The text below presents the case for Indian citizenship. If you are originating from South Asia and if you support the idea of open borders within South Asia, a common currency, a common Constitution of sovereign member States, a South Asia Supreme Juridiction, dual nationality within South Asian countries only for South Asians and for people of South Asian origin, please fill the form at the bottom of this page to promote this idea.

The accession of the princely Indian States to the territory of independent India, their fusion with the old British provinces, within the Union, implied at that time the nullity of the rules determining the condition of their subjects and their replacement by provisions taking account of these transformations. The massive migrations of population on both sides of the Indo-Pakistani border in the months which preceded and following the partition was to lead to a certain number of regulations likely to regulate the legal situation of millions who had chosen to come to reside in India or had broken their links in this country. These measures are only exceptionally applied today. The unicity of citizenship contributes to national unity. Further the membership of India in the Commonwealth is likely to make its citizens, amenable to the Member States, foreigners privileged on his territory.

MODES OF ACQUISITION AND LOSS OF THE INDIAN CITIZENSHIP

The general regulation first of all the object of a constitutional provision before it was adopted and promulgated by law of December 20,1965.

CONSTITUTIONAL PROVISIONS

Articles 5 and 8 of the Constitution define the conditions of recognition of the Indian citizenship and article 9 stipulates its incompatibility with that of a foreign State. Article 394 lays down the entry into force of these provisions on November 26, 1949, which is the date of its adoption by the constituent Assembly.

RECOGNITION OF THE INDIAN CITIZENSHIP

The conditions of recognition of the Indian citizenship vary according to whether the person considered resides or not in India.

1. Situation of the residents in India.
This is specified by article 5 of the Constitution. A citizen of India is any person having his/her residence on Indian territory by November 26, 1949 and moreover, fullfills one of the following conditions:
- to have been born on the territory of India
- to have a relative (father or mother) born on the territory of India
To have resided on the territory of India during the five years at least preceding this date. The concept of residence retained by law is that of residence chosen without intention to leave it at one unspecified time; the element of permanence, of continuity, at least psychological, is an important factor taken into consideration by the court. The minor has the residence of his father, the married woman that of her husband. The territory of India must be informed for the period preceding independence and the partition, by reference to the law of 1935.

2. Situation of the non-residents
In accordance with article 8 of the Constitution, any person not usually residing in India can have Indian citizenship on 2 condition:
- to have been born in India or to have a relative (direct ascension of the first degree) or a grandparent (ascending direct ascension of the second degree) born in India, reference being made to the law of 1935 abovementioned;
- to be registered as an Indian citizen, and with his request, on the registers of the diplomatic or consular representative of India in the country of its residence. No limiting date is fixed for this request and its inscription. It is simply expected that they must be done in accordance with official regulations.

INCOMPATIBILITY OF THE INDIAN CITIZENSHIP WITH THAT OF A FOREIGN STATE

The acquisition of the Indian citizenship and that of another foreign State is incompatible.(cf State of Madhya Pradesh V Peer Mohd 1963 A.S.C. 645) in the context of article 9 of the Constitution. Is the definition of a foreign State all other States that are not Indian States. The President can state by way of ordinance which State is considered a foreign State, subject to possible legislative provisions (article 67-3). The constitutional ordinance of January 23, 1950 states that member states of the Commonwealth should not be regarded as foreign State with regard to the Constitution. A person having the citizenship of the one of them before November 26, 1949, except for Pakistan, can become an Indian citizen if he in addition meets the conditions envisaged for this purpose by article 5.
Section II of the law of December 30, 1955 states in addition that any person having the citizenship of a Commonwealth Country will have the status of citizen of the Commonwealth in India. This provision does not however automatically bring an assimilation of this citizenship with that of India. A special decision from the central governement is necessary to this effect on the basis of the reciprocity (Laws of the 30-12-95 - section 12); this decision is viable notwithstanding any contrary legislative provision.

THE LAW OF DECEMBER 30, 1955

The Constitution provides that nothing could restrict the power of the Parliament to take any measure relating to the acquisition and the loss of Indian citizenship as well as to other question pertaining to it (article II), by reference to the law of December 30, 1955 which determines the conditions of what one can call a true statute of the Indian citizenship. Most of its provisions are retrospective as of January 26, 1950.

