CITIZENSHIP AND THE CONSTITUTION:

The Constitution of India provides for various ways in which persons can gain Indian citizenship.
Articles 5 to 11 deal with how citizenship is to be gained and acquired.
What does citizenship entail: Citizenship is a personal bond between a state and its citizens,
which gives its members the right to membership of a body politic, and also an additional set of
rights. This therefore grants a person an allegiance with a particular state, and full poilitical
rights, including, in the case of democracies, the right to suffrage.
HISTORY OF CITIZENSHIP IN INDIA:
Before the independence of India, all Indians possessed a common British Indian citizenship.
This entitled Indians to live and work in the United Kingdom, and indeed, also allowed them to
vote in the United Kingdom.
In 1946, the Indian Constitution initially provided that :”Every person born in the Union or
naturalized according to its laws and subject to the jurisdiction thereof shall be a citizen of
India.” However, after the passage of the Indian Independence Act, 1947, and the allowing of
the partition of India, this provision was modified to form what is now Article 5 of the
Constitution.
Article 5: At the commencement of the Constitution, every person who has his domicile in the
territory of India, and
(a) Who was born in the territory of India, or
(b) Either of whose parents were 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.
While this broad provision conferred citizenship upon a wide set of people, including some who
were now domiciled in Pakistan, Articles 6 and 7 place certain limitations on citizens with
respect to the partition.
Article 6: Rights of Citizenship of certain persons who have migrated to India from Pakistan:
Notwithstanding anything contained in Article 5, a person who had migrated to the territory
of India from the territory now included in Pakistan shall be deemed to be a citizen of India at
the commencement of this Constitution if:

(a) He and either of his parents or any of his grand parents was born in India as defined in
the Government of India Act, 1935 (as originally enacted), and
(b) In the case where such person has so migrated before 19 th July 1948, he has been
ordinarily resident in the territory of India since the date of his migration or
 (ii) In the case where such person has so migrated on or after 19 th July 1948, he has
been registered as a citizen of India by an officer appointed in that behalf by the
Government of the Dominion of India on an application made by him therefor to such
officer before the commencement if this constitution in the form and manner
prescribed by that government.

Provided that no person shall be so registered unless he has been resident in the
territory of India for at least six months immediately preceding the date of his
application.

Article 7: Rights of Citizenship of certain migrants to Pakistan: Notwithstanding

anything in Articles 5 and 6, a person who has after the first day of March 1947,
migrated from the territory of India to the territory now included in Pakistan shall not
be deemed to be a citizen of India.
Provided that nothing in this Article shall apply to a person who, after having so
migrated to the territory now included in Pakistan, has returned to the territory of
India under a permit for resettlement or permanent return issued by or under the
authority of any law and every such person has for the purposes of clause (b) of Article
6 be deemed to have migrated to the territory of India after the nineteenth day of July
1948.

These provisions are significant in examining how the idea of citizenship operated in India.

DOMICILE AND CITIZENSHIP:

The Indian Constitution does not provide for state citizenship. According to Seervai, this is because the
constituent states of India were and never had been independent units; therefore, it was not possible to
argue that there was a different citizenship for every Indian state.

The question of domicile however, needs to be further examined. Domicile implies “a permanent home
of a person” and though usually dependent on birth, can sometimes be ascribed to a person through his
or her origin.” (Somerville v. Somerville, (1801)). This is distinct from citizenship. Citizenship enables one
to be a member of a political community. On the other hand, domicile enables a person to be a
member of a civil community. Therefore, issues of domicile deal with private and civil matters—eg.
Marriage, divorce, succession etc.

This is an important difference, because there is also a major difference between what a “state’ implies
in the context of public international law, and the meaning of a ”country” in private international law.
‘State’ implies external sovereignty, whereas a ‘country’ means a ‘lae district’ in the context of private
legal systems. Therefore, for example, there is a situation when the State of the United Kingdom can
comprise of four different ‘countries’ in its territory.
The question therefore, is as follows. The Constitution of India does not obviously allow people to be
citizens of any separate state—rather, persons are only citizens of India. Is it, however, possible that it
allows for persons to be domiciled in each state despite allowing for uniform citizenship?

