Who is a citizen?

A citizen is a person who enjoys full membership of the community or State in which he lives or ordinarily lives. Citizens are different from aliens who do not enjoy all the rights, which go to make full membership of a State. For example in India while all the fundamental rights are available to citizens, aliens do not enjoy the following rights: -

1.      The right not to be discriminated against on grounds of religion, race, caste, sex or place of birth (Article 15).

2.      The right to equality of opportunity in the matter of public employment (Article 16).

3.      The right to six freedoms enumerated in Article 19, i.e., freedom of speech and expression; assembly, association; movement; residence and profession.

4.      Cultural and educational rights conferred by Article 29 and 30. Again, citizens alone have the right to hold certain high offices such as those of the President, Vice-President, and Governor of a State, Judges of the Supreme Court or High Courts, Attorney-General etc. The right to vote to elect a member of the Lok Sabha and a Vidhan Sabha and the right to become a member of the Parliament and a State Legislature are reserved for citizens only.

Single citizenship

The Indian Constitution has established a single and uniform citizenship for the whole of India. It rejects the double citizenship characteristic of some federal States like the United States. The Indian Constitution does not recognize State citizenship. It provides for a common all India citizenship.

Citizenship andthe Constitution

The Constitution does not lay down a permanent or comprehensive provision relating to citizenship in India. Part II of the Constitution simple describes classes of persons who would be deemed to be the citizens of India at the commencement of the Constitution, that is, 26th January 1950, and leaves the entire law of the citizenship to be regulated by law made by Parliament. Article 11 expressly confers power on Parliament to make laws to provide for such matters. In exercise of its power the Parliament has enacted the Indian Citizens Act, 1955. This Act provides for the acquisition and termination of citizenship subsequent to the commencement of the Constitution.

Citizenship at the commencement of the constitution

1.      Every person who has domicile in the territory of India and -

(a)     Who was born in the territory of India; or

(b)    Either of whose parents was born in the territory of India; or

(c)     Who has been ordinarily resident in the territory of India for not less than five years immediately preceding such       commencement; shall be a citizen of India.

2.      Persons who migrated to India from Pakistan before 19th July 1948 and since then have been ordinarily residing in India.

3.      Persons who migrated to India from Pakistan on or after 19th July, 1948 but got themselves, duly registered an citizens with a competent officer appointed for that purpose.

4.      Persons who migrated to Pakistan after Ist March 1947 but returned to India under a permit for resettlement.

5.      Any person who or either or whose parents or any of whose grandparents was born in India.

          However, no person will be deemed to be a citizen, if he voluntarily acquires the citizenship of a foreign State.

Citizenship under the citizenship act 1955 [1]

The Act provides for the acquisition of India citizenship after the commencement of the Constitution in five ways, i.e. birth, descent, registration, naturalization and incorporation of territory.

(a)     Citizenship by birth. Every person born in India on or after 26th January, 1950 shall be a citizen of India by birth provided either or both of his parents are citizens of India at the time of his birth. However, such a person shall not be a citizen of India, if at the time of his birth (i) his father is a foreign diplomat or (ii) his father is enemy alien.

          However, any person born in India on or after 1st. July, 1987, shall become a citizen of India by birth only if his either parent was a citizen of India. But those born after Dec.3, 2004 shall become citizens of India only if both parents are citizens or if one parent is a citizen, the other must not be an illegal migrant at the time of birth.

          Note that the condition of either parent being a citizen of India was added by the citizenship amendment Act of 1986.

(b)    Citizenship by descent, broadly speaking, a person born outside India on or after 26th January, 1950, but before 10th December, 1992, shall be a citizen of India by descent, if his father was a citizen of India at the time of that person’s birth. However, after the amendment of the Act in 1992, any person born outside India on or after 10th Dec. 1992 shall become an Indian citizen if at the time of his birth his either parent is an Indian citizen.

Note: All those who are born outside India on or after Dec.3, 2004

          will not become citizens of India unless their birth is registered at the Indian consulate within a year of birth.

(c)     Citizenship by registration. Aperson, who is not a citizen by virtue of the Constitution or the provisions of the citizenship Act and belongs to any of the following categories, can apply for registration as a citizen. However, he must have resided in India for at least seven years immediately before making an application for registration as a citizen. These are:-

(i)      Persons of India origin who are ordinarily resident in India for six months immediately before making an application for registration;

(ii)     Persons of Indian origin who are ordinarily resident in any country or place outside India;

(iii)    Women who are married to citizens of India;

(iv)    Minor children of persons who are citizens of India; and

(v)     Persons of full age and capacity who are citizens of country mentioned in the first Schedule to the Act.

