Citizenship

CITIZENSHIP #

A citizen is a person who enjoys full member- ship of the community or State in which he lives or ordinarily lives. Citizens are different from aliens who does not enjoy all the rights. For example, in India while all the Fundamental Rights are available to citizens, aliens does 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 Ar- ticle 19 that is freedom of speech and expres- sion; assembly; association; movement; resi- dence and profession.
4. Cultural and educational rights conferred by Articles 29 and 30.

Again, citizens alone have the right to hold certain high offices such as those of the President, Vice-President, 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 Legislative Assembly and the right to become a Member of Parliament and a State Leg- islature are reserved for citizens only. The issue of citizenship assumes vital significance under a dem- ocratic nation-state. It is citizenship that determines a person’s full political membership in the country, his permanent allegiance to that and legal acceptance by the State of his/her legitimate integration into the political set up. The grant of citizenship establishes a give and take relationship between the individual and the State under which the individual pays and pledges loyalty to the State and the State in return provides protection and privilege to the individual.

The relationship between the individual and the State is regulated by the appropriate national law which is duly recognized by the international law.

SINGLE CITIZENSHIP #

The Indian Constitution has established a single and uniform citizenship for the whole of India. It rejects 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. The provision has been made to emphasize the unity and integrity of India. The civic and political rights are equally conferred on all the citizens of Indian irrespective of their birth and residence in any of the units of federation or parts of India. However, permanent residence in a State may entitle a person of some advantages in matters where Parliaments lays down by law that in some classes of employ- ment under a State or UT, permanent residence is an essential qualification.

Article 15(1), while prohibiting discrimination on certain grounds, does not mention residence as a ground. Thus a State is constitutionally free to confer some special benefits upon its residence in matters of employment.

CITIZENSHIP AND THE CONSTITUTION #

The Constitution does not lay down a permanent or comprehensive provision relating to citizenship in India. Articles 5 to 11 under part II of the Constitu- tion simply describes classes of persons who would be deemed to be the citizens of India at the time of commencement of the Constitution that is on 26th January 1950 and leaves the entire law of the citi- zenship to be regulated by law made by Parliament.

In exercise of its power the parliament has enacted the Indian Citizenship Act, 1955. This Act provides for the acquisition and loss of Indian citi- zenship after the commencement of the Constitution. This Act has been amended four times so far by the Citizenship (Amendment) Acts of 1986, 1992, 2003 and 2005. The Citizenship Act, 1955 provided for a commonwealth country, shall by virtue of that citizenship, have the status of commonwealth citi- zenship in India. But this provision was repealed by the Citizenship (Amendment) Act, 2003.

Articles          Provisions #

Article 5  Citizenship at the commencement of the Constitution

Article 6  Rights of citizenship of certain per- sons who have migrated to India from Pakistan

Article 7  Rights of citizenship of certain migrants to Pakistan

Article 8  Rights of citizenship of certain per- sons of Indian origin residing outside India.

Article 9  Persons voluntarily acquiring citizen- ship of a foreign State not to be citizens

Article 10 Continuance of the rights of citizenship Article 11   Parliaments to regulate the right of

citizenship by law.

Citizenship at the commencement of the Constitution #

1. Every person who has domicile in the territo- ry of India and —
   1. who was born in the territory of India; or
   1. either of whose parents was born in the territory of India; or
   1. who has been ordinarily resident in the territory of Indian for not less than five years immediately preceding such com- mencement; shall be a citizen of India.
2. Persons who migrated to India from Pakistan before 19 July, 1948 and since then have been ordinarily residing in India.
3. Persons who migrated to India from Pakistan on or after 19 July, 1948 but got themselves,

duly registered as citizens with a competent

officer appointed for that purpose.

• Persons who migrated to Pakistan after 1st March, 1947 but returned to India under a permit for resettlement.
• Any person who or either or either of whose parents or any of whose grandparents was born in India.

However, no person shall be deemed to be a citizen, if he voluntarily acquired the citizenship of a foreign State. The Constitution makes use of the words ‘domicile’ and ‘residence’. The basic idea of domicile is permanent home. A person’s domicile’ is country which is considered by law to be his permanent home. Residence in the country and the intention to make it his home are necessary to constitute a domicile.

