Meaning of Citizenship: The population of State is divided into two classes - Citizens and aliens. A citizen of a State is a person who enjoys full civil and political rights. Citizens are different from aliens who do not enjoy all these rights. Citizenship carries with it certain advantages conferred by the Constitution. Aliens do not enjoy these advantages. The following fundamental rights are available only to citizens:
The right not to be discriminated against any citizen on grounds of religion, race, caste, sex or place of birth (Article 15).
The right to equality of opportunity in the matter of public employment (Article 16)
The right to six freedoms enumerated in Article 19, i.e., freedom of speech and expression; assembly; association; movement; residence; profession.
Cultural and educational rights conferred by Articles 29 and 30.
There are certain offices under the Constitution which can be occupied by citizens only e.g., office of the President [Article 58(1)(a)]; Vice-President [Article 66(3)(a)]; Judges of the Supreme Court [Article 124(3)] or of a High Court [Article 217(2)]; Attorney General [Article 76(1)]; Governor of a State [Article 157]; Advocate-General of a State [Article 165].
The right to vote for election to the House of the People and the Legislative Assemblies of States is available to the citizens only and only they can become members of the Union and the State Legislatures.
The rights guaranteed by Article 21 and 14 are available to alien also.
Constitutional Provisions - The Constitution does not lay down a permanent or comprehensive provision relating to citizenship in India. 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 Citizenship 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, i.e., January 26, 1950 - The following persons under Articles 5 to 8 of the Constitution of India shall become citizens of India at the commencement of the Constitution:
1. Citizenship by Domicile (Article 5): There are two condition which needs to be fulfilled to be a citizen of India firstly, he must, at the commencement of the Constitution, have his domicile in the territory of India. Secondly, such person must fulfil any one of the three conditions laid down in that Article, namely, (1) he was born in India, (2) either of his parents was born in India, (3) he must have been ordinarily resident in the territory of India for not less than five years immediately before the commencement of the constitution. The term "Domicile" is not defined in the Constitution. The domicile of a person is in that country in which he either has or is deemed by law to have his permanent house. There is distinction between 'domicile' and 'residence'. Residence alone in a place is not sufficient to constitute the domicile. It must be accompanies by the intention to make it his permanent home.
There are two main classes of domicile viz., domicile of origin and domicile of choice. While former attaches to the individual by birth, the latter is acquired by residence in territory subject to a distinctive legal system, with the intention to reside there permanently. In Pradeep Jain v. Union of India, the Supreme Court has held that in India Article 5 recognizes only one domicile viz., domicile of India. India is not a federal State in the traditional sense of the term. It has only one citizenship viz., the citizenship of India. It has also one single unified legal system applicable throughout the country. The concept of 'domicile' has relevance to the applicability of municipal laws whether made by the Union of India or by the States.
Two elements are necessary for the existence of domicile -
(i) a residence of a particular kind, and
(ii) an intention of a particular kind.
The residence need not be continuous but it must be indefinite, not purely fleeing. Mere residence in a place is not sufficient to constitute domicile. It must be accompanied by the intention to make it his permanent home. Thus, there must be both the factum and animus to constitute the existence of domicile for neither domicile nor mere residence is sufficient to make him an Indian citizen. Domicile accompanied with five years' residence are necessary to make a person a citizen.
In Mohammad Raza v. State of Bombay, the appellant came to India in 1938. He went on pilgrimage to Iraq in 1945. On return, he was registered as a foreigner and several times his stay in India was extended. In 1957 his request to extend the stay period was refused. He contended that he must be regarded as a citizen of India under Article 5, but his appeal was dismissed. The Court held that though he was original resident, he did not acquire Indian citizenship because he did not have a domicile in India. When the appellant returned from Iraq, he took over the job of a cashier in a hotel. That by itself was held insufficient to establish that there was a change in his mind of the kind necessary to acquire a new domicile. His application for extending his stay in India made from time to time fortified this conclusion. The domicile of choice continues until the former domicile has been resumed or another has been acquired.
In Louis De Raedt v. Union of India, the petitioners, who were foreign nationals challenged the order of the Central Government expelling them from India on their failure to acquire Indian Citizenship. The petitioners came to India before Independence and were staying continuously on the basis of foreign passport and residential permits. They contended that they became citizens of Indian by virtue of Article 5(c) of the Constitution as they were staying in India for more that 5 years immediately before the commencement of the Constitution. The Court held that they failed to establish that they had an intention to reside in India permanently. The petitioners did not have their domicile in India. For the acquisition of a domicile of choice, it must be shown that the person concerned had a certain state of mind, the animus manendi. If he claims that he had acquired a new domicile a particular time he must prove that he had formed the 'intention of making his permanent home in the country of residence'. Residence alone, unaccompanied by this state of mind, is insufficient. Domicile of origin is lost only on acquisition of domicile of choice and not on mere continuous stay in other country.
