Indian nationality law

  (Redirected from Indian nationality)

The conferment of a person as a citizen of India is governed by the Part II of the Constitution of India (Articles 5 to 11). According to Article 5, all the people that were resident in India at the commencement of the Constitution were citizens of India as well as people born in India. The President of India is termed the First Citizen of India.

The Citizenship Act, 1955
Emblem of India.svg
Parliament of India
CitationAct No 57 of 1955
Enacted byParliament of India
Assented to30 December 1955
Amended by
The Citizenship (Amendment) Act, 1986,
The Citizenship (Amendment) Act, 1992,
The Citizenship (Amendment) Act, 2003,
The Citizenship (Amendment) Act, 2005, and
The Citizenship (Amendment) Act, 2019
Summary
Along with the Constitution of India, the Citizenship Act, 1955, is the exhaustive law relating to citizenship in India.

The Indian legislation related to this matter is The Citizenship Act, 1955, which has been amended by the Citizenship (Amendment) Acts of 1986, 1992, 2003, 2005, 2015 and 2019. The 1986 amendment restricted citizenship by birth to require that at least one parent had to be an Indian citizen. The 2003 amendment further restricted that aspect by requiring that a parent could not be an illegal immigrant. The 2003 amendment also mandated the Government of India to construct a National Register of Citizens. The 2019 amendment provided an easier path to citizenship for persecuted selected minorities, i.e Hindus, Sikhs, Buddhists, Jains, Parsi and Christians from the neighbouring Muslim-majority countries of Bangladesh, Pakistan, and Afghanistan who entered India before December 2014. These two measures have given rise to large-scale protests in India in 2019.

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 has to surrender his/her Indian passport and voter card, and other Indian ID cards must not be used after another country's citizenship is obtained. It is a punishable offence if the person fails to surrender the passport.

The current Indian nationality law largely follows the jus sanguinis (citizenship by descent) as opposed to the jus soli (citizenship by right of birth within the territory).[1]

HistoryEdit

British RajEdit

The Government of India Act 1858 established the British Raj and formally brought the majority of Indians under British imperial rule. Indians under the British Raj generally fell into two categories:

Effective from 15 August 1947, India was established as the independent Dominion of India. All Indians resident, born in or naturalised in the Indian provinces legally remained British subjects by virtue of Section 18(3) of the Indian Independence Act 1947. Indians residents in the princely states that acceded to India were also regarded as British subjects, while those resident in British protectorates retained the status of British protected persons.[3][note 2]

Territorial acquisitionsEdit

On 20 December 1961, after military action, India acquired the territories of Goa, Daman and Diu and Dadra and Nagar Haveli which were under the territories of Portugal. The French territories of Puducherry, Karaikal, Mahé, and Yanam, were acquired under treaty of cession with France in 1954 (ratified by the French National Assembly in 1962). Previously, the French territory of Chandernagore had voted in a referendum to join the Indian Union in 1949.[4] Sikkim was also merged with India and became a constituent state with effect from 16 May 1975. Some of the enclaves in the eastern part of India were also acquired under border agreements with Pakistan and Bangladesh.[5]

In order to expressly provide the citizenship for people in territories as mentioned above, the central government issued the Goa, Daman and Diu (Citizenship) Order, 1962, Dadra and Nagar Haveli (Citizenship) Order, 1962 and Citizenship (Pondicherry) Order 1962, in exercise of its powers under section 7 of the Citizenship act and for Sikkim, the President extended the Citizenship act, and the relevant rules under Article 371-F(n) of Indian Constitution. In case of acquired enclaves, that did not necessitate legislative action, as that was only a border demarcation agreement.[5].

Granting of citizenshipEdit

 
Cover of an Indian passport

Citizenship at the commencement of the Constitution of IndiaEdit

People living in the territory of India as on 26 November 1949 automatically became Indian citizens through operation of the relevant provisions of the Indian Constitution coming into force, and most of these constitutional provisions came into force on 26 January 1950. The Constitution of India also made provision regarding citizenship for migrants from the territories of Pakistan which had been part of India before partition.