D.P. Joshi v. State of Madhya Bharat, AIR 1955 SC 334; 5 Judge Bench, Bijan Mukherjee, J, majority.

Facts: The petitioner, a medical student, challenged a set of rules regarding admission into the
Mahatma Gandhi Medical College, Indore. According to these rules, any person not domiciled in the
state of Madhya Bharat had to pay a capitation fee of Rs. 1500. The rule stated “For all students who are
bona fide residents of Madhya Bharat, no capitation fee should be charged. But for all other non-
Madhya Bharat students a capitation fee of Rs. 1300 and Rs. 1500 should be charged.

A bona fide resident of Madhya Bharat was:

1. A citizen of India whose domicile is in Madhya Bharat, and has not acquired a domicile
elsewhere.
2. A citizen of India…who had acquired a domicile in Madhya Bharat and has resided there for over
5 years.
3. Any person who has shifted from the territories now comprised in Pakistan before September
30, 1948 and intends to live their permanently.

The petitioner’s challenge was based on Article 14 and 15(1). The discrimination here was based on the
‘place of birth’ and therefore, according to the petitioner, fell foul of equality under the Constitution.

Decision (Bijan Mukherjee, J.):

1. Residence and place of birth are two separate conceptions with different connotations both
in law and fact, and Article 15(1) cannot be read as preventing discrimination based on
‘place of birth’ when all the section does is to prevent discrimination based on residence.
2. The term ‘domicile’ though received at birth, was not dependent solely on the place of birth.
Therefore, it could not fairly be argued that the domicile of the petitioner was only his place
of birth.
3. Article 5 of the Constitution, which deals with citizenship, is sufficient to show that the
Constitution does not confer citizenship only through domicile.
4. In case, within a state, different sub-national entities have different legal systems or laws
governing items like marriage, property and succession, each area having a distinct set of
laws could be regarded as a separate country for the purposes of the Constitution—indeed,
Halsbury makes clear that “a domicile is acquired where the individual resides”
5. Therefore, in the context of India, it is important to see the legislative competence of
making laws relating to marriage. This is provided for under Entry 5, List III. To that extent,
then, both can make laws on this respect. Therefore, there can easily be a domicile of
Madhya Bharat under the Constitution.
6. Therefore, as the object of this legislation was to ”help to some extent students from
Madhya Bharat in the prosecution of their studies”, it cannot be held that this amendment
is per se illegal.
Minority Decision (Jagannadhadas, J

1. The use of the word ‘exception’ implies that some students get the benefit of not paying what
would otherwise have been payable.
2. Hence, the idea of ‘bona fide residents’ including those who have Madhya Bharat as their
‘permanent home’ is a little problematic. Domicile often merely means ‘place of birth’ and is
sometimes implied as such.
3. In India, personal laws depend on matters of religion and not of territorial extent. Most laws,
therefore, on issues of marriage or succession are entirely of an all-India medium and not of any
particular territory.
4. Therefore, based on this and Article 44 (UCC) it is clear that the Indian Constitution does not
provide for a category of reservation on the basis of domicile.

Pradeep Jain v. Union of India, AIR 1984 SC 1420, (Bhagwati, J.)

Issue: The issue here dealt with admission in medical colleges. Effectively, a number of medical colleges
had confined or reserved their seats to those who had their ‘domicile’ in these states, or were resident
in these states for a specified number of years, or were given preference over other students. Here,
therefore, the following questions came up:

1. Can there be a state domicile in the Constitution.

2. Is the word ‘domicile’ synonymous with/means only residence?
3. If so, to what extent can reservation on the basis of residence be made by educational
institutions in a state.