Intention is an important element in determining the domicile of a person. It can be inferred from the conduct of persons. Thus a person in Government service, who was given the choice for opting for India or Pakistan, who opted for Pakistan, actually went to Pakistan, served there under the government of Pakistan, but who subsequently resigned his job there and came to India cannot claim the benefit of Article 5 for he never became the citizen of India.
Citizenship of Migrants to India from Pakistan (Article 6)- Persons who have migrated from Pakistan to India have been classified into two categories for the purpose of citizenship, i.e., (i) those who came to India before July 19, 1948; and (ii) those who came on or after July 19, 1948.
Article 6 provides that a person who has migrated to India from Pakistan shall be deemed to be a citizen of India at the commencement of the Constitution, i.e., on 26th Jan, 1950, if he or either of his parents or any of his grandparents were born in India as defined in the Government of India Act, 1935, and in addition to above condition, which applies in both cases fulfils one of the following two conditions :-
(i) in case he migrated to India before July 19, 1948 (the date on which the permit system for such migration was introduced) he has been ordinarily residing in India since the date of his migration; or
(ii) in case he migrated on or after July 19, 1948 he has been registered as citizen of India by an officer appointed by the Government of India for the purpose:
Provided that no person shall be so registered unless he has been residing in India for at least six months immediately before the date of his application for registration. If the above conditions are satisfied, a person shall be deemed to be a citizen of India.
Citizenship of Migrants of Pakistan (Article 7) - Under Article 7 a citizen by domicile (Article 5) or by migration (Article 6) ceases to be a citizen if he has migrated to Pakistan after March 1, 1947. An exception is, however, made in favour of a person who has returned to India on the basis of permit for resettlement in India. Such a person is entitled to become a citizen of India if he fulfils other conditions necessary for immigrants from Pakistan after July 19, 1948. under Article 6. He can register himself as citizen of India in the same manner as a person migrating from Pakistan after July 19, 1948.
Article 7 thus overrides Article 5 and 6. Both Articles 6 and 7 use the term 'migrated'. The meaning of the term 'migrated' came for consideration before the Supreme Court in Kulathi v. State of Kerala. According to the Court the term 'migrated' used in Article 6 and 7 has to be construed with reference to the context and purpose and the prevailing political condition at the time the Constitution was being enacted. So interpreted, the word 'migrated' could mean nothing except voluntarily going from India to Pakistan permanently or temporarily. The majority held that the word 'migrate' was used in a wider sense of moving from one voluntary to another with the qualification that such movement was not for a short visit or for a special purpose.
Thus, it is a question of fact whether a person has migrated to or has gone to Pakistan on a temporary visit only and has to be decided on the facts and circumstances of each case. Citizenship comes to an end only when there is a migration and not where there was only a temporary visit.
In State of Bihar v. Kumar Amar Singh, one Kumar Rani, who was admittedly born in the territory of India and claimed to be the lawfully wedded wife of an Indian citizen whose domicile was India at all material times, left India for Pakistan in July 1948, returned to India in December, 1948 on a temporary permit and went back to Pakistan in April 1949. On May 14, 1953 she came back to India under permanent permit obtained from High Commissioner for Indian in Pakistan, which was cancelled on July 12, 1950, because it was wrongly issued without the concurrence of the Government as required by the rules made under the Influx from Pakistan (Control) Act, 1949. She contended first that she had never ceased to be a citizen of India because she was born in India and domicile was the domicile of her husband who was an Indian and consequently she was a citizen of India. She contended, alternatively that the proviso to Article 7 applied to her since she had returned to India on a permanent permit and the subsequent cancellation of the permit was illegal and irrelevant. It was held that "there could be no doubt that the lady must be held to have migrated from the territory of India after 1st March, 1947, although her husband stayed in India, but she could not prove that she went to Pakistan for a temporary purpose." The Supreme Court observed: "Article 7 clearly overrides Article 5. It is pre-emptory in its scope and makes no exception for such a case, i.e., of the wife migrating to Pakistan leaving her husband in India.
Citizenship of persons of Indian origin residing outside India - Article 8 provides that any person or either of whose parents or any of those grand-parents was born in India as defined in the government of India Act, 1935, and who is ordinarily residing in any country outside India, shall be deemed to be a citizen of India as if he has been registered as a citizen if India by the Diplomatic or Consular representatives of India in the country where he is for the time being residing - on application made by him to such diplomatic or consular representative, whether before or after 26th January, 1950, in the form and manner prescribed by the Government of the Dominion of India or Government of India. Article 8 confers citizenship on Indian nationals residing abroad on their complying with its provisions.
