DR.

RAM MANOHAR LOHIYA NATIONAL

LAW UNIVERSITY, LUCKNOW

CITIZENSHIP AND EMIGRATION LAW

FINAL DRAFT
TOPIC- SPECIAL PROVISIONS RELATED TO CITIZENSHIP AND
EMIGRATION LAW IN INDIA

SUBMITTED BY: SUBMITTED TO:

VINAY KUMAR TRIPATHI DR. RAJNEESH KUMAR YADAV

SEMESTER IX ASSISTANT PROFESSOR (LAW)

Enrolment no. 150101160 DR. RMLNLU

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 ACKNOWLEDGEMENT

I want to express uncommon much obliged and appreciation to my educator Mr. RK YADAV
who gave me chance to finalize this research subject.

This project helped me pick up a major viewpoint about the Project Topic. All through the
exploration period, I have been guided by my educator at whatever point I confronted any
obstacles or was in a state of daze not having the capacity to resolve the intricacies of the subject.

I want to thank my University, Dr. Ram Manohar Lohia National Law University, Lucknow, for
giving me the opportunity to be a part of a novel exploration turned educational program which
without a doubt helps the comprehension of the subject.

I likewise want to thank my guardians, guides and well-wishers who have been a consistent
underpin and have sufficient energy and again looked into my work and have given their
experiences on the matter.

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 TABLE OF CONTENTS

ACKNOWLEDGEMENT...............................................................................................................2

HISTORY AND INTRODUCTION TO CITIZENSHIP LAW.....................................................4

CONSTITUTIONAL PROVISIONS RELATED TO CITIZENSHIP...........................................6

MODES OF ACQUIRING CITIZENHIP.......................................................................................9

RENUNCIATION AND TERMINATION OF CITIZENSHIP...................................................12

CONCEPT OF DUAL CITIZENSHIP..........................................................................................13

BIBLIOGRAPHY..........................................................................................................................15

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 HISTORY AND INTRODUCTION TO CITIZENSHIP LAW

The Government of India Act 1858 established the British Raj and formally brought the majority
of Indians under British imperial rule. Until the Indian Independence Act 1947 took effect on 15
August 1947, Indians under the British Raj generally fell into one of two categories:

Indians resident and born in British India came under the direct dominion of and
bore allegiance to the British Crown, and held the status of British subject. From 1 January 1915,
the British Nationality and Status of Aliens Act 1914 defined British subjects as those born or
naturalized in the British Sovereign's dominions (including British India), women married to
men born or naturalized in the aforementioned Crown dominions and children legitimately born
to a British subject father anywhere in the world.

Indians resident and born in a princely state (also known as an "Indian state" or a "Native state")
under the British Raj, or in any other British protectorate or protected state under the British
government, held the status of British protected person. This status extended to the wives and
legitimate offspring of male subjects of those states. British protected persons were
considered de jure foreigners, but could travel on British-issued passports.

Effective from 15 August 1947, India was established as the independent Dominion of India.
Along with subjects of the other British Dominions, Indians resident, born and naturalised in
Indian provinces legally remained British subjects by virtue of Section 18(3) of the Indian
Independence Act, unless they had already acquired citizenship of the United Kingdom or any
other country. In the case of the princely states, each princely ruler was enjoined to accede to
either the Dominion of India or to the Dominion of Pakistan prior to their independence from
British rule in August 1947. The Instrument of Accession each prince signed upon acceding to
either Dominion did not legally affect their sovereignty within their state, however. From 15
August 1947, British protection over the princely states lapsed, and Indians who were subjects of
a principality that had not acceded to the Dominion of India automatically lost their status as
British protected persons. From the date when an Indian princely ruler acceded to the new
Dominion of India until he formally merged his state into India, which legally vested a ruler's
sovereign powers in the new Indian government, the subjects of a princely state were British
subjects, though the ruler of the princely state remained sovereign during this period.
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From 1 January 1949, when the British Nationality Act 1948 came into force, to 25 January
1950, Indians in the Indian provinces became British subjects with Indian citizenship. From 26
November 1949, Indians domiciled in the territories of India became Indian citizens. With the
promulgation of the Indian Constitution on 26 January 1950, which established the Republic of
India, the majority of Indian citizens were no longer British subjects, but continued to enjoy the
status of Commonwealth citizen (also known as a British subject with Commonwealth
citizenship, a status which does not entitle the holder to use a British passport), by virtue of their
Indian citizenship and India's membership of the Commonwealth. However, a number of people,
notably those who had been born in a former princely state, did not acquire Indian citizenship on
commencement of the Indian Constitution and retained British subject without citizenship status
(which entitles a person to a British passport) unless they had acquired citizenship of another
Commonwealth country. The Citizenship Act of India (1955) finally extended Indian citizenship
to all Indians, regardless of whether they had been born in a former princely state or not.

