Indian Citizenship Act
India, like any other contemporary state, has two types of people: citizens and aliens. Citizens are full members of the Indian State and are bound by its laws. They are free to exercise their civil and political rights. Aliens, on the other hand, are citizens of a different country and hence do not have full civil and political rights. There are two types of aliens: friendly and hostile. Those countries with cordial relations with India have subjects who are friendly aliens. Enemy aliens, on the other hand, are citizens of the country at odds with India. They have less rights than friendly aliens, for example, they are not protected against arrest and detention (Article 22).
The Indian Constitution bestows the following rights and advantages on Indian citizens (while denying them to foreigners):
- The right to be free from discrimination based on religion, race, caste, gender, or place of birth (Article 15).
- The right to equitable treatment under the law in matters of public employment (Article 16).
Article 19: Right to freedom of expression, assembly, association, movement, residence, and profession
Articles 29 and 30 deal with cultural and educational rights.
- The right to vote in Lok Sabha and state legislative assembly elections.
- The right to run for a seat in Parliament and the state legislature.
- Eligibility for various governmental offices, including President of India, Vice-President of India, Supreme Court and high court judges, Governors of States, Attorney General of India, and Advocate General of States.
Along with the aforesaid rights, citizens owe the Indian government some responsibilities, such as paying taxes, honoring the national flag and anthem, defending the country, and so on.
In India, both citizens by birth and naturalised citizens are eligible for the office of President, however in the United States, only citizens by birth and not naturalised citizens are eligible.
Provisions of the Constitution
Part II of the Constitution deals with citizenship from Articles 5 through 11. It does not, however, contain any permanent or elaborate rules in this regard. It exclusively recognizes those who became citizens of India on the day it was established (January 26, 1950). It does not address the issue of citizenship acquisition or loss after it is implemented. It authorizes Parliament to make legislation to address these and other citizenship-related issues. As a result, the Citizenship Act (1955) was established by Parliament, and it has been revised several times since then.
At the time of the Constitution’s inception, on January 26, 1950, the following four kinds of people became citizens of India:
- A person who had his domicile in India and met one of the three criteria, namely, if he was born in India, if either of his parents was born in India, or if he had been normally resident in India for five years immediately prior to the Constitution’s commencement, became an Indian citizen.
- A person who migrated to India from Pakistan became an Indian citizen if he, one of his parents, or one of his grandparents was born in undivided India and met one of two conditions: he had been ordinarily resident in India since the date of his migration, or he had been registered as a citizen of India, if he migrated to India on or after July 19, 1948. However, a person may only be so registered if he had lived in India for six months prior to the date of his registration application.
- A person who relocated from India to Pakistan after March 1, 1947, but afterwards returned to India for resettlement, may become an Indian citizen. He had to be a resident of India for six months prior to submitting his registration application.
- A person born in undivided India but ordinarily residing outside India, or any of his parents or grandparents, shall become an Indian citizen if he has been registered as a citizen of India by the diplomatic or consular representative of India in the country of his residence, whether before or after the Constitution’s commencement. As a result, this law protects abroad Indians who wish to become citizens of India.
To summarize, these laws apply to (a) persons domiciled in India; (b) persons who migrated from Pakistan; (c) persons who migrated to Pakistan but later returned; and (d) persons of Indian heritage residing outside India.
The following are the other citizenship-related constitutional provisions:
- No person is a citizen of India or is assumed to be a citizen of India if he has freely acquired citizenship in another country.
- Every person who is or is regarded to be an Indian citizen shall remain so, subject to the requirements of any law passed by Parliament.
- Parliament shall have the authority to make any provision regarding the acquisition and termination of citizenship, as well as all other citizenship-related concerns.
Citizenship Act 1955
The Citizenship Act of 1955 regulates the acquisition and loss of citizenship after the Constitution takes effect.
The Citizenship Act of 1955 also included a provision for Commonwealth citizenship. The Citizenship (Amendment) Act of 2003, however, eliminated this provision.
Acquisition of Citizenship
The Citizenship Act of 1955 establishes five paths to citizenship: birth, descent, registration, naturalization, and territorial incorporation.
- By Birth
A person born in India on or after January 26, 1950, but before July 1, 1987, is an Indian citizen by birth, regardless of his parents’ nationality.
Only if either of his parents was a citizen of India at the time of his birth is a person born in India on or after July 1, 1987 considered a citizen of India.