Citizenship by birthEdit

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. A person born in India on or after 1 July 1987 but before 3 December 2004 is a citizen of India if one of parents was a citizen of India at the time of the birth.[6] 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. In September 2013, the Bombay High Court gave a judgement that a birth certificate, passport or even an Aadhaar card alone may not be enough to prove Indian citizenship, unless the parents are Indian citizens.[7]

In a 2012 case, the Bombay High Court ruled that a man who was born in Pakistani-administered Kashmir and entered into India was an Indian citizen and should be granted an Indian passport, since India considers all of the Kashmir region to fall within its borders.[8]

Citizenship by DescentEdit

Persons born outside India on or after 26 January 1950 but before 10 December 1992 are citizens of India by descent if their father was a citizen of India at the time of their birth.

Persons born outside India on or after 10 December 1992 are considered citizens of India if either of their parents is a citizen of India at the time of their birth.

From 3 December 2004 onwards, persons born outside of India shall not be considered citizens of India unless their birth is registered at an Indian diplomatic mission within one year of the date of birth. In certain circumstances it is possible to register after one year with the permission of the Central Government. The application for registration of the birth of a child must be made to an Indian diplomatic mission and must be accompanied by an undertaking in writing from the parents of the child that he or she does not hold the passport of another country.[9]

Citizenship by registrationEdit

The Central Government may, on an application, register as a citizen of India under section 5 of the Citizenship Act 1955 any person (not being an illegal migrant) if s/he belongs to any of the following categories:

  • a person of Indian origin who is ordinarily resident in India for seven years before making application under Section 5(1)(a) (throughout the period of twelve months immediately before making application and for six years in the aggregate in the eight years preceding the 12 months).
  • a person of Indian origin who is ordinarily resident in any country or place outside undivided India;
  • 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;
  • minor children of persons who are citizens of India;
  • a person of full age and capacity whose parents are registered as citizens of India.
  • a person of full age and capacity who, or either of his parents, was earlier citizen of independent India, and has been residing in India for one year immediately before making an application for registration;
  • a person of full age and capacity who has been registered as an overseas citizen of India for five years, and who has been residing in India for one year before making an application for registration.

Citizenship by naturalizationEdit

Citizenship of India by naturalization can be acquired by a foreigner who is ordinarily resident in India for 12 years (throughout the period of 12 months immediately preceding the date of application and for 11 years in the aggregate of 14 years preceding the 12 months) and other qualifications as specified in Section 6 (1) of the Citizen Act,1955

List of AmendmentsEdit

  1. Citizenship (Amendment) Act, 1986
  2. Citizenship (Amendment) Act, 1992
  3. Citizenship (Amendment) Act, 2003
  4. Citizenship (Amendment) Act, 2005
  5. Citizenship (Amendment) Act, 2015
  6. Citizenship (Amendment) Act, 2019

The 1986 amendment, legislated after the Assam agitation and Assam Accord, restricted citizenship by birth to children born of Indian citizens. At least one parent had to be an Indian citizen for the child to qualify for citizenship. This was a serious restriction of the jus soli principle adopted in the Constitution and the original Citizenship Act.

The 2003 amendment further restricted the jus soli principle by requiring that no parent of the child can be an illegal immigrant for the child to qualify for citizenship. It also ruled that illegal immigrants are not eligible for acquiring citizenship by registration or naturalisation.

The 2019 Citizenship Amendment Act provides for a path to citizenship for religiously persecuted minorities, namely Hindus, Sikhs, Buddhists, Jains, Parsis and Christians, from Afghanistan, Bangladesh and Pakistan, who faced "persecution or fear of persecution" in their countries and entered India on or before 31 December 2014.[10] The Act was passed by both the houses of Parliament by 11 December 2019.[11] It faced widespread criticism and protests on the grounds that it is discriminatory by omitting Muslims, and for violating the Assam Accord which promised 1971 as the cut-off date for the illegal migrants from Bangladesh.

