Like any other modern State, India has two kinds of people – citizen and aliens. Citizens are full members of the Indian State and owe allegiance to it. They enjoy all civil and political rights. Aliens on the other hand, are the citizens of some other State and hence do not enjoy all the civil and political rights. The following fundamental rights are available only to citizens—
(1) The right not to be discriminated against any citizen on ground of religion, race, caste, sex or place of birth (Article 15).
(2) Right to equality of opportunity in the matter of public employment (Article 16).
(3) Right to freedom of speech and expression, assembly, association, movement, residence and profession (Article 19).
(4) Cultural and educational rights (Articles 29, 30).
(5) Right to vote in election to the Lok Sabha and State Legislative Assembly.
(6) Right to contest for the membership of Parliament and the State Legislature.
(7) Eligibility to hold certain public offices that is, President of India,
Vice-President of India, Judges of the Supreme Court and the High Courts, Governor of States, Attorney-General for India and
Advocate-General of States.
The rights guaranteed by articles 14 and 21 are available to aliens also.
Person who acquired citizenship at the commencement of the Constitution by virtue of articles 5 to 8 can be divided in the following categories—
At the commencement of this Constitution every person who has his domicile in the territory of India and—
(a) who was born in the territory of India; or
(b) either of whose parents was born in the territory of India; or
(c) who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement, shall be citizen of India.
Pradeep Jain v. Union of India, MANU/SC/0047/1984 : AIR 1984 SC 1420: (1984) 3 SCC 654. Under the Indian Constitution there is only one domicile of the country and there is no separate domicile for a State.
Chandigarh Housing Board v. Gurmit Singh, MANU/SC/0013/2002 : AIR 2002 SC 587: 2002 AIR SCW 176: (2002) 2 SCC 29: 2002 (1) SCJ 220. The ‘Domicile’ means that a person must be having permanent home in Chandigarh or he being there for years with the intention to live permanently or indefinitely.
Satya v. Teja Singh, MANU/SC/0212/1974 : AIR 1975 SC 105: 1975 SCC (Cri) 50: (1975) 1 SCC 120: 1975 (2) SCJ 294. To establish domicile, two elements must be proved:
(i) residence of a particular kind;
(ii) intention of a particular kind.
Domicile means the place, which a person has fixed as a habitation of himself and his family not for a mere special and temporary purpose but with a present intention of making it his permanent house.
Notwithstanding anything in article 5, a person who has migrated to the territory of India from the territory now included in Pakistan shall be deemed to be a citizen of India at the commencement of this Constitution if—
(a) he or either of his parents or any of his grand-parents was born in India as defined in the Government of India Act, 1935; and
(b) (i) in the case where such person has so migrated before the nineteenth day of July, 1948, he has been ordinarily resident in the territory of India since the date of his migration, or
(ii) in the case where such person has so migrated on or after the nineteenth day of July, 1948, he has been registered as a citizen of India by an officer appointed in that behalf by the Government of the Dominion of India on an application made by him therefor to such officer before the commencement of this Constitution in the form and manner prescribed by that Government:
Provided that no person shall be so registered unless he has been resident in the territory of India for at least six months immediately preceding the date of his application.
Shanno Devi v. Mangal Sain, MANU/SC/0189/1960 : AIR 1961 SC 58: 1961 (1) SCJ 201: (1961) 1 SCR 576. The Supreme Court held that the word ‘migration’ in article 6 means going to a country with an intention to reside there permanently.
Kulathil Mammu v. State of Kerala, MANU/SC/0080/1966 : AIR 1966 SC 1614: 1966 Cr LJ 1217: (1967) 3 SCR 706: 1967 (2) SCJ 653. The Supreme Court by majority held that the word ‘Migrated’ in articles 6 and 7 was not used in that narrow sense of the term but in a wider sense of going from one place to another whether with an intention to reside permanently there or not but the movement should be voluntary and should not be for a specific purpose and for a short or limited one.
Notwithstanding anything in articles 5 and 6 a person who has after the first day of March, 1947, migrated from the territory of India to the territory now included in Pakistan shall not be deemed to be a citizen of India:
Provided that, nothing in this article shall apply to a person who, after having so migrated to the territory now included in Pakistan, has returned to the territory of India under a permit for resettlement or permanent return issued by or under the authority of any law and every such person shall for the purpose of clause (b) of article 6 be deemed to have migrated to the territory of India after the nineteenth day of July, 1948.
Notwithstanding anything in article 5, any person who or either of whose parents or any of whose grandparents was born in India as defined in the Government of India Act, 1935, and who is ordinarily residing in any country outside India as so defined shall be deemed to be a citizen of India if he has been registered as a citizen of India by the diplomatic or consular representive of India in the territory where he is for the time being residing on an application made by him therefor to such diplomatic or consular representative, whether before or after the commencement of this Constitution, in the form and manner prescribed by the Government of the Dominion of India or the Government of India.
No person shall be a citizen of India by virtue of article 5, or be deemed to be a citizen of India by virtue of article 6 or article 8, if he has voluntarily acquired the citizenship of any foreign State.
Every person who is or is deemed to be a citizen of India under any of the foregoing provisions of this part shall, subject to the provisions of any law that may be made by Parliament, continue to be such citizen.
Nothing in the foregoing provisions of this Part shall derogate from the power of Parliament to make any provisions with respect to the acquisition and termination of citizenship and all other matters relating to citizenship.
