The people in Indian Territory are divided into two categories: citizens and non-citizens. Indian Constitution provides distinct rights for citizens and non-citizens. In fact, citizenship defines the relationship between an individual and the State. Domicile coupled with birth or descent is the main factor for citizenship in India. During the making of the Constitution, some members argued for adopting religion as a factor for granting citizenship in India. But the Constituent Assembly sternly refused to accept the proposal, because India was visualized as a secular republic.
Citizens have political rights but others don’t
An Indian citizen under Indian Constitution is entitled to all civil and political rights. A non-citizen, on the other hand, doesn’t enjoy all those rights but have some of them.
Indian constitution ensures some fundamental rights available only to Indian citizens. They are:
- Right against discrimination on the grounds of religion, race, caste, sex or place of birth (Article 15);
- Right to equality of opportunity in matter of public employment (Article 16);
- Freedom of speech and expression, assembly, association, movement, residence and profession (Article 19);
- Cultural and Educational rights (Article 29 and 30); and
- Right to vote and become members of the Union and State legislatures.
Some offices can only be occupied by citizens:
- President (Article 58(1)(a),
- Vice-President (Article 66(2)),
- Judges of the Supreme Court (Article 124(3)) and the High Court (Article 217(2)),
- Governor of a State (Article 157),
- Attorney General (Article 76(1)) and
- Advocate General (Article 165).
However, both, citizens and non-citizens, can enjoy equality before the law or equal protection of the laws within the territory of India (Article 14) and protection of life or personal liberty (Article 21) under Indian Constitution.
Constitutional provisions on citizenship
The Indian Constitution doesn’t prescribe any permanent provision relating to citizenship in India. It describes some categories of persons who are deemed to be citizens of India on the day of commencement of the Indian on January 26, 1950. It however leaves the matter of making laws for acquisition and termination of citizenship to Indian Parliament.
It is the Article 11 of the Constitution which confers power on Parliament to make laws regarding citizenship. It was under this authority Indian Parliament enacted the Indian Citizenship Act, 1955.
Categories of persons that the Indian Constitution holds as ‘Citizens’
There are four categories of persons, as per the Articles 5 to 8 of the Indian Constitution, who were deemed to be citizens of India at the time of the commencement of the Constitution.
Citizenship by domicile (Article 5): A person who was born in India or either of the person’s parents was born in India or the person must have been an ordinarily resident in the territory of India for not less than five years immediately before the commencement of the constitution are citizens of India.
The term domicile means the place where someone lives, especially when it is stated for official or legal purposes.
Citizenship of migrants to India from Pakistan (Article 6): Persons who have migrated from Pakistan to India have been classified into following categories in the matter of citizenship:
- If the person so migrated or either of his parents or any of his grandparents was born in areas under Government of India Act 1935, he shall be deemed to be a citizen of India.
- In the case of persons migrated before 19th July 1948, if the person has been ordinarily residing in India since the date of her migration, he shall be deemed to be a citizen of India.
- In case of a person migrated on or after July 19, 1948, if he/she has been registered as a citizen of India, after residing in India for at least six months immediately before the date of applying for registration, by an officer appointed by the government of India, he shall be deemed to be a citizen of India.
Citizenship of certain migrants to Pakistan (Article 7): If a citizen of India has migrated to Pakistan after 1st March, 1947, but returned to India under a permit for resettlement in India or permanent return issued under law, the person is entitled to become a citizen of India if he/she registers herself as a citizen of India, after residing in India for at least six months immediately before the date of applying for registration, before an officer appointed by the government of India.
Citizenship of persons of Indian origin residing outside India (Article 8): Any person (whose either parent or any grandparents were born in the area of India as defined in the Government of India Act, 1935) residing in any other country shall be deemed to be an Indian citizen, if he has been registered as a citizen of India by the Diplomatic or Consular Representative of India in the country where they are residing, before or after the commencement of the Constitution.
Modes of acquiring Citizenship under the Citizenship Act, 1955
There are four modes of acquiring citizenship under the Citizenship Act, 1955.
- Citizenship by birth
- Citizenship by descent
- Citizenship by registration.
- Citizenship by naturalization.
Citizenship by birth: Anyone born in India on or after 1st January 1950 would be deemed a citizen by birth as per the original act. This deadline was further amended in 1986 to include those born between 1st January, 1950 and 1st July 1987.
The amendment in 1986 added one more condition that one of the parents must also be an Indian citizen for granting citizenship to those who were born in India after January 1, 1987. It also excluded persons whose grand-parents, but not parents, were born in India.
By the Citizenship Amendment Act, 2003, persons born after December 3, 2004, would be deemed to be citizens of India if either of the parents is Indian or one of the parents is a citizen of India and the other was not an illegal migrant at the time of the person’s birth.