Renunciation and termination of Indian citizenshipEdit

Renunciation is covered in Section 8 of the Citizenship Act 1955. If an adult makes a declaration of renunciation of Indian citizenship, s/he loses Indian citizenship. In addition, any minor child of that person also loses Indian citizenship from the date of renunciation. When the child reaches the age of 18, he or she has the right to have his or her Indian citizenship restored. The provisions for making a declaration of renunciation n under Indian citizenship law require that the person making the declaration be "of full age and capacity".

 
Warning stamped onto Indian Passports Issued by the High Commission of India, Ottawa, Ontario, Canada

Termination is covered in Section 9 of the Citizenship Act, 1955. The provisions for termination are separate and distinct from the provisions for making a declaration of renunciation.

Section 9(1) of the act provides that any citizen of India who by naturalisation or registration acquires the citizenship of another country shall cease to be a citizen of India. Notably, the termination provision differs from the renunciation provision because it applies to "any citizen of India" and is not restricted to adults. Indian children therefore also automatically lose their claim to Indian citizenship if at any time after birth they acquire a citizenship of another country by, for example, naturalisation or registration — even if the acquisition of another citizenship was done as a result of actions by the child's parents.

The acquisition of another country's passport is also deemed under the Citizenship Rules, 1956 to be voluntary acquisition of another country's nationality. Rule 3 of Schedule III of the Citizenship Rules, 1956 states that "the fact that a citizen of India has obtained on any date a passport from the Government of any other country shall be conclusive proof of his/her having voluntarily acquired the citizenship of that country before that date". Again, this rule applies even if the foreign passport was obtained for the child by his or her parents, and even if possession of such a passport is required by the laws of a foreign country which considers the child to be one of its citizens (e.g., a US-born child of Indian parents who is automatically deemed to be a US citizen according to US law, and who is therefore required by US law to have a US passport in order to enter and leave the US). It does not matter that a person continues to hold an Indian passport. This rule seemingly even applies if the foreign nationality was automatically had from birth, and thus not voluntarily acquired after birth. Persons who acquire another citizenship lose Indian citizenship from the date on which they acquire that citizenship or another country's passport. The prevailing practice at a number of British diplomatic posts, for example, is to impound and return to the Indian authorities the Indian passports of those applicants who apply for and are granted British passports.[12]

Special rules exist for Indian citizens with a connection to Goa, Daman and Diu. Rule 3A of Schedule III of the Citizenship Rules, 1956 states that "Where a person, who has become an Indian Citizen by virtue of the Goa, Daman and Diu (Citizenship) Order, 1962, or the Dadra and Nagar Haveli (Citizenship) Order 1962, issued under section 7 of the Citizenship Act, 1955 (57 of 1955) holds a passport issued by the Government of any other country, the fact that he has not surrendered the said passport on or before the 19 January 1963 shall be conclusive proof of his/her having voluntarily acquired the citizenship of that country before that date."

On 16 February 1962, a Constitution Bench of the Supreme Court of India held in the case of Izhar Ahmad Khan vs Union of India that "If it is shown that the person has acquired foreign citizenship either by naturalisation or registration, there can be no doubt that s/he ceases to be a citizen of India in consequence of such naturalisation or registration."

Overseas Citizenship of IndiaEdit

 
Front Cover of an OCI Card. Note: While it resembles a passport, it is not a passport nor does it confer actual Indian citizenship.