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
territory of Puducherry, Karaikal, Mahé, Yanam and the Free town of Chandranagore, were
acquired under treaty of cession with France. 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.

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.

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 CONSTITUTIONAL PROVISIONS RELATED TO CITIZENSHIP

Citizenship law in India is governed by the Citizenship Act 1955 and The Constitution of India.

India is one of few countries whose citizenship law is incorporated in the constitution itself. Due
to unavoidable circumstances arose because of the partition of India and Pakistan and the
freedom of Indian state to either join the Union or leave it, the citizenship law had to be
incorporated in the constitution itself.

Definition of Citizen - A citizen of a given state is a person who enjoys full membership of the
political community of a state.

 A citizen is very different from a person who is merely residing in the land. A citizen
enjoys voting.
 A citizen who enjoys voting rights, as well as, the right to various government services,
are reserved for citizen only.

The Constituent Assembly incorporated a generalized provision through Article 11 for the
Parliament to regulate the citizenship by law. However, when it adopted the Constitution it
brought into force Part 2 of Constitution for Citizenship with Articles 5-11 dealing with it which
states as follows:

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) who was born in the territory of India;

(b) either of whose parents was born in the territory of India;

(c) who 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.

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ARTICLE 6: RIGHTS OF CITIZENSHIP OF CERTAIN PERSONS WHO HAVE
MIGRATED TO INDIA FROM PAKISTAN
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 (as originally enacted);

(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,

(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 therefore 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.

ARTICLE 7: RIGHTS OF CITIZENSHIP OF CERTAIN MIGRANTS TO PAKISTAN

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 purposes of clause (b) of article 6 be deemed to have migrated to the territory
of India after the nineteenth day of July, 1948.

ARTICLE 8: RIGHTS OF CITIZENSHIP OF CERTAIN PERSONS OF INDIAN

ORIGIN RESIDING OUTSIDE INDIA

Notwithstanding anything in article 5, any person who or either of whose parents or any of
whose grand-parents was born in India as defined in the Government of India Act, 1935 (as
originally enacted), 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

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diplomatic or consular representative of India in the country where he is for the time being
residing on an application made by him therefore 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.

ARTICLE 9: PERSONS VOLUNTARILY ACQUIRING CITIZENSHIP OF A FOREIGN

STATE NOT TO BE CITIZENS

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.

ARTICLE 10: CONTINUANCE OF THE RIGHTS OF CITIZENSHIP

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.

ARTICLE 11: PARLIAMENT TO REGULATE THE RIGHT OF CITIZENSHIP BY

LAW

Nothing in the foregoing provisions of this Part shall derogate from the power of Parliament to
make any provision with respect to the acquisition and termination of citizenship and all other
matters relating to citizenship.

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 MODES OF ACQUIRING CITIZENHIP

 CITIZENSHIP BY BIRTH

A Person Born in India shall be Citizen Under the Following Condition –

I. On or after the 26th day of January 1950 but before the 1st day of July, 1987.
II. On or after the 1st day of July, 1987, but before 7th july 2004 and either of whose parents
is a citizen of India at the time of his birth.
III. After 7th july 2004 where both of his parents are citizens of India or one of whose
parents is a citizen of India and the other is not an illegal migrant at the time of his birth,
shall be a citizen of India by birth.

A person shall not be a citizen of India by virtue of this section if at the time of his birth—

I. Either his father or mother possesses such immunity from suits and legal process as is
accorded to an envoy of a foreign sovereign power accredited to the President of India
and he or she, as the case may be, is not a citizen of India.
II. His father or mother is an enemy alien and the birth occurs in a place then under
occupation by the enemy.

 CITIZENSHIP BY DESCENT

A person born outside India shall be a citizen of India by descent—

1. 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.
2. 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 –provided that if the father of a person referred to in clause (a) was a citizen
of India by descent only. That person shall not be a citizen of India by virtue of this section
unless—
2.1. His birth is registered at an Indian consulate within one year of its occurrence or the
commencement of this Act, whichever is later, or with the permission of the Central
Government, after the expiry of the said period; or

