Citizenship in India

Nov1,2020 #CAA #Citizenship #India
flag india law insider in
flag india law insider in

By Anushka Mansharamani –

In Indian history after the partition and Declaration of Independence, India was divided into 2 parts : India and Pakistan. During the partition the people were given the freedom to join any country.

Therefore, strict provisions were made to frame the nationality policies in India before the final formation of the constitution of India.

There are various articles in the constitution of India that talk about citizenship.

Article 5

It mentions certain conditions that are to be followed to be a citizen of India.

  1. The person should have mandatorily taken birth in the Indian territory.
  2. Any one parent should have taken birth in the Indian territory.
  3. Any person who would have been a residence Of India for more than 5 years in Indian territory.

Mohammad Reza in case of Mohomaad Reza Debestani v. State of Bombay[1] had made an appeal to get citizenship in India. Mohammed had visited India with his uncle and stayed in India for several years and thereafter went to Iraq on a pilgrimage.

He was given permission to stay in India for several years thereafter on extension. He then took this case to the court for citizenship in India but was denied as he had returned to Iraq after his stay in India and had got employed there.

Therefore according to the provisions made under Article 5, he had not taken birth in the Indian territory nor had his one parent taken birth in the Indian territory and neither did he reside in India for more than 5 years and therefore the court dismissed the appeal on the basis of Article 5 of the constitution of India.

Article 6

It mentions certain conditions that are to be followed by Pakistan migrated individuals to the territory of India.

  1. The individuals parents or grandparents should have been born in India according to the Government of India Act 1935.
  2. An individual should have migrated to India before 19th July 1948.

The term migrant observed by the Hon’ble Supreme Court of India in its landmark judgement Kulathil Mammu v. The State Of Kerala[2] states that “intention to take up permanent residence in one or the other dominion, coupled with movement could alone justify a claim for citizenship of the country into which the migrant has moved, a large number of persons who migrated from the territory of Pakistan to India would find themselves without citizenship of India.”

Article 7

It mentions that the Pakistan migrated individuals after 1st March, 1947 would not have citizenship in India.

Exceptions to the rule of article 7

  1. Any individual who has migrated from Pakistan and then returned back to Pakistan with prior permission from the authority would be eligible to have a citizenship in India.

Kumar Amar Singh’s wife in the case of  State Of Bihar v. Kumar Amar Singh And Others[3] stated that she had visited Karachi for temporary treatment. Upon arrival in India she was allowed to stay as she had a Pakistan domicile certificate and after the expiry of this certificate she returned back to Pakistan. Thereafter she wanted to get a permanent citizenship in India as she had a property in India under her name. The court observed that as she had migrated before the day was stated in the provision, therefore, she would not be liable to get permanent citizenship in India.

Article 8

Article 8 of the Constitution of India mentions that a person residing in a different country if have their parents or grandparents taken birth in the Indian territory and have registered themselves as a citizen of India then in that case the person would be considered as a citizen of India.

It was held in the case of Nasir Ahmed v. The chief commissioner[4] by the Punjab- Haryana High Court that “ a person can apply for registration as a citizen and under section 8  a person may make a declaration renouncing his Indian Citizenship.”

Article 9

Article 9 of the Constitution of India states that if a person has adopted dual citizenship of any foreign state then that individual would not be considered as a citizen of India.

Rehmatullah in case State of U.P. v. Rehmatullah[5] the Supreme Court of India held that that “ a person has lost his citizenship of this country and has acquired the citizenship of a foreign country has to be tried by the Central Government and it is only after the Central Government has decided the point that the State Government can deal with the person as a foreigner”

Article 10 & 11

Article 10 states that an individual could be considered a citizen Of India under the provisions provided that the person would continue to be a citizen if also new provisions are made by the parliament.

Article 11 states that no parliamentary power can make any provision or termination of citizenship in India[6].

Citizenship Act 1955

Section 3 – Citizenship by Birth

  • Any individual who was born on or after the 26th January1950 would be granted citizenship in India.
  • Any individual whose either of the parents are citizens of India would be granted citizenship in India.
  • In case one parent is a citizen of India it is necessary to prove that the other parent at the time of the birth of the child was not an illegal migrant[7].

Section 4 – Citizenship by descent

  • An individual born outside India on or after 26 January 1950 would by default be a citizen of India if his father was the citizen of India by birth.
  • A person born outside India between 10th December 1992 and 3rd December 2004 would be a citizen of India if either of his parents were a citizen of India by birth[8].
  • If a person born overseas owner after 3rd December 2004 applies for citizenship in India the parents have to prove that the minor does not have a passport of any other country or is not registered as a citizen of any other country. This declaration should be made within 6 months of his birth.

Section 5 – Citizenship by registration

  • An individual can apply for registration of citizenship if they have been a resident of India for 7 years.
  • An individual who is married to an Indian citizen for 7 years can apply for registration of citizenship in India.
  • Minor children of individuals who are citizens of India.
  • A person can apply for registration of citizenship in India if he is a resident of any country other than the divided countries of India[9].

