Citizenship Act & Its Implications In India

Introduction

India got independence on 15^th August, 1947. India became a democratic republic on 26^th January, 1950. India is the country of the millions of people living in it. The Part II of the Constitution of India (Articles 5 to 11) governs the conferment of a person as a citizen of India. The Article 5 of the Constitution of India says that every person born in India as well as everyone residing in India during the time of commencement of the Constitution are citizens of India. The President of India is called as the First Citizen of India. The Citizenship Act of India is an Act to provide people the Indian citizenship.

The Citizenship Act was enacted in India in 1955 which has been later amended in 1986, 1992, 2003, 2005, 2015 and 2019. The 1986 amendment of the Citizenship Act restricted the citizenship of people by birth to the requirement that at least one parent had to be an Indian citizen. The 2003 amendment of the Citizenship Act further restricted the citizenship of people to the requirement that a parent could not be an illegal immigrant. The 2003 amendment also mandated the Government of India to construct a National Register of Citizens (NRC). The 2019 amendment provided an easier path to citizenship for persecuted selected minorities, that is, Hindus, Sikhs, Buddhists, Jains, Parsi and Christians from the neighbouring Muslim-majority countries of Bangladesh, Pakistan, and also Afghanistan who entered India before December 2014.

Article 9 of the Indian Constitution states that if a person voluntarily acquires citizenship of any other country then he/she is no longer an Indian citizen.

The Indian nationality lawcurrently follows the jus sanguinis (citizenship by descent) as opposed to the jus soli (citizenship by right of birth within the territory).[3]

Granting Of Citizenship As Per The Citizenship Act of 1955:

Citizenship at the commencement of the Constitution of India:The people living in India as on 26 November 1949 became the citizens of India through the relevant provisions of the Indian Constitution, which came to force on 26 January 1950. The Constitution of India also made provision for migrants from the territories of Pakistan (which had been part of India before partition) regarding citizenship.

Citizenship by birth:Now coming to Citizenship by Birth, any person who is born in India on or after 26 January 1950 but prior to the commencement of the 1986 Act on 1 July 1987 is an Indian citizen by birth. Moreover, a person who is born in India on or after 1 July 1987 but before 3 December 2004 is a citizen of India if one of his/her parents were Indian citizens at the time of  birth. The people who are born in India on or after 3 December 2004 are considered citizens of India only if both of their parents are citizens of India or if one of the parents is an Indian citizenwhile the other parent is not an illegal migrant at the time of their birth.

Citizenship by Descent:The persons who are born outside India on or after 26 January 1950 but before 10 December 1992 are considered as citizens of India by descent if their father was an Indian citizen at the time of their birth.Again, the persons who are born outside India on or after 10 December 1992 are also considered citizens of India if either of their parents is an Indian citizen at the time of their birth.

From 3 December 2004 onwards, any person who is born outside of India shall not be considered as an Indian citizen unless his/her birth is registered at an Indian diplomatic mission within the completion of one year of the birth of the child. It is possible to register after one year with the permission of the Central Government only under certain circumstances. The application regarding the registration of the birth of a child must be made to an Indian diplomatic mission and it must be accompanied by an undertaking in writing from the parents of the child that he/she does not hold the passport of another country.

Citizenship by registration:Indian Citizenship can also be obtained through Registration.The Central Government mayregister people as the citizen of India under section 5 of the Citizenship Act 1955, on an application, if he/she belongs to any of the following categories:

1. A person who is of Indian origin and who is ordinarily a resident of India for seven years before making application under Section 5(1)(a).
2. A person who is of Indian origin and who is ordinarily resident in any country or place outside undivided India;
3. A person who is married to an Indian citizen and is ordinarily an Indian resident for seven years before making an application for registration;
4. Minor children of the persons who are themselves citizens of India;
5. A person who is of full age and capacity and whose parents are registered as Indian citizens.
6. A person who is of full age and capacity and whose either of the parents was earlier citizen of independent India, and has been residing in India for one year immediately before making an application for registration;
7. A person who is of full age and capacity, who has been registered as an overseas citizen of India for five years, and who has been residing in India for a minimum of one year before he/she makes an application for registration.

