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Patna HC - A Foreign National Doesn't Automatically Become An Indian Citizen After Marriage

On 12th October 2020, the Patna High Court has held that a foreign national does not automatically become an Indian citizen after marriage with a citizen. The two-judge bench comprising the Chief Justice Sanjay Karol and Justice S. Kumar observed that mere possession of a Pan Card; a Voter ID Card; or an Aadhar Card cannot be said to be proof of Indian Citizenship. The court further noted that mere relinquishment of Citizenship of Nepal does not confer any right of Indian Citizenship.

In this context, let us now look into the methods of acquiring Indian Citizenship.

METHODS OF ACQUIRING CITIZENSHIP OF INDIA

The provisions governing citizenship of India are enshrined in the Citizenship Act, 1955. The Constitution of India in Article 5 to 11, only talks about as to who was a citizen till 26 January 1950. The Indian Constitution provides the power to the Parliament under Article 11 to make laws and regulations about citizenship. This is the reason parliament passed the Citizenship Act in 1955. The Citizenship Act, 1955, has been amended from time to time, like in 1986, 1987, 1992, 2003, 2005, 2015, 2016, and most recently in 2019. Amendments only make slight changes in the act. But the main provisions must be understood in order to understand the amendments.

PROVISIONS OF CITIZENSHIP ACT, 1955

The citizens of a particular nation have privileges as well as liabilities over non-citizens in a particular territory. There are methods prescribed in the Citizenship Act, 1955, for becoming a citizen of India. They are as follows:

METHODS OF ACQUIRING CITIZENSHIP OF INDIA

The citizenship of India can be acquired in 5 ways. They are:-

  1. By Birth
  2. By Acquisition or Incorporation of Territory
  3. By Descent
  4. By Registration
  5. By Naturalization

By Birth

1. If a person is born in the territory of India, he shall be a citizen of India.

2. A person born on or after 26 January 1950 but before 1 July 1987, irrespective of the citizenship of parents. It is called jus soli (right of soil).

3. A person born on or after 1 July 1987 but before 3 December 2004. Either of the parents of the person born should be a citizen of India at the time of birth. It is called jus sanguins (right of blood or descent).

Citizenship is granted to a person on the basis of the Indian nationality of any of the parents, immaterial of the fact that at which place the child took birth.

4. A person born on or after 3 December 2004. Both the parents of the child born should be a citizen of India at the time of birth.

5. A person shall not acquire citizenship of India if any of his parents is an envoy (foreign diplomat) or enemy alien or an illegal immigrant.

Note: Illegal immigrant is defined in the Citizenship Amendment Act, 2016, as any person who enters the territory of India without a valid passport, fake passport, or stays beyond Visa permit.

By Acquisition or Incorporation of Territory

1. If any territory or state becomes part of India, then the central government shall declare it as part of the Union of India by issuing an Official Gazette.

2. Many territories such as Goa, Sikkim, Puducherry, Daman, and Diu became part of India, and their population became citizens of India.

By Descent

1. If a person is born outside India on or after 26 January 1950, but before 10 December 1992 will be considered as a citizen of India. But subject to the fact that his father must be a citizen of India at the time of birth.

2. If a person born on or after 10 December 1992 but before 3 December 2004, either of the parent (mother or father) must be having citizenship of India.

Law Notes

‍After the Citizenship Amendment Act, 2003, the government passed an order stating that a child born shall not be Indian merely because of his descent. The government mandated compulsory registration within one year of birth. Its time can be extended by the government as per requirement.

By Registration

1. If a person is of Indian origin, who was ordinarily a resident of India for seven years before making an application for registration.

2. If a person is married to a person of Indian citizenship and is ordinarily residing in India for seven years before making the application for registration.

3. If a person is minor and parents are a citizen of India.

4. A person who or his parents were earlier citizens of India after independence and is residing in India for a year before making the application for registration.

By Naturalisation

A person can acquire citizenship by naturalization if he/she is ordinarily resident of India for 12 years (throughout 12 months preceding the date of application and 11 years in the aggregate) and fulfils all qualifications in the third schedule of the Citizenship Act.

THE CITIZENSHIP (AMENDMENT) ACT

The Citizenship Act, 1955 was amended by the Citizenship (Amendment) Bill, 2019. The amended Act makes foreign illegal migrants of six religious communities i.e., Hindu, Sikh,

Buddhist, Jain, Parsi, and Christian from Afghanistan, Bangladesh, and Pakistan eligible for Indian citizenship. It is applicable to those who have taken shelter in India due to persecution on grounds of religion or fear of such persecution in their countries and have entered into India on or before December 31, 2014. The provisions of the Act, however, do not apply to tribal areas of Assam, Meghalaya, Mizoram, and Tripura as included in the Sixth Schedule to the Constitution and the areas where ‘The Inner Line Permit’ is applicable including the states of Arunachal Pradesh, Nagaland, Mizoram, and Manipur.