Section 6 – Citizenship by naturalization

  • An individual is granted the certificate of naturalization if he has fully aged or attained the capacity and satisfied all the conditions under naturalization and granting of the certificate of citizenship by naturalization is done but the individual taking a note in the manner specified in the 3rd schedule of the constitution of India

Section 7 – Citizenship by incorporation of territories.[10]

  • Any addition of a territory in India would lead to citizenship of those people who stay in that territory and would be granted citizenship by the official Gazetteonce. They would be considered Indian citizens after the order is passed on a specific date.
  1. Section 8 – Renunciation of Citizenship
  2. Section 9 – Termination of Citizenship
  3. Section 10 – Deprivation of Citizenship
  4. Section 11 – Commonwealth Citizenship
  5. Section 12- Power to confer rights of Indian citizens or citizens of certain countries
  6. Section 13 – Certificate of Citizenship
  7. Section 14 – Disposal of application
  8. Section 15 – Revision
  9. Section 16 – Delegation of power
  10. Section 17 – Offences
  11. Section 18 – Power to make rules
  12. Section 19 – Repeals

The Citizenship act 1955 has been amended 6 times

Amendments-

The Citizenship Amendment Act, 1986

  1. According to the citizenship Act 1986 a person who was not born in India could be granted citizenship but the necessary condition is that at the time of the birth of the person either one of his parents have to be a citizen of India.
  2. The stay time that was mentioned in the Citizenship act 1955 was amended and modified in case of registration, naturalization and for that matter even marriage.

The Citizenship Amendment Act, 1992

  1. According to the citizenship act 1992 the individual who would who was born after 26 January 1950 and before the enactment of this act would be considered a citizen of India only if his father was born in India
  2. The term “male persons” that was mentioned in the citizenship act 1955 was amended and modified to “persons”.
  3. An individual that would take birth after the enactment of the act would be considered to be a citizen of India if either of his parents were in India during his birth.

The Citizenship Amendment Act, 2003

The citizenship amendment act 2003 made a provision of registration and rights of overseas citizens in this act.

The Citizenship Amendment Act, 2005

  1. According to the citizenship amendment Act 2005 the system of dual in citizenship was incorporated.
  2. This dual citizenship in India was applicable to all the citizens of the country except for those who have earlier been a citizenship of either Bangladesh or Pakistan.

The Citizenship Amendment Act, 2016

  1. According to the citizenship amendment act 2016 people were allowed to get citizenship if they were of the minor communities for example Sikh, Parsis, Christians etc. Those citizens who have illegally migrated from Pakistan, Bangladesh and Afghanistan were also allowed to convert if they were of the minor communities.
  2. Muslims on the other hand were not a part of the minor communities and therefore migration from Pakistan, Bangladesh and Afghanistan to India for the Muslim communities to get a citizenship of India was not granted.
  3. The minimum years that will be required to stay to be a citizenship in India was 11 years but was decreased to 6 years after this amendment and this was also applicable for the minor communities who had migrated from Pakistan Bangladesh and Afghanistan.

The Citizenship Amendment Act, 2019

  1. According to the recent amendment to the Citizenship Act 1955 the law mentioned that Indian citizens which Hindus, Sikhs, Jains, Buddhists, Parsis and Christians from either Pakistan, Bangladesh or Afghanistan who came to India before the 31st of December 2014 would be granted citizenship.
  2. According to the previous amendments made those discrimination of communities into minor communities and major communities and according to the citizenship act 2019 certain religious communities were omitted and there was a specific denial of citizenship to Muslims by the BJP government. According to legal experts article 14 of the Indian constitution has been violated as it talks about equal protection of laws even to the aliens in the territories of India and making a discrimination on the basis of religion according to these legal experts is not right.
  3. According to this new amendment Muslims from Pakistan, Bangladesh, Myanmar and Afghanistan have been excluded to be given citizenship and this point remains a worry for the Indian Muslims as their rights could be taken away by means of National Register of citizens, according to which they would not be granted citizenship under the latest Amendment Act.
  4. Parts of the North East and those which are listed in the 6th schedule of the Constitution of India have been exempted from the application of citizenship in India. Arunachal Pradesh, Nagaland and Mizoram have been kept out of the purview of the citizenship Amendment Act and the bill states nothing about tribal areas of Assam, Meghalaya, Mizoram or Tripura.[11]

In case of Bhagwati Prasad Dixit v. Rajeev Gandhi[12] the eligibility of the candidate standing for election’s citizenship was questioned. Rajeev challenged this verdict in the High Court and no cause of action was specified therefore this question would be answered by the Supreme Court and the High Court does not have the jurisdiction of such matters.

  1. Mohomaad Reza Debestani v. State of Bombay, A.LR. 1966 S.C. 1436 4.

  2. Kulathil Mammu v. The State Of Kerala, MANU/SC/0080/1966.

  3. State Of Bihar v. Kumar Amar Singh And Others, MANU/SC/0059/1955.

  4. Nasir Ahmed v. Chief Commissioner Delhi, AIR 1959 Punj 26.

  5. State of U.P. v. Rehmatull, MANU/SC/0191/1971.

  6. ipleaders6.rssing.com. .

  7. en.wikipedia.org. .

  8. affairscloud.com. .

  9. web.archive.org. .

  10. ipleaders6.rssing.com. .

  11. thewire.in. .

  12. Bhagwati Prasad Dixit v. Rajeev Gandhi, MANU/UP/0430/1985.

Related Post