By – Mansi Patel

Meaning of Citizenship

The word “citizenship” has not been defined in the Constitution of India.Article 5 deals with citizenship at the commencement of the Constitution but does not define the term.

A citizen may be understood as a person who owes allegiance to a Government and is entitled to protection from it. Citizenship describes the relationship between an individual and the community, including:

• Membership in the socio-political group

• Freedom of individual action

• Protection of person and property

• Responsibility of the individual to the group

Article 5 – Citizenship at the Commencement of the Constitution

At the commencement of this Constitution, every person who has his domicile in the territory of India and:

(a) was born in the territory of India; or(b) either of whose parents was born in the territory of India; or(c) has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement,shall be a citizen of India.

1. Rights and Privileges Conferred Upon Indian Citizens

(i) Right to Equality

Includes:

• Equality before law (Art. 14)

• Prohibition of discrimination on grounds of religion, race, caste, sex, place of birth (Art. 15)

• Equality of opportunity in public employment (Art. 16)

(ii) Right to Freedom

• Freedom of speech, etc. (Art. 19)

• Protection in respect of conviction for offences (Art. 20)

• Protection of life and personal liberty; right to education (Art. 21, 21-A)

(iii) Right Against Exploitation

• Prohibition of trafficking and forced labour (Art. 23)

• Prohibition of child labour in factories, etc. (Art. 24)

(iv) Right to Freedom of Religion

• Freedom of conscience and profession, practice and propagation of religion (Art. 25)

• Freedom to manage religious affairs (Art. 26)

• Freedom regarding attendance at religious instruction (Art. 28)

(v) Cultural and Educational Rights

• Protection of interests of minorities (Art. 29)

• Right of minorities to establish and administer educational institutions (Art. 30)

2. Citizen-Wife Migrating to Pakistan

Article 9 overrides Article 5 and makes no exception for such a case.

3. Acquisition of Foreign Citizenship

If a person acquired foreign citizenship prior to the Constitution, he cannot claim Indian citizenship under Articles 5, 6 or 8.Article 9 applies and bars such citizenship claims.

4. Charge of Over-Stay After Expiry of Permit

A person continuing to be in India till July 1950 was held to be an Indian citizen.⁴

5. Citizenship by Domicile (Article 5)

At the commencement (26 January 1950), a person must:

• Have domicile in India, and

• Fulfil any one of the following:(i) Born in India, or(ii) Either parent born in India, or(iii) Ordinarily resident in India for at least 5 years before commencement.

6. Meaning of “Domicile”

Not defined in the Constitution or Citizenship Act, 1955.Generally means intention to reside permanently in a place, not temporary.

Key points:

• Question of intention is both law and fact.

• A person cannot have two domiciles simultaneously.

• Burden of proving change of domicile lies on the person alleging it.

• Pakistani passport/visa can support plea of changed domicile (AIR 1966 Cal 161).

Article 6 – Citizenship of Persons Migrating from Pakistan

A person migrating from Pakistan is a citizen if:

(a) He/parent/grandparent was born in India (Government of India Act, 1935), and(b)(i) If migrated before 19 July 1948 → ordinarily resident since migration, or(ii) If migrated on/after 19 July 1948 → registered as citizen upon application before commencement.

Proviso: Must be resident 6 months before application.

Article 7 – Migrants to Pakistan

A person who migrated to Pakistan after 1 March 1947 shall not be a citizen.

Exception:If returning with a permit for resettlement/permanent return, he is deemed to have migrated after 19 July 1948 for the purpose of Article 6(b).

Article 8 – Persons of Indian Origin Residing Outside India

Confers citizenship on persons of Indian origin residing abroad if:

• They/parent/grandparent were born in India (as per 1935 Act)

• They reside outside India

• They are registered as citizens at an Indian consulate

Registration may be before or after commencement of the Constitution.

Applicability:Citizenship is granted upon compliance.

Judicial Note:Article 8 beyond Parliament’s powers; decision given prospective effect.

Article 9 – Voluntary Acquisition of Foreign Citizenship

A person is not a citizen of India under Articles 5, 6, 8 if he voluntarily acquires foreign citizenship.

Scope:Covers foreign citizenship acquired before 26-1-1950.

Loss of Citizenship:Those acquiring foreign citizenship after 26-1-1950 are governed by Section 9 of the Citizenship Act, 1955.

Jurisdiction:State Government has no jurisdiction unless delegated by Central Government under Art. 258.

Article 10 – Continuance of Citizenship

A person who is or deemed a citizen shall continue to be so, subject to parliamentary law.

Article 11 – Parliamentary Power Over Citizenship

Parliament may regulate acquisition, termination, and all matters relating to citizenship.

Modes of Acquisition of Citizenship (Citizenship Act, 1955)

• Citizenship by Birth

• Born in India between 26 Jan 1950 – 1 July 1987 → Citizen by birth

• Born 1 July 1987 – 3 Dec 2004 → One parent must be an Indian citizen

• Born after 3 Dec 2004 → One parent Indian + other not an illegal migrant

• Citizenship by Descent

• Born outside India

• Between 1950–1992 → Father Indian

• After 1992 → Either parent Indian

• After 3 Dec 2004 → Must register birth at consulate within 1 year + neither parent an illegal migrant

• Citizenship by Registration

Available to:

• Persons of Indian origin residing in India for 7 years

• Persons married to Indian citizens residing in India for 7 years

• Minor children of Indian citizens

• OCIs wishing to become full citizensRegistration is discretionary.

• Citizenship by Naturalisation

Requirements:

• Residence in India for 12 years

• Good character

• Intention to reside

• Knowledge of an Indian languageGranted at Government discretion.

• Citizenship by Incorporation of Territory

Residents of newly incorporated territories become citizens automatically unless otherwise provided.

Termination of Citizenship

1. Renunciation (Section 8)

Voluntary declaration; minor children also lose citizenship.

2. Termination (Section 9)

Automatic loss upon voluntary acquisition of foreign citizenship.

3. Deprivation (Section 10)

Government may cancel citizenship gained by registration/naturalisation on grounds like:

• Fraud

• Disloyalty

• Unlawful activities

• Criminal conviction

• Long-term absence from India