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March 02, 2020

Citizenship and India

Neither does the Constitution of India nor the Citizenship Act, 1955 allows for dual citizenship. Under the Constitution, the topic of citizenship is discussed in Articles 5 to 10 which lay forth criteria to establish Indian citizenship.  Article 11 empowers the Parliament to enact provisions regarding the acquisition and termination of citizenship and all incidental matters.

On December 12, 2019, an amendment was made to the Citizenship Act, 1955. The Citizenship (Amendment) Act, 2019 amends the definition of ‘illegal immigrant’ for Hindu, Sikh, Parsi, Buddhist and Christian immigrants from Pakistan, Afghanistan and Bangladesh facing religious persecution. This article aims to analyze some key controversial provisions introduced by the amendment.

Citizenship in General

The modern sense of citizenship is usually based on one or more of these factors:  

• Parents are citizens: If a person has one or both parents who are citizens of a given nation, then the person is generally presumed to be a citizen as well. This is referred to by the Latin legal term jus sanguinis meaning “right of blood”. A person could be born outside of the physical territory of a nation, but if his or her parents are citizens, then the child is presumed to be a citizen as well.  

• Born within the nation: If a person is born within the geographical territory of a nation, then they are presumed to be citizens of the said nation. The Latin term for this is jus soli meaning “right of soil.” Many countries have a hybrid birth right requirement of local nativity and citizenship of at least one parent. These first two factors are usually clubbed together under the term birth right citizenship.  The applicable options under this category are provided below.

• Marriage to a citizen: Citizenship in some countries can also be obtained by marrying a citizen, which is termed jure matrimonii.  However, India does not automatically grant citizenship but allows a spouse of an Indian national to live in India on a long-term dependent visa. The spouse will also be eligible to make an application for an Overseas Citizen of India (OCI) card after a period of two years since the marriage has been registered. The spouse could subsequently qualify for citizenship. 

• Naturalization: Citizenship can be obtained by immigrating to a nation, and fulfilling its requirements for citizenship, such as passing a test, establishing long term residence or domicile status. This form of citizenship is termed as “naturalization.” 

Indian Citizenship

The Citizenship Act governs the acquisition and determination of citizenship in India.  

Indian citizenship can be acquired through birth, descent, registration and naturalization. The provisions are listed under sections 3,4,5(1),5(4) and 6 of The Citizenship Act, 1955.  Marriage to an Indian national does not grant automatic citizenship or permanent residence rights. 

• Citizenship by Birth  

As per the Citizenship Act, since the year 2003, a child acquires citizenship by birth if he or she has been born in India and provided at least one parent is an Indian national with none of the parents enjoying or having enjoyed any diplomatic privileges at the time of birth.  Children born prior to 2003 qualify for citizenship based on specific criteria applicable at the time of birth. For instance, almost all children born in India irrespective of the nationality of parents, between July 1987 and commencement of the Citizenship (Amendment) Act, 2003, are entitled to Indian citizenship provided none of the child’s parents enjoyed diplomatic privileges at the time of the child’s birth.  It is important to note that a child born in India to a surrogate mother who is an Indian national and to a biological father who is a foreign national is entitled to citizenship by birth in India. 

• Citizenship by Descent  

Certain children born outside India to a qualifying parent may be eligible for Indian citizenship provided the birth of the child is registered with an Indian consulate within one year of the birth. At the time of registering the birth, the parents have to categorically affirm that the child didnot acquire any other nationality. This is impossible in countries like the U.S. where nationality automatically attaches at the time of birth.

• Citizenship by Registration  

The following foreign nationals may be eligible to register as a citizen of India, generally after having continuously resided in India for 12 months (in legal status) immediately preceding the date on which the application is filed (the 12-month continuous stay requirement):

• A person of Indian origin and who has resided in India for at least six years of the eight years preceding the 12-month continuous stay requirement;
• A foreign national who is married to a citizen of India and is ordinarily resident in India for seven years before making an application for registration;
• A minor child of persons who are citizens of India;  
• a person of full age and capacity who, or either of his parents, was earlier a citizen of independent India;
• a person of full age and capacity whose parents are registered as citizens of India;  
• a person of full age and capacity who has been registered as an OCI (Overseas Citizen of India) for five years;

• Citizenship by Naturalization  

Eligible foreign nationals who have no other links or ties to India may apply for citizenship by naturalization after having continuously lived for 11 years in a period of 14 years subject to the 12-month continuous stay requirement described above.  This means that the foreign national must have resided in India for total of 12 years before he or she qualifies for Indian citizenship.  In addition, the government has the discretionary power to waive other, applicable legal stipulations and grant citizenship to foreign nationals who have rendered distinguished service to the cause of science, philosophy, art, literature, world peace or human progress generally.

Section 2(b) of the Citizenship Act, 1955 defines an illegal immigrant as “a foreigner who has entered into India-

• without a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that behalf; or
• with a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that behalf but remains therein beyond the permitted period of time.”

