Introduction
Citizenship may or may not be included in a Constitution. But it is an important aspect of the Constitution because certain basic or fundamental rights may be enjoyed only by citizens as well as it may be a condition precedent for participation in political activ-ities and for holding any political office. We can find a number of examples in our Constitution of fundamental rights, some of which are available only to citizens and not to non-citizens. Similarly, all electoral offices from a member of a village panchayat to the President of India are restricted only to citizens and the right to be a voter is also restricted only to citizens.
Citizenship of a country may be acquired either on the basis of birth or naturalisation. Citizenship at birth is determined by two principles: jus soli, the territoriality principle and jus sanguinis, the descent principle. The former is determined by the place or coun-try of birth while the latter by the descent of the person. Following the common law tradition, of which India had been a part as a British colony, the Constitution makers proceeded to make the provisions on citizenship on the basis of one's birth or domicile (jus soli) and not the descent (jus sanguinis). That is what is represented in Articles 5 to 10. All these provisions were, however, of temporary nature to deal with the special situation arising from the sudden declaration of partition of the country into two parts, but effectively three parts because Pakistan was carved out in the north-west of the country as well as in the east consisting of East Bengal. Only Article 11 authorised Parliament to regulate the right of citizenship by law. Articles 5 to 10 have, therefore, become part of history while the Citizenship Act, 1955 is the current law on citizenship. History of citizenship, however, continues to influence the law in the Citizenship Act, which is giving birth to new controversies that we shall briefly discuss in the comments on Article 11.
Article 5 of the constitution :-
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; 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 a citizen of India.
Citizens by domicile. - Article 5 is a clear example of jus soli, citizenship by birth or domicile. It lays down two conditions. First, at the commencement of the Constitution, a person must have his domicile in the territory of India. Second, such a person must fulfil any one of the three conditions laid down in the article, namely, 1) he must have been born in the territory of India, or 2) either of his parents must have been born in the territory of India, or 3) he must have been ordinarily resident in the territory of India for not less than five years immediately preceding the commencement of the Constitution.
Domicile in India is an essential requirement for acquiring Indian citizenship. Although the Constitution does not define "domicile", it means a permanent home, or place where a person resides with the intention of remaining there for an indefinite peri-od. Domicile is not the same thing as residence. Residence implies a purely physical fact, the fact of just being and living in a particular place. But domicile is not only resi-dence; it is residence coupled with intention to live indefinitely in the place. "Domicile meant permanent home, and if that was not understood by itself no illustration could help to make it intelligible.
There are two kinds of domicile: domicile of origin and domicile of choice. Every person is born with a domicile of origin. It is a domicile received by him at his birth.
The domicile of origin of every person of legitimate birth is the country in which at the time of his birth his father was domiciled. Hence, the domicile of origin, though received at birth, need not be either the country in which the infant is born, or the coun-try in which his parents are residing, or the country to which his father belongs by race or allegiance, or the country of the infant's nationality. In the case of a posthumous child, the rule in English law is that such a child has for domicile of origin the domicile of his mother and not of his father. In India, the rule appears to be different, for here the domicile of the posthumous child will be that of the country in which his father was domiciled at the time of his (father's) death."
Thus, the domicile of origin is a concept of law and clings to a man till he abandons it. An independent person is allowed to give up his domicile of origin. But the domicile of origin prevails until a new domicile has been acquired.