Those born in India on or after December 3, 2004 are only regarded Indian citizens if both of their parents are Indian citizens or if one of their parents is an Indian citizen and the other is not an illegal migrant at the time of their birth.
Foreign diplomats’ children and enemy aliens’ offspring are not eligible for Indian citizenship through birth.
- By Descent
If his father was a citizen of India at the time of his birth, a person born outside India on or after January 26, 1950 but before December 10, 1992 is a citizen of India by descent.
If either of his parents is a citizen of India at the time of his birth, a person born outside India on or after December 10, 1992 is considered an Indian citizen.
From December 3, 2004, forward, a person born outside India by descent is not a citizen of India by descent unless his birth is registered at an Indian consulate within one year of the date of birth, or with the approval of the Central Government after that period has expired. An application to an Indian consulate for the registration of a minor child’s birth must be accompanied by a written undertaking from the minor child’s parents that he or she does not hold a passport from another country.
Furthermore, a minor who is a citizen of India by descent but also a citizen of another country will lose his Indian citizenship if he does not renounce his other country’s citizenship or nationality within six months of reaching full age.
- By Registration
On an application, the Central Government may register any person (who is not an illegal migrant) as a citizen of India if he falls into one of the following categories:
(a) a person of Indian descent who has lived in India for at least seven years before applying for registration;
(b) a person of Indian ancestry who is habitually resides in any country or location outside of India’s undivided territory;
c) a person who is married to an Indian citizen and has lived in India for at least seven years before applying for registration;
d) children under the age of 18 who are Indian nationals;
e) a person of full legal age and capacity whose parents are Indian citizens;
(f) a person of full age and ability who, or either of his parents, was a citizen of independent India prior to independence and is ordinarily living in India for twelve months prior to making an application for registration;
(g) a person of full age and capacity who has held an overseas citizen of India card for five years and has been ordinarily living in India for twelve months prior to making an application for registration.
If he or either of his parents were born in undivided India or any other territory that became part of India after August 15, 1947, they are considered to be of Indian descent.
Before being registered as citizens of India, all of the foregoing categories of people must take an oath of allegiance.
- By Naturalization
The Central Government may grant a certificate of naturalization to any person (who is not an illegal migrant) who meets the following criteria: (a) he is not a subject or citizen of any country where citizens of India are prohibited from becoming subjects or citizens of that country by naturalisation; and (b) if he is a citizen of any country, he agrees to renounce that country’s citizenship in the event of his application being approved. In the instance of a person who has made remarkable service to science, philosophy, art, literature, global peace, or human advancement, the Government of India may waive all or any of the foregoing prerequisites for naturalization. Every naturalized citizen must swear allegiance to the Indian Constitution.
- By Incorporation of Territory
If a foreign area becomes a part of India, the Indian government designates who among the population of the territory will be Indian citizens. From the stated date, such individuals become Indian citizens. For example, under the Citizenship Act (1955), the Government of India issued the Citizenship (Pondicherry) Order (1962) when Pondicherry became a part of India.
- Special Provisions as to Citizenship of Persons Covered by the Assam Accord Special Provisions
The Citizenship (Amendment) Act of 1985 added the following particular provisions relating to citizenship of those covered by the Assam Accord (which dealt with the problem of foreigners):
(a) As of January 1, 1966, any persons of Indian descent who entered Assam prior to January 1, 1966 from Bangladesh and who have been usually residents in Assam since the date of their entry into Assam are regarded to be citizens of India.
(b) Every individual of Indian ancestry who entered Assam on or after January 1, 1966, but before March 25, 1971, from Bangladesh, and who has been normally resident in Assam since the date of his arrival into Assam, and who has been identified as a foreigner, must register. For all purposes, such a registered individual shall be assumed to be an Indian citizen as of the expiration of a ten-year term from the date of detection as a foreigner. However, he will have the same rights and obligations as an Indian citizen for the next ten years, with the exception of the right to vote.
Loss of Citizenship
Renunciation, termination, and deprivation are the three ways to lose citizenship under the Citizenship Act (1955), whether gained under the Act or previous to it under the Constitution:
- By Renunciation
Any Indian citizen of full age and competence can make a declaration of renunciation of Indian citizenship. That person ceases to be an Indian citizen after the declaration is registered. However, if such a statement is made during a war in which India is involved, the Central Government will refuse to register it.
Furthermore, when a person renounces his or her Indian citizenship, his or her minor children lose their Indian citizenship as well. When the child reaches the age of eighteen, he may reclaim his Indian citizenship.