The Citizenship Act, 1955 provides for acquisition and loss of citizenship and provides for commonwealth citizenship. The Citizenship Act of 1955 prescribes five ways of acquiring citizenship viz.—
The Act as amended in 2005 provides that a person is a citizen of India by
(a) if he is born in India on or after 26 January, 1950 but before 30 June, 1987;
(b) if he is born in India on or after 1st July, 1987 but before the commencement of the Citizenship (Amendment) Act, 2003 and either of whose parents is citizen of India at the time of his birth;
(c) if he is born in India on or after the commencement of the Citizenship (Amendment) Act, 2003, where—
(i) both of his parents are citizens of India, or
(ii) one of whose parents in a citizen of India and the other is not an illegal migrant at the time of his birth.
A person born outside India shall be a citizen of India by descent,—
(a) on or after the 26th day of January, 1950, but before the 10th day of December, 1992, if his father is a citizen of India at the time of his birth; or
(b) on or after the 10th day of December, 1992, if either of his parents is a citizen of India at the time of his birth.
The Central Government may register as a citation of India any person who is not an illegal migrant if he belongs to any of the following categories, if an application is made in this behalf—
(a) a person of Indian origin who is ordinarily resident of India for seven years before making an application for registration,
(b) person of Indian origin who is ordinarily resident in any country or place outside undivided India,
(c) person who is married to a citizen of India and is ordinarily resident of India for seven years before making an application for registration,
(d) minor children of person who are citizen of India,
(e) a person of full age and capacity whose parents are registered as citizen of India.
(f) a person of full age and capacity who, on either of his parents was earlier citizens of independent India, and has been residing in India for one year immediately before making an application for registration;
(g) a person of full age and capacity who has been registered on an overseas citizen of India for five years and who has been residing in India for one year before making an application for registration.
A foreigner can become an Indian citizen by naturalization if:
(a) he is not a subject or citizen of a country where Indian citizens cannot become naturalized citizens;
(b) he undertakes to renounce the citizenship of any other country if his application is accepted;
(c) he has either resided in India or has been in Indian Government service for 12 months before making an application for naturalization or during 14 years prior to these 12 months, he has resided or has been in Indian Government service at least for 11 years;
(d) he is of good character;
(e) he has an adequate knowledge of a language recognised by the Constitution;
(f) he intends to reside in India or to serve under the Government of India after naturalization.
If any foreign territory becomes a part of India, the Government of India specifies the person who among the people of the territory shall be citizens of India. Such persons becomes the citizens of India from the notified date. For example, when Pondicherry became a part of the India, the Government of India issued the Citizenship (Pondicherry) Order, 1962, under the Citizenship Act, 1955.
The Citizenship Act, 1955, also lays down how the citizenship of India may be lost whether it was acquired under the Citizenship Act, 1955, or prior to it under the provisions of the Constitution. It may happen in any of the three ways—
An Indian citizen who is also a citizen or national of another country, can renounce his Indian citizenship. When such a declaration is made during a war in which India in engaged, its registration is withheld by the Central Government. When a person renounce his citizenship, every minor child of that person cease to be an Indian citizen.
When an Indian citizen voluntarily acquires the citizenship of another country, his Indian citizenship automatically terminates. This provision, however, does not apply during a war in which India is engaged.
It is a compulsory deprivation of Indian citizenship by the Central Government if—
(a) the citizen has obtained the citizenship by fraud;
(b) the citizen has shown disloyalty to the Constitution of India;
(c) the citizen has unlawfully traded or communicated with the enemy during a war;
(d) the citizen has, within five years after registration or naturalization been imprisonment in any country for two years; and
(e) the citizen has been ordinarily resident out of India for seven years continuously.
The Central Government may on an application made in this behalf, register any person as an overseas citizen of India—
(a) any person of full age and capacity,—
(i) who is a citizen of another country, but was a citizen of India at the time of, or at any time after, the commencement of the Constitution; or
(ii) who is a citizen of another country, but was eligible to become a citizen of India at the time of the commencement of the Constitution; or
(iii) who is a citizen of another country, but belonged to a territory that become part of India after the 15th day of August, 1947; or
(iv) who is a child or a grand child of such a citizen; or
(b) a minor child of a person above mentioned.
In the beginning there has been some controversy as to whether citizen refers to only natural persons or includes juristic persons also.
State Trading Corporation of India v. Commercial Tax Officer MANU/SC/0038/1963 : AIR 1963 SC 1811: 1963 (2) SCJ 605: (1964) 2 SCA 201: (1964) 4 SCR 99. The Supreme Court held that citizen includes natural persons and not juristic person like corporation. The State Trading Corporation is not a citizen and cannot maintain a petition under article 32 of the Constitution.
Bank Nationalisation case, MANU/SC/0011/1970 : AIR 1970 SC 564: (1970) 3 SCR 530. If the State action impairs the right of the company thereby affecting the rights of an individual shareholder the protection of article 19 will be available to him.
In the matter of fundamental freedoms guaranteed by article 19. Desai J. held that the right of a shareholder and the company which the shareholders have formed are co-extensive and denial to one of the fundamental freedoms would be denial to the other.
Though our Constitution is federal, it recognizes one citizenship only i.e., citizenship of India. There is no separate State citizenship. Every citizen has the same rights, privileges and immunities of citizenship, no matter in which State he resides. In USA and Switzerland, there is a dual citizenship, namely, the citizenship of USA and citizenship of the State where a person is born and permanently resides and there are distinct rights and obligations flowing from the two kinds of citizenship.
© Universal law Publishing Co.