Citizenship by naturalization:As per the Citizenship Act of 1955, Indian citizenship can also be obtained through naturalization. Indian citizenship can be obtained by a foreigner  through naturalization by the condition that the person is ordinarily residing in India for 12 years (that is, he/she is residing in India throughout the period of 12 months which is preceding the date of application and for 11 years in the aggregate of 14 years preceding the 12 months) and other qualifications as is specified in Section 6 (1) of the Citizen Act,1955.

Renunciation & Termination Of Indian Citizenship:Renunciation is very well covered in the Section 8 of the Citizenship Act of 1955. This means that if an adult is making a declaration of renunciation of Indian citizenship, he/she loses the citizenship of India. Not only this but also any minor child of that person also loses the citizenship of India from the date of renunciation. However, when the child reaches the age of 18, he/she has the right to have his/her Indian citizenship restored. There are provisions in the law which must be followed for making a declaration of renunciation under Indian citizenship law require that the person making the declaration be “of full age and capacity”.

The termination is included in the Section 9 of the Citizenship Act, 1955. The provisions in the Act which must be followed for termination include separate and distinct from the provisions for making a declaration of renunciation.

Section 9(1) of the Citizenship Act, 1955 includes that any citizen of India, who by naturalisation or by registration acquires the citizenship of another country, shall cease to be a citizen of India. Notably, the provision of termination varies from the provision of renunciation because it applies to “any citizen of India” and is not restricted to only adults. Accordingly, the children of India also lose their claim to Indian citizenship if at any time after birth they acquire a citizenship of another country by, for example, by naturalisation or by registration — even though the acquisition of another citizenship was done as a result of actions by the child’s parents.

The acquisition of another country’s passport is includedto be voluntary acquisition of another country’s nationalityunder the Citizenship Rules, 1955. It is stated in the Rule 3 of Schedule III of the Citizenship Rules, 1955 that “the fact that a citizen of India has obtained on any date a passport from the Government of any other country in the world shall be conclusive proof of his/her having voluntarily acquired the citizenship of that country before that date”. Again, this rule comes into effect even if the foreign passport was obtained for the child by his/her parents, and moreover if possession of such a passport is necessary in accordance to the laws of a foreign country considering the child as one of its citizens (e.g., a US-born child of Indian parents who is automatically deemed to be a US citizen as per the US law, and at the same time who is required by the US law to have a US passport in order to enter and leave the US). Hus continuing to hold an Indian passport does not matter. The persons who acquire any other country’s citizenship lose Indian citizenship from the due date on which they acquire that citizenship or another country’s passport. For instance,the prevailing practice at a number of British diplomatic posts is to impound and return to the Indian authorities the Indian passports of those applicants who apply for and are granted British passports.

There are special rules for Indian citizens who have a connection to Goa, Daman and Diu. It is stated clearly in the Rule 3A of Schedule III of the Citizenship Rules, 1955 that “Ata place where a person, who has become a Citizen of India in accordance to the Goa, Daman and Diu (Citizenship) Order, 1962, or the Dadra and Nagar Haveli (Citizenship) Order 1962, which is issued under section 7 of the Citizenship Act, 1955 (57 of 1955) holds a passport which is issued by the Government of any other country in the world, the fact that he has not surrendered the said passport on or before the 19 January 1963 shall be considered as a conclusive proof of his/her having voluntarily acquired the citizenship of that country before that date.”

Amendment Of The Citizenship Act Of 1955: The Citizenship Act of 1955 is being amended several times, that is, in the Years 1986, 1992, 2003, 2005, 2015 and 2019. Several changes are being made in these amendments of the original Citizenship Act of 1955. Let us now discuss about amendments being done in details.