Article 9 provides that if a person voluntarily acquires the citizenship of any foreign State he shall not be able to claim citizenship of India under Article 5, 6 and 8. It deals only with voluntary acquisition of citizenship of a foreign State before the Constitution came into force. Cases of voluntary acquisition of a foreign citizenship before the commencement of the Constitution will have to be dealt with the Government of India under the Citizenship Act of 1955.
Article 10 provides that every person who is or is deemed to be a citizen of India under any of the foregoing provisions shall continue to be a citizen of India subject, however, to the provisions of any law that may be made by Parliament. Thus, in exercise of this power, Parliament may take away the right of citizenship of any person. But the right to citizenship given under the foregoing provisions can only be taken away by an express law made by Parliament. It cannot be taken away indirectly, In Ebrahim Wazir v. State of Bombay, the constitutional validity of Influx from Pakistan (Control) Act, 1949, was involved. This Act provides that no person domiciled in India or Pakistan shall enter India from Pakistan without a permit. If a person enters India without a permit he commits an offence punishable under the Act. Section 7 of the Act authorizes the Central Government to direct the removal from India of any person who has committed, or against whom a reasonable suspicion exists that he has committed an offence under the Act. The Supreme Court held that Section 7 was ultra vires of Parliament because to allow the forcible removal of an Indian citizen from India would be tantamount to destroying the right of citizenship conferred by Part 2 of the Constitution. The right of citizenship, the Court said, could only be taken away by recourse to Article 11 the right of citizenship cannot be destroyed by an Act made for a different purpose.
Termination of Citizenship
There are three ways citizenship will be terminated
Renunciation of citizenship - An Indian citizen of full age and capacity [Who is also a citizen or national of another country] can renounce his Indian citizenship by making a declaration to that effect and having it registered. But if such a declaration is made during any war in which India is engaged, the registration shall be withheld until the Central Government otherwise directs. When a male person renounces his citizenship, every minor child of his ceases to be an Indian citizen. Such a child may, however, resume Indian citizenship if he makes a declaration to that effect within a year of his attaining full age, that is, 18 yrs. (Section 8)
Termination of citizenship - If a citizen of India voluntarily acquires the citizenship of another country he shall cease to be a citizen of India. If any question arises as to whether, when or how any person has acquired the citizenship of another country, it is to be determined by such authority and in such manner as may be prescribed by the rules. (Section 9).
Deprivation of citizenship - Deprivation is a compulsory termination of the citizenship of India. A citizen of India by naturalization, registration, domicile and residence, may be deprived of his citizenship by an order of the Central Government if it is satisfied that - (a) registration or naturalization was obtained by means of fraud, false representation or concealment of any material fact; or (b) he has shown himself by act or speech to be disloyal or disaffectionate towards the Indian Constitution; or (c) during a war in which India may be engaged he has unlawfully traded or communicated with the enemy; or (d) within five years of his registration or naturalization he has been sentenced to imprisonment for not less than two years; or (e) he has been ordinarily residing out of India for seven years continuously.
Before making an order depriving citizenship, the Central Government is to give to the person concerned a written notice containing the ground on which the order is proposed to be made and in certain cases he might have his case referred to a Committee of Inquiry. The Central Government is then bound to refer the case to a Committee consisting of a Chairman and two other members. The Committee of Inquiry shall hold the inquiry and the Central Government is to be ordinarily guided by its report in making the order.
Certificate of Citizenship in case of doubt [Section 13] - The Central Government may, in such cases as it thinks fit, certify that a person with respect to whose citizenship of India a doubt exists, is a citizen of India; and a certificate issued under this section shall, unless it is proved that it was obtained by means of fraud, false representation or concealment of any material fact, be conclusive evidence that person was such a citizen on the date thereof, but without prejudice to any evidence that he was such a citizen at an earlier date.
Issue of national identity cards [Section 14-A] - (1) The Central Government may compulsorily register every citizen of India and issue national identity card to him.
(2) The Central Government may maintain a National Register of Indian Citizens and for that purpose establish a National Registration Authority.
(3) On and from the date of commencement of the Citizenship (Amendment) Act, 2003 (6 of 2004), the Registrar-General, India, appointed under sub-section (1) of Section 3 of the Registration of Births and Deaths Act, 1969 (18 of 1969) shall act as the National Registration Authority and he shall function as the registrar-General of Citizen Registration.
(4) The Central Government may appoint such other officers and staff as may be required to assist the Registrar-General of Citizen Registration in discharging his functions and responsibilities.
(5) The procedure to be followed in compulsory registration of the citizens of India shall be such as may be prescribed.]
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