An “Illegal migrant” means a foreigner who has entered India either without a valid passport or travel documents or with a valid passport or travel documents but remained in the country beyond the permitted period of time. An illegal migrant is prohibited from acquiring citizenship through birth, registration, or naturalization. Citizenship to migrants (but not to illegal migrants) or their children can be given as per law in force.
In short, Indian citizens include
- Persons who were domiciled in India as on 26th November 1949
- Persons who were born in India on or after 26th January 1950 but before 1st July 1987
- A person born after 1st July 1987 if either of the parents was a citizen of India at the time of birth
- Persons born after 3rd December 2004 are Indian citizens if both parents are Indian citizens or if one parent is an Indian citizen and the other is not an illegal migrant at the time of birth
Citizenship by descent: A person born outside India on or after 26th January 1950 but before 10th December1992 shall be deemed to be a citizen of India if his father is a citizen of India at the time of his birth.
For a person born outside India on or after 10th December 1992, either of his/her parents should be a citizen of India at the time of his/her birth.
In both the above cases, citizenship would be granted only if the birth is registered at the Indian consulate within one year of its occurrence or commencement of the Act, whichever is later. While registering it should be declared that the minor does not hold a passport of any other country.
Citizenship by registration: A person may be registered as a citizen of India, if the person is married to a citizen of India or has been a resident of India for seven years immediately before making an application for registration. The applicant has to complete the prescribed period of domicile in India before registration. Mrs Sonia Gandhi obtained Indian citizenship through this mode.
A person who is a normal resident of India for a prescribed period can register his name as a citizen of India if he is not able to get citizenship under any other provision of the Constitution or citizenship act, provided he is not an illegal migrant.
Citizenship by naturalisation: Before 2019 amendment of the act, a person was granted a certificate of naturalisation, if the person was not an illegal migrant, he had resided in India for 12 months before making an application, and he must have stayed in India for 11 years, of the 14 years preceding such 12-months.
The persons, who have no link with India by way of blood, soil or marriage, can use this method of naturalisation to become Indian citizens. The conditions for naturalization are described in the Third Schedule of the Act. One such condition is that those who seek citizenship by registration and naturalization have to declare an oath of allegiance to India, and should renounce their previous citizenship. Dalai Lama got citizenship under this provision of naturalisation.
Exemption for migrants from three countries: However the Citizenship Amendment Act 2019 makes an exemption from this disability to migrants, belonging to six communities (Hindus, Sikhs, Jains, Buddhists, Parsis and Christians) migrated to India from three countries (Pakistan, Bangladesh and Afghanistan) before December 31, 2014, by not treating them as illegal migrants, unlike in the past.
Citizenship by naturalisation not a right
An individual cannot claim citizenship by way of naturalization as a matter of right. It is the discretion of the Government of India to grant or not to grant it. An illegal migrant in general is disabled from seeking Indian citizenship by way of naturalization.
The law does not give any exemption in granting Indian citizenship to Rohingya Muslims persecuted in Myanmar, Shia and Ahmadiyya Muslims in Pakistan, Hazaras/ Tajiks/Uzbeks in Afghanistan, Tamils in Sri Lanka, and atheists in Bangladesh.
Major demerits of the 2019 amendment act
Indian Citizenship Act, 1955 has never before chosen religion as a criterion for granting citizenship or denying it to illegal migrants. When we discriminate citizens on the basis of religion it violates the Article 14 of the Indian Constitution that guarantees equal protection of laws, even to the non-citizens, within the territory of India.
Unfortunately the citizenship act, as it stands today after the 2019 amendment, excludes Muslims from Pakistan, Bangladesh, Afghanistan and every other country, while including some other communities from some arbitrarily chosen countries in its fold in granting citizenship.
Citizenship by incorporation of territory: If any new territory becomes a part of India by any means, the Government of India shall specify the persons of the territory to be citizens of India.
Power to grant citizenship to distinguished persons: If the central government is of the opinion that an applicant for Indian citizenship is a person who has rendered distinguished service to the cause of science, philosophy, art, literature, world peace or human progress generally, it has the authority to waive all or any conditions specified to attain Indian citizenship.
Areas where the law is not in operation
The citizenship act, since its 2019 amendment, excludes its operation from the parts of north-east under the Inner Line Permit (ILP) which provides a permission to enter in some states and those areas included in the Sixth Schedule to the Indian Constitution.
So, it does not apply to tribal areas of Assam, Meghalaya, Mizoram or Tripura comes under the Sixth Schedule to the Constitution. It also does not apply to the area covered under ‘The Inter Line Permit’ notified under the Bengal Eastern Frontier Regulation, 1873 - such as the states of Arunachal Pradesh, Nagaland (excluding Dimapur) and Mizoram.
Exempted persons are not illegal migrants: A person who has been exempted by the Central Government by or under the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any rule or order made thereon, shall not be treated as illegal migrant for the purposes of the Citizens Act.
