Citizenship of India: Constitutional Provisions and the Citizenship Act, 1955

Citizenship tells us who belongs to the country. This is why the Constitution deals with it early. It sits in Part II, Articles 5 to 11.

Articles 5 to 10 settle who was a citizen on the day the Constitution began. That day was 26 January 1950. Article 11 then gives the rest to Parliament. Parliament may make any law on how citizenship is gained and lost.

1.1 Who became a citizen on that day?

Article 5 is the main rule. It covers a person who had a domicile in India on that day. Domicile means making India your permanent home.

The person also had to pass one of three tests:

• Born in the territory of India.
• Either parent born in the territory of India.
• Living in India for at least five years before 26 January 1950.

1.2 What about people who came from Pakistan?

Article 6 is about people who moved to India from Pakistan. One parent or grandparent must have been born in undivided India.

The date of arrival decides the rest. Those who came before 19 July 1948 counted if they had lived in India since they arrived. Those who came on or after 19 July 1948 had to be registered before the Constitution began.

Article 7 is about people who went the other way. A person who moved to Pakistan after 1 March 1947 is not a citizen. There is one exception. A person who came back on a permit for resettlement or permanent return can still qualify.

1.3 What about Indians living abroad?

Article 8 is about people of Indian origin who live outside India. They become citizens if an Indian diplomatic or consular officer registers them.

Article 10 says that a citizen stays a citizen. Parliament may change this by law.

1.4 What does Article 9 say?

Article 9 bars dual citizenship. That means holding two countries’ citizenship at once.

A person who voluntarily takes the citizenship of a foreign State is not a citizen under Article 5, 6 or 8. Part II also creates only one status, citizen of India. There is no separate State citizenship.

Common mistake: Do not think each State has its own citizenship. There is one citizenship for the whole country.

The Constitution only covers the first day. The Citizenship Act, 1955 covers every day after it. It is the main law on how a person becomes a citizen.

The Act gives five routes: birth, descent, registration, naturalisation and incorporation of territory. This lesson uses the Indian Kanoon copy of the Act as of 12 December 2019.

2.1 When does birth in India make you a citizen?

Section 3 is about birth in India. The rule has changed over time, so there are three time bands:

• Born 26 January 1950 to 30 June 1987: citizen by birth.
• Born 1 July 1987 until the 2003 Amendment began: one parent must be an Indian citizen.
• Born after the 2003 Amendment began: both parents must be citizens. Or one parent is a citizen and the other is not an illegal migrant.

Example: Asha was born in India on 1 July 1990. Her father is a citizen. That is enough, because she falls in the second band. A child born after the 2003 Amendment needs more.

Two groups do not qualify. One is the child of a foreign envoy who has legal immunity. The other is the child of an enemy alien in enemy-occupied territory.

Common mistake: Birth in India does not always give citizenship. The parents’ status matters for later births.

2.2 When does a child born abroad count?

Section 4 is about descent. This means getting citizenship through your parent. It covers a child born outside India.

From 10 December 1992, one citizen parent is enough. Since the 2003 Amendment, the birth must be registered at an Indian consulate. The time limit is one year. The Centre may allow a later date.

2.3 What are registration and naturalisation?

Registration is a way to apply to the Centre. Section 5 lets the Centre register certain people who are not illegal migrants. Examples are:

• A person of Indian origin who has lived in India for seven years.
• A person married to an Indian citizen who has lived here for seven years.
• Minor children of citizens.

Naturalisation is for a foreigner who settles in India. Section 6 gives such a person a certificate of naturalisation. The person must meet the Third Schedule.

The Third Schedule asks for two things. One is 12 months of residence just before applying. The other is 11 of the 14 years before that.

Section 7 is about a new territory that joins India. The Centre names the people who become citizens by an order in the Gazette.

Citizenship can also be lost. This matters because the loss must follow the law. The Act gives three ways: renunciation, termination and deprivation.

3.1 What are renunciation and termination?

Renunciation means giving up your citizenship by choice. Under section 8, an adult citizen may do this. The declaration is registered. The person then stops being a citizen.

Registration is held back during a war in which India is engaged.

Termination happens by the law itself. Under section 9, a citizen who voluntarily takes another country’s citizenship stops being an Indian citizen. This also waits during a war until the Centre directs otherwise.

When a person renounces, the minor children also stop being citizens. A child may resume citizenship. The child must make a declaration within one year of reaching full age.

Common mistake: Renunciation is the person’s own choice. Termination follows from taking another country’s citizenship. Do not mix them up.

3.2 Can the Government take citizenship away?

Yes, but only from some citizens. This is deprivation. Section 10 applies to citizens who got citizenship by naturalisation, by Article 5(c), or by certain registrations.

The Centre must be satisfied that keeping the person as a citizen is not good for the public. The grounds include:

• Fraud or false statements when getting the certificate.
• Disloyalty to the Constitution by act or speech.
• Trading with the enemy in a war.
• A jail term of two years or more within five years of registration.
• Seven continuous years abroad, without the listed exceptions.

The person gets written notice. Most grounds allow a Committee of Inquiry. Its chairman must have held judicial office for at least ten years.

Common mistake: A citizen by birth cannot be deprived of citizenship under section 10.

The OCI card gives some rights to a foreign citizen of Indian origin. It does not make the holder an Indian citizen.

Sections 7A to 7D create the Overseas Citizen of India (OCI) Cardholder. The holder is a citizen of another country.

Eligible people include former Indian citizens, their children, grandchildren and great-grandchildren. The foreign spouse of a citizen is also eligible. A person whose parents or grandparents were citizens of Pakistan or Bangladesh is not eligible.