• Citizenship Amendment Act, 1986:The Citizenship Act of 1955 was amended for the first time in 1986. The Citizenship Amendment Act of 1986 was legislated after the Assam Agitation and Assam Accord. This amendment act restricted the citizenship of people by birth to children born of people who are citizens of India. This meant that a least one parent had to be a citizen of India in order for the child to qualify for the citizenship of India. This was a very serious restriction to the jus soli principle which was adopted in the Indian Constitution and the original Citizenship Act, that is, the Citizenship Act of 1955.
• Citizenship Amendment Act, 1992:The Citizenship Amendment Act of 1992 was a law that was enacted in order to eliminate the discrimination that is done against the women in the matter of citizenship and their children. The Citizenship Amendment Bill of 1992 received approval in the parliament on 20th November 1992. In accordance to the Law, a person who is born outside India would be deemed to be an Indian citizen under the condition that either of his/her parents were Indian. The provisions that were made in the Principal Bill of 1955 applied only to those children who were born to Indian males.
• Citizenship Amendment Act, 2003:The Citizenship act of 1955 was once again amended in the year 2003. This amendment of the Citizenship Act restricted the jus soli principle further by the requirement that no parent of the child can be an illegal immigrant if the child has to qualify for getting the citizenship of India. The Act even ruled that the illegal immigrants are not eligible for obtaining the Indian citizenship by naturalization or by registration.The Act amended The Citizenship Act, 1955 by:
• introducing and defining a notion of “illegal migrant”, who could be jailed or deported.
• making illegal immigrants ineligible for citizenship by registration or by naturalisation,
• disallowing citizenship by birth for children born in India if either parent is an illegal immigrant,
• introducing a notion of Overseas Citizen of India (OCI) for citizens of other countries who are of Indian origin.
• The Act also mandated the Government of India to construct and maintain a National Register of Citizens.

This was the Citizenship Amendment Act of 2003 in India.

• Citizenship Amendment Act, 2005: The Citizenship Act of 1955 was again amended in the Year 2005. This amendment was regarding the overseas citizens of India. This Act came into force from the date 28^th June, 2005. This Act was based on the recommendations Of the Standing Committee of Parliament on Home Affairs. This Act provides for Dual Citizenship to PIO of the 16 countries of the world.
• Citizenship Amendment Act, 2015: The Amendments under the Citizenship (Amendment) Act, 2015 are given below:

The Amendment Act (which amended the Act) was introduced in the LokSabha on 27 February 2015 and passed by the LokSabha on 2 March 2015. The bill was subsequently introduced in the RajyaSabha and was cleared on 4 March 2015. The bill was signed by  the President of India on 10 March 2015 and came into force on 6 January 2015. There was an introduction of the concept of an ‘Overseas Citizen of India Cardholder’ (an “OCC”) in The Citizenship Amendment Act of 2015 that essentially replaces and merges together OCIs and PIOs.

 Some transitional measures that were taken for current PIO Cardholders in the Amendment Act were:

• In light of the merger of the PIO and OCI status under the Amendment Act, the following transitional measures have been put in place:
• Current PIO cardholders are automatically considered OCI cardholders and are not required to obtain an OCI card unless they choose to do so;
• Applicants with approved PIO card applications, but whose cards have not yet been issued shall be issued with a PIO card and shall automatically be considered to have OCI status;
• Applicants who have pending but not yet approved PIO card applications will likely have their applications returned by the Indian authorities with the request to reapply through the OCI scheme.

 OCC Cardholder – Eligibility criteria                                 

Pursuant to section 7A of the Amendment Act, a person shall be eligible to register as an OCC if any of the following conditions are satisfied:

(i) they are citizens of another country;

1. A person of full age and capacity and who is a citizen of another country, but:
2. He/she was a citizen of India at the time of or any time after the commencement of the Constitution;
3. He/she was eligible of becoming an Indian citizen at the time of commencement of the Constitution;
4. He/she was a citizen of a territory that united with India after the 15th day of August, 1947.

(ii) Children

A child or a grand-child or a great grand-child of a citizen of another country, as mentioned in point (i) above or a minor child of such citizen;

A minor child whose both parents or one of the parents is a citizen of India.