(vi)    Citizenship by naturalization. A foreigner, an application for naturalization to a competent authority appointed by the State, can acquire Indian citizenship provided he satisfies certain conditions like having normally resided in India for a total of 12 years within a 14-year period and must have lived in India for 12 Months straight before applying for naturalization.

          Note that in the recently passed CAA, this period has been reduced to just 6 years for 6 minorities staying in India from three neighboring countries provided they entered India before December 14, 2014. These minorities have also been exempted from the Passport Act and Foreigners Act.

(vii)   Citizenship by incorporation of territory. If any new territory becomes a part of India, the Government of India shall notify the person of that territory to be a citizen of India. For example, a few territories were incorporated by India recently by constitutional 100th Amendment Act. These territories were in exchange against around 111 enclaves ceded by India in favor of Bangladesh in settlement of land boundary dispute that was hanging fire for several decades. The people who were settled on these territories were incorporated into India as Indian citizens.

Loss of Indian citizenship under the act

The Citizenship, Act 1955 also lays down the three modes by which an Indian citizen whether a citizen at the commencement of the Constitution or subsequent to it - may loss his citizenship. These are renunciation, termination and deprivation,

1.      Renunciation is a voluntary Act by which a person after acquiring the citizenship of another country gives up his Indian citizenship.

2.      Termination takes place by operation of law. When an Indian citizen voluntarily acquires the citizenship of another country, he automatically ceases to be an Indian citizen.

3.      Deprivation is a compulsory termination of the citizenship of India obtained by Registration or Naturalization. The citizenship is deprived on the basis of an order of the Government of India, in cases involving acquisition of Indian citizenship obtained by fraud, false representation, and concealment of material fact or being disloyal to the Constitution etc.

People of Indian origin

The Indianparliament passed in December, 2003 a bill to grant dual citizenship to the people of Indian origin belonging to 16 specific countries. It seeks to amend citizenship act , 1955 for simplifying  the procedure to facilitate the reacquisition of Indian citizenship by persons of ful age who are children of Indian citizens and former Indian citizens.

Definition

In this scheme, unless the context otherwise requires

(a)     “Indian Mission” means the Embassy of India / High Commission of India / Indian Consulate in a foreign country.

(b)    “Person of Indian origin” means a foreign citizen not being a citizen of Pakistan, Bangladesh and other countries as may be specified by the Central Government from time to time if,

(i)      he/she at any time held an Indian passport; or

(ii)     he/she or either of his/her parents or grand parents or great grand parents was born in and permanently resident in India as defined in the Government of India Act, 1935 and other territories that became part of India thereafter provided neither was at any time a citizen of any of the aforesaid countries [as referred to in 2(b) above]; or

(iii)    he/she is a spouse of a citizen of India or a person of Indian origin covered under (i) or (ii) above.

(c)     “PIO Card” means a card issued under this Scheme.

A PIO Card shall be valid for a period of twenty years subject to the validity of the passport of the applicant.

Facilities to Be Extended To A PIO Card Holder

(i)      A PIO Cardholder shall not require a visa to visit India.

(ii)     A PIO Cardholder will be exempted from the requirement of registration if his stay in India does not exceed 180 days.

(iii)    In the event of continuous stay in India of the PIO Card holder exceeding 180 days, he/she shall have to get himself/herself registered within 30 days of the expiry of 180 days with the concerned Foreigners Registration Officer at District Headquarter.

(iv)    A PIO Card holder shall enjoy parity with NRIs in respect of all facilities available to the latter in the economic, financial and educational fields except in matters relating to the acquisition of agricultural / plantation properties. No parity shall be allowed in the sphere of political rights.

Rights Not Given to PIO Card Holder

(1) They are not eligible to become a member of either Lok Sabha or Rajya Sabha.

(2) They have not equal right of opportunity in matters of public employment.

Cancellation ofPIO Card

The Central Government may, by order, cancel the PIO Card, if it is satisfied that:

(a)     The PIO Card was obtained by means of fraud, false representation or the concealment of any material fact; or

(b)    the PIO Card holder has shown himself by act or speech to be disaffected towards the Constitution of India and other laws of India; or

(c)     the PIO Card holder is a citizen or subject of any country at war with, or committing external aggression against India; or of any other country assisting the country at war with, or committing such aggression against India; or

(d)    the PIO Card holder has been sentenced in India for indulging in acts of terrorism, smuggling of narcotics, arms, ammunitions etc. or has been sentenced for committing an offence punishable with imprisonment up to one year of fine up to rupees ten thousand; or

(e)    It is not conducive to the public interest that the person should continue to hold a Card.