- By Termination
When an Indian citizen gets the citizenship of another nation freely (without pressure, undue influence, or compulsion), his Indian citizenship is automatically terminated. This rule, however, does not apply when India is fighting a war.
- By Deprivation
It is a compulsory termination of Indian citizenship by the Central government if: (a) the citizen obtained citizenship through fraud; (b) the citizen has shown disloyalty to the Indian Constitution; (c) the citizen has unlawfully traded or communicated with the enemy during a war; (d) the citizen has been imprisoned in any country for two years within five years after registration or naturalization; and (e) the citizen has been ordinarily resident outside of India for two years.
Despite the fact that the Indian Constitution is federal and envisions a dual polity (centre and states), it only recognizes one citizenship: Indian citizenship. India’s citizens owe their allegiance solely to the Union. There is no different citizenship for each state. Other federal states, such as the United States and Switzerland, have adopted the dual citizenship system.
Each person in the United States is a citizen of both the United States and the state to which he or she belongs. As a result, he owes allegiance to both and has dual sets of rights, one granted by the federal government and the other by the state government. This system leads to discrimination, as a state may favor its inhabitants in areas like as the right to vote, the right to hold public office, the right to perform professions, and so on. In India’s single-citizenship system, this problem is not a concern.
In India, all citizens, regardless of where they were born or where they live, have the same political and civil rights as other citizens throughout the country, and there is no discrimination. However, there are some exceptions to the general rule of non-discrimination, such as: 1. The Parliament (under Article 16) can make residency in a state or union territory a requirement for certain jobs or appointments in that state or union territory, or for local government or other authority within that state or union territory. As a result, the Public Employment (Requirement as to Residence) Act, 1957, was established, allowing the Government of India to impose a residency requirement exclusively for non-gazetted positions in Andhra Pradesh, Himachal Pradesh, Manipur, and Tripura. There is no such provision for any state save Andhra Pradesh and Telanganaa because this Act expired in 1974.
- Discrimination against citizens on the basis of religion, race, caste, sex, or place of birth, but not on the basis of domicile, is prohibited under Article 15 of the Constitution. This means that the state can provide special privileges or preferential treatment to its residents in areas that are not covered by the Constitution’s guarantees of rights to Indian citizens. For example, a state may provide education fee reductions to its citizens.
- Any schedule tribe’s rights to freedom of movement and residence (under Article 19) are subject to protection. In other words, outsiders’ ability to enter, live in, and settle in tribal territories is limited. Of course, this is done to protect schedule tribes’ distinct culture, language, customs, and demeanor, as well as their traditional vocation and property from exploitation.
- Until 2019, the legislature of the erstwhile state of Jammu and Kashmir had the authority to: (a) define who are permanent inhabitants of the state; and (b) confer any particular rights and advantages on such permanent residents in the following areas:
I state government employment; (ii) acquisition of immovable property in the state; (iii) settlement in the state; and (iv) right to scholarships and other kinds of state government assistance.
The preceding paragraph was based on Article 35-A of the Indian Constitution. The Constitution (Application to Jammu and Kashmir) Order, 1954, added this article to the constitution. The President made this decision under Article 370 of the Constitution, which gave the former state of Jammu and Kashmir unique status. A new presidential order called as “The Constitution (Application to Jammu and Kashmir) Order, 2019” eliminated this special status in 2019. The 1954 order was succeeded by this one.
The Indian Constitution, like Canada’s, established a system of single citizenship and guaranteed uniform rights (save in a few situations) to Indian citizens in order to foster a sense of brotherhood and togetherness among them and to help construct an united Indian nation. Despite this, communal riots, socioeconomic battles, caste wars, dialect confrontations, and ethnic problems have occurred in India. As a result, the founding fathers’ and Constitution-makers’ cherished ideal of creating a cohesive and integrated Indian country has not been fully realized.
Overseas Citizenship of India
The Government of India (Ministry of External Affairs) established a High Level Committee on the Indian Diaspora in September 2000, chaired by L.M. Singhvi. The Committee’s mission was to conduct a detailed study of the global Indian Diaspora and give recommendations for improving relations with them.
In January of 2002, the committee submitted its report. It proposed that the Citizenship Act of 1955 be amended to allow persons of Indian origin (PIOs) from specific countries to be granted dual citizenship.
As a result, the Citizenship (Amendment) Act, 2003 allowed PIOs from 16 countries other than Pakistan and Bangladesh to apply for Overseas Citizenship of India (OCI). The Principal Act also deleted all sections recognizing or referring to Commonwealth Citizenship.