THE ACQUISITION OF THE INDIAN CITIZENSHIP

The Indian citizenship can be acquired in five different ways: by birth, the descent, registration, naturalization and by the incorporation of a territory.

1. The acquisition of Indian citizenship by birth.
The Indian citizenship is recognized for any person born in India as from January 26, 1950 except for the children of the foreign and assimilated diplomats duly accredited, and of the children born on a portion of the territory occupied by an enemy nation to which the father is amenable.

2. Acquisition of the Indian citizenship by descent.
The Indian citizenship is recognized for any person born out of India, as from January 26, 1950, of a father of Indian citizen at the time of his birth. If this father is himself citizen by descent, one of the two following conditions must be filled:
- That the birth of this person is recorded by the Indian Consulate in the same year or the year following the promulgation of the law or later on, with the authorization of the central government
- That at the time of his birth, the father is with the service of the government of India.

3. Acquisition of the Indian citizenship by registration.
Any person belonging to one of the five following categories can acquire the Indian citizenship by registration, if he has not already acquired itdifferently:
18 The people of Indian origin residing in India, having resides at least for 6 months before demanding for citizenship;
28 A person of Indian origin, having his residence out of India but at its borders before the partition;
38 Women married to Indian citizens or who were once married to them;
48 Children of Indian citizens on the request of their parents;
58 Adults and enjoying their full capacities, having the citizenship of the one of the countries mentioned in appendix I of the law: The United Kingdom, Canada, the Commonwealth of Australia, New Zealand, South-African Union, Pakistan, Sri Lanka, Federation of Rhodesia and Nysaland, Ghana, Federation of Malaysia, Singapore and the Irish Republic. These provisions and their application remain subjected to the possible regulation of the government, without the possibility of a recourse in the courts.
The people of Indian origin to which refers the law of 1955 include all those born in India before the partition or those who are first or second generation descendants. No person can be registered as a citizen without to have lent his oath of fidelity to the Constitution. No person having given up the Indian citizenship or having lost it will be able to recover it by way of registration without formal authorisation of the central government. This government can decide registration of any minor if it is justified by exceptional circumstances. The date of the registration is that of the acquisition of the Indian citizenship.

4. Acquisition of the Indian citizenship by naturalisation
Any person in full possession of her mental faculties, being 18 years of age and not coming from the one of the countries enumerated within Appendix I of the law of 1955, can request for Indian citizenship by way of naturalisation and the central government can grant it in the shape of a certificate, if it meets the following cumulative conditions:
18 not being citizen of a country prohibiting Indians the accession of its own citizenship by way of naturalisation;
28 to have given up its preceding citizenship and to have informed the central government of India of this renunciation;
38 to have resided in India or to have been with the service of a government in India or one and the other, during the twelve months immediately preceding the request by naturalisation;
48 to have resided in India or to have been with the service of a government in India, or one and the other, during the seven years preceding the twelve months above-mentioned for a total period, which is not lower than four years;
58 to be of good reputation;
68 to have a suitable knowledge of the one of the official languages recognized by the Indian Constitution in appendix VIII;
78 to commit humself in the event of the delivery of the certificate of naturalisation to reside in India or to continue to serve a government in India, an international organization with whom India is a member, a firm or a company registered in India.
These conditions can be partially or be completely set aside by the central government if the applicant has rendered services in cause of science, philosophy, art, literature, world peace or human progress in general.
The delivery of the certificate of naturalisation is subordinated to an oath of fidelity and allegiance which is the same one as that which is requested from the adults before their registration. The date of this delivery is that of naturalisation.

5. Acquisition of the citizenship by the effect of incorporation of territory.
The central government can decide by ordinance to confer the Indian citizenship to any person having particular links with such territory incorporated in India.

LOSS OF THE INDIAN CITIZENSHIP

The loss of the Indian citizenship can, in certain cases, result from a voluntary renunciation and the central government can in certain circumstances decide the withdrawal of it. It is also incompatible with the citizenship of a another State.