Every independent person can acquire a domicile of choice by combination of 1) actual residence in a particular place, and 2) intention to remain there permanently or for an indefinite period. While the domicile of origin is received by operation of law at birth, the domicile of choice is acquired by the actual removal to another country accompanied by his animus manendi, i.e. the state of mind having formed a fixed intent to make his place of residence or settlement, a permanent home. The traditional statement that to establish domicile there must be a present intention of permanent residence merely means that so far as the mind of the person at the relevant time was concerned, he possessed the requisite intention. The relevant time varies with the nature of the enquiry. It may be past or present. In Mohd. Reza Debstani v. State of Bombaylt the appellant had come to India in 1938 with his maternal uncle. In 1945, he went on pilgrimage to Iraq. On return, he was registered as a foreigner and several times his stay in India was extended; but in 1957, his request was refused. He pleaded that he must be regarded as a citizen of India under Article 5. His appeal was dismissed on the ground that though he was ordinarily resident, he did not acquire Indian citizenship because he did not have a domicile in India. When the appellant returned from Iraq, he took over the cashier's job at a hotel. That by itself was held insufficient to establish that there was a change in his mind of the kind necessary to acquire a new domicile. His applications for extending his stay in India made from time to time fortified this conclusion. Similarly, in Louis De Raedt v. Union of India", a Belgian national staying in India since 1937 on a Belgian passport with the permission of the Government of India from time to time could not succeed in his claim for Indian citizenship under Article 5(c), because the intention to reside permanently in India was missing in his case. The domicile of choice continues until the former domicile has been resumed or another has been acquired. A man or an unmarried woman of full age is an independent person. By marriage a woman acquires the domicile of her husband if she did not have the same domicile before. But the wife's domicile no longer follows that of her husband if they are separated by the award of sentence of a competent court, or if the husband is undergoing a sentence of transportation.14
Domicile is different from citizenship. The person may possess one nationality or citizenship and different domicile, or he may have a domicile but no nationality. Domicile implies connection with territory, not membership of community which is at the root of the notion of citizenship or nationality.15
Unlike some other countries which provide for dual or triple citizenship, India pro-vides for single citizenship for the whole of India. 16 There is no separate State or any other citizenship. Every citizen has the same rights, privileges and immunities of citizenship, no matter in what State he resides. In US, a person has dual citizenship of the US and of the State to which he belongs. Like citizenship, domicile is also one for the whole of India. Clarifying the impression created in D.P. Joshi v. State of Madhya Bharat and N. Vasundara v. State of Mysore¹ that as States have independent power to make laws with respect to marriage, divorce, succession, etc., they may create different legal systems for the purpose of domicile, the Supreme Court in Pradeep Jain v. Union of India held that in these two cases the word "domicile" was used "to convey the idea of intention to reside permanently or indefinitely" for the purpose of admission to medical or other technical institutions within a State and "not in the technical sense in which it is used in private international law" 20 Although the States in India have inde-pendent powers to make laws on subjects in Lists II and III of the Seventh Schedule to the Constitution, "the legal system under the rubric of which such laws are made by the States is a single legal system which may truly be described as the Indian legal system". Therefore, it would not be correct to say that "a citizen of India is domiciled in one State or another forming part of the Union of India. The domicile which he has is only one domicile, namely, domicile in the territory of India". 21
It may be emphasised again here that the definition of citizenship in Article 5 is at the commencement of the Constitution. Thus, persons born after the commencement of the Constitution are not citizens under this article. They are covered under the Indian Citizenship Act, 1955.22 Before that in State of U.P. v. Rehmatullah, deciding the ques-tion whether the conviction of the respondent under Section 14, Foreigners Act, 1946 for overstaying in India after his entry into India on a Pakistani passport and Indian visa in 1955 was valid, the Supreme Court held that at the time of his entry into India, the Citizenship Act, 1955 did not exist and, therefore, his status had to be determined with reference to Article 5 of the Constitution. The court found that the respondent was a citizen of India under Article 5(a) of the Constitution and he continued to be so till the Government of India decided that he had lost his Indian citizenship. 24
Article 6 of the constitution :-
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 commence-ment 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); 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 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.
Pakistan to India before the commencement of the Constitution. Such persons have, for the purposes of citizenship been classified into two categories, namely, 1) those who came to India before 19 July 1948, and 2) those who came on or after 19 July 1948, A person falling in the first category, ie, an immigrant before 19 July 1948, shall be deemed to be a citizen of India if the following two conditions are fulfilled:
1. he or either of his parents or any of his grandparents was born in India as defined in the Government of India Act, 1935; and
2. he has been ordinarily residing in India since the date of his migration.
In relation to a person in the second category, i.e. immigrant on or after 19 July 1948, the following conditions are required to be fulfilled:
1. he or either of his parents or any of his grandparents was born in India as defined in the Government of India Act, 1935;
2. he must make an application for citizenship;
3. he must prove that he has resided in India for six months; and
4. he must be registered as a citizen by an officer appointed either by the Government of India under the Act of 1935 or the Union Government under the present Constitution.
If the above conditions are satisfied, a person shall be deemed to be a citizen of India.
Article 7 of the constitution:-
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 nine-teenth day of July, 1948.
Articles 6 and 7 deal with the special issue of migration of people from one part of the country to the other on its division as India and Pakistan. Though the division did not require people to move from their homes in one division to the other, unprecedented migration of Hindus from the territory designated as Pakistan to Indian territory and of Muslims from the latter to the former took place. Article 6 deals with this migration of population from Pakistan to India and lays down special criteria for deciding who shall be deemed to be citizens of India, while Article 7 deals with the migration of popula-tion from India to Pakistan and lays down special criteria for deciding who shall not be deemed to be such citizens.
