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Citizenship in India

Citizenship refers to the legal status that recognizes an individual as a lawful member of a country or nation.

In India, the Constitution addresses citizenship in Articles 5 to 11. Citizenship entails the full enjoyment of civil and political rights as a member of the State.

Constitutional and Statutory Basis and Citizens' Rights

• The population within a state is categorized into citizens and aliens.
•  Citizens enjoy complete civil and political rights, while aliens do not possess all these rights. 
• Aliens can be further classified into "non-citizen residents" and "foreign nationals." 
• Enemy aliens face additional restrictions under clauses (1) and (2) of Article 22. 
• Citizens are integral members of the political community to which they belong, constituting the state itself.

Single Citizenship in India

Single citizenship means that a person is a citizen of the entire country. The Indian Constitution is federal in nature, but it grants single citizenship to all Indians. This means that Indian citizenship is unique and exclusive.

• Our Constitution, while being federal, does not allow for dual citizenship.
• In some federal countries, like the USA, dual citizenship is allowed, while other nations have different rules regarding citizenship.

Citizenship as Status

Constitutional and Statutory Basis

• The Constitution of India did not aim to create permanent laws regarding citizenship.
• It merely outlined the categories of individuals who would be recognized as citizens when the Constitution came into force.
• Subsequently, Parliament enacted the Citizenship Act in 1955.
• Articles 5 to 11 of Part II of the Constitution, along with later amendments, specify the procedures for acquiring and losing citizenship.

Citizens' Rights

Citizens of India enjoy certain rights under the Constitution that are not available to non-citizens:

• Fundamental Rights: Some Fundamental Rights, especially those in Articles 15 and 16, are exclusive to citizens.
• Government Positions: Only citizens can hold key positions such as President, Vice President, Supreme Court and High Court Judges, Attorney General, state Governors, and Advocate Generals.
• Right to Vote: Voting in elections for the House of People and State Legislative Assemblies is restricted to citizens who meet certain legal criteria.

These rights are denied to non-citizens, regardless of their status as friendly or hostile. However, hostile non-citizens face additional restrictions, such as the lack of protections under Article 22 concerning arrest and detention.

An enemy alien includes not only individuals from an opposing state but also Indian citizens who choose to live or conduct business in that state.

Articles 5- 11

Articles 5 – 11 of the Constitution focus on the idea of citizenship.

(a) Article 5

Citizenship at the commencement of the Constitution.

At the beginning of the Constitution, individuals were considered citizens of India if they had their home in India and met at least one of the following criteria:

• Born in India: Individuals born in India were granted citizenship.
• Parentage: Individuals with at least one parent born in India were eligible for citizenship.
• Residence: Individuals who had lived in India for a minimum of five years before the Constitution came into effect were also considered citizens.

(b) Article 6

Rights of citizenship for certain people who have migrated  to India from Pakistan.

Article 6 outlines the conditions under which individuals who migrated from what is now Pakistan could be recognized as citizens of India at the inception of the Constitution, regardless of the stipulations in Article 5.

Criteria for Citizenship

• Ancestry: They, their parents, or their grandparents were born in India as per the constitutional definition.
• Migration Date: If they migrated before 19 July 1948, they must have lived in India continuously since their migration.
• Post-Migration Requirements: If they migrated on or after 19 July 1948, they needed to be registered as citizens by a government officer. This required applying before the Constitution came into force and living in India for at least six months before applying.

(c) Article 7

Rights of citizenship for certain migrants to Pakistan.

• Article 7 specifies that individuals who migrated from India to Pakistan after 1 March 1947 would not be recognized as citizens of India, despite the provisions in Articles 5 and 6.
• Exception: However, this restriction does not apply to individuals who moved to Pakistan and later returned to India under a legal resettlement permit. These individuals would be treated as if they migrated to India after 19 July 1948 for the purposes of Article 6D)

(d) Article 8

Rights of Citizenship for Persons of Indian Origin Residing Outside India.

• According to this article, individuals who are born in India or have Indian parents or grandparents are considered citizens of India, even if they live in another country. 
• However, they must apply for registration with the Indian diplomatic or consular office in that country. This provision applies regardless of whether the application was made before or after the Constitution came into effect.

(e) Article 9

Persons voluntarily acquiring citizenship of a foreign State not to be citizens.