In response to persistent demands for dual citizenship, particularly from the diaspora in North America and other developed countries, the Overseas Citizenship of India (OCI) scheme was introduced by amending The Citizenship Act, 1955 in August 2005. The scheme was launched during the Pravasi Bharatiya Divas convention in Hyderabad in 2006.[13] Indian authorities have interpreted the law to mean a person cannot have a second country's passport simultaneously with an Indian one — even in the case of a child who is claimed by another country as a citizen of that country, and who may be required by the laws of the other country to use one of its passports for foreign travel (such as a child born in the United States or in Australia to Indian parents), and the Indian courts have given the executive branch wide discretion over this matter. Therefore, Overseas Citizenship of India is not an actual citizenship of India[14] and thus, does not amount to dual citizenship or dual nationality or anyone no longer to use Indian IDs after OCI. Moreover, the OCI card is not a substitute for an Indian visa and therefore, the passport which displays the lifetime visa must be carried by OCI holders while travelling to India.[15] OCI Cards are now being printed without the lifelong "U" Visa Sticker (which is normally pasted on the applicant's passport). The proof of lifelong visa will be just the OCI Card which will have "Life Time Visa" printed on it. The OCI Card will be valid with any Valid Passport. However, countries may consider the OCI as dual citizenship: for example, the UK government considers that, for purposes of the British Nationality Act 1981, "OCI is considered to be citizenship of another State".[16]

Persons of Indian Origin (PIO) CardEdit

 
Front cover of a PIO card

This was a form of identification issued to an individual who held a passport in a country other than Afghanistan, Bangladesh, Bhutan, China, Iran, Nepal, Pakistan, and Sri Lanka and could prove their Indian origin up to three generations before.

In early 2011, the then Prime Minister of India, Manmohan Singh, announced that the Person of Indian Origin card will be merged with the Overseas Citizen of India card.[17] This new card proposed to be called the Overseas Indian Card.[18]

As of 9 January 2015, the PIO card scheme has been discontinued and applicants are to apply for OCI only. All PIO Card holders were advised, from time to time, to convert PIO Card to OCI Card.[19][20]

Dual CitizenshipEdit

It is generally difficult to have dual citizenship of India and another country, due to the provisions for loss of Indian nationality when an Indian national naturalizes in another country (see "Loss of citizenship" above), and the requirement to renounce one's existing citizenships when naturalizing in India (see "Naturalization" above).

There are still some ways in which a person may have dual citizenship of India and another country, including:

  • Children of foreign diplomats, who are born in India, are also given dual citizenship during the period of their parents' service in India.
  • A minor child of Indian origins may hold dual citizenship of India and another country, though acquiring a passport from the other country of citizenship would normally terminate the Indian citizenship.

A public interest litigation (PIL) seeking dual citizenship[21] for overseas Indians was filed in the Supreme Court on 6 January 2015[22] on the eve of the inauguration of the Pravasi Bharatiya Divas (PBD) in Gujarat's capital Gandhinagar by Prime Minister Narendra Modi.

On 20 April 2015, the Supreme Court of India dismissed the Public Interest Litigation (PIL). In dismissing the said PIL, the Supreme Court reasoned that Mr. Venkat Narayan cannot plead on somebody else's behalf as he is not the aggrieved party and those who need to assert their right should come forward.[23]

Visa requirementsEdit

 
Visa requirements for Indian citizens
  India
  Visa free
  Visa issued upon arrival
  Electronic/Pre Arrival Authorisation or eVisa
  Visa available both on arrival or online
  Visa required prior to arrival

Visa requirements for Indian citizens are administrative entry restrictions by the authorities of other states placed on citizens of India. As of 13 February 2018, Indian citizens had visa-free or visa on arrival access to 56 countries and territories, ranking the Indian passport 81st in terms of travel freedom (tied with Ivory Coast, Senegal and Togo passports), according to the Henley visa restrictions index.[24]

See alsoEdit

NotesEdit

  1. ^ For example, see attached regulations for the 1851 Research Fellowship for Indians, with reference to Indians from princely states as British protected persons (Current Science - Science Notes and News)
  2. ^ Indians then residing in the states of the Aden Protectorate or in the states under the Persian Gulf Residency, and their wives and families, remained British protected persons. Both administrations had been previously transferred to the control of the British Foreign Office, the Aden Protectorate in 1917 and the Persian Gulf Residency in April 1947. Members of the Indian diaspora then resident in any other British protectorate or protected state also remained under British protection.