Article 7 overrides Article 5, for even if a person is a citizen of India by virtue of Article 5, he cannot be deemed to be a citizen of India, if he has migrated to Pakistan after 1 March 1947.25 An exception is made in favour of a person who has returned to India on the basis of a permit for resettlement in India. Such a person is entitled to become a citizen of India, if he fulfils all other conditions necessary for immigrants from Pakistan after 19 July 1948, under Article 6.
Articles 6 and 7 use the expression "migrated". In Kulathil Mammu v. State of Kerala, the meaning of the term "migrated" was closely scrutinised by a divided Supreme Court. The majority construed the term "migrated" used in Articles 6 and 7 with reference to the context, purpose and the prevailing political conditions at the time of making of the Constitution. So interpreted, the word "migrated" could mean nothing except voluntarily going from India to Pakistan permanently or temporarily. The con-cept of permanence as in the case of domicile could not be imported with regard to the term "migrated" in Articles 6 and 7. For the minority, it was necessary that there should be some permanence in the intention of the person migrating to settle in Pakistan. Mere physical movement from India to Pakistan unaccompanied by such an intent could not be called "migration". The majority judgment, while holding that the word "migrated" has the wider meaning of going from one place to another, conceded that the move-ment should have been voluntary and should not have been for a special purpose and for a short and limited period.27 However, it may be quite legitimate to assume that Articles 6 and 7 contemplate two types of migration migration to India and migra-tion to Pakistan. Article 6 and proviso to Article 7 refer to migration to India, whereas Article 7 refers to migration to Pakistan. Under Article 6 and proviso to Article 7, there is sufficient textual and policy justification for interpreting "migration", both as the fact and the intention to reside in India permanently. Article 7, on the other hand, may be viewed as a rule of thumb depriving (by fiction) person migrating to Pakistan after 1 March 1947 of Indian citizenship. This article is not concerned with intention on the part of persons moving to Pakistan to reside there permanently. Rather, it aims at deal-ing with people going and residing in Pakistan after 1 March 1947. If such going and dwelling was voluntary, indefinite (in the sense of being not specifically limited to time-span) and not for a limited purpose, then it constitutes "migration" under Article 7.28
In State of Bihar v. Kumar Amar Singh, a lady went to Karachi in July 1948, leaving her husband in India. Her story that she went there temporarily for medical treatment was found baseless. She returned to India in December 1948, after obtaining a temporary permit, stating in her application for the said permit that she was domiciled in Pakistan and she was a Pakistani national. On the expiry of that temporary permit, she went back to Pakistan in April 1949. She made an attempt to obtain a permit for permanent return to India only after steps had been taken to take over her property and vest the same in the custodian. Her efforts failed, and she could not get a permit for permanent settlement in India. It was held that there could be no doubt that the lady must be held to have migrated from the territory of India after 1 March 1947, although her husband had stayed in India.
Migration in this article refers to one before 26 January 1950, i.e. between 1 March 1947 and 26 January 1950.30 Migration to Pakistan after 26 January 1950, is determined under the provisions of the Citizenship Act, 1955.31
Article 8 of the constitution:-
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 grandparents 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 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 8 begins with the non-obstante clause, "notwithstanding anything in Article 5". This article confers Indian citizenship on a person who on the face of it had no domicile in India, if certain conditions mentioned therein are fulfilled. It is, there-fore, clear that when Article 8 as well as Articles 6 and 7 use the non-obstante clause, the intention clearly is to exclude the concept of domicile from these three articles.2
This article deals with persons who or whose parents or grandparents were born in India, but are residing abroad. Such persons shall be deemed to be citizens of India if they have been registered as citizens of India by the diplomatic or consular representa-tive of India in the country where they are residing. The registration shall be made only on an application from the citizen.
It may be noted that Article 8, unlike Articles 5 and 6, deals with Indian citizenship not only at the date of the commencement of the Constitution but also for the future.
Article 9 of the constitution:-
Persons voluntarily acquiring citizenship of a foreign State not to be citizens. -No per-son 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.