ACQUISITION OF INDIAN CITIZENSHIP #

The Citizenship Act 1955 provides for the acqui- sition of Indian Citizenship after the commencement of the Constitution in five ways, i.e. birth, descent, registration, naturalisation and incorporation of territory.

• Citizenship by birth: Any person born in India, on or after 26th January 1950 but pri- or to the commencement of the 1986 Act on 1st July 1987, is citizen of India by birth irre- spective of the nationality of his parents.

A person born in India on or after 1st July 1987 is citizen of Indian if either of his parent was a citizen of India at time of the birth. Fur- ther, those born in India on or after 3rd De- cember 2004 are considered citizens of India only if both their parents are citizens of India or if one of his / her parent is a citizen of India and the other not an illegal migrant at the time of their birth.

• Citizenship by descent: Persons born out- side India on or after 26th January 1950 but before 10th December 1992 are citizens of India by descent if the father was a citizen of India at time of their birth. Persons born outside India on or after 10th December 1992 are considered as citizens of India if either of their parents is a citizen of India at the time of their birth. From 3rd December 2004 on- wards, persons born outside India shall not be

considered citizens of India unless their birth is registered at an Indian consulate within one year of the date of birth. In certain circum- stances it is possible to register after one year with the permission of the Central government.

• Citizenship by registration: Any person, who is not a citizen by virtue of the Constitu- tion or the provisions of the Citizenship Act and belongs to any of following categories, can apply for registration as citizen. Howev- er, he must have resided in India for at least seven years immediately before making an ap- plication for registration as a citizen. These are:
  • a person of Indian origin who is ordinari- ly resident in India for seven years be- fore making application for registration. (throughout the period of twelve months immediately before making application and for six years in the aggregate in the eight years preceding the twelve months.)
  • a person of Indian origin who is ordinar- ily resident in any country or place out- side undivided India.
  • a person who is married to a citizen of In- dia and is ordinarily resident in India for seven years before making an application for registration.
  • minor children of persons who are citi- zens of India.
  • a person of full age and capacity whose parents are registered as citizens of India.
  • a person of full age and capacity who, or either of his parents, was earlier citizen of independent Indian and is ordinarily resident in Indian for 12 months imme- diately before making an application for registration;
• Citizenship by naturalization. A foreigner, on application for naturalization to a competent authority appointed by the State, can acquire Indian citizenship provided if he satisfies cer- tain conditions like having normally resided for at least twelve years in India in a period of 14 years before making an application.

Other conditions are:

1. that he is not a citizen or subject of a

country where Indian citizens are pre- vented from becoming citizens by natu- ralization;

• that he renounces his citizenship of the other country.
  • that he has either resided in Indian and/ or been in government service for 12 months immediately preceding the date of application;
  • that during 14 years prior to these 12 months, he has either resided and/or been in government service for not less than 11 years;
  • that he is of good character;
  • that he has an adequate knowledge of a language recognized by the Constitution.
  • that after naturalization he intends to re- side in India.

If the Central government is of the opin- ion that the applicant has rendered distin- guished service to the cause of science, philosophy, art, literature, world peace or human progress generally, it may waive all or any of the above conditions for nat- uralization in his case.

• Citizenship by incorporation of territory: If any new territory becomes a part of India, the Government of India shall notify the per- sons of the territory to be citizens of India.

LOSS OF INDIAN CITIZENSHIP #

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 lose his citizenship. These are renunciation, termination and deprivation.

1. Renunciation is a voluntary act by which a person after acquiring the citizenship of an- other country gives up his Indian citizenship.
2. Termination take place by operation of law. When an Indian citizen voluntarily acquires the citizenship of another country, he auto- matically ceases to be an Indian citizen.
3. Deprivation is a compulsory termination of the citizenship of India obtained by Regis-

tration or Naturalization. The citizenship is deprived on the basis of an order of the Gov- ernment of India, in cases involving acquisi- tion of Indian citizenship by fraud, false rep- resentation and concealment of material fact or being disloyal to the constitution etc.