ReferencesEdit

  1. ^ "As Trump strikes at birthright citizenship, Americans – and Indians – look up 14th Amendment".
  2. ^ legislation.gov.uk: "British Nationality and Status of Aliens Act 1914" (original as printed)
  3. ^ "The Gazette of India - Extraordinary" (PDF). Press Information Bureau of India - Archive. Archived (PDF) from the original on 8 August 2017.: "The expression 'British subjects' shall be deemed to include the Ruler and subjects of any of the Acceding States."
  4. ^ Namakkal, Jessica (3 April 2017). "The Terror of Decolonization: Exploring French India's "Goonda Raj"". Interventions. 19 (3): 338–357. doi:10.1080/1369801X.2016.1231586. ISSN 1369-801X.
  5. ^ a b Agrawala, S. K.; Koteswara Rao, M. (1990). "Nationality and International Law in Indian Perspective". In Swan Sik Ko (ed.). Nationality and International Law in Asian Perspective - Google Books. ISBN 9780792308768.
  6. ^ Foreigners division, Ministry of Home Affairs, Government of India. "Acquisition of Indian citizenship". Retrieved 26 September 2019.CS1 maint: multiple names: authors list (link)
  7. ^ "Passport alone no proof of citizenship: Bombay HC". Times of India. 29 October 2013. Retrieved 3 July 2013.
  8. ^ Ahmed, Zubair (6 August 2012). "Indian passport for Kashmiri man". BBC. Retrieved 13 June 2020.
  9. ^ "Acquisition of Indian Citizenship (IC)". Government of India - Ministry of Home Affairs - Foreigners Division. Retrieved 19 April 2019.
  10. ^ "The Citizenship (Amendment) Bill, 2019" (PDF). PRS India. Retrieved 17 August 2019.
  11. ^ "Lok Sabha live: Citizenship Bill to be tabled in Rajya Sabha next". The Times of India. Retrieved 10 December 2019.
  12. ^ "Letter from British High Commission Nairobi" (PDF). Retrieved 2 April 2018.
  13. ^ Overseas Citizenship of India (OCI); Ministry of Home Affairs, Government of India website Archived 26 September 2009 at the Wayback Machine, Diaspora Services: Overseas Citizenship of India Scheme Archived 4 May 2012 at the Wayback Machine
  14. ^ Dual Nationality: India and the United States Archived 17 March 2016 at the Wayback Machine
  15. ^ "Flying to India? Carry old passport with OCI card - Rediff.com India News". News.rediff.com. 29 October 2009. Retrieved 3 July 2013.
  16. ^ "Nationality Instructions, Chapter 14, Annex H, Section 7.5" (PDF). United Kingdom Border Agency.
  17. ^ "PM announces merging of OCI, PIO cards". The Indian Express. 8 January 2011. Retrieved 18 October 2019.
  18. ^ New Overseas Indian Card to replace OCI, PIO Archived 13 October 2012 at the Wayback Machine
  19. ^ "Embassy of India, Berne, Switzerland : PIO Card". indembassybern.ch. Retrieved 2 April 2018.
  20. ^ OVERSEAS CITIZENS OF INDIA (OCI), VFS Global, retrieved 8 November 2019.
  21. ^ "Dual Citizenship for Overseas Indians". www.dualcitizenship.in. Retrieved 14 June 2017.
  22. ^ ANI (8 January 2015). "PIL filed in SC seeking dual citizenship for NRIs". Business Standard India. Retrieved 14 June 2017.
  23. ^ "Supreme Court Dismisses Plea For Voting Rights of Overseas Citizens". NDTV.com. Retrieved 14 June 2017.
  24. ^ "Global Ranking - Visa Restriction Index 2017" (PDF). Henley & Partners. Retrieved 14 March 2017.

External linksEdit