The Central Government or a specified authority can, on an application, grant a Certificate of Registration or Certificate of Naturalisation to an exempted person when he is eligible for it. Such a certificate holder shall be deemed to be a citizen of India from the date of his entry into the country.
Modes of losing Indian citizenship
An Indian citizen can lose her/his citizenship by renunciation, termination and deprivation under the Citizenship Act.
Renunciation (Sec 8): A person may renounce their Indian citizenship, by submitting a declaration to the prescribed authority. On registration of the declaration, the individual and her minor child will cease to be citizens of India. The minor child on attaining majority has the option of resuming the Indian citizenship by submitting an application to the concerned authority, within a year of attaining majority.
Termination (Sec 9): Indian law does not recognize dual citizenship. So an individual ceases to be an Indian citizen on acquiring citizenship of another country.
Deprivation (Sec 10): The citizenship, which has been acquired by way of registration or naturalization, can be cancelled, after giving a fair opportunity, on specified conditions or circumstances.
Overseas Citizenship of India (OCI)
Indian law on citizenship does not permit dual citizenship. However, persons of Indian origin who have acquired foreign citizenship are given Overseas Citizenship of India (OCI) since the 2005 amendment to the Citizenship Act.
OCI is not actual citizenship of India. It is a status, which gives certain privileges such as multiple-entry & multipurpose lifelong visa, exemption for registration under Foreigners Act, parity with Non-Resident Indians etc.
The Section 7A of the Act provides for issuing OCI card for Persons of Indian origin. OCI card is issued to persons who:
- Was a citizen of India on or after 26th January 1950, or
- Was eligible to become a citizen of India on 26th January 1950, or
- Is a child or grandchild of such a person, satisfying some other eligibility criteria
OCI card holder has some restrictions as well. They have no right to vote, no right to hold constitutional offices, and no right to buy agricultural properties in India.
Laws that deal with illegal non-citizens
Foreigners Act, 1864: The first Indian law enacted to deal with foreigners was the Foreigners Act, 1864. It provides for the expulsion of foreigners, their arrest, detention, removal and a ban on their entry into India after removal.
The Passport (Entry into India) Act, 1920: The act empowers the government to make rules requiring persons entering India to be in possession of passports. This law empowers the government to remove from India any person who entered it without a passport.
The Foreigners Act: In 1940, the Imperial Legislative Assembly enacted the Foreigners Act, 1940, under which the concept of “burden of proof” was introduced. The Section 7 of the Act provided that whenever a question arose with regard to the nationality of a person, the onus of proving that he was not be a foreigner lays upon the person.
The legislature enacted the Foreigners Act, 1946, by repealing the 1940 Act. It confers wide powers to deal with all foreigners. It defined a ‘foreigner’ as a person who is not a citizen of India. It empowered the government to make provisions for prohibiting, regulating or restricting the entry of foreigners into India. It restricts the rights enjoyed by foreigners during their stay in the country. One key provision of the 1946 law is that the ‘burden of proof’ lies with the person, and not with the authorities.
Foreigners (Tribunals) Order: The Foreigners (Tribunals) Order brought in by the government in 1964, under Section 3 of the Foreigners Act 1946, envisages creation of tribunals that have authority to decide whether a person is a foreigner, under the Foreigners Act, 1946. It is applicable to the whole country. All its orders are applicable to the whole country and are not specific to any state.
The tribunal has two or more members having prescribed judicial experience. It has powers similar to those of a civil court. It lays down that the person alleged to be a foreigner would be given due opportunity to produce evidence in support of his case, before it passes its order.
Amendments to Foreigners (Tribunals) Order in 2019
On 30th May 2019, some amendments were made in the Foreigners (Tribunals) Order, 1964. The order now empowers District Magistrates in all States and Union Territories to set up tribunals.
However it is practically applicable only to Assam at present where National Register of Citizens (NRC) is being prepared. The amendment authorises the District Magistrates to set up Tribunals and lays down a provision for reference by District Magistrate to the Tribunal for its opinion as to whether a person is a “foreigner” or not under the Foreigners Act
So far Tribunals were established only in Assam. In other parts, once a ‘foreigner’ is apprehended by the police for staying illegally, he or she would be produced before a local court under the Passport Act, 1920, or the Foreigners Act, 1946. The court can impose a punishment ranging from three months to eight years in jail. Once the accused has been served the sentence, the court orders their deportation. Then such persons are shifted to detention centres for illegal migrants being set up till the country of their origin accepts them.
The Foreigners Tribunals place the burden of proving that a person in question is an Indian citizen lies on the person suspected of doubtful nationality. The tribunal has no appellate body. Its procedures do not lay down how a reference can be made against a person to the Tribunal. Reports say that the tribunal leaves much to be desired.
The author, now with Thrissur Bar, can also be contacted at firstname.lastname@example.org