, but they are still residing in the country.

Article 10

When a person is considered as a citizen of India under the provisions provided, the person would continue to be a citizen if also new provisions are made by the Parliament.

In the case of Ebrahim Vazir Mavat v State of Bombay[5],, the constitutional validity of the Influx from Pakistan Control Act,1949 was put forward. This act provided that when a person has the domicile of either India or Pakistan, can’t enter the premises of the above stated countries without permission. And if any person goes against the rule then he would be convicted of the offence mentioned in the act. According to Section 7, a person can be denied citizenship by the Central Government under certain grounds.

It was held that removing a citizen from the country under Section 7 of the Constitution of India would amount to a deprivation of the right of citizenship as mentioned in  Part II of the constitution.

Article 11

It states that nothing can prohibit the Parliament’s power to make any provision on termination or acquisition of citizenship and all other subjects related to citizenship.

 

 

Citizenship act and its amendment 

Citizenship Act of 1955

 

Section 

Provision 

Section 3

Citizenship by birth

Section 4

Citizenship by descent

Section 5

Citizenship by registration

Section 6

Citizenship by naturalisation

Section 7

Citizenship by incorporation of territories

Section 8

Renunciation of citizenship

Section 9

Termination of citizenship

Section 10

Deprivation of citizenship

Section 11

Commonwealth citizenship

Section 12

Power to confer rights of Indian citizen or citizens of certain countries

Section 13

Certificate of citizenship in case of doubt

Section 14

Disposal of application

Section 15

Revision 

Section 16

Delegation of power

Section 17

offences

Section 18

Power to make rules

Section 19

Repeals 

 

Amendments 

Click Here

Amendments year wise

Provision 

The Citizenship (Amendment) Act of 1986

  • According to the provisions of this amendment, a person who is not born in India would be granted citizenship. But at the time of the birth of the person, it is necessary that either one of the parents has to be a citizen of India 
  • The maximum time period required to stay in India to acquire its citizenship in the case of registration, naturalisation or marriage was modified.

The Citizenship (Amendment) Act of 1992

  • It stipulated that if a person is born after 26th January1950 and before the commencement of this Act, then he would be considered as a citizen of India but his father should be India at the time the person was born.
  • But if the person has taken birth after the commencement of the Act, then he would be considered as a citizen of India if either of his parents is Indian during birth.
  • The word “male person” was amended with “persons”.

The Citizenship (Amendment) Act of 2003

  • Provision of registration, right of overseas citizens was amended in this act.

The Citizenship (Amendment) Act of 2005

  • It incorporated the system of dual citizenship
  • This was applicable to citizens of all the countries, except for the persons who have been the citizen of Pakistan and Bangladesh.

The Citizenship (Amendment) Act 2016

  • This bill allowed the Indian citizenship to minor communities like (Sikh, Buddhist, Jain, Parsi or Christian) who illegally migrated from Pakistan, Bangladesh and Afghanistan.
  • But Muslim communities from Pakistan, Bangladesh and Afghanistan were not allowed for citizenship.
  • The maximum period required to reside in India to acquire its citizenship was decreased from 11 years to 6 years. This is applicable for minor communities like (Sikh, Buddhist, Jain, Parsi or Christian) who illegally migrated from Pakistan, Bangladesh and Afghanistan.

Modes of acquiring of citizenship 

Citizenship By Birth

According to Section 3 of The Citizenship Act, if a

Citizenship By Descent

According to Section 4 of The Citizenship Act,

Citizenship By Registration

According to Section 5 of The Citizenship Act,

Citizenship By Naturalisation

According to Section 6 of The Citizenship Act,

Citizenship By Incorporation of Territory

According to Section 7 of The Citizenship Act,

Overseas citizenship of India

  1. No right to vote.
  2. No right to hold constitutional offices
  3. No right to buy agricultural properties

 

Requirements to apply and use Overseas Citizenship of India document

 

  1. Citizenship
  2. Should be a holder of a passport of another country

History

Previously citizens of India were not permitted to hold dual citizenship and this provision was laid down by the Constitution of India. Thus, a person was not permitted to hold any other countries passport with an Indian passport.

Eligibility

A person is eligible to get registered as Overseas Citizenship of India by the Government of India under certain conditions

Application 

Application for Overseas Citizenship of India is submitted online.

Renewal

 Privileges

Disadvantages of OCI Card

Cancellation of OCI card 

The existing registration of OCI can be cancelled through the provisions of Section 7D of the Citizenship Act,1995. The Government of India has the right to cancel the OCI if it has been obtained by false representation or concealment of facts.

The followings are the conditions in which OCI is cancelled according to  Section 7D of the Citizenship Act,1995

Renunciation of OCI 

When the person has registered for OCI document, but they find it necessary to abstain from it and withdrawal the application, then renunciation of OCI is done. The provisions followed in the procedure of renunciation of OCI are laid down in Section 7C of the Citizenship Act.

According to Section 7C of the Citizenship Act

Person of Indian origin

When a person of Indian origin has been entitled to the passport of other countries, they hold Person of Indian Origin Card. But the passport should not be from countries like Afghanistan, Bangladesh, Bhutan, China, Iran, Nepal, Pakistan, and Sri Lanka.

The Person of Indian Origin Card has ceased to work from 9th January 2015 and has been merged with the OCI  card provision. Thus the holders of The Person of Indian Origin Card are treated as OCI cardholders.

Conditions 

Certain conditions are required to be fulfilled to issue the Person of Indian Origin Card are as follows.

Benefits to PIO card holder 

Dual citizenship

Availing dual citizenship of India and another country requires certain strict provisions. Earlier there was no provision of dual citizenship in India. These certain provisions are required to be fulfilled to obtain dual citizenship in India

Renunciation of Indian citizenship 

Under Section 8 of the Citizenship Act,1995 the provisions for renunciation of citizenship has been laid down

Termination of Indian citizenship

According to Section 9 in the Citizenship Act,1995 the following provisions are provided for the termination of Citizenship

Case law

In the case of Bhagwati Prasad Dixit v. Rajeev Gandhi[6],  it was seen that the question raised was against the validity of the election. According to the appellant, the respondent was to be disqualified from being a candidate in the election as he has ceased to be a citizen of India. The respondent had challenged the verdict of the High Court.

It was held that the High Court has correctly dismissed the plea because it the arguments that were put forward did not disclose any cause of action. Moreover, the question of acquisition of Foreign citizenship under Section 9 of the Citizenship Act, is to be answered by the Central Government and the High Court does not have the jurisdiction.

To know more about the topic on citizenship laws, Click Here.

Reference

[1] AIR 1996 SC 1436

[2] AIR 1966 SC 1614

[3] AIR 1955 SC 282

[4] AIR 1971 SC 1382

[5] AIR 1954 SC 229

[6] 1986 AIR 1534

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