CHAPTER 5 – CITIZENSHIP (FREE)

 

CITIZENSHIP

(ARTICLES 5 -11)

 

 

PART II OF THE CONSTITUTION OF INDIA

 

Articles 5 – 8 describe the eligibility that was required at the commencement of the Constitution to acquire the citizenship of India. These articles don’t deal with acquisition or loss of citizenship during the time after the adoption of the Constitution. As such, Articles 5 – 8 are not much relevant now for determining the citizenship of India. However, Articles 9 – 11 are still relevant to a certain extent.

 

 

ARTICLE 9

 

No person shall be a citizen of India, if he or she voluntarily acquires the citizenship of any foreign state.

 

DESCRIPTION

The citizenship of India ceases to exist for a person as soon such a person acquires the citizenship of a foreign nation. The Constitution of India doesn’t allow for Dual Citizenship. Also, according to The Passports Act, a person who has acquired a foreign citizenship has to surrender his Indian passport with a specified period of time. It is a punishable offence under the act if he fails to surrender the passport within the stipulated time. 

 

 

ARTICLE 10

 

Every person who is a citizen of India shall continue to be such citizen, subject to the provisions of any law made by the Parliament.

 

DESCRIPTION

It means that once a citizen attains citizenship of the country, there will be no expiration of the citizenship, except on violation of any existing citizenship law or by any new law of the Parliament. It means that the Executive (Politicians, Administrative Officers, Police etc)  cannot deprive a person of his citizenship, except by the authority of law. However, the Indian Constitution does not guarantee absolute citizenship. The citizenship is subject to legislative action of the Parliament. Parliament may make a law that can deprive a citizen of his citizenship.

 

 

ARTICLE 11

 

Parliament shall have the power to make any provision with respect to acquisition as well as termination of citizenship and other matters related to citizenship.

 

DESCRIPTION

It means that Parliament has the Constitutional power to amend the terms and conditions for acquisition or termination of citizenship of India and no one can take away that power from the Parliament, except through an amendment of the Constitution under Article 368.  

Accordingly, the Parliament has enacted the Citizenship Act, 1955, which has been amended multiple times, and most recently in 2005.

 

 

CITIZENSHIP ACT, 1955

 

It provides for acquisition and loss of citizenship after the commencement of the Constitution on 26th January 1950. Under this act, a person can acquire the citizenship of India by:

  1. BIRTH

    It has following clauses:
    1. A person born in India before 1st July 1987, is a citizen of India, by birth, irrespective of the citizenship of his or her parents.
    2. A person born in India on or after 1st July 1987 is considered as a citizen of India, if either of his or her parents is a citizen of India at the time of birth of such a person.
    3. A person born in India on or after 3rd December 2004 is considered as a citizen of India, if either both of his or her parents are citizen of India or one of his parents is citizen of India and the other one is not an illegal immigrant at the time of birth of such a person.
  2. DESCENT

    It has following clauses:
    1. A person born outside India before 3rd December 2004 is considered to be citizen of India if either of his or her parents is a citizen of India at the time of the birth.
    2. A person born outside India or after 3rd December 2004 is considered as a citizen of India, only if his birth is registered at an Indian Consulate within one year of the date of birth, or with the permission of the Central Government, after the expiry of the said period.
    3. A minor who is citizen of India by virtue of above two clauses, shall cease to be citizen of India, if he or she does not renounce his citizenship of foreign country within six months of attaining the age of 18 years.
  3. REGISTRATION

    There are several clauses as to who can get themselves registered as citizens of India after meeting certain specified criteria. For e.g. a person who is married to an Indian citizen. Following people are eligible to apply for Indian citizenship –
    1. A person of Indian origin who is ordinarily resident in India for seven years before making an application for registration.
    2. A person who is married to a citizen of India and is ordinarily resident in India for seven years before making an application for registration.
    3. Minors born outside India but children of persons who are citizens of India.
  4. NATURALISATION

    A foreign national can acquire Indian citizenship by naturalisation, subject to following qualifications:
    1. He or she is not a citizen of any country where citizens of India are not allowed to becomes citizens of that country by naturalisation.
    2. He or she undertakes to renounce (forbid) the existing citizenship of foreign country.
    3. During the last 14 years preceding the date of such application, he or she has resided in India or has been in service of Government of India for atleast 12 years, including last one year.
    4. The government may waive off above qualifications for a person who has rendered distinguished service in Science, Philosophy, Art, Literature, World Piece or any other field of human progress.
  5. INCORPORATION OF A TERRITORY

    If any territory is added to India at any time, the person belonging to such a territory will become citizen of India, without the need to meet any of the above specified criteria.

