Citizenship

Introduction -
• Citizenship is the status of a person recognized under the custom or law of a sovereign state or local
jurisdiction.
• Citizenship is a relationship between an individual and a state to which the individual owes
allegiance and in turn is entitled to its protection. Citizenship implies the status of freedom with
accompanying responsibilities.
• Citizen is a person having the title of citizenship. He is the member of democratic community who
enjoys full civil & political rights.

Constitutional provisions – (Article 5-11)

The constitution does not lay down a permanent provision relating to citizenship in India. Part II of the
constitution simply describes classes of persons who would be deemed to be the citizens of India at the
commencement of the Constitution, the 26th January 1950. In exercise of its powers the parliament has
enacted the Indian Citizenship Act, 1955.

Article 5 to 8 of the Indian Constitution deal with the citizenship of India at the commencement of the
constitution. 
Article 9 to 11  deals with the mode of acquisition and loss of Citizenship. The Citizens at the time of
Commencement of the Constitution.

Ways of obtaining citizenship under constitution –

Citizens have been classified into:
(1) citizens by domicile.
(2) citizens by migration, and
(3) citizens by registration

(a) CITIZENS BY DOMICILE:

ARTICLE 5: CITIZENSHIP AT THE COMMENCEMENT OF THE CONSTITUTION

Under Art. 5, every person having domicile in India at the commencement of the Constitution, and fulfilling
any of the following conditions, is a citizen of India, viz,
(a) He/she was born in India.
(b) Either of whose parents was born in India.
(c) Who has been ordinarily resident in India for not less than five years immediately preceding the
commencement of the Constitution. He/ She must have their domicile in India at the time of
enactment. 

Cases –
1. Louis De Raedt v. Union of India, AIR 1991 SC 1886, 1889 : (1991) 3 SCC 554.
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 acquired a new domicile at a particular time, he must prove
that he had formed the intention of making his permanent home in the country of residence and of
continuing to reside there permanently. Residence alone, unaccompanied by this state of mind, is
insufficient.

2. Central Bank of India v. Ram Narain, AIR 1955 SC 36.

SC observed an intention to reside forever in a country where one has taken up his residence is an essential
constituent element for the existence of domicile in that country.

Abdul Sattar v. State of Gujarat, AIR 1965 SC 810: (1965) 1 CrlLJ 759
Conditions (a), (b) and (c) are not cumulative but alternative and, therefore, any one of them needs to be
fulfilled by a person having domicile in India to be an Indian citizen.
Mohd. Reza Debstani v. State of Maharashtra, AIR 1966 SC 1436: (1966) 3 SCR 441.
The term 'domicile' is not defined in the Constitution. Domicile is a complex legal concept in the area of the
Conflict of Laws. 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.

Joshi v. Madhya Bharat, AIR 1955 SC 334.

Supreme Court expressed the view that it was theoretically possible to have a separate State domicile,
because domicile has reference to the system of law by which a person is governed. Domicile and
citizenship are two different concepts. Art. 5 makes this clear because under it domicile alone is not
sufficient to confer citizenship on a person.

Pradeep Jain v. Union of India, AIR 1984 SC 1420: (1984) 3 SCC 654.
Supreme Court has repudiated the notion of State domicile. The Court has asserted that there is only one
domicile, namely domicile in India.

(b) CITIZENS BY MIGRATION :

ARTICLE 6 : RIGHTS OF CITIZENSHIP OF CERTAIN PERSONS WHO HAVE
MIGRATED TO INDIA FROM PAKISTAN (emigrants)

The Independence of India was accompanied by a large-scale migration of people from Pakistan. As these
people belonged to the territory which ceased to be a part of India after the Independence, they could not be
regarded as Indian citizens under Art. 5 and, therefore, special provisions had to be made for them in the
Constitution.

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; or
(2) in case he migrated on or after July 19, 1948, he had been registered as a citizen of India.

Cases –
1. Union of India v. Karam Ali, AIR 1970 A. & N. 1416.
The migration envisaged in Art. 6 only means coming to India from outside.

2. Shanno Devi v. Mangal Sain, AIR 1961 SC 58 : (1961) 1 SCR 576

It must have taken place before, and not after, the commencement of the Constitution.

(c) TERMINATION OF CITIZENSHIP

ARTICLE 7: RIGHTS OF CITIZENSHIP OF CERTAIN MIGRANTS TO PAKISTAN

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.

This Article deals with the Citizenship of the person, who are migrated to Pakistan. 
 A person, who is already domicile as per Art.5 and migrant as per Art.6 can lose his
citizenship in India. 
 If He /She migrates from India to Pakistan after 1st March, 1947.

Cases -
State of Madhya Pradesh v. Peer Mohd. AIR 1963 SC 645: 1963 Supp (1) SCR 429.
Hon’ble court observed Article 7 overrides Arts. 5 and 6. Art. 7 envisages only those persons who migrated
to Pakistan between March 1, 1947, and January 26, 1950.

