(ARTICLES 5 -11)
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.
No person shall be a citizen of India, if he or she voluntarily acquires the citizenship of any foreign state.
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.
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.
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.
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.
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.
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:
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.
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:
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.
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.
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 refers to a foreign citizen (except a national of Pakistan, Afghanistan, Bangladesh, China, Iran, Bhutan, Sri Lanka and/or Nepal), who:
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.
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,
OCI is not to be misconstrued as ‘dual citizenship’. OCI does not confer political rights to an individual. Hence, Overseas Citizens of India:
However, the Overseas Citizens of India shall get the following benefits at par with regular citizens of India:
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.
The Central Government can cancel the Overseas Citizenship of an India, wherein an Overseas Citizen of India has:
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.
The President of India is termed the first Citizen of India.