Indian nationality law


Indian nationality law
The Citizenship Act, 1955
Emblem of India.svg
An Act to provide for acquisition and determination of Indian citizenship.
Citation Act No. 57 of 1955
Enacted by Parliament of India
Date assented to 30 December 1955
Amendments
The Citizenship (Amendment) Act, 1986, the Citizenship (Amendment) Act, 1992, the Citizenship (Amendment) Act, 2003, and the Citizenship (Amendment) Act, 2005
Summary
Along with the Constitution of India, the Citizenship Act, 1955 is the exhaustive law relating to citizenship in India.

The Indian citizenship and nationality law and the Constitution of India provides single citizenship for the entire country. The provisions relating to citizenship at the commencement of the Constitution are contained in Articles 5 to 11 in Part II of the Constitution of India. Relevant Indian legislation is the Citizenship Act 1955, which has been amended by the Citizenship (Amendment) Act 1986, the Citizenship (Amendment) Act 1992, the Citizenship (Amendment) Act 2003, and the Citizenship (Amendment) Act, 2005. The Citizenship (Amendment) Act 2003 received the assent of the President of India on 7 January 2004 and came into force on 3 December 2004. The Citizenship (Amendment) Ordinance 2005 was promulgated by the President of India and came into force on 28 June 2005.

Following these reforms, Indian nationality law largely follows the jus sanguinis (citizenship by right of blood) as opposed to the jus soli (citizenship by right of birth within the territory).

Contents

The law

Citizenship by birth

Any person born in India, on or after 26 January 1950 but prior to the commencement of the 1986 Act on 1 July 1987 is a citizen of India by birth. A person born in India on or after 1 July 1987 is a citizen of India if either parent was a citizen of India at the time of the birth. Those 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 parent is a citizen of India and the other is not an illegal migrant at the time of their birth the citizen can be an Indian or a foreigner

Citizenship by descent

Persons born outside India on or after 26 January 1950 but before 10 December 1992 are citizens of India by descent if their father was a citizen of India at the time of their birth.

Person born outside India on or after 10 December 1992 are considered as citizens of India if either of their parents is a citizen of India at the time of their birth.

From 3 December 2004 onwards, persons born outside of India shall not be considered citizens of India unless their birth is registered at an Indian consulate within one year of the date of birth. In certain circumstances it is possible to register after 1 year with the permission of the Central Government. The application for registration of the birth of a minor child must be made to an Indian consulate and must be accompanied by an undertaking in writing from the parents of such minor child that he or she does not hold the passport of another country.

Citizenship by registration

The Central Government may, on an application, register as a citizen of India under section 5 of the Citizenship Act 1955 any person (not being an illegal migrant) if he belongs to any of the following categories:

  • a person of Indian origin who is ordinarily resident in India for seven years before making application under section 5(1)(a) (throughout the period of twelve months immediately before making application and for six years in the aggregate in the eight years preceding the twelve months).
  • a person of Indian origin who is ordinarily resident in any country or place outside undivided India;
  • a person who is married to a citizen of India and is ordinarily resident in India for seven years before making an application for registration;
  • minor children of persons who are citizens of India;
  • a person of full age and capacity whose parents are registered as citizens of India.
  • a person of full age and capacity who, or either of his parents, was earlier citizen of independent India, and has been residing in India for one year immediately before making an application for registration;
  • a person 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 one year before making an application for registration.

Citizenship by naturalization

Citizenship of India by naturalization can be acquired by a foreigner who has resided in India for twelve years. The applicant must have lived a total of 12 years in India in a period of 14 years, and must have lived in India for 12 months uninterrupted prior to applying for citizenship.

Citizenship at the commencement of the constitution of India

Persons domiciled in the territory of India as on 26 November 1949 automatically became Indian citizens by virtue of operation of the relevant provisions of the Indian Constitution coming into force (the majority of the constitutional provisions came into force on 26 January 1950). The Constitution of India also made provisions regarding citizenship for migrants from territories of Pakistan, which were earlier parts of India before the partition.