No reasons shall be assigned for withdrawal of the Card.

Rights not available to foreigners

While the foreigners enjoy the above FR, however they're not entitled to enjoy the rights like
Article 15, Article 16, Article 19, Article 29 - Protection of language, script and culture of minorities
Article 30 - Right of minorities to establish and administer educational institutions Supreme Court has recently reaffirmed that the right to life and liberty (Article 21) is available to foreign nationals besides the citizens of India in response to an FIR filed by police against three Uganda nationals. SC observed:

“Article 21 of the Constitution [right to life and liberty] applies to all citizens, whether Indian or foreign nationals. Their right to liberty could not be restrained by the police due to a business dispute."

Acquisition and loss of citizenship in brief

Citizenship Act, 1955 gives following information regarding acquisition and loss of citizenship

Exceptions to single Citizenship in India

 Although the concept of single citizenship introduced in India by the constitution makers has its own inherent advantages especially to strengthen centripetal forces in the country thereby promoting unity and integrity of the country as been professed to in the preamble. However, this provision of single citizenship still subject to certain exceptions under the constitution. Some of these exceptions are:

• As we know that Article – 15 (1) of the constitution outlaws any kind of discrimination among the citizens of India on the basis of caste, color, religion, descent or place of birth etc. It means that this article does not mention residence as one of the forbidden grounds of discrimination. Hence, it becomes possible for a state to discriminate in favor of its domiciles in certain matters to the exclusion of others. Although, the fact remains that a State can discriminate to favour its own domiciles only in those matters which the constitution has not guaranteed universally to all. It means that it is permissible for a state to grant fee concessions to its own residents for admissions to its medical or engineering colleges or to reserve certain seats in these colleges for the local residents. Other than these concessions, a state cannot discriminate against the outsiders in any other matter.

• Article – 16 (3) which similarly outlaws any discriminations among the citizen of India on the similar grounds in so far as employment under the state is concerned whether under the state  or the union government. So far as the union government is concerned there cannot be any discrimination on any of the listed grounds. However at the state level under Article 16(3) it is possible for a state to reserve certain posts for its own domiciles but this extends only to non – gazetted posts and that too under a parliamentary legislation. The constitutional experts have justified this for the sake of administrative efficiency as it has largely to do with the familiarity with the local language. In this regard therefore, the Parliament has enacted the Public employment (requirement as to residence Act 1957) for a temporary duration. By this Act, the parliament empowered the central government to make rules having force for a temporary duration, prescribing a residential requirement only for appointment to non-gazetted posts in the states like Tripura, Manipur, HP and Andhra Pradesh. However since the repeal/ expiry of this Act in 1974, nobody can be denied employment in any state on the ground of his being a non-resident in that state other than the state of Andhra Pradesh where it still prevails under the name of Mulki rules. But then even in this state separate provisions have since been made through constitutional 32nd Amendment-1973 which has inserted Article 371-D. This Article empowers the President to provide by an order, equal opportunities in the matter of public employment and education for the people belonging to different parts of the state and to provide for an Administrative tribunal for adjudication in employment matters. Even in A.P this exception no longer applies today.
• The State of J and K under its constitution is entitled to discriminate in favour of its own residents in any matter right from education, employment, residence, acquisition of immovable property in the state and settlement in the state etc. For this purpose, the state legislature is authorized to confer special rights and privileges upon persons who are the permanent residents of the state. To provide for this exception under the Indian constitution applicable to the state of J&K, article-35-A has been inserted in the Indian Constitution by the Constitution, Application to Jammu & Kashmir order-1954, made by the President of India in exercise of his power under Art.370…

Possibility of Dual Citizenship in India?

In order to explore the possibility of double citizenship in India, we must first need to know the difference between a citizen and an alien or so called a non-citizen. While a citizen is a person who has a permanent relationship with the state by virtue of which he enjoys certain civil and political rights which are denied to an alien. That is why our Constitution is particular in distinguishing between certain rights which are available only to citizens while there are others which are universal in nature and as such available to all.

