Constitutional Provisions on Citizenship
Article 5: Citizenship at the commencement of the Constitution
Part II of the Constitution of India (Articles 5 to 11) deals with Citizenship. These articles describe who became citizens of India at the
Article 5 states that at the commencement of this Constitution, every person who has his
Domicile Requirement
Domicile refers to the place where a person resides with the intention of remaining there permanently. It has two components: residence and intention to reside indefinitely. Simply residing in India was not enough; the person must also have intended to make India their permanent home.
Requirements related to Birth, Parentage, and Ordinary Residence
In addition to having domicile in India, a person must fulfil any one of the following three conditions specified in Article 5 to become a citizen at the commencement of the Constitution:
He was
born in the territory of India ; orEither of his
parents was born in the territory of India ; orHe has been
ordinarily resident in the territory of India fornot less than five years immediately preceding such commencement.
Article 5, read with the definition of 'State' in Article 12 (which includes the Government and Parliament of India, the Government and the Legislature of each of the States, and all local or other authorities within the territory of India or under the control of the Government of India), determined the initial set of Indian citizens.
Articles 6, 7, 8, 9, 10, 11: Other Provisions related to Citizenship
Apart from Article 5, other articles in Part II address specific situations concerning citizenship around the time of the Partition of India and its commencement.
Citizenship for persons migrating from Pakistan (Article 6)
Article 6 deals with persons who migrated to India from Pakistan after the Partition but before the commencement of the Constitution. It provides citizenship to two categories of such migrants:
Those who migrated before July 19, 1948 (the date of implementation of the permit system between India and Pakistan): Such a person became a citizen if he or either of his parents or any of his grandparents was born in undivided India, and he had been ordinarily resident in India since the date of his migration.
Those who migrated on or after July 19, 1948: Such a person became a citizen if he or either of his parents or any of his grandparents was born in undivided India, and he had been registered as a citizen of India by an officer appointed for that purpose by the Government of the Dominion of India. However, a person could be so registered only if he had been resident in India for at least six months immediately preceding the date of his application for registration.
Citizenship for persons migrating to Pakistan (Article 7)
Article 7 makes an exception for migrants to Pakistan. It states that a person who has migrated from India to Pakistan after March 1, 1947, shall
However, there is a proviso: A person who has returned to India from Pakistan under a permit for resettlement or permanent return shall be deemed to be a citizen of India as if he had migrated to India after July 19, 1948. This allowed for the return and citizenship of those who initially migrated to Pakistan but decided to return to India.
Citizenship for persons of Indian origin residing outside India (Article 8)
Article 8 provides for the citizenship rights of persons of Indian origin residing outside undivided India. Any person who or either of whose parents or any of whose grandparents was born in undivided India and who is ordinarily residing in any country outside undivided India shall be deemed to be a citizen of India if he has 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 by him in that behalf to such diplomatic or consular representative, whether before or after the commencement of this Constitution.
This provision enabled people of Indian origin living abroad to register as Indian citizens at the time of the Constitution's commencement.
Discontinuation of citizenship by acquiring foreign citizenship (Article 9)
Article 9 states that
This provision reinforces the principle of
Continuance of the rights of citizenship (Article 10)
Article 10 states that every person who is or is deemed to be a citizen of India under any of the foregoing provisions of this Part shall, subject to the provisions of any law that may be made by Parliament,
This provision ensures that the citizenship acquired at the commencement of the Constitution continues, but it also makes it clear that citizenship is subject to laws made by Parliament.
Residuary powers of Parliament to regulate citizenship (Article 11)
Article 11 grants
This is a crucial article as it delegates the legislative authority to Parliament to enact comprehensive laws governing citizenship in India. All subsequent laws related to citizenship, including the Citizenship Act, 1955, are enacted under this power.
In essence, Articles 5-8 provide a snapshot of who became a citizen at the start, Article 9 prevents dual citizenship, Article 10 ensures continuity, and Article 11 empowers Parliament to legislate on citizenship in the future.
The Citizenship Act, 1955
Acquisition of Citizenship
The Citizenship Act, 1955, is the primary legislation that provides for the acquisition and termination of Indian citizenship
The Act provides for five ways of acquiring Indian citizenship:
By Birth
Citizenship by birth is determined by where a person is born. The provisions for citizenship by birth have been amended over time:
From Jan 26, 1950, to July 1, 1987: A person born in India on or after Jan 26, 1950, but before July 1, 1987, is a citizen of India by birth, irrespective of the nationality of his parents.
From July 1, 1987, to Dec 3, 2004: A person born in India on or after July 1, 1987, is considered a citizen only if
either of his parents was a citizen of India at the time of his birth.On or after Dec 3, 2004: A person born in India on or after Dec 3, 2004, is a citizen only if
both his parents are citizens of India, orone of whose parents is a citizen of India and the other is not an illegal migrant at the time of his birth.
Children of foreign diplomats posted in India and children of enemy aliens cannot acquire Indian citizenship by birth.
By Descent
Citizenship by descent is determined by the nationality of one's parents.
From Jan 26, 1950, to Dec 10, 1992: A person born outside India on or after Jan 26, 1950, but before Dec 10, 1992, is a citizen of India by descent if his
father was a citizen of India at the time of his birth.From Dec 10, 1992, to Dec 3, 2004: A person born outside India on or after Dec 10, 1992, is a citizen of India by descent if
either of his parents was a citizen of India at the time of his birth. This change aimed to ensure gender equality.On or after Dec 3, 2004: A person born outside India on or after Dec 3, 2004, shall not be a citizen of India by descent unless his birth is
registered at an Indian consulate within one year of the date of birth or with the permission of the Central Government after the expiry of the said period. Also, an undertaking needs to be given that the child does not hold the passport of another country.