• Article 9 of the Constitution states that an individual cannot be considered a citizen of India if they have voluntarily acquired the citizenship of another country. 
• This provision ensures that individuals who choose to become citizens of another country cannot simultaneously hold Indian citizenship.

(f) Article 10 

Continuance of Citizenship Rights

• Article 10 of the Constitution ensures that individuals who are considered citizens of India under the previous articles will continue to hold that status, subject to any laws passed by Parliament. 
• This provision guarantees the continuity of citizenship rights for individuals who qualify under the specified criteria.

(g) Article 11 

Parliament's Authority on Citizenship

• Article 11 of the Constitution affirms the authority of Parliament to make laws regarding the acquisition and termination of citizenship, as well as other related matters. 
• This provision gives Parliament the power to regulate citizenship rights and responsibilities through legislation.

Part II of the Constitution

Part II of the Constitution outlines the categories of people living in India as of 26th January 1950 and assigns the responsibility of regulating citizenship to Parliament through legislation. This part of the Constitution provides the framework for determining citizenship status and rights for individuals living in India at the time of its enactment. In exercise of its power, the Parliament enacted the Indian Citizenship Act, 1955, which was subsequently amended in 1986.

Indian Citizenship Act, 1955

The Indian Citizenship Act, 1955, was enacted by the Parliament to regulate the acquisition of Indian citizenship. It was amended in 1986 to update certain provisions. The Act provides for five ways to acquire Indian citizenship: birth, descent, registration, naturalisation, and incorporation of territory.

(a) By Birth

• A person born in India on or after 26 January 1950 is a citizen by birth (Jus Soli. if at least one parent is a citizen of India at the time of birth.
• This provision does not apply if the father is a diplomat from another country or an enemy alien at the time of birth.

(b) By Descent

• A person born outside India on or after 26 January 1950 is a citizen of India by descent if either parent is a citizen of India at the time of that person's birth, known as the law of blood (Jus Sanguine ).

(c) By Registration

• The prescribed authority may register as a citizen of India, any person who is not a citizen by virtue of the Constitution or the provisions of the Citizenship Act.
• Categories eligible for registration include:
  a) Persons of Indian origin who have lived in India for 5 years immediately before applying.
  b) Persons of Indian origin residing outside India.
  c) Women who are, or have been, married to citizens of India.

(d) By Naturalisation

• Citizenship by naturalisation can be obtained by applying in the prescribed manner. The requirements for naturalisation include:
  • Applicants must be of full age and capacity.
  • They must not be a citizen of a country where Indian citizens are restricted from naturalisation.
  • They must have renounced their previous citizenship.
  • They must have lived in India or been in Government service for 12 months before applying, or have lived or served in Government for at least four years within the last seven years.
  • Applicants must take an oath of allegiance.
  • They should be of good character.
  • They must possess adequate knowledge of a language recognised by the Constitution.

(e) By Incorporation of Territories

• When a new territory becomes part of India following a popular vote, the Government of India will determine who in that territory will be granted Indian citizenship.

Loss of Citizenship: Overview

The Citizenship Act of 1955 specifies three scenarios in which an Indian citizen can lose their citizenship: renunciation, termination, and deprivation.

(a) Renunciation

• Renunciation is a voluntary process where an individual willingly gives up their Indian citizenship after acquiring citizenship in another country. This process is subject to specific conditions.

(b) Termination

• Termination of citizenship occurs automatically under the law when an Indian citizen voluntarily acquires citizenship of another country, leading to the loss of Indian citizenship.

(c) Deprivation

• Deprivation involves the forced loss of Indian citizenship, which was obtained through registration or naturalisation, if it is found that the citizenship was acquired using fraudulent means.

Overseas Citizenship of India

The Overseas Citizenship of India (OCI) scheme was introduced in August 2005 as an amendment to the Citizenship Act of 1955. It was designed to address the demand for dual citizenship from the Indian diaspora living in developed countries. The scheme permits individuals of Indian origin holding foreign passports to obtain OCI status, provided they are not Indian citizens.

Officially launched in 2006 during the Pravasi Bharatiya Divas in Hyderabad, the OCI scheme replaced the earlier Person of Indian Origin (PIO) programme, which offered certain privileges to Indians living abroad. In 2015, the Indian government merged the PIO and OCI categories through the Citizenship (Amendment) Act, streamlining the benefits for overseas Indians.