Decision: Bhagwati, J. gave the decision, and in doing so held that:

1. This question has become extremely significant because of issues of regionalism, linguism and
communalism, and regional loyalties are gaining precedence in public life.
2. India has never been a common unified political unit. The preamble of the Indian constitution,
however, is according to him symptomatic of the way in which unity was sought to be achieved
in the country—“we the people of India” etc. Through examining Article 1, Article 5, Article 14
and Article 19, he claims that the Constitution of India provides for a unified system of
government.
3. As India is a state with one unified citizenship, it is difficult to see how a citizen having his home
in one particular part of India can be treated as separate for the purpose of another part of thr
country. This is, according to him, a dangerous feeling which if allowed to grow indiscriminately
could result in the break up of the country.
4. Article 15(2) and Article 16(2) prohibit discrimination on the grounds, inter alia, of place and
birth. Article 16(2) in fact prohibits discrimination even on the basis of residence in the context
of work. He then spends two paragraphs discussing Article 16(2), even though he holds,
eventually, that it has no validity in the present casr.
5. Discussion of Domicile: Bhagwati, J. examines the idea of domicile:
i. There are two kinds of domicile—domicile of origin and domicile of birth—the purpose
of which is to link a person to a territory for the purpose of his/her personal law.
 ii. In the Indian context, Article 5 clearly refers to “domicile in the territory of India”.
Furthermore, India is also not a typical federal state, and has a single unified legal
system which prevails throughout its territory.
iii. “indeed, it is absurd to say that the legal system of India varies from state to state or
that a legal system of a state is distinct from that of the rest of the country merely
because, under the scheme of legislative competence in the country, the state
legislatures also have the power to make laws.”. Indeed, therefore, the concept of
domicile would have ”no relevance to Indian law.”.
iv. Any citizen of India, therefore, only has one domicile—viz, domicile in the territory of
India. A person who goes to live in another state does not and cannot acquire the
domicile of a state other than India.
v. Even if one views the idea of domicile as synonymous with residence, the use of the
term ‘domicile’ is likely to conjure up the notions of a separate state and “give rise to
lethal radiations which may over time break up the unity and integrity of the country.”
vi. The use of criteria like domicile, for instance, ensures that the best are not selected for
admission into universities and colleges. Therefore, to not give them admission would
be a “loss for the nation”.
vii. While ‘backwardness’ or ‘inequality; can be considered legitimate grounds to impose
any form of reservation, these cannot hold in the context of residence or ‘domicile’.

Seervai, however, severely criticizes this decision, holding that:

1. The first question—that of Article 5—should not have been examined in the context of domicile.
Rather, the more pertinent question was what part should domicile play in the peronal laws of
India.
2. The fact that India is not strictly speaking a federal country also makes no difference to the idea
of domicile. Citizenship and domicile are two distinct subjects.
3. What does the fact that India has only one legal system mean—does it mean that the
Constitution provides for high courts as the highest courts of every state.
4. Furthermore, the idea that the states do not have their own legal structure is not a sufficient
point, given that states have their own high courts etc.

Louis D. Raedt v. Union of India, AIR 1991 SC 1886 (Division Bench)

Facts: The petitioners here were missionaries who had been engaged in missionary work in India since
1937. Initially, they had entered India with a British visa, and had been staying in India for all this time,
excepting two short visits to Belgium in 1967 and 1973. In 1987, the petitioner was asked to leave the
country; he challenged this order.

Issue:

1. The petitioner contended that, by virtue of Article 5(c), he became a citizen of India after the
commencement of the Constitution and therefore could not be made to leave.
 2. The petitioner also contended that s. 3(2)(c), Foreigners Act required rules in order to be
operationalized; as the rules had not been framed, he could not be made to leave the country.
3. Alternately, he contended that the power to expel an alien also had to be exercised in
accordance with the principles of natural justice. Therefore, they could not be forced out
without a hearing.

Decision:

1. The Court looked into the issue of whether the petitioner could claim citizenship within the
ambit of Article 5(c) of the Constitution. In examining the petitioner’s contention, it looked into
whether the petitioner could have claimed to be domiciled in the territory of India.
2. Domicile involves an intention to reside in a country—the animus manendi—to remain there
permanently. By merely leaving a country one cannot lose domicile until the person acquires a
new domicile.
3. The burden to prove an intention to stay in these countries rests with them at the point of the
commencement of the Constitution,
4. Given that the petitioner had earlier sought annual extensions for his work as a missionary—
therefore, it was obvious that there was no intention to settle in India.

