Module 4

Citizenship
• India is a Federation having two levels of government, Centre and the States
there is only single citizenship, viz., the Indian citizenship, and no separate
State citizenship

• Articles 5 to 11 in the Constitution lay down as to who are the citizens of India
at the commencement of the Constitution, i.e., on January 26, 1950. These
citizens have been classified into:

(1) citizens by domicile;

(2) citizens by migration, and

(3) citizens by registration

(b) either of whose parents was born in India; or

(c) who has been ordinarily resident in India for not less than five years immediately
preceding the commencement of the Constitution.
Meaning of Domicile
• The term ‘domicile’ is not defined in the Constitution.
• Domicile is a complex legal concept in the area of the Conflict of
Laws(Pvt International Law)
• Art. 5 draws a distinction between ‘domicile’ and ‘residence’, for
neither ‘domicile’ nor mere ‘residence’ is sufficient to make a person an
Indian citizen.
• Domicile and five years residence are necessary to make a person a citizen
• The basic idea of ‘domicile’ is permanent home. A person’s domicile is
the 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
Pradeep Jain v. Union of India , AIR 1984 SC 1420
• The question which arose for consideration was whether, consistently with the
constitutional values, admissions to a medical college or any other institution of higher
learning situate in a State could be confined to those who had their 'domicile' within
the State or who were resident within the State for a specified number of years
or can any reservation in admissions be made for them so as to give them precedence
over those who donot possess 'domicile' or residential qualification within the State,
irrespective of merit.
• The argument of the State Governments that word 'domicile' in the Rules of some
of the State Governments prescribing domiciliary requirement for admission to medical
colleges situated within their territories, is used not in its technical legal sense but in a
popular sense as meaning residence and is intended to convey the idea of intention to
reside permanently or indefinitely was accepted
• The Supreme Court dismissed the notion of State domicile. The Court asserted that there is
only one domicile, namely domicile in India.
• Art. 5 recognises only one domicile, namely, “domicile in the territory of India”.
• The Court emphasized that the Indian Federation has not emerged as a result of a compact
of sovereign States and so it is “not a federal State in the traditional sense of that term”
Citizens by Migration
• The Independence of India was accompanied by a large scale migration of people from Pakistan

• Under Art. 6, an immigrant from Pakistan became a citizen of India if he, or either of his parents, or any of his
grandparents, was born in India (as it was prior to the Independence), and, in addition, fulfilled either of the following two
conditions:
(1) in case he migrated to India before July 19, 1948, he had been ordinarily resident in India since the date of
his migration;
(2) in case he migrated on or after July 19, 1948, he had been registered as a citizen of India

• A person could be so registered only if he

• Such Migration must have happened before the commencement of the Constitution
Citizens by Registration
• According to Art. 8, a person
• who,
• or either of whose parents,
• or any of whose grandparents,

• was born in India (before independence) but who is ordinarily residing in any country outside
India and Pakistan,

• may register himself as a citizen of India with the diplomatic or consular representative of India
in the country of residence

• By way of an application made by him therefore to such diplomatic or consular representative