Renunciation of Indian citizenship

Renunciation is covered in Section 8 of the Citizenship Act 1955. If an adult makes a declaration of renunciation of Indian citizenship, he loses Indian citizenship. In addition any minor child of that person also loses Indian citizenship from the date of renunciation. When the child reaches the age of eighteen, he has the right to resume Indian citizenship. The provisions for making a declaration of renunciation under Indian citizenship law require that the person making the declaration be "of full age and capacity."

Automatic termination of Indian citizenship

Warning stamped onto Indian Passports Issued by the High Commission of India, Ottawa, Canada

Termination is covered in Section 9 of the Citizenship Act, 1955. The provisions for termination are separate and distinct from the provisions for making a declaration of renunciation.

Section 9(1) of the act provides that any citizen of India who by naturalisation or registration acquires the citizenship of another country shall cease to be a citizen of India. Notably, the termination provision differs from the renunciation provision because it applies to "any citizen of India" and is not restricted to adults. Indian children therefore also automatically lose their claim to Indian citizenship if at any time after birth they acquire a citizenship of another country by, for example, naturalisation or registration — even if 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 also deemed under the Citizenship Rules, 1956 to be voluntary acquisition of another country’s nationality. Rule 3 of Schedule III of the Citizenship Rules, 1956 states that "the fact that a citizen of India has obtained on any date a passport from the Government of any other country shall be conclusive proof of his having voluntarily acquired the citizenship of that country before that date". Again, this rule applies even if the foreign passport was obtained for the child by his or her parents, and even if possession of such a passport is required by the laws of a foreign country which considers the child to be one of its citizens (e.g., a U.S.-born child of Indian parents who is automatically deemed to be a U.S. citizen according to U.S. law, and who is therefore required by U.S. law to have a U.S. passport in order to travel abroad). It does not matter that a person continues to hold an Indian passport. Persons who acquire another citizenship lose Indian citizenship from the date on which they acquire that citizenship or another country's passport. The prevailing practice at a number of British diplomatic posts, for example, is to impound and return to the Indian authorities the Indian passports of those applicants who apply for and are granted British passports.

Special rules exist for Indian citizens with a connection to Goa, Daman and Diu. Rule 3A of Schedule III of the Citizenship Rules, 1956 states that "Where a person, who has become an Indian Citizen by virtue of the Goa, Daman and Diu (Citizenship) Order, 1962, or the Dadra and Nagar Haveli (Citizenship) Order 1962, issued under section 7 of the Citizenship Act, 1955 (57 of 1955) holds a passport issued by the Government of any other country, the fact that he has not surrendered the said passport on or before the 19 January 1963 shall be conclusive proof of his having voluntarily acquired the citizenship of that country before that date.

On 16 February 1962, a Constitution Bench of the Supreme Court of India held in the case of Izhar Ahmad Khan Vs. Union of India that "If it is shown that the person has acquired foreign citizenship either by naturalisation or registration, there can be no doubt that he ceases to be a citizen of India in consequence of such naturalisation or registration."

Overseas citizenship of India

Front Cover of an OCI Registration Certificate. Note: It may look like but it is not a passport nor does it confer actual Dual citizenship.

There is a form of Indian nationality, the holders of which are known as Overseas Citizens of India.[1] The Constitution of India forbids dual citizenship or dual nationality, except for minors where the second nationality was involuntarily acquired. Indian authorities have interpreted the law to mean a person cannot have a second country's passport simultaneously with an Indian one — even in the case of a child who is claimed by another country as a citizen of that country, and who may be required by the laws of the other country to use one of its passports for foreign travel (e.g., a child born in the United States to Indian parents) — and the Indian courts have given the executive branch wide discretion over this matter. Therefore, Overseas Citizenship of India is not a full citizenship of India and thus, does not amount to dual citizenship or dual nationality. Moreover, the OCI card is not a substitute for an Indian visa and therefore, the passport which displays the lifetime visa must be carried by OCI holders while traveling to