Domicile in the context of Partition:

As we have seen, the partition of India significantly affected the way in which Indian citizenship and
domicile was looked at. We will examine the issues of citizenship later; for now, let us examine how
domicile affected the partition.

As a general principle, the domicile of married women is linked with their husbands; the domicile of
minor children is linked with their fathers. This gives rise to certain complicated situations after the
unrest and mass migrations that accompanies partition.

Rashid Hasan Roomi v. Union of India, AIR 1967 ALL. 154

Background:The petitioner here was a minor at the time of partition. His father migrated to Pakistan in
1948, and left him and his siblings in India. Since then, he has been cultivating land in UP, and has
become a homeopathic doctor. In 1964, he was elected the Chairman of the Town Area Committee.
During this time, the petitioner had obtained an India-Pakistan passport, though his application for
obtaining another passport in 1961 was rejected.

Issue:

1. The petitioner was arrested immediately after the Indo-Pak war of 1965, under the Foreigners
Internment Order, 1962. Even though the petitioner had only visited Pakistan once using his
passport, the fact that his father was used to bring him under the ambit of the Internment
Order.
2. In arguendo, the state contended that even if he was held to be a citizen of India, s. 3 of the
Foreigner’s Internment Order would apply. As per this if any person, or either of his parents, or
either of his grandparents were a citizen or subject of any country at war with India at any time,
they could be interned.
Decision:

1. The Court held that, even though, as a general rule, the domicile of a minor child followed that
of his father, this rule could not be carried to its logical conclusion. Doing so would not be
reasonable.
2. The petitioner, born of Indian parents in the territory of India, had his domicile there and had
been a resident of India for more than five years preceding the partition. Therefore, he was
eligible to be an Indian citizen by virtue of the citizenship provisions of the Indian Constitution.
3. As the petitioner’s father was in Pakistan, he undoubtedly came within the ambit of this order.
However, as the impugned order makes clear, he was arrested because he was considered to be
a citizen of Pakistan. Therefore, this cause, in arguendo, could not be used to arrest him.
4. As the order, therefore, was illusory in law; the petitioner was set at liberty.

Shanno Devi v. MangalSain, AIR 1961 SC 58 (Constitutional Bench: K.C. Dasgupta, J.)

Facts: The petitioner was defeated in an election in March 1957 for the Punjab Legislative Assembly.
Subsequently, she filed the petition against the respondent arguing that he was not a citizen of India,
and not qualified to stand for elections.

MangalSain was born in Sargodha in Punjab, which later became part of Pakistan. At the age of 2, he
moved to Mandalay in Burma, where he lived until World War II, at which point he came back to
Jullunder in Punjab. After the war, he went back to Burma. By 1947, he became an RSS worker and
moved around Punjab—Hissar and Rohtak districts, and taught there for a while. At the end of 1950, he
went to Burma, but was not given permission to live there permanently and therefore had to leave.
Since then, he was in Rohtak, where he taught as well.

Issue:

1. Whether the petitioner was a citizen of India in 1949, at the time of commencement of the
Constitution.

2. Therefore, what was the import of the word ‘migrated to the territory of India’. Does this migration
have to take place after the territory of India post-partition has come into existence?

Election Tribunal: It cannot be said that the petitioner had the intention to settle in India permanently.
The petitioner attempted to go to Burma and settle there; his own conduct, therefore, makes it difficult
to believe that he wanted to live in India.

HC: That he had showed enough evidence of wanting to live in India. Indeed, his movement to Jullunder
even in the 1940s before the partition of India showed enough intention of him living in India.

SC:

1. Migrated means migrated to the territory of what is now India at any time before the
partition of India.
 2. Migration can have broad or narrow meaning—wider meaning—moving to an area with no
intention necessarily to settle there; narrow meaning—“with the intention to settle
permanently”.
3. Therefore, what meaning was contemplated by Indian citizenship provisions—just because
the Act did not explicitly use the words “with the intention of moving permanently” did not
necessarily mean that there was no such intention implied.
4. The Court examined the Constitutional scheme-Article 5 requires a domicile for five years; it
would thus not make sense to give the wider meaning to it.
5.