Background

• In September 2000, the Indian Government formed a High Level Committee on the Indian Diaspora, led by L.M. Singhvi, to explore ways to strengthen ties with the global Indian community. The Committee recommended allowing dual citizenship for Persons of Indian Origin (PIOs) from certain countries. This led to the Citizenship (Amendment) Act of 2003, which permitted PIOs from 16 countries (excluding Pakistan and Bangladesh) to acquire Overseas Citizenship of India (OCI) status.
• The Citizenship (Amendment) Act of 2005 further expanded OCI eligibility to PIOs from all countries except Pakistan and Bangladesh, provided their home countries allowed dual citizenship. It is crucial to note that OCI is not the same as dual citizenship, as the Indian Constitution (Article 9) prohibits dual citizenship. However, OCI offers certain benefits akin to those of citizenship.
• The Citizenship (Amendment) Act of 2015 revamped the OCI framework by merging the PIO and OCI schemes into a single "Overseas Citizen of India Cardholder" scheme. The PIO scheme, which started on August 19, 2002, and the OCI scheme, launched on December 2, 2005, were causing confusion among applicants due to their overlap. The government decided to simplify the process by merging the two, leading to the cancellation of the PIO scheme on January 9, 2015. Existing PIO cardholders were automatically converted to OCI cardholders from that date onward.

Action

• The Citizenship (Amendment) Act of 2003 made provisions for PIOs from 16 countries (excluding Bangladesh and Pakistan) to obtain OCI status.
• It eliminated references to Commonwealth Citizenship from the Principal Act.

Concept of Overseas Citizenship of India

• An Overseas Citizen of India (OCI) is a person who is technically a citizen of another country but whose ancestors are Indian.
• They were citizens of India on January 26, 1950, or later, unless they are or were citizens of Pakistan, Bangladesh, or suchother country.
• Registered Overseas Citizens of India are granted multi-purpose and life-long visas for visits to India.
• They are also exempt from registration with the Foreign Regional Registration Officer or the Foreign Registration Officer for any length of stay in India.

Important Provisions

OCI -Registration

• The Central Government has the authority to register individuals as Overseas Citizens of India cardholders, including:
  a) Adult citizens of other countries who were Indian citizens at any time after the Constitution came into effect;
  b) Individuals who could have been Indian citizens at that time;
  c) Persons born in territories that became part of India after August 15, 1947;
  d) Minor children of the above-mentioned individuals
  e) Minor children of Indian citizens
  f) Spouses of Indian citizens or OCI cardholders, provided their marriage has been registered and has lasted for at least two years before applying.
• Registration as an OCI cardholder is not permitted for individuals or their ancestors (parents, grandparents, or great-grandparents) who are or were citizens of Pakistan, Bangladesh, or any other country specified by the Central Government.
• The Central Government has the discretion to set a date for current PIO cardholders to be recognised as OCI cardholders.
• The Central Government may register individuals as OCI cardholders under special circumstances, even if other rules apply, provided these circumstances are documented.

OCI - Conferment of Rights

• Rights of an OCI cardholder: An Overseas Citizen of India (OCI) cardholder has rights as specified by the Central Government.
• Restrictions on OCI cardholders: However, an OCI cardholder does not have certain rights that are reserved for Indian citizens, such as:
• Public Employment: OCI cardholders are not eligible for equal opportunity in public employment.
• Political Positions: They cannot run for the positions of President or Vice President of India.
• Judicial Appointments: OCI cardholders are ineligible for appointment as judges of the Supreme Court or High Courts.
• Voting Rights: They cannot register to vote or serve in the House of People or the Council of States.
• State Legislative Roles: OCI cardholders are not eligible to serve in a State Legislative Assembly or the State Legislative Council.
• Public Services: They cannot be appointed to public services or posts related to Union or State matters, unless specified by the Central Government.

OCI - Renunciation

• If an OCI cardholder wishes to renounce their status, they must do so in the prescribed manner. The Central Government will register this declaration.
• Upon registration, the individual will cease to be an OCI cardholder.
• When an individual loses their OCI status, their foreign spouse and any minor children registered as OCI cardholders will also lose their status.