NRI, PIO AND OCI #

Non Resident Indian (NRI) #

The term “non-resident” is an economic and refers only to the tax status of a person who, as per the Income-tax Act of 1961, has not resided in India for a specified period for the purposes of the income Tax Act. According to the Act, any Indian citizen who does not meet the criteria as a “resident of India” is a non-resident of India and is treated as NRI for paying income tax. The same definition has been used in Foreign Exchange Management Act 1999 (FEMA) also. A NRI is a citizen of India, who stayed in India is less than 182 days during the preceding financial year and stayed abroad for employment/carrying on business or vocation outside India or stays abroad under circumstances indicating an intention an intention for an uncertain of stay. NRIs don’t require visa to visit India. In other words, an Indian citizen who is ordinarily residing outside India and holds and Indian passport.

Voting Rights to NRIs #

India does not allow for dual citizenship. Hence on becoming a foreign national a person effectively renounces his Indian citizenship. He then cannot vote in the Indian elections, run or hold a public office, or claim legal rights to a property. At present under the Representation of the People Act 1950, only those “ordinarily resident” in a constituency are eligible to be registered in the electoral rolls. Since most NRIs either study or work abroad, often for extended periods, they lose their status as ordinary residents under Section 20 of the Act and are liable to be struck off the electoral rolls. NRIs, living abroad are not given right to vote in Indian elections. Recently in 2012, the Parliament amended the Representation of people Act 1950 by inserting a sub-section that classifies citizens who take up “employment, education or otherwise outside India” as ordinary residents, and allows them to be regis- tered as voters and vote in the elections to the Lok

Sabha and Legislative Assemblies without the right to contest elections. They are allowed to be regis- tered as voters in constituencies as per the address indicated in their passports. Earlier they needed to be physically present in their constituencies to cast their votes. Now they are allowed to cast their votes by post or by any electronic means.

PIO (PERSON OF INDIAN ORIGIN) #

In simple words, a person is PIO who or any of whose ancestors was an Indian national and who is presently holding another country’s citizenship/ nationality i.e. he/she is holding foreign passport. Person of Indian Origin (PIO) (not being a citizen of Pakistan or Bangladesh or Sri Lanka or Afghanistan or China or Iran or Nepal or Bhutan), who,

• at any time, held Indian passport, or
• who or either of whose father or whose grand- father was a citizen of India by virtue of the Constitution of India or the Citizenship Act, 1955.

Note : A spouse (not being a citizen of Pakistan or Bangladesh) of a PIO or an Indian Citizen is also treated as a person of Indian origin for the above purpose.

PIO requires visa for any trip to India and is required to register at local FRRO (Foreigners Regional Registration Office) in India upon arrival. Persons having a separate PIO card are given many benefits similar to Non-Resident Indians. PIOs and OCIs are not granted voting rights.

Overseas Citizen of India (OCI) Cardholder #

1 Any person who is a foreign national, regis- tered under the Citizenship Act, 1955, and:

• but was a citizen of India at any time af- ter, the commencement of the Constitu- tion, or
• but was eligible to became a citizen of India at the time of the commencement of the Constitution, or
• but belongs to a territory that became part of India after 15th of August, 1947, or
• who is a child or a grandchild or a great grandchild of such a citizen, or

• A person, who is minor child of a person mentioned in clause (a);

Provided that no person, who or either of whose parents or grandparents or great grand- parents is or had been a citizen of Pakistan, Bangladesh shall be eligible for registration as an Overseas Citizen of India Cardholder.

Following benefits will be given to an OCI

Cardholder.

• Multi-purpose, multiples entries, lifelong visa for visiting India.

• Exemption from registration with local police authority for any length of stay in India.
  • Parity with NRIs in respect of econom- ic, financial and education fields except in matters relating to the acquisition of agricultural/plantation Properties.
• Spouse of a citizen of India or of an OCI Cardholder.

Now, existing PIO Cardholders are deemed to be OCI Cardholders.