1. Renunciation of the Indian citizenship.
2. Any person of the age of majority or a citizen or " a national " of another State, can give up the Indian citizenship. Married women or having been married are regarded as having the capacity of a major. The renunciation must take the form prescribed by the law and be recorded by the proper authority. In this case, the loss of the Indian citizenship takes date the day of the recording of the renunciation. In the event of war, this recording can be suspended by the central government for a newer date. The renunciation of the father automatically revokes that of the minors; but the citizenship can be recovered in the year following their majority.

2. Withdrawal of the Indian citizenship.
The withdrawal of the Indian citizenship can be decided by the central government only for certain categories of citizens and in a certain number of given cases. Only persons who have either by naturalisation, either under the terms of the clause c) of article 5 of Constitution, either by registration except that envisaged under clause B (ii) article 6 of Constitution concerning persons who have emigrated from Pakistan after the 19 July 1948 and with clause a) of sub-section 1 of section 5 of law of 1955 relative with registration of person of origin Indian residing usually in India and who have resided in the six months preceding. The Parliament thus wanted to limit the possibilities of withdrawal of the citizenship to the people appearing the least integrated in the Indian society. The enumeration of the cases of withdrawal is restrictive. To proceed to it, the central government must declare convinced (" satisfied ") of the one of the facts or the one of the sets of following facts:
18 the registration or the certificate of naturalisation was obtained fraudulently;
28 the citizen appeared by his acts or his words fraudulent, or has simply to shown his disaffection (" disaffected ") with regard to the Indian Constitution;
38 India being in war, the citizen traded or communicated illegally with the enemy, or was implied or associated in a any manner, and to his carried out any such act help the enemy;
48 the citizen was condemned to an of imprisonment of two years or more, in the five years following his/her naturalisation or registration;
58 the citizen had lived out of India for a period of seven years continuously and had not during this period neither studied in a foreign institution or worked in the service of the government of India or the service of an international organisation with whom India is a member, nor expressed his/her intention to preserve the Indian citizenship while fulfilling his/her inscription annually at the Indian consulate the conditions envisaged.
The central government must also declare convinced, that the withdrawal of the citizenship is in conformity with the common good. These provisions permits nevertheless the trangression of basic civil rights of Indian citizens to preserve their citizenship. Parliament has taken sufficient precautions, in terms of brakes, in this regard to counter the arbitrary withdrawal of citizenship. Generally, the central government must inform any person of the reasons for which it intends to withdraw the citizenship and the person has a right to appeal to a board of inquiry envisaged by the law; this right of withdrawal however cannot be exerted if the withdrawal is based on the permanent residence out of India under the conditions indicated above. The Board of Inquiry, to which the file must be sent, is made up of a president and two members named by the central government. The president must have fullfilled at least ten years in legal service. The government has the right accordingly to submit to the Board of Inquiry if the submission is not within the law.
The law lays out simply that the central government " will be normally guided " by the Commission's Report in its final decision. This mechanism provides only a limited protection to the citizens: nothing prevents the government from ignoring the commissionís report which is doubtful, a priori, if the decision is unfavourable to him due to the nomination of the members of the board; the same law also prevents the citizen of other recourses, and particularly of a legal recourse. The exercise of basic rights is placed under the protection of the courts, but this exercise is reserved in many cases to citizens only; however withdrawal of the citizenship, when it is possible, can be decided by the government with great facility, not to mention its discretion powers. The reasons generally to justify such a measure, like the disregard with regard to the Constitution, can only add to the permanent danger which threatens those whose citizenship is under threat and who enjoy it but under condition, one of them being the simple fidelity with thepolitical power.