(iii) Spouses

Spouse of a citizen of India or an OCC, the spouse being of foreign origin. In order to be eligible for the registration process, the marriage should have been registered and subsisted for a continuous period of not less than 2 (two) years immediately preceding the presentation of the application. Such spouse shall also be subjected to prior security clearance from a competent authority in India.

Citizens of Pakistan or Bangladesh (and other countries that may be notified by the Central Government) are not permitted to register as OCCs and the restrictions applying to those nationals have been extended to cover such person’s parents, grandparents or great grandparents under the Amendment Act.

The Citizenship Act after modification in 2015provided that:

1. Any person who is of full age and who has been registered as an OCI for 5 (five) years and has been ordinarily residing in India for twelve months before making the application can also apply for registration for Indian citizenship.
2. However, it should be noted such persons will have to renounce their foreign citizenship and dual nationality is still not recognized.
3. Under the Amendment Act, the condition of a continuous stay in India for twelve months for eligibility towards Indian citizenship has also been relaxed to permit foreign travel for up to 30 (thirty) days in aggregate. This relaxation is available only when the Central Government is satisfied that special circumstances exist and such circumstances shall be recorded in writing.
4. This essentially means that if a person has been residing in India but has travelled abroad intermittently, provided that the total number of days that person has stayed away from India does not exceed 30 (thirty) days, then that person shall be eligible to apply for Indian citizenship.
5. The Home Ministry has justified the period up to 30 (thirty) days in the twelve months period of stay in India on the ground that due to increased globalisation, there is often an imperative need for people to travel abroad due to economic, social and medical needs.
6. The Amendment Act has also introduced a new provision which allows the Central Government to register a person as an OCC even if that person does not satisfy any of the listed qualifications, if special circumstances exist and such circumstances have been recorded in writing.

Citizenship Amendment Act, 2019:The citizenship amendment act of 2019 is an amendment act that was passed by the Indian Parliament on 11^th December, 2019. It is an amendment of the Citizenship Act of 1955. It provides the illegal migrants of all religious minorities (except Muslims) who had fled from Pakistan, Bangladesh and Afghanistan before December 2014, a path to Indian citizenship.[4][5]This is the first time that religion has been used as a criterion for citizenship under the Indian Law. The Citizenship Amendment Bill came under citation Act NO. 47 of  2019. It was passed by LokSabha on 10^th December, 2019. It was passed by RajyaSabha on 11^th December, 2019. It was signed on 12^th December, 2019 by the President of India, Ram NathKovind, thus transforming the bill into a law.The Citizenship Amendment Act of 2019 had a severe impact in the Indian society. It had evoked extreme reactions from the people of the country. For more than a month, protests had broken out across India especially in the North-East. Many people even sacrificed their lives. Several days of curfew was witnessed in several parts of India. There was a huge loss of public property as people burnt down various vehicles and other public belongings out of anger. The people of North-East especially protested for several days as they felt that it would violate their fundamental rights.

 Even International observers expressed serious concerns about the measure. The U.N. High Commissioner for Human Rights said the law was “fundamentally discriminatory” and appears “to undermine the commitment to equality before the law enshrined in India’s constitution.”[6]

 Several petitions were being put up in the Supreme Court of India by various political and non-political parties of the country. However, the center said that the ACT does not violate Fundamental Rights.[7]

           Conclusion:Thus the Citizenship Act, which was enacted in the year 1955 to give people Indian citizenship, was later amended in the years 1986, 1992, 2003, 2005, 2015 and 2019.

Author: SNEHASISH GHOSH

The views expressed in the article is personal to the author. Monomousumi is not responsive for any factual errors.

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References:

[1]Source: https://en.m.wikipedia.org

[2]Source: https://en.m.wikipedia.org

[3]Source: https://en.m.wikipedia.org

[4] Citizenship Amendment Bill: India’s new ‘anti-Muslim’ law explained- https://www.bbc.co.uk/news/world-asia-india-50670393

[5]https://pib.gov.in/newsite/PrintRelease.aspx?relid=195783

[6]www.washingtonpost.com

[7]www.punemirror.indiatimes.com