These persons lost their Indian citizenship. The question of citizenship of persons migrating to Pakistan after
January 26, 1950, must be decided under the provisions of the Indian Citizenship Act.

State of Bihar v. Amar Singh, AIR 1955 SC 282: (1955) 1 SCR 1259.
A woman born and domiciled in India, going to Pakistan after March 1, 1947, would lose her Indian
citizenship under Art. 7, even though her husband remained in India, as the rule of Private International Law
that her domicile was the same as that of her husband, viz., India, could not render Art. 7 nugatory as she did
in fact migrate to Pakistan.

Art. 7 is pre-emptory in its scope and makes no exception in favor of a wife who migrates to Pakistan
leaving her husband in India.

The concept of domicile is contained in Art. 5, but as both Arts. 6 and 7 have been made operative
'notwithstanding Art. 5,' the concept of 'domicile' has been excluded from the scope of Arts. 6 and 7.

The word 'migration' has been used in the sense of people going from one territory to the other, whether with
the intention of permanent residence there.

In State of Bihar v. Amar Singh, AIR 1955 SC 282: (1955) 1 SCR 1259.
Supreme Court adopted a narrow view of the word ‘migration’ used in Art. 6. 'Migration' was envisaged to
mean coming to India with the intention of residing there permanently. But the Court dissented from this
view in

Kulathil Mamma v. State of Kerala, AIR 1966 SC 1614: (1966) 3 SCR 706.
Supreme Court interpreted 'migration' (used in Arts. 6 and 7) in a broad sense and not in a narrow sense as
meaning going or coming from one territory to another without bringing in the concept of domicile.

The Court pointed out that Arts. 6 and 7 make special provisions for dealing with an abnormal situation
created by large movement of population between India and Pakistan.

(d) Article 8 :-
It deals with the Citizenship of those persons, who are migrated to aboard. 
 He/ She was residing in other countries.

 If HE/ She registered himself as a citizen of India by a Consular representative of India can
acquire his Citizenship in India.
DUAL CITIZENSHIP
ARTICLE 9: PERSONS VOLUNTARILY ACQUIRING CITIZENSHIP OF A FOREIGN STATE
NOT TO BE CITIZENS

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. This provision thus recognizes the principle that no Indian citizen can claim a dual or plural
citizenship.

However, this is subject to Parliament's power under Art. 11 to provide for inter alia, the acquisition of
citizenship. Article 9 thus applies only to those cases where foreign citizenship had been acquired before,
and not after, the commencement of the Constitution.

The latter type of situation has been dealt with under the provisions of the Indian Citizenship Act, 1955.
Article 10 :-
It says that, if a person is already a citizen of India, then the new laws, which the parliament brings out with
the help of Art.11 will not affect his citizenship.

Article 11 :- 
It gives power to the parliament to make law with respect to acquisition and termination of citizenship which
means, Art. 11 allows the parliament to regulate citizenship and to make laws on it.

THE CITIZENSHIP ACT, 1955 -

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. Nor is
there any provision in the Constitution to deal with such matters as termination of citizenship (other than
Arts. 7 and 9), or other matters concerning citizenship. 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.

Acquisition of Indian Citizenship as per Citizenship Act 1955:

Indian Citizenship can be acquired under the following ways:

(1) Citizenship at the commencement of the constitution of India
(2) Citizenship by birth
(3) Citizenship by descent
(4) Citizenship by registration
(5) Citizenship by naturalization.

Termination of Indian Citizenship as per Citizenship Act 1955:

One can lose citizenship of India in three ways:

(1) Renunciation,
(2) Termination and
(3) Deprivation.

• Persons domiciled in the territory of India as on 26 November 1949 automatically became Indian
citizens by virtue of the operation of the relevant provisions of the Indian Constitution coming into
force. (Citizenship at the commencement of the constitution of India.)
• Any person born in India on or after 26 January 1950, but prior to the commencement of the 1986
Act on 1 July 1987, is a citizen of India by birth.  [Citizenship by birth]
• A person born in India on or after 1 July 1987 is a citizen of India if either parent was a citizen of
India at the time of the birth. [Citizenship by birth]
• Those born in India on or after 3 December 2004 are considered citizens of India only if both of their
parents are citizens of India or if one parent is a citizen of India and the other is not an illegal migrant
at the time of their birth. [Citizenship by birth].
• Indian nationality law largely follows the jus sanguinis (citizenship by right of blood) as opposed to
the jus soli (citizenship by right of birth within the territory).

Article 9 of Indian Constitution says that a person who voluntarily acquires citizenship of any other country
is no longer an Indian citizen. Also, according to The Passports Act, a person must surrender his Indian
passport if he acquires citizenship of another country, it is a punishable offense under the act if he fails to
surrender the passport.

Difference between residence and domicile -

Conclusion –
The major issue with the amendment is that it provides citizenship only to Non- Muslim immigrants who
have lived for five years from the three countries. However,  any foreigner can still apply for citizenship but
can only be registered after they have lived in India for 11 years i.e. by the normal process of naturalisation.