  6. EXECUTORY POWERS OF THE PRESIDENT

    The President of India has the power to confer upon any person the Citizenship of India.

 

The Citizenship Act, 1955 prescribes three ways for losing citizenship:

  1. RENUNCIATION

    It refers to the voluntary act, by an Indian citizen, to renounce his or her Indian citizenship. When a person renounces his Indian citizenship, every minor child of that person also loses his or her Indian citizenship. However, when such a child assumes the age of 18 years, he or she may resume his or her Indian citizenship.
  2. TERMINATION

    It refers to the automatic termination of Indian citizenship of a person as soon he or she acquires the citizenship of any foreign country, consciously without any force or influence.
  3. DEPRIVATION

    It refers to the compulsory termination of Indian citizenship of a person by the Central Government, if such a person has
    1. acquired Indian citizenship through fraudulent means.
    2. shown disloyalty to the Constitution of India.
    3. unlawfully traded or communicated with the enemy during the war.
    4. after obtaining citizenship through naturalisation, has been imprisoned in any country for two or more years, in last five years.

 

 

NON RESIDENT INDIAN (NRI)

 

Non Resident Indian refers to an Indian Citizen who resides in India for less than 182 days during a financial year. NRIs enjoy all the benefits of Citizenship of India, including the right to vote and contest elections if they hold an Indian Passport and have not applied for or acquired citizenship of any other country.

 

THE NEW RULES

Budget 2020 proposed to reduce this period to 120 days for all NRIs. However, an amendment at the time of passing of the Budget provides that the reduced period of 120 days shall apply, only in cases where the total Indian income (i.e., income accruing in India) of such visiting individuals during the financial year is more than INR 15 lakh. Accordingly, visiting NRIs who total income (which is defined as taxable income) in India is more than INR 15 lakh during the financial year will continue to remain NRIs if the stay does not exceed 120 days. NRIs whose total income in India is up to INR 15 lakh during the financial year will continue to remain NRIs if the stay does not exceed 181 days, as was the case earlier.

 

A CLASSIFICATION JUST FOR THE PURPOSE OF TAXATION

Strictly asserting, the term non-resident refers only to the tax status of a person who has not resided in India for a specified period for the purposes of the income tax. The rates of income tax are different for Resident Indians and Non-Resident Indians. India has Double Taxation Avoidance Agreement (DTAA) with most of the nations, with the key objective that Indian taxpayers in such countries can avoid being taxed again in the home country for the same income. The relief is provided by either exempting the income earned abroad from tax in the resident country or by providing credit to the extent taxes have already been paid abroad. DTAAs are intended to make a country an attractive investment destination since avoidance of double taxation enables the Indian Diaspora (those living abroad including NRIs) to send remittances back home for investment. DTAAs can either be comprehensive to cover all sources of income or be limited to certain areas. India has DTAAs with more than eighty countries, of which comprehensive agreements include those with Australia, Canada, Germany, Mauritius, Singapore, UAE, the UK and the US. 

 

 

PERSON OF INDIAN ORIGIN (PIO)

 

Person of Indian Origin refers to a foreign citizen (except a national of Pakistan, Afghanistan, Bangladesh, China, Iran, Bhutan, Sri Lanka and/or Nepal), who:

  1. at any time held an Indian passport.
  2. is a spouse of a citizen of India or a PIO.
  3. was, or had either of his/her parents or grandparents or great grandparents, born in and permanently resident in India, provided further that neither was at any time a citizen of any of the aforesaid excluded countries.

Note that Person of Indian Origin is just a classification which has no inherent benefits, other than that he or she needs to reside in India for only 7 years, before making an application to acquire Indian citizenship.

 

 

OVERSEAS CITIZEN OF INDIA (OCI) SCHEME

 

In response to persistent demands for “dual citizenship” particularly from the Diaspora in North America and other developed countries and keeping in view the Government’s deep commitment towards fulfilling the aspirations and expectations of Overseas Indians, the Overseas Citizenship of India (OCI) Scheme was introduced by amending the Citizenship Act, 1955 in 2005. The Overseas Citizens of India Scheme was launched during the PRAVASI BHARATIYA DIVAS convention in 2006 at Hyderabad.