BACKGROUND OF THE CASE

In the case of Kiran Gupta vs. State Election Commission, the Court while entertaining a Letters Patent Appeal dealt with the issue of whether the appellant is a citizen or not. The appellant Kiran Gupta is a woman born and brought up in Nepal and who later married one Ashok Prasad Gupta in 2003. After their marriage the couple started permanently residing together in India as husband and wife. After her marriage, the appellant got her name on the voters’ list prepared in the year 2008 for the Bihar Assembly elections, got an account in her name with a bank of India and also possessed a Pan Card issued by the Income Tax Department, and an Aadhaar Card issued by the Government of India. Kiran Gupta, the appellant in the instant case also relinquished her Nepali citizenship in February 2016.

In 2018. she was elected as a ‘mukhiya’ of the Gram Panchayat. The State Election Commission set aside her election under Section 136(1) of the Bihar Panchayat Raj Act, 2006 on the ground of her not being a citizen of India. The appellant thereafter approached the Bihar High Court against the order of the Election Commission wherein she claimed to have relinquished her citizenship of Nepal and had thus acquired Indian Citizenship. The Bihar High Court while dismissing her writ petition held that she was not a citizen of India and this disqualified her under the Panchayat Act.

Mere Relinquishment Of Original Citizenship Of Some Other Country Does Not Confer Indian Citizenship

The Division Bench observed, “The legal status of the applicant’s citizenship precedes her enrolment on the electoral rolls. If such a declaration of citizenship is found to be false, the applicant is liable for punishment." The court in the instant case referred to the provisions of the Citizenship Act and various precedents ruling that a voter ID is not conclusive evidence of citizenship. The court noted that mere relinquishment of original Citizenship cannot be viewed as an intent to acquire Indian Citizenship. The Division Bench made the following observations:

"The Citizenship Act does not provide for a scenario where a person residing in India, upon relinquishing her/his original Citizenship is automatically considered to be a citizen of India. The possibility of a person, though not the appellant, migrating to a third country cannot be ruled out. As such, continuous and uninterrupted stay in India cannot be a factor determining, in anticipation, of a person choosing to exercise right seeking Citizenship under the Citizenship Act."

"The foreign national does not become an Indian citizen on marriage with a citizen under the Act. After the marriage, the foreign national has an option to get registered as an Indian citizen. Even then, the person must fulfil the requirement of residency before they can apply for Indian Citizenship."

An Oath Of Allegiance Is Necessary

The court observed that any person who is married to a citizen of India and has resided in India for the past seven years can make an application for citizenship by registration. Section 5 of the Citizenship Act 1955, deals with citizenship by registration which allows the Central government to register someone as a citizen of India. The Court noted, “She is married to a citizen of India and is ordinarily residing in India for the last seven years. But then, significantly and undisputedly, she never sought citizenship by way of registration, more so, after voluntarily relinquishing her citizenship of Nepal in February 2016."

“An oath of allegiance is necessarily required to be taken by the appellant. Hence, by her actions and conduct, she precluded herself from being considered as a citizen under the Citizenship Act," the bench added.

Voter ID, Aadhaar, PAN Card Are Not Proof Of Indian Citizenship

The court while considering the appellant’s contention that she possessed various documents of India such as Voter ID, Aadhaar and PAN Card, observed,

"Mere registration of a person's name in the voter list, ipso facto, does not confer Citizenship. The purpose of the PAN card is to facilitate the payment of taxes to the Indian State, which foreigners may also be required to pay...The eligibility criteria for obtaining an Aadhaar Card is residency in India for a period of 182 days or more, not citizenship. Section 9 of the Aadhaar Act, 2016 clearly states that an Aadhaar number or authentication thereof shall not by itself confer any right of or be proof of Citizenship or domicile of the Aadhaar number holder. Banking regulations under the RBI are silent on bank accounts or documents as proof of Citizenship. For Prevention of Money Laundering, proof of identity and address is required from persons opening bank accounts. However, Citizenship is not a criterion for having a bank account in India. Voter ID cards are not incontrovertible evidence of Indian Citizenship- presumption attached to the issuance of the voter ID card may be challenged by a complaint that states material facts under Section 136 of the Panchayat Act"

The court also refused the plea to direct the Government of India to grant the petitioner Indian citizenship and observed that it would impinge upon the Executive's functions.

"However, in light of the peculiar situation of the petitioner; her ordinary residence and family life in India; and India's international law obligations to prevent statelessness, we direct that upon receipt of the petitioner’s application, if so filed, the appropriate authority may consider her application expeditiously, keeping in mind the complications that have emerged in her legal status as enumerated above", the court added.

 

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