Later, the Citizenship (Amendment) Act of 2005 broadened the scope of OCI grants to PIOs from all nations except Pakistan and Bangladesh, as long as their home countries recognize dual citizenship under local law. It is important to emphasize that the OCI is not a dual citizenship, as dual citizenship or dual nationality is prohibited by the Indian Constitution (Article 9).
The Citizenship (Amendment) Act of 2015 has updated the provisions of the Principal Act relating to the OCI once again. By combining the PIO and OCI card schemes, it has created a new scheme named “Overseas Citizen of India Cardholder.”
On August 19, 2002, the PIO card scheme was implemented, followed by the OCI card scheme on December 2, 2005. Despite the fact that the OCI card program had grown in popularity, both schemes were running concurrently. In the perspective of applicants, this was producing unnecessary complexity. The Government of India chose to develop one single plan after merging the PIO and OCI schemes, containing beneficial features of both, in order to address some challenges faced by applicants and to provide better facilities to them. As a result, the Citizenship Act was created to achieve this goal (Amendment)
The Act of 2015 was passed. The PIO program was abolished on January 9, 2015, and it was also announced that all existing PIO cardholders will be considered OCI cardholders on that date.
The Citizenship (Amendment) Act, 2015 replaced the term “Overseas Citizen of India” with “Overseas Citizen of India Cardholder,” and amended the Principal Act to include the following provisions:
I. Registration of Indian Citizen of India Cardholder
(1) The Central Government may register as an overseas citizen of India cardholder– (a) any person of full age and capacity,– any person of full age and capacity,– any person of full age and capacity,– any person of full age and capacity,– any person of full age and capacity,– any person of full age and capacity,– any person of full age and capacity
(I). who is a citizen of another country, but was a citizen of India at the time of, or at any time after, the Constitution’s inception; or (ii) who is a citizen of another country, but was eligible to become a citizen of India at the time of the Constitution’s inception; or (iii) who is a citizen of another country, but belonged to a territory that became part of India after August 15, 1947.
No person may register as an Overseas Citizen of India Cardholder if either of his or her parents, grandparents, or great grandparents is or was a citizen of Pakistan, Bangladesh, or any other nation specified by the Central Government.
(2) The Central Government may set a date after which current persons of Indian origin cardholders will be considered foreign nationals of India.
(3) Notwithstanding anything in paragraph (1), if the Central Government is satisfied that special circumstances exist, it may register a person as an Overseas Citizen of India Cardholder after documenting the circumstances in writing.
II. Conferent of Rights on Overseas Citizen of India Cardholder
(1) An overseas citizen of India cardholder is entitled to the privileges set forth by the Central Government in this regard.
(2) An overseas citizen of India cardholder is not entitled to the following rights (which are granted on Indian citizens): (a) He is not entitled to equal opportunity in issues of public employment.
(b) He is ineligible for the office of President.
(c) He is ineligible for Vice-Presidential election.
(c) He will be ineligible for nomination as a Supreme Court Judge.
e) He is ineligible to be appointed to the High Court as a judge.
f) He will not be allowed to register as a voter.
(g) He is ineligible to serve in the House of People or the Council of States.
(h) will be ineligible to serve in the State Legislative Assembly or the State Legislative Council.
(i) Except for such services and posts as the Central Government may define, he shall not be eligible for appointment to public services and posts in connection with the Union’s or any State’s affairs.
Renunciation of Overseas Citizen of India Card
(1) If any overseas citizen of India cardholder makes a declaration renouncing the card registering him as an overseas citizen of India cardholder in the prescribed manner, the declaration shall be registered by the Central Government, and that person shall cease to be an overseas citizen of India cardholder upon such registration.
(2) When a person ceases to be an overseas citizen of India cardholder, that person’s spouse of foreign origin who has obtained an overseas citizen of India card, as well as every minor child of that person who is registered as an overseas citizen of India cardholder, ceases to be an overseas citizen of India cardholder.
Cancellation of Overseas Citizen of India Cardholder Registration
If the Central Government is satisfied that– (a) the registration as an overseas citizen of India cardholder was obtained by fraud, false representation, or concealment of any material fact; or (b) the overseas citizen of India cardholder has shown disaffection towards the Indian Constitution; or (c) the registration as an overseas citizen of India cardholder was obtained by fraud, false representation, or concealment of any material fact; or (d) the registration as an overseas citizen of India cardholder was obtained by fraud, false representation, or conceal.