The Scheme provides for registration as Overseas Citizen of India (OCI) of all Persons of Indian Origin (PIOs) who were citizens of India on 26th January 1950, or there after, or were eligible to become citizens of India on 26th January 1950, except who is or had been a citizen of Pakistan, Bangladesh or such other country as the Central Government may, by notification in the Official Gazette, specify. Also, the Persons of Indian Origin, who have ever served a foreign military, are not eligible for getting OCI status.

A person with Overseas Citizenship of India, 

  1. Gets life long visa for visiting India.
  2. Gets exemption from registering with local police authority for any length of stay in India.
  3. Gets treated equal to people with NRI status.
  4. Gets relaxation in norms for acquiring Indian citizenship. An Overseas Citizen of India may be granted Indian citizenship after 5 years from the date of registration as the Overseas Citizen of India, provided that he or she stays in India for atleast one year before making such an application.

 

HOW IS OCI DIFFERENT FROM REGULAR CITIZENSHIP OF INDIA?

OCI is not to be misconstrued as ‘dual citizenship’. OCI does not confer political rights to an individual. Hence, Overseas Citizens of India:

  1. cannot hold any political post in India. Hence, they cannot become members of any legislature (Parliament as well as State Legislatures,
  2. cannot become the Judges in Indian Judiciary (Although they can practice as advocates in the Indian Judiciary).
  3. are not entitled to the rights conferred on a citizen of India under article 16 of the Constitution with regard to equality of opportunity in matters of public employment.
  4. cannot be appointed to public services and posts under the Union or the state,  except for appointment in such services and posts as the Central Government may by special order in that behalf specify.

However, the Overseas Citizens of India shall get the following benefits at par with regular citizens of India:

  1. Inter country adoption of Indian children.
  2. Domestic airfares.
  3. Entry fee for visiting national parks and wildlife sanctuaries in India.
  4. Entry fee for visiting national monuments, historical sites and museums .
  5. Professional practice in India (Doctors, Engineers, Advocates, Architects, Chartered Accountants etc)
  6. All India level entrance examinations for professional courses.
  7. fundamental rights guaranteed by the Constitution, including the right to freedom of speech and expression (as per the ruling of Delhi High Court in 2018).

 

HOW IS OCI DIFFERENT FROM NRI STATUS?

It is to be noted that OCIs do not need to pay income tax on their remittances sent to India. However, NRIs might need to pay some tax on their remittances sent to India, as per the conditions of DTAA signed with foreign country where they earned such income. Also while the NRIs enjoy all the rights as Citizens of India, OCIs have restricted rights.

 

CANCELLATION OF REGISTRATION AS OVERSEAS CITIZEN OF INDIA

The Central Government can cancel the Overseas Citizenship of an India, wherein an Overseas Citizen of India has:

  1. acquired such citizenship through fraudulent means.
  2. shown disaffection and disrespect towards the Constitution of India.
  3. unlawfully traded or communicated with the enemy during the war.
  4. imprisoned in any country for two or more years, in last five years of obtaining such citizenship.
  5. threatened the sovereignty and integrity of India.

 

 

THE CITIZENSHIP (AMENDMENT) BILL 2016

 

  1. The proposed amendment mandates that those who cross the border to India from Afghanistan, Bangladesh and Pakistan and belong to minority communities, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians, would not be treated as illegal immigrants despite having entered the country without valid documents or with travel papers that have expired. 
  2. The amendment shortens the period of residency from 12 to 7 years for gaining citizenship by naturalisation for persons belonging to the same six religions and three countries. 
  3. It also empowers the government to cancel registration as Overseas Citizen of India in case of any violation of the Citizenship Act or any other laws.
  4. Criticism: By distinguishing illegal immigrants on the basis of religion, the proposed law goes against constitutional guarantee of the fundamental right to equality under Article 14 of the Constitution. The protection of Article 14 applies equally to both citizens and foreigners. Also, it would hamper the Assam National Register of Citizens (NRC), which defines all illegal immigrants, irrespective of religion, on the basis of a cut-off date.