Secondly, yet more importantly, we also need to explore as to what does our Constitution say about the matters like citizenship after all. In this regard, we will clearly discern from the laid down constitutional provisions that India as a nation although being organized as a federation having two levels of the government known as the Centre and the States, but there is only single citizenship, viz, the Indian citizenship and there is no separate state citizenship. This is something that seems to militate against the federal character of the Constitution as in other traditional federation like USA or Australia; there exist double citizenship in consequence of which a citizen is subject to two systems of laws besides promoting invidious discriminations in most glaring terms.

Therefore, insofar as India as a country is concerned, there is no doubt that the Constitution makers purposely wanted to provide for a single citizenship in the country for obvious reasons.

Why single citizenship in India? As we know that the Constitution makers had sufficient experience before them about the working of other federations of the world and the problems such countries encountered in working their Constitutions modelled on strict classical federal principle that led to unavoidable tensions in centre state relations. This competitive federalism led not only to provincial tendencies in such countries, but also severely affected the unity and integrity of the country because the states having their own constitutions, own set of laws and judicial system, went on to function as sovereign entities within their own boundaries with the federal government merely watching as a mute spectator due to federal compulsions. This has had led to a diversity of laws that differed from state to state including the citizenship rights. What has been the outcome is the glaring manifestation of invidious discriminations in such countries under which states tend to discriminate in favour of its own citizens to the exclusion of citizens of other states in terms of various civil rights such as right to employment, right of residence, settlement or right of profession etc. This led to what has largely been said in countries like USA, a lamentable feeling of envy among the citizens of a state who are denied such basic rights in another state; the result being a severe jolt to fraternity and hence to the unity and integrity of the country.

Having taken a serious notice of this phenomenon, the Constitution makers not only devised an altogether new scheme of federation for the country by breaking away from the traditional federations, but also added to it the much needed flexibility so that national interest could not be sacrificed at the altar of state sovereignty. That is why; the makers were categorical in emphasizing that “in spite of federalism, national interest ought to be paramount.” In order to achieve this objective, one of the provisions they inserted in the Constitution is the single citizenship envisaging that it would go a long way in promoting fraternity, ensuring the unity and integrity of the country, the main objectives which Indian polity shall strive to achieve as enshrined in the preamble to the Constitution.

Can there be dual citizenship in India?

To answer this question, we need to make recourse to parliaments’ power for regulating the citizenship matters which the Constitution vests in it (Art-11).

 But the question remains as to what view the Supreme Court would take on such an amendment to the citizenship Act seeking to provide double citizenship in the country. One argument may be that the Supreme Court might declare such an amendment as being unconstitutional firstly on the ground that India does not subscribe to the traditional notion of classical federalism that springs up as a result of compact among the sovereign states and the federal government. Conceding dual citizenship would mean giving powers to the states to confer special rights and privileges including civil and political rights onto their own citizens and denuding outsiders living in their state from such rights (this in fact, was the dominant consideration on the part of the Constitution makers to provide for single electoral machinery in the country). This will not only alter the very scheme of federalism envisaged in the Constitution, but also violates the fundamental rights of the people both of which constitute the basic features of the Constitution enunciated by the Supreme Court itself.

Secondly, yet more importantly, the Court might also take the view that the very idea of having a single citizenship in the country was to promote fraternity among the highly diverse populace of the country so that the whole country could be weld into a single unified nation culminating into the unity and integrity of the country. All these goals are also very much enshrined in the preamble to the Constitution and the Court has also declared them as the basic features of the Constitution.

In the light of these considerations, it remains highly suspect that the Parliament could ever initiate such a move unless; the demand comes from the larger public. After all, the Constitution is the handiwork of the people of this country.

Again, question remains to be answered that what extra benefits would the people avail of by having a separate state citizenship?        

At the same time, our constitution does not lay down any exhaustive, but only fragmentary and skeletal provisions regarding citizenship without sufficing for all times to come. Instead, it provides for the citizenship of only those persons who actually became Indian citizens at the commencement of the Constitution subject to the fulfilment of the laid down eligibility. The fact that who could or could not be the citizens of India on or after the commencement of the Constitution, the Constitution confers power (vide Article 11) on the Union parliament to regulate such matters. This means that the parliament has an unfettered power in matters relating to Citizenship both before and after the commencement of the Constitution and can even provide for double citizenship.