4.1 What can an OCI cardholder not do?

Section 7B(2) lists what is withheld. An OCI cardholder cannot:

• Claim equal opportunity in public employment under Article 16.
• Stand for President or Vice-President.
• Be appointed a Supreme Court or High Court judge.
• Register as a voter.
• Sit in Parliament or a State legislature.

Other rights depend on what the Centre notifies. The Centre may cancel the registration on grounds such as fraud. It may also cancel it if the holder serves a sentence of two years within five years of registration.

Assam has its own citizenship rule. It comes from the Assam Accord.

The Accord was signed on 15 August 1985. The Union Government, the Assam Government, the All Assam Students Union and the All Assam Gana Sangram Parishad signed it.

Clause 5 sets the base date for foreigners as 1 January 1966. Foreigners who came on or after 25 March 1971 are to be detected, deleted and expelled in law.

5.1 What does Section 6A say?

Act 65 of 1985 added section 6A. It took effect from 7 December 1985. It sorts migrants from Bangladesh by the date they entered:

• Came before 1 January 1966: deemed citizens from 1 January 1966.
• Came 1 January 1966 to before 25 March 1971 and were detected as foreigners: they register. They get citizen rights from the date of detection, but no vote for ten years.
• After ten years from detection, they are citizens for all purposes.

5.2 Did the Supreme Court uphold it?

Yes. On 17 October 2024, a five-judge Bench upheld section 6A by 4:1.

Justice Surya Kant wrote for himself, Justice Sundresh and Justice Misra. The Chief Justice wrote his own opinion. Both held that 6A passes the test of reasonable classification. They also held that it does not violate Articles 6 and 7.

Justice Pardiwala dissented. He held section 6A invalid with prospective effect.

The Bench said that persons covered by 6A keep their citizenship. A person who came from 25 March 1971 onward gets no benefit from 6A.

5.3 What did the Court say about detection of foreigners?

In Sarbananda Sonowal (12 July 2005), the Court struck down the Illegal Migrants (Determination by Tribunals) Act, 1983. It held the Act and its Rules ultra vires the Constitution. Ultra vires means beyond the power the Constitution gives.

The Court found that applying the Act only to Assam violates Article 14. Pending cases moved to the Tribunals under the Foreigners (Tribunals) Order, 1964.

In Louis De Raedt (24 July 1991), the Court looked at foreign missionaries. Long stay in India on residential permits did not make them citizens.

The Court explained two ideas. Domicile of origin is the home you are born into. Domicile of choice needs an intention to stay for good.

It held that a foreigner has only the Article 21 right. The Article 19(1)(e) right to reside belongs to citizens. It dismissed their petitions.

These two are often in the news. The CAA is a law that opens a faster path for some migrants. The NRC is a list of people proven to be citizens.

The Citizenship (Amendment) Act, 2019 (Act 47 of 2019, dated 12 December 2019) added a proviso to the definition of illegal migrant. It names six communities: Hindu, Sikh, Buddhist, Jain, Parsi and Christian.

A person from these communities who came from Afghanistan, Bangladesh or Pakistan on or before 31 December 2014 is not an illegal migrant. For these people, the Third Schedule asks for five years of residence instead of eleven.

6.1 Where does the CAA not apply?

Section 6B(4) keeps out two kinds of area. One is the tribal areas of Assam, Meghalaya, Mizoram and Tripura under the Sixth Schedule. The other is the area under the Inner Line of the Bengal Eastern Frontier Regulation, 1873.

6.2 How do people apply?

The Home Ministry notified the Citizenship (Amendment) Rules, 2024 on 11 March 2024.

The application goes online to an Empowered Committee through a District Level Committee. The applicant takes the oath of allegiance. The Empowered Committee may then grant citizenship. A person registered under section 6B gets a digital certificate.

6.3 What is the NRC?

The National Register of Citizens update in Assam began on the Supreme Court’s order in 2013. It uses 24 March 1971 (midnight) as the cut-off, as in the Assam Accord.

A total of 3,30,27,661 people applied. The final NRC of 31 August 2019 found 3,11,21,004 eligible. It left out 19,06,657, including those who did not submit claims.

An excluded person may appeal to a Foreigners Tribunal. The appeal period was raised from sixty to one hundred and twenty days.

UPSC asked about citizenship in CSP 2021 (General Studies Paper I, Q89). It gave three statements:

UPSC Civil Services (Preliminary) Examination 2021, General Studies Paper I, Series A, Q89.
With reference to India, consider the following statements :
1. There is only one citizenship and one domicile.
2. A citizen by birth only can become the Head of State.
3. A foreigner once granted the citizenship cannot be deprived of it under any circumstances.
Which of the statements given above is/are correct?
(a) 1 only
(b) 2 only
(c) 1 and 3
(d) 2 and 3

Read the UPSC question paper (Series A, printed page 39) and the UPSC answer key. The key gives (a), 1 only. Statement 3 is wrong because section 10 of the Act lets the Centre deprive some citizens of citizenship.

• There is one citizenship and one domicile.
• Only a citizen by birth can be Head of State.
• A granted citizenship can never be taken away.

The printed key is (a) 1 only. Statement 3 is wrong because section 10 lets the Centre deprive some citizens.

7.1 What to remember

• Articles 5 to 11: Part II; Article 11 gives Parliament the power.
• 5 routes in, 3 routes out: birth, descent, registration, naturalisation, territory; renunciation, termination, deprivation.
• Section 6A: 1 January 1966 and 25 March 1971; upheld 4:1 on 17 October 2024.
• CAA: six communities, three countries, entry by 31 December 2014; five years in place of eleven.
• NRC: 3,11,21,004 in; 19,06,657 out.