 

 

LAWS TO TACKLE ILLEGAL NON CITIZENS IN INDIA

 

The Passport (Entry into India) Act, 1920, is one of the early set of rules made against illegal migrants. It empowers the government to make rules requiring persons entering India to be in possession of passports. This rule also grants the government the power to remove from India any person who enters without a passport.

Section 7 of the Foreigner Act, 1946 provides that whenever a question arises with regard to the nationality of a person, the onus of proving that he is not a foreigner lies upon the person. Also it empowers the government to make provisions for prohibiting, regulating or restricting the entry of foreigners into India.

In 1964, the government brought in the Foreigners (Tribunals) Order. The tribunal has the authority to decide whether a person is a foreigner within the ambit of the Foreigners Act, 1946. The tribunal, which has powers similar to those of a civil court, gives reasonable opportunity to the person alleged to be a foreigner to produce evidence in support of his case, before passing its order.

The Illegal Migrants (Determination by Tribunals) Act, 1983, also referred to as the IMDT Act, was introduced for the detection and deportation of illegal migrants who had entered India on or after March 25, 1971. One factor for its failure was that it did not contain any provision of ‘burden of proof’ similar to the Foreigners Act, 1946. This put a very heavy burden upon the authorities to establish whether a person is an illegal migrant. The result of the IMDT Act was that a number of non-Indians who may have entered Assam after March 25, 1971 without possession of valid documents, continued to reside in Assam. In 2005, the Supreme Court not only quashed the IMDT Act but also closed all tribunals in Assam functioning under the Act. It, then, transferred all pending cases at the IMDT tribunals to the Foreigners Tribunals constituted under the Foreigners (Tribunals) Order, 1964.

In 2019, the Foreigners (Tribunal) Order was amended to allow district magistrates in all States and Union Territories to set up tribunals to decide whether a person staying illegally in India is a foreigner or not.

Any person excluded from the National Register of Citizens (NRC) can approach The Foreigners Tribunals, established only in Assam, within 120 days of receiving a certified copy of rejection. In other States, there is no such tribunal and a person suspected to be a foreigner is produced before a local court under the Passport Act, 1920, or the Foreigners Act, 1946.

In 2019, the government announced that after Citizen Amendment Act, it intends to implement NPR and NRC. The announcement caused widespread protests in India amidst unfounded fear among certain sections of the society, that this move was intended to deprive them of their Indian Citizenship.

 

 

DIFFERENCE BETWEEN NPR and NRC

 

NATIONAL POPULATION REGISTER (NPR)

  1. It is a database containing a list of all usual residents of the country. A usual resident for the purposes of NPR is a person who has resided in a place for six months or more, and intends to reside there for another six months or more.
  2. Its objective is to have a comprehensive identity database of people residing in the country. It is generated through house-to-house enumeration during the ‘house-listing’ phase of the census, which is held once in 10 years.
  3. While the Census involves a detailed questionnaire, the NPR collects basic demographic data and biometric particulars.
  4. While the Census is legally backed by the Census Act (1948), the NPR is backed by the Citizenship Act (1955).

 

NATIONAL REGISTER OF INDIAN CITIZENS (NRC)

  1. Out of the NPR, the government proposes to create a database of ‘Citizens of India’ called as National Register of Indian Citizens (NRC). Thus, the ‘National Register of Indian Citizens’ (NRC) is a subset of the NPR.
  2. The particulars of every family and individual found in the National Population Register (NPR) shall be verified and scrutinised by the Local Registrar of citizenship. In the process, details of those whose citizenship is doubtful will be entered with a comment suggesting further inquiry. The family or individual will be informed about it and given an opportunity of being heard by the Local Registrar of citizenship. A draft of the Local Register of Indian Citizens shall be published to invite objections or claims for inclusion or corrections. Any objection or request for inclusion must be made within 30 days of the publication of the draft. The Local Registrar shall summarily dispose of the objections within 90 days. Thereafter, the entries in the Local Register will be transferred to the National Registrar. Any person aggrieved by an exclusion order can appeal to the District Registrar within 30 days, and the appeal should be disposed of within 90 days. In case, the appeal succeeds, the names of those concerned would be added to the NRC.
  3. The government says any document that shows date of birth or place of birth, or both, will be sufficient. Those unable to produce documents may produce witnesses or other proof supported by members of the community.

 

 

KEY FACTS

 

The President of India is termed the first Citizen of India.