This article enacts that a person who has voluntarily acquired the citizenship of a foreign State shall not remain a citizen of India. It deals only with voluntary acquisition of citizenship of a foreign State before the Constitution came into force. Cases of voluntary acquisition of foreign citizenship after the commencement of the Constitution will have to be dealt with by the Government of India under the Citizenship Act, 1955.33 The question as to whether a person has lost his citizenship of this country and has acquired the citizenship of a foreign country has to be determined by the Central Government, and it is only after the Central Government has decided this question that a State Government can deal with the person as a foreigner. It may be that if a passport from a foreign government is obtained by a citizen and the case falls under the impugned rule, the conclusion may follow that he has acquired the citizenship of the foreign country, but that conclusion can be drawn only by the appropriate authority under the Act to inquire into the question. Therefore, there is no doubt that in all cases where action is "proposed to be taken against persons residing in this country on the ground that they have acquired the citizenship of a foreign State and have lost in consequence the citizenship of this country, it is essential that that question should first be considered by the Central Government", 34
Article 367, clause (3) defines a foreign State thus:
For the purposes of this Constitution, 'Foreign State' means any State other than India: Provided that, subject to the provisions of any law made by Parliament, the President may by order declare any State not to be a foreign State for such purposes as may be specified in the order.
Article 9 does not disable Parliament from conferring Indian citizenship on a person who has voluntarily acquired the citizenship of any foreign State. The Citizenship Act, 1955 was amended in 2003 and again in 2005 to introduce the concept of overseas citizenship for citizens of other countries.
Article 10 of the constitution:-
Continuance of the rights of citizenship. - Every person who is or is deemed to be a citi-zen 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.
Parliament may make any provision under Article 11 for the acquisition and termination of citizenship. In exercise of that power, it may take away the right of citizenship which has accrued to a person under the provisions of the foregoing articles. But until that is done, a person who is or is deemed to be a citizen of India shall continue to be such a citizen.
The right to citizenship secured under the foregoing provisions can only be destroyed by an express enactment of Parliament made for the purpose, and cannot be taken away indirectly. Ebrahim Vazir Mavat v. State of Bombay³s illustrates the rule in Article 10. The case involved the constitutional validity of the Influx from Pakistan Control Act, 1949, which provided that no person domiciled in India or Pakistan shall enter India from Pakistan unless he was in possession of a permit. If such a person entered India without a permit, he committed an offence punishable under the Act. Besides, Section 7 of the Act authorised the Central Government to direct the removal from India of any person who committed, or against whom, a reasonable suspicion existed that he had committed an offence under the Act. The Supreme Court held that Section 7 was ultra vires the powers of Parliament, because to allow the forcible removal of an Indian citi-zen from India would be tantamount to destroying the right of citizenship conferred by Part II of the Constitution. The right of citizenship, the court pointed out, could only be taken away by recourse to Article 11 of the Constitution. It follows that in the absence of a law expressly made under Article 11, the right of citizenship, which a person has acquired under this Part of the Constitution, cannot be destroyed by an Act made for a different purpose.
Article 11 of the constitution:-
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.
Under Entry 17 of List I of the Seventh Schedule to the Constitution read with Article 246, Parliament has power to make laws with respect to citizenship, naturalisation and aliens. 36 The object of this article is to make it clear that notwithstanding the fact that certain rules relating to citizenship are contained in Part II, Parliament shall have unfettered power to make any provision relating to acquisition, termination and all other matters relating to citizenship. In exercise of this power, Parliament enacted the Citizenship Act in 1955.37 This Act provides for the acquisition and termination of citizenship. Several changes were made in the Act in 2003 and 2005 to introduce the concept of overseas citizenship of India, especially with a view to facilitate the dealings of the Indian diaspora with India. In short, under the Act, Indian citizenship may be acquired in one of the five ways: birth, descent, registration, naturalisation, and the incorporation of territory.
While no serious controversy has arisen in respect of any of these amendments, a serious controversy has arisen on the addition of a proviso in Section 2(1)(b) of the Act in 2019 which grants citizenship to illegal Hindu, Sikh, Buddhist, Jain, Parsi, and Christian immigrants to India from Afghanistan, Bangladesh and Pakistan on or before 31 December 2014. The Muslims are, however, not included in this category. They have been protesting against their exclusion from this category resulting in violence and loss of life and property. The proviso hits at the secular nature of the Constitution. 39 Writing before the 2019 Act, Prof. Niraja Gopal Jayal, who has done pioneering work on citizenship, states: "While jus soli remains the governing principle of citizenship in India, citizenship law and jurisprudence have come to be manifestly inflected by elements of jus sanguinis. The 2019 Amendment Act further supports her.
In a post-amendment publication, four well-known scholars from different disciplines and professions have very closely analysed this amendment in the light of the Indian traditional approach on citizenship prior to the making of the Constitution as well as from the deliberations of the Constituent Assembly in which all the prominent members of the Assembly opposed to bring in religion or any anti-secular ele-ment into the Constitution on the issue of citizenship or on any other issue. Therefore, in their opinion the amendment is anti-secular and violates the basic structure of the Constitution.