KulathilMammu v. State of Kerala, AIR 1966 SC 1914 (Seven-judge Bench; Wanchoo, J.)

Background: One Aboobacker was born in Calicut to Indian citizens, and went to Pakistan at the age of
12 in 1948. In 1954, he returned to Calicut with a Pakistani passport, and again in 1956. In 1964, he was
“found living in Calicut” without any valid documents, and was consequently arrested under the Indian
passport rules. He was then detained.

The appellant then filed a petition in the High Court of Kerala, arguing that Aboobacker had continued to
be an Indian citizen.

Issue: Whether the petitioner ceased to be a citizen of Pakistan after shifting to Pakistan by virtue of
Article 7 of the Constitution, or whether his shifting to Pakistan “for the purpose of employment since
he was poor” meant that his move to Pakistan would not demonstrate “intention” to migrate, given that
he was also a minor at the time.

Article 7: Notwithstanding anything contained in Article 5 or Article 6 of this Constitution, a person

who has, after the first day of March 1947, migrated from the territory of India to the territory now
included in Pakistan shall not be deemed to be a citizen of India.

Decision: The Court again looked into the meaning of the word ‘migrated’, and held that it was capable
of both a wider and a narrower meaning.In the narrower meaning, it means to go from one place to
another “with the intention of residing there permanently”. In the wider sense, it implies a desire to go
to from one place to another regardless of intention. Therefore, a larger bench of the Court examined
what the import of this provision was.

The Court then examined the citizenship provisions of the Constitution, in order to see what the intent
would be. Wanchoo, J. held:

1. Article 5 lays down the normal rule of citizenship in the Constitution of India—as per this, when
a person has domicile, he or she also had the right of citizenship.
2. The abnormal conditions that resulted in the partition of India also led to the drafting of Article
6 and Article 7. Both these clauses begin with a non-obstante clause, and therefore it is clear
that the domicile provisions are not intended to apply to them with quite as much force.
3. Therefore, the wider meaning—ie—of movement from a place to another regardless of intent is
what he believes that the Constitution drafters intended in regard to the provisions under
Article 6 and Article 7 of the Constitution.
 4. The large movement (that Mahajan, J. also refers to in the Central Bank case) seems to imply
that persons were not capable of thinking about moving permanently at the time—the situation
was too disturbed to make such decisions.
5. Because Article 6 deals with an exceptional situation, it would contemplate a scenario where
people who had lived in Pakistan would be treated differently from people who had lived in
India all through. While the former would not be required to demonstrate their domicile, those
who had lived in AIndia would br required to do so.
6. Therefore, a person who comes within the ambit of Article 7 cannot take advantage of Article 5
or Article 6; rather, he can only come within the ambit of Article 7, or use the proviso to Article 7
in order to regain Indian citizenship.
7. Therefore, the only qualification is that the movement be voluntary and not for a short and
limited purpose. Once that was held, the Constitution would recognize that there would be no
question of examining the broader meaning of ‘migration’.
8. Therefore, a distinction was drawn between this case and the earlier Shanno Devi decision,
according to which it was held that the word ‘migrated’ had to be viewed narrowly.

Hidayatullah, J;

1. Hidayatullah, J. agreed that Aboobacker would not retain citizenship; however, he strongly
disagreed that migration could be divorced from an intention to migrate.
2. In order to make this clear, he examines the three dates. As of 26.01.1950, any person who is
living in the territory of India and comes within the ambit of Article 5 would become a citizen.
Any person who arrives in India from territories that have now become Pakistan before 19.07.48
would be considered to be a citizen of India; after such date, the person requires to be
registered after having spent six months in the territory of India.
3. Under Article 7, the test needs to be an examination of why and in what context The test,
therefore, should be as to whether a person left the territory of where he was staying to
acquire another abode in what is now Pakistan. Migration, like domicile, is also a question of
fact and intention. It is therefore difficult to assume that migration would not include atleast
some degree of intent—Eg. A lawyer going from Amritsar to Lahore to argue a case could not be
considered to have migrated to Pakistan.