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 2.2. His father is, at the time of his birth, in service under a Government in India: provided
further that if either of the parents of a person referred to in clause (b) was a citizen of
India by descent only, that person shall not be a citizen of India by virtue of this section
unless—
2.2.1.1. His birth is registered at an Indian consulate within one year of its
occurrence or on or after the 10th day of December, 1992, whichever is later,
or, with the permission of the Central Government, after the expiry of the said
period; or
2.2.1.2. Either of his parents is, at the time of his birth, in service under a
Government in India, provided also that on or after the commencement of
the Citizenship (Amendment) Act, 2003, a person shall not be a citizen of India
by virtue of this section, unless his birth is registered at an Indian consulate in
such form and in such manner, as may be prescribed—
3. Within one year of its occurrence or the commencement of the Citizenship (Amendment)
Act, 2003, whichever is later; or
4.   With the permission of the Central Government, after the expiry of the said period:
provided also that no such birth shall be registered unless the parents of such person declare,
in such form and in such manner as may be prescribed, that the minor does not hold the
passport of another country.

 CITIZENSHIP BY REGISTRATION

Citizenship of India by registration can be acquired by –

1. Persons of Indian origin who or either of whose parents was born in undivided India and
who are ordinarily resident in India for seven years.

2. Persons of Indian origin who are ordinarily residents in any country or place outside
undivided India.

3. Persons who are or have been married to a citizen of India and who are ordinarily
resident in India for five years.

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 4. Minor children both whose parents are Indian citizens.

5. A citizen of Singapore and Canada who is resident in India for five years and eight years
respectively.

 CITIZENSHIP BY NATURALISATION

Citizenship of India by naturalization can be acquired by a foreigner who is

ordinarily resident in India for twelve years (continuously for the twelve months preceding
the date of application and for eleven years in the aggregate in the fourteen years preceding
the twelve months).

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 RENUNCIATION AND TERMINATION OF CITIZENSHIP

RENUNCIATION OF CITIZENSHIP —

  If any citizen of India of full age and capacity, makes in the prescribed manner a
declaration renouncing his Indian Citizenship, the declaration shall be registered by the
prescribed authority and upon such registration, that person shall cease to be a citizen of
India- provided that if any such declaration is made during any war in which India may
be engaged, registration thereof shall be withheld until the Central Government otherwise
directs.

 Where a married couple ceases to be a citizen of India, every minor child of that person
shall thereupon cease to be a citizen of India – provided that any such child may within
one year after attaining full age makes a declaration that he wishes to resume Indian
citizenship and shall thereupon again become a citizen of India.

TERMINATION OF CITIZENSHIP —

  Any citizen of India who by naturalization, registration otherwise voluntarily acquires or

has at any time between the 26th January 1950 and the citizenship act voluntarily
acquired the citizenship of another country shall, upon such acquisition or, as the case
may be, such commencement, cease to be a citizen of India – provided that nothing
applies to a citizen of India who, during any war in which India may be engaged,
voluntarily acquires, the citizenship of another country, until the Central Government
otherwise directs.

 If any question arises as to whether, when or how any citizen of India has acquired the
citizenship of another country, it shall be determined by such authority, in such manner,
and having regard to such rules of evidence, as may be prescribed in this behalf.

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 CONCEPT OF DUAL CITIZENSHIP

The Indian constitution does not allow dual citizenship. An Indian citizen can hold the
citizenship of only one nation at a time and that must be of India.

PERRSON OF OVERSEES CITIZEN OF INDIA

Person of Indian Origin who migrated from India to other countries except Pakistan and
Bangladesh can be called an overseas citizen of India, provided their country allow OCI
citizenship.

The following Categories of persons (except Pakistan and Bangladesh) are eligible to apply
under OCI scheme:

1. 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.

2. 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.

3. Who is a citizen of another country but belonged to a territory that became part of India
after the 15th day of August, 1947.

4.  Who is a child or a grandchild or a great grandchild of such a citizen.

OCI is not equivalent to Dual citizenship. Overseas citizen of India do not enjoy the
following right –

 They do not have the right to vote.

 They cannot hold an Indian passport.

 They are not eligible for constitutional posts.

 They cannot be a member of legislature of any house.

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 BIBLIOGRAPHY

 http://legislative.gov.in/sites/default/files/A1955-57.pdf

 https://www.history.com/this-day-in-history/the-indian-citizenship-act

 https://www.prsindia.org/billtrack/the-citizenship-amendment-bill-2016-4348

 https://www.toppr.com/guides/legal-aptitude/indian-constitution/citizenship-article-5-11/

 https://www.thehindu.com/news/national/does-the-citizenship-amendment-bill-go-

against-article-14-of-the-constitution/article29605976.ece

 http://www.iasplanner.com/civilservices/ias-pre/gs-polity/citizenship-and-the-constitution

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