OCI - Cancellation of Registration

• The Central Government has the authority to cancel an OCI cardholder's registration under certain circumstances, including:
  • Fraud or False Representation: If the registration was obtained through fraud, false representation, or by concealing important facts.
  • Disaffection Towards the Indian Constitution: If the OCI cardholder has shown disaffection towards the Indian Constitution.
  • Unlawful Trade or Communication with an Enemy: If the cardholder unlawfully traded or communicated with an enemy during a war involving India.
  • Imprisonment: If the cardholder was sentenced to imprisonment for two years or more within five years of their registration.
  • National Interest: If cancellation is necessary for India's sovereignty, integrity, security, friendly relations with other countries, or for the public interest.
  • Marriage Issues: If the cardholder's marriage has been legally dissolved or they have remarried while still married to someone else.

Significance of Overseas Citizenship of India (OCI)

• OCI (Overseas Citizenship of India) is distinct from dual citizenship as it does not grant political rights. Holders of the OCI card, who are of Indian origin and hold foreign passports, enjoy specific benefitsThese benefits encompass:
  a) Multiple entries into India
  b) A lifelong visa for various purposes
  c)Exemption from registering with the Foreigners Regional Registration Office (FRRO)
• After being registered as an OCI for five years, individuals become eligible to apply for Indian citizenship. OCI cardholders can access special immigration counters at Indian international airports under certain conditions. They also have the ability to:
  a ) Open special bank accounts
  b) Purchase non-farm property
  c) Exercise ownership rights
  d) Apply for a Permanent Account Number (PAN) card
• However, it is essential to note that foreign nationals in India on a Tourist Visa, Missionary Visa, or Mountaineering Visa are ineligible to apply for OCI. Furthermore, applicants for OCI registration must be regular residents of India.
• In summary, OCI offers specific privileges to individuals of Indian origin holding foreign passports, including visa benefits, exemption from FRRO registration, and access to special immigration counters. While OCI does not confer political rights, it allows eligibility to apply for Indian citizenship after a specified period. There are certain limitations, and applicants must be regular residents of India to qualify for OCI registration.
• OCI status has been broadened to include PIOs from all countries except Pakistan and Bangladesh

OCI is not regarded as dual citizenship (which is prohibited by Article 9 of the Constitution) according to the Citizenship (Amendment) Act of 2015.

Citizenship (Amendment) Bill 2019

The Citizenship (Amendment) Bill 2019 allows certain religious communities from Pakistan, Bangladesh, and Afghanistan to apply for Indian citizenship more easily.

• Eligible Communities: Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians.
• Cut-off Date: These individuals must have entered India before December 14, 2014.
• Reduced Citizenship Requirement: The period required for citizenship application has been reduced from 11 years to 6 years.
• Legal Exemptions: Notifications exempt these migrants from the Passport Act and the Foreigners Act.

The Bill has faced opposition, particularly in Assam, where there are concerns about illegal Bangladeshi Hindu migrants being granted citizenship. Proponents argue that Hindus and Buddhists are fleeing religious persecution in Bangladesh, while Muslims are not subject to the same claims as they are the majority in Bangladesh.

Different Scenario in Assam

• Illegal Migration: Assam has experienced substantial illegal migration from East Pakistan and later from Bangladesh. This led to the Assam Movement, which took place from 1979 to 1985.
• AASU's Role: The All Assam Students' Union (AASU) spearheaded the movement, advocating for the updating of the National Register of Citizens (NRC) and the deportation of illegal migrants who entered Assam after 1951.
• Assam Accord of 1985: The movement culminated in the Assam Accord of 1985, where the cut-off date for deporting illegal migrants was set as March 25, 1971.
• Amendment to Citizenship Act: To implement a new cut-off date of July 19, 1949, an amendment was made to the Citizenship Act, 1955, introducing Section 6A.

Section 6A

• Applicability: Section 6A is specific to Assam.
• Citizenship Criteria: Individuals of Indian origin who entered Assam before January 1, 1966 and have been ordinary residents will be considered Indian citizens.
• Transitional Provisions: Those who arrived after January 1, 1966 but before March 25, 1971 will be granted citizenship after 10 years from their identification as foreigners. During this period, they cannot vote but can obtain an Indian passport.
• Legal Challenge: In the Assam Sanmilita Mahasangha case (2014), the constitutionality of the 1986 amendment was questioned, suggesting that the cut-off year should be 1951 instead of 1971.
• Supreme Court Involvement: The matter was referred to the Constitution Bench to examine the validity of Section 6A, which establishes a different cut-off date for Assam compared to the rest of India.
• Ongoing Review:. five-judge Bench of the Supreme Court is yet to assess the constitutionality of Section 6A, which is the basis for the current NRC.