Illegal immigrants may be imprisoned or deported under the Foreigners Act, 1946 and the Passport (Entry into India) Act, 1920. These Acts empower the central government to regulate the entry, exit and residence of foreigners within India.

The Citizenship (Amendment) Bill

In the years 2015 and 2016, the central government issued two notifications exempting Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan who arrived  to India on or before December 31, 2014 from the provisions of the Foreigners Act, 1946 and the Passport (Entry into India) Act, 1920[1].

The Citizenship (Amendment) Bill, 2016 bill was referred to a Joint Parliamentary Committee which submitted its report on January 07, 2019[2]. The Bill was passed by the Lok Sabha on January 08, 2019. However, it lapsed with the dissolution of the 16^th Lok Sabha. Subsequently, the Citizenship (Amendment) Bill, 2019 was introduced in the Lok Sabha on December 09, 2019.

Citizenship (Amendment) Act, 2019

The Citizenship (Amendment) Act, 2019 (CAA) was enacted on December 12, 2019. According to the CAA, members of the Hindu, Christian, Sikh, Buddhist and Parsi faith who entered India on or before December 31, 2014 from Pakistan, Afghanistan or Bangladesh and faced religious persecution in those countries will no longer be treated as an “illegal immigrant.” Section 3 of the CAA grants Indian citizenship to such individuals. It empowers the Central government to grant a certificate of registration or naturalization in accordance with certain conditions. A person who receives such a certificate of Naturalization or Registration must further prove that he has fulfilled the conditions as provided in the Citizenship Act, 1955.

The CAA is not applicable to the tribal areas of Assam, Meghalaya, Mizoram or Tripura as included in the Sixth Schedule to the Constitution. It also does not apply to the areas under the “Inner Line” under the Bengal Eastern Frontier Regulation, 1873[3].

The CAA further states that attainment of Indian citizenship will abate any proceedings that exist in the individual’s name regarding illegal immigration. A pending case in this respect shall not act as a bar to attaining citizenship under the provisions of the CAA.

The CAA also reduces the pre-requisite of aggregate residence in India from 11 years to 5 years for the above-mentioned group of persons.

The CAA has garnered widespread protests and faced major backlash across India. Those opposing the Act believe that granting citizenship solely on the basis of religion is discriminatory and violates rights granted under the Constitution. Article 14 of the Constitution guarantees equality to all, including Indian citizens and foreign nationals. Distinction is permitted between groups of people if the rationale for doing so serves a reasonable purpose.

Any legislation that classifies or differentiates people based on religion, faith, etc. has a duty to prove that such distinction was supported by a reasonable rationale. The CAA classified certain groups of people based on:

• Religion;
• Country of Origin;
• Date of Entry into India; and
• Place of residence in India

The CAA has been widely criticized for selectively choosing only the above mentioned six communities from the three countries for the purpose of receiving immigration benefits. Migrants from other neighboring countries such as Sri Lanka and Myanmar have been excluded. The Tamil Eelams in Sri Lanka have a history of persecution in Sri Lanka similar to the Rohingya Muslims from Myanmar. It has also been argued that other religious minorities from Pakistan, Bangladesh and Afghanistan facing religious persecution have been excluded from the purview of the act such as the Ahmadiyya Muslims in Pakistan (who are not considered as Muslims in Pakistan) for example.

With regard to OCI registration, the CAA adds a ground for revocation of OCI.  If an individual violates any of the laws notified by the central government, his or her OCI registration may be revoked under the CAA after giving the OCI cardholder an opportunity to be heard; however, the CAA does not provide any guidance on the nature of laws notified or to be notified by the central government may notify[4] under which an individual may lose his OCI status.

In this context, the Supreme Court has held that while delegating powers to an executive authority, the legislature must prescribe a policy, standard, or rule for their guidance, which will set limits on the authority’s powers and not give them arbitrary discretion to decide how to frame the rules[5].

Since India is a democratic republic, the government has an innate responsibility to protect the rights of its citizens and others within its territory. The provisions of the CAA affect the lives of millions of people living in the country should be implemented with utmost caution.

– Ashwina Pinto

[1]G.S.R. 685 (E) and G.S.R. 686 (E), Gazette of India, September 7, 2015; G.S.R. 702(E) and G.S.R. 703(E), Gazette of India, July 18, 2016.

[2]https://www.prsindia.org/sites/default/files/bill_files/Joint%20committee%20report%20on%20citizenship%20%28A%29%20bill.pdf(accessed on February 19, 2020)

[3] The “Inner Line” Permit regulates the visit of Indian nationals to Arunachal Pradesh, Mizoram and Nagaland.

[4]https://prsindia.org/billtrack/citizenship-amendment-bill-2019 (accessed on February 19, 2020)

[5]Hamdard Dawakhana and Anr., v. The Union of India (UOI) and Ors., AIR1960SC554; Confederation of Indian Alcoholic Beverage Companies and Ors. vs. The State of Bihar and Ors., 2016(4) PLJR369