3. Incompatibility of the Indian citizenship with that of another State.
Any person having Indian citizenship will not be able to be to act as one, from the day he acquires voluntarily the citizenship of a another State, including that of Member States of the Commonwealth. The law is retropective as of January 26, 1950. Voluntary acquisition excludes that which results from the birth, the descent, the effect of incorporation of territory on governmentís decision, or from the law, in the event of marriage for example, except with the option of the married woman, it includes on the other hand the acquisition of the citizenship by naturalisation or registration. These provisions do not apply to the case of Indian citizens who voluntarily acquire the citizenship of another State, in times of war, except with the central government deciding differently. In case of doubt, the case returns to the proper administrative authority to come to a conclusion about the acquisition of a foreign citizenship and its voluntary nature, taking into account evidence of rules and regulations in force. A case law is regarded as ultra vires if it states that an Indian citizen having obtained at a given a passport of a foreign country is conclusive proof of his voluntary acquisition of the citizenship of that country, the simple detention of this passport does not reflect necessarily the will of this acquisition (Syed Mohammed Khan V Gouvernment of Andra Pradesh, 1957 - A.A.P. 1047); this case law, approved by the its reasoning in totality is however not constant (Ghaural Hassan V State of the Rajasthan, 1958 - 8. Raj 928 - State V Sharibhai Jamalbhai, 1958, Bombay 1422).

THE SITUATION OF THE EMIGRANTS BETWEEN PAKISTAN AND INDIA

This situation must be considered from a double point of view: that of emigrants from Pakistan to India and that of emigrants from India to Pakistan. Like articles 5, 8 and 9, articles 6 and 7 of the Constitution which it determine came into effect on November 26, 1949.

1. The situation of emigrants from Pakistan to India (Constitution -article 6). All persons having emigrated from the territory of Pakistan to that of India before November 26, 1949 will be regarded as a citizen of India if 2 conditions are satisfied:
- That himself, or one of his direct ascendants of the first or second generation was born in a province from English India, a princely State or a zone tribale included in the territory of India, defined by the lawof 1935;
- In the case of persons who have emigrated:
Before July 19, 1948, he had resided on the territory of India since the date of his migration;
After July 19, 1948, he had been registered on his request as an Indian citizen by a civil servant entitled for this purpose and under the conditions provided for by the law and the regulations before November 26, 1949. No person can be registered if he has not resided at least six months in India immediately before the date of his request for this purpose. The concept of emigration must include his intention to establish his permanent residence on the territory of acceptance. The date of July 19, 1948 corresponds to that of the entry into force of the permission of immigration envisaged by the Ordinance on the control of the inflow of the people coming from Pakistan.

2. The situation of the emigrants of India in Pakistan (Constitution - article 7).
Any person having emigrated from the territory of India to that of Pakistan, between March 1, 1947 and on November 26, 1949, will not be regarded as Indian citizen. As in the preceding case, the concept of emigration includes the intention to establish ones new residence in a permanent way in Pakistan; case law is abundant and constant (Abdul Sattar V State of Gujarat 1965, ASC 810, 813; State of Andhra Pradesh V Abdul Khader 1962 1. SCR 737, 743).
It is advisable nevertheless to consider the case of people who, after having emigrated to Pakistan, returned to India equiped with a licence of reinstalment or permanent return. Their situation is comparable with that of people who emigrated from Pakistan to India between July 19, 1948 and November 26, 1949 (article 7 - subparagraph 2). The Supreme Court decided, in the case State of Bihar V KUMAR Amar Singh (1955 I SCR 1259) that these provisions do not support any exemptions and that particularly a person cannot be called upon in their opposition against those of article 5. The married woman normally follows the residence of her husband, and the minor that of his father.

The Indian citizenship is single; there is no citizenship on a State level and case law had occasions to confirm it: Hem Chandra V Speaker, Legislative Assembly (1956 AD INTERIM Calcutta 378, 381-2). It is however considered that the laws of domicile of the various States could impinge the effects of this unicity, in article 16, subparagraph 3, but Parliament has entrusted itself to the the responsibility to legislate as regards matters of domicile concerning the access to public employment. Parliament has provided the law of 1957 and unified the mode and made it applicable to the whole of India.
The courts have however considered that one must not confuse the public rights attached to citizenship, and the civil laws whose determination belongs to the Member States: for example, marriage, divorce, succession, testamentary right,. In this respect and from the point of view of federalism, the State laws were generally confirmed by the judges (cf. Radhabai V State of Bombay 1955, Bombay 1039 or D.P. Joshi V State of M.B. 1955 1. SCR 1215).

Indian Citizenship

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