State of Andhra Pradesh v. Syed Mohammed Khan, AIR 1962 SC 1778 (5 judge Bench, Gajendragadkar,
J.)

Issue: Whether a person acquiring a Pakistani passport meant that he had lost Indian citizenship.

Decision: The Central Government needs to

Izhar Ahmed Khan v. Union of India, AIR 1962 SC 1052 (Constitutional Bench; Gajendragadkar, J.
opinion):

Background: The petitioner was one of a set of persons who had gone to Pakistan in varying
circumstances in the early 1950s. While there, the petitioner had not been able to return to India
without a passport, and had therefore had to acquire a passport from the Pakistani government to
return to India. Once they returned to India, the petitioners claimed that they had not lost Indian
citizenship, and therefore, filed for their rights to reside in any part of India as per Article 19 of the
Constitution.

(Note: Obviously, Article 19 IS ONLY AVAILABLE TO CITIZENS)

The petitioner himself had been enrolled as a citizen in Bhopal, and was taken into custody by the police
from the restaurant which he ran in Bhopal, and was arrested and deported. Even though the Court
found, after a habeas corpus petition, that the petitioner was born in India and was an Indian citizen, the
very fact that he had gone to visit Pakistan in May and June 1952 meant that he had violated the Influx
From Pakistan (Central) Act, and was thus liable to be deported. After his deportation, he tried to
return to India, and failed, and therefore could only come back to India after a passport had been issued
for him. Many others had gone to Pakistan to visit sick relatives, and could not return to India without a
passport.

Issue:

1. Whether the fact that someone possessed a Pakistani passport meant that he was not a
citizen of India?
2. Whether Rule 3 of Orders made under the Citizenship Act, 1955, which provided for the law in
this regard, was a validly enacted law.

Decision:

Majority:

In this situation, therefore, what was relevant was to examine whether these petitioners could still
be held to be citizens of India. Therefore, the Court decided to look at the Citizenship Act and the
Constitutional Provisions in this regard.

As per s. 9 of the Indian Citizenship Act, 1955,”Any citizen of India who by naturalization,
registration, or otherwise voluntarily acquires, or has at any time between the 26 th January 1950
or at other times before the commencement of the Act has voluntarily acquired the citizenship of
another country shall, upon such acquisition, cease to be a citizen of India.”

(2) If any question arises as to whether, when, and how such a person has acquired citizenship of
another country, it shall be determined by such authority, in such manner, and having regard to
such rules of evidence as may be prescribed in this behalf.

As per the Rules of Evidence, (esp. Rule 3), “the fact that a citizen of India has obtained on any date
a passport from a Government of any other country shall be conclusive proof of his having
voluntarily acquired the citizenship of the country before this date”.

The majority decision in the Court held that this formed part of an irrefutable presumption, and
could therefore not be challenged in Court. The definition of a passport itself suggests that it is a
relevant factor in assuming that the petitioners had acquired Pakistani citizenship; therefore, there
was no way of assailing the Constitutionality of this Rule. Given that a Pakistani passport could only
be obtained after having signed a declaration that the person applying for the passport was a citizen
of Pakistan, he could no longer claim that he was a citizen of India.
 Minority:

1. Because Rule 3 creates an irrefutable presumption, it affects legal rights. Therefore, it is a rule of
substantive law and not one merely of procedure.
2. There is also a possibility that a country may issue passports to those who are not its nationals;
in such a case, the situation would result in an anomaly wherein a person who is Indian has lost
his Indian citizenship while not at the same time becoming a citizen of any other country.
3. Therefore, the Central Government is required to take action on these petitions.

SarbanandaSonowal v. Union of India, AIR 2007 SC 1372, 5 judge Bench:

Facts: The petitioners challenged the applicability of special norms to Assam in terms of determining
who was an illegal migrant. Therefore,