As such, there is no specific provision in the Constitution that could bar parliament from legislating on matters like double citizenship when viewed from the international context although, from the domestic view point, the Constitution and the case law has had long been settled that there will be only single citizenship in India and no separate state citizenship as there is no separate state domicile subject to which people owe their allegiance to two separate systems of civil and criminal laws.

If Article 9 would be of any concern that somehow seems to prohibit double citizenship in India, we must not howeverloose sight of the fact that it pertains only to those people who had acquired Indian citizenship before the commencement of the Constitution. As Article 9 clearly states:

No person can be a citizen of India under articles 5, 6 and 8, if he has voluntarily acquired the citizenship of a foreign country. But this is again subject to a law made by the parliament which means that the parliament can even make changes in the citizenship matters even with regard to the people who had acquired Indian citizenship before the commencement of the constitution. Even Article 10 of the Constitution further clarifies this position by stating that:

A person who is a citizen of India under Articles 5-8, shall, subject to any law made by the parliament, continue to be such a citizen.

Hence, the bottom line is that citizenship being a union subject, the Parliament has plenary power to regulate the citizenship matters of not only those people who had acquired Indian citizenship before the commencement of the Constitution, but also of those who acquired or became Indian citizens after the commencement of the Constitution. It can thus even provide for double citizenship although, as of now the parliament has not legislated in this regard other than providing for OCI in 2003 which is shorter than what otherwise is referred to as complete citizenship.

If the parliament seeks to legislate on a matter like double citizenship any time in the near future, it needs to reconcile on crucial matters like civil and political rights to be conferred on dual citizens on an equal footing corresponding to the Indian citizens and foreseeable complications that may arise in consequence thereof. It will also call for an amendment in the Indian passport Act which now prohibits and penalizes the possession of two passports.  

NRC Debate:

NRC issue can be traced back to the Assam movement against illegal immigration. This eventually led to historic Assam Accord signed in 1985 signed between movement leaders and then then Rajiv Gandhi union government.

In pursuance of this accord, the Citizenship Act was amended which created a special category of citizens in relation to Assam. The amended act inserted section 6-A which provided that all persons of Indian origin who entered Assam before 1st. Jan.1966 and since then had been ordinarily resident there will be considered Indian citizens. But those who entered Assam after this date but before March 25, 1971and since had been ordinarily resident there will get citizenship after the expiry of 10 years from their detection as foreigners. In the meantime however, they could get Indian passport but no right to vote. This identification as foreigners was carried out under IMDT Act of 1983 which was exclusively applicable to Assam. In short, it is under section 6-A as discussed above that the current NRC exercise had been carried out in Assam whose constitutionality has been under challenge,  

Key terms

Citizen: An individual who has a permanent membership of a State or community by virtue of which special rights and privileges accrue to him or her.

Alien: The one who does not share and have a permanent membership of the State or community and thus, lesser rights and privileges as against a Citizen.

Single citizenship: As applicable in India such that all Indians are the Citizens of India irrespective of the State or territory they may belong to.

Indian Citizenship Act of 1955: Act made by the Indian Parliament to regulate all matters related to the Citizenship of India; most importantly, its acquisition and loss.

Descent: Also called as citizenship by blood or jus sanguine.

Minor: Minor is a person below 18 years, but where guardian is appointed for a minor, then such a person remains minor up to the age of 21 years.

Registration: A mode of acquisition of Indian citizenship under the Indian citizenship Act-1955 by registering oneself before the designated authority provided for the purpose after fulfilling the residential qualification of 5 years immediately preceding the date of the application for registration.

Naturalization: A process by which a foreigner acquires the status of a naturally born citizen.

Renunciation: Voluntary surrender of the Indian citizenship by someone who acquires the citizenship of some other foreign country.

Termination: Just opposite to renunciation, if some one does not voluntarily surrender the Indian citizenship while accepting the citizenship of a foreign country.

Deprivation: Depriving some one compulsorily of the Indian citizenship if he has acquired the same either by fraud, misrepresentation of facts or by indulging in acts or omissions derogatory to India.

PIO (People of Indian origin): An equivalent of overseas citizenship of India by which a kind of dual citizenship or nationality was extended to Non-resident Indians since 2003 by amending the Indian citizenship Act of 1955.

Indian Mission: Envoys to and from commonwealth countries are known as high commissioners while those posted to and from other countries are designated as Ambassadors and as such constitute the Indian mission in such a country or countries.

PIO card holder: People of Indian origin holding privileged cards under the Indian citizenship Act of 1955- as amended in 2003.