• This provision confers Indian citizenship on a person who prima facie has no domicile in India and it
seeks to cover the overseas Indians who may want to acquire Indian citizenship
TERMINATION OF CITIZENSHIP
• Under Art. 7, a citizen of India by domicile (Art. 5), or by migration (Art.
6), ceases to be citizen if he has migrated to Pakistan after March 1,
1947
• If, however, after migration to Pakistan, he has returned to India under a
permit of resettlement, or permanent return, he can register himself as a
citizen of India in the same manner as a person migrating from Pakistan
after July 19, 1948
• Under Art. 9, no person can be a citizen of India under Arts. 5, 6 and 8, if
he has voluntarily acquired the citizenship of a foreign country
 THE CITIZENSHIP ACT, 1955
• The Constitutional provisions regarding citizenship are not exhaustive
but fragmentary and skeletal.
• These provisions are confined mainly to defining who are citizens of
India at the commencement of the Constitution but do not deal with the
problem of acquisition of citizenship subsequent to that date.
• Art. 11 expressly empowers Parliament to make a law to provide for such
matters and, accordingly, Parliament has enacted the Citizenship Act,
1955, to provide for the acquisition and determination of Indian
citizenship
• Further more Entry 17 List I runs as “ Citizenship, Naturalisation and
Aliens”
 Ways of Acquisition
The Act provides for five ways for acquiring Indian citizenship, viz.,
(a) birth;
(b) descent;
(c) registration;
(d) naturalisation and
(e) incorporation of some territory into India
 DEPRIVATION OF CITIZENSHIP
• Under S. 10, citizens of India by naturalisation, marriage, registration, domicile
and residence may be deprived of citizenship by an order of the Central
Government, if it is satisfied that—
(a) the registration or naturalisation 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 disaffected towards
the Indian Constitution; or,
(c) during a war in which India may be engaged he has unlawfully traded or
communicated with the enemy;
(d) within five years of his registration or naturalisation, he has been sentenced
to imprisonment for not less than two years; or,
(e) he has been ordinarily resident out of India for seven years continuously.
 Major Amendments
• 1986 : Removal of jus soli, need either parent to also be born
• 2003: Introduction of jus sanguinis, stricter rules, not just the person’s birth
but both parents also indian citizen / one parent indian citizen and the
other is not an illegal migrant
• 2015 : new scheme of Overseas Citizen of India introduced, merger of
Persons of Indian origin and OCI
• 2019: Proposal to permit members of 6 communities: Hindus, Sikhs,
Buddhists, Jains, Parsis and Christians from Pakistan, Bangladesh and
Afghanistan to continue living if they entered before Dec 31, 2014.
• Reduces requirement of naturalisation from11 years to 5 years
Controversies
• Stand on Refugees
• Illegal immigrants and the alleged politics around it
• NRC
• NPR
• CAA 2019
CAA 2019
• The Citizenship (Amendment) Act, 2019 seeks to amend
the Citizenship Act, 1955.
• The CAA provides citizenship on the basis of religion to six
undocumented non-Muslim communities Hindus, Sikhs, Buddhists,
Jains, Parsis and Christians from Pakistan, Bangladesh and
Afghanistan who entered India on or before 31st December, 2014.
• It exempts the members of these six communities from any criminal
case under the Foreigners Act, 1946 and the Passport Act, 1920.The
two Acts specify punishment for entering the country illegally and
staying here on expired visas and permits.
• It reduces the period of naturalization to “not less than five years" in
place of "not less than eleven years"
 Issues with CAA 2019
• Exclusionary Nature: Critics argue that the CAA is exclusionary because
it provides a pathway to Indian citizenship for undocumented migrants
from Afghanistan, Bangladesh, and Pakistan, but only if they
are Hindu, Sikh, Buddhist, Jain, Parsi, or Christian. This exclusion of
Muslims from these neighboring countries raises concerns about religious
discrimination.
• Contradiction with Secularism: India's Constitution
enshrines secularism, the principle of equality before the
law irrespective of religion. By explicitly favoring certain religious groups
over others, the CAA is seen as contradicting this secular ethos.
• Constitutional Challenge: Critics argue that it violates Article 14 of the
Indian Constitution, which guarantees the right to equality before the
law and prohibits discrimination based on religion.
• Viewed in combination with the proposed all-India National Register of
Citizens (NCR), the CAA has the potential to deprive many Muslims
residing in India of full citizenship. The proposed NRC will likely deprive
many persons, both Muslim and non-Muslim, residing in India of
citizenship. While excluded non-Muslims will have the opportunity to
regain citizenship via the CAA, this will not be the case for Muslims.
Hence, the NRC in combination with the CAA may disproportionately
exclude Muslim residents of India.
 Assam Sanmilita Mahasangha v Union of India
• In 1971, Bangladesh gained independence from Pakistan. The liberation war led to a massive
influx of migrants to India until 1983. In 1983, the Parliament enacted the Illegal Migrants
(Determination by Tribunal) Act (IMDT Act). The IMDT Act laid down the procedure to detect
illegal immigrants from Bangladesh and expel them from Assam. This Act was applicable to only
Assam, while the Foreigners Act, 1946 was applicable to all other states.
• In 1985, the Assam Accord was signed between the Government and leaders of the Assam
agitation, to end years of rioting and protests against the massive migration. Section 6A of
the Citizenship Act, 1955 – introduced in 1985 – was the legislative enactment of the Assam
Accord. It classified ‘illegal’ immigrants of Indian origin who came into Assam from Bangladesh
into three groups:
• those who came into the state before 1966;
• those who came into the state between 1966 and 25th March, 1971 (the official date of the
commencement of the Bangladesh War); and
• those who came into the state post 25th March,1971.
• Assam Sanmilita Mahasangha, along with other organizations, challenged the constitutional validity of
Section 6A of the Citizenship Act, 1955 in 2012. The petitioners argued that there is no rational basis for
having separate cutoff dates for regularising illegal migrants who enter Assam as opposed to the rest of the
country.
Hari Shanker Jain v. Sonia Gandhi, (2001) 8 SCC 233

• Alleged that the respondent is a citizen of Italy and has not renounced the same without stating
on what facts or material the petitioner has drawn that inference. It is alleged that the
respondent was at the material time under acknowledgement of allegiance and adherence to
Italy, a foreign State, which is a disqualification within the meaning of Article 102 of the
Constitution.
• The petition then alleges that the respondent did not reside in India for a period of 12 months
immediately before her having applied for citizenship by registration on 7th April, 1983 which
was granted to her on 30th April, 1983. However, the petition itself alleges that the respondent
came to India from Italy some time after the year 1971 and was in India in the year 1977, 1980
and 1983
• In both the election petitions there are averments made touching the contents of
respondents application filed for grant of certificate of citizenship so as to point out
alleged infirmities in the application and the proceedings taken thereon but without
disclosing any basis for making such averments. None of the petitioners states to have
inspected or seen the file nor discloses the source of knowledge for making such
averments