By Registration
Citizenship can be acquired by registration by certain categories of persons upon application to the prescribed authority. The conditions for registration have been amended over time, but generally include persons of Indian origin or individuals married to Indian citizens, who have been residing in India for a specified period (currently seven years ordinarily resident in India immediately before making the application).
Categories include:
Persons of Indian origin who are ordinarily resident in India for 7 years before applying.
Persons of Indian origin who are ordinarily resident in any country or place outside undivided India.
Persons who are married to a citizen of India and are ordinarily resident in India for 7 years before applying.
Minor children of persons who are citizens of India.
Persons of full age and capacity whose parents are registered as citizens of India.
Persons of full age and capacity who or any of whose parents was earlier a citizen of independent India, and have been ordinarily resident in India for 7 years before applying.
Persons of full age and capacity who are registered as an Overseas Citizen of India (OCI) cardholder, and who has been ordinarily resident in India for 5 years before applying.
By Naturalisation
Citizenship by naturalisation can be acquired by a foreigner who has been residing in India or serving the Government of India for a specified period (generally twelve years - ten years' residence + one year's continuous residence immediately preceding the application) and fulfils other qualifications listed in the Third Schedule of the Act. These qualifications include:
Not being a citizen of a country where Indian citizens are prevented from becoming citizens by naturalisation.
Having renounced the citizenship of his country.
Having resided in India or been in the service of the Government of India for the prescribed period.
Being of good character.
Having an adequate knowledge of a language specified in the Eighth Schedule to the Constitution.
Intending to reside in India or enter into service under the Government of India after naturalisation.
The Government of India may waive some of these conditions in case of a person who has rendered distinguished service to the cause of science, philosophy, art, literature, world peace, or human progress.
By Incorporation of Territory
If any foreign territory becomes a part of India, the Government of India may specify the persons who shall be citizens of India by reason of their connection with that territory. Such persons become citizens of India from the notified date.
Examples include the incorporation of Goa, Daman, Diu, and Puducherry.
Termination of Citizenship
The Citizenship Act, 1955, also provides for the loss of Indian citizenship. This can happen in three ways:
Renunciation
Any citizen of India of full age and capacity can make a declaration renouncing his Indian citizenship. Upon registration of such declaration, that person ceases to be a citizen of India.
However, if India is engaged in a war, the registration of the declaration of renunciation may be withheld by the Central Government.
When a person renounces his citizenship, every minor child of that person also ceases to be a citizen of India. However, when such a child attains the age of eighteen, he may resume Indian citizenship.
Termination
This refers to the automatic termination of Indian citizenship. As per Article 9 of the Constitution and Section 9 of the Citizenship Act, 1955, if an Indian citizen
This provision underscores the principle of single citizenship. It applies regardless of how the person acquired Indian citizenship.
Deprivation
This is a compulsory termination of Indian citizenship by the Central Government. Citizenship obtained by registration or naturalisation can be deprived by the Central Government on certain grounds. Citizenship by birth or descent cannot be deprived.
The grounds for deprivation include:
Obtaining citizenship by fraud.
Showing disloyalty to the Constitution of India.
Unlawfully trading or communicating with the enemy during a war.
Within five years after registration or naturalisation, the person has been sentenced to imprisonment in any country for two years or more.
Being ordinarily resident out of India for seven years continuously without having been on service under the Government of India or an international institution or without having given notice of his intention to retain his citizenship.
Before depriving citizenship, the Central Government is usually required to give the person an opportunity to be heard.
Amendments to the Citizenship Act
The Citizenship Act, 1955, has been amended several times to update the law, introduce new provisions, and modify existing ones. Some notable amendments include those in 1986, 1992, 2003, 2005, 2015, and 2019.
Citizenship (Amendment) Act, 2003
This amendment introduced several changes, including:
Making the acquisition of citizenship by birth more stringent (requiring at least one parent to be a citizen and the other not an illegal migrant for those born on or after Dec 3, 2004).
Introducing the concept of
Overseas Citizenship of India (OCI) . This was an initial step towards providing some form of dual benefit/status for persons of Indian origin, although not full dual citizenship.Adding a clause relating to
illegal migrants (foreigners who enter India without valid travel documents or who stay beyond the permitted period). The amendment specified that illegal migrants are not eligible to acquire Indian citizenship.Mandatory national registration of citizens.
Citizenship (Amendment) Act, 2005
This amendment expanded the scope of the Overseas Citizenship of India (OCI) scheme introduced in 2003. It removed the restriction of OCI being available only to persons of Indian origin from 16 specified countries (excluding Pakistan and Bangladesh).
It merged the Person of Indian Origin (PIO) card scheme and the OCI card scheme.
Citizenship (Amendment) Act, 2015
This Act simplified the eligibility criteria for the OCI card by merging the PIO and OCI card schemes. It also allowed foreign spouses of OCI cardholders to register for OCI status. It relaxed the continuous stay requirement for registration as a citizen by a person who is married to an Indian citizen.
Citizenship (Amendment) Act, 2019
This amendment significantly altered the criteria for citizenship by naturalisation for certain classes of illegal migrants. It makes illegal migrants belonging to the
It reduces the requirement for naturalisation from eleven years of residence to
five years for these specific communities from these three countries.The amendment specifies that these migrants shall not be treated as illegal migrants.
It introduces an exception for tribal areas of Assam, Meghalaya, Mizoram, and Tripura and areas covered under the Inner Line Permit system, where the Act would not apply.
This amendment has been controversial and has faced legal challenges, with arguments centering on its potential violation of the principle of secularism (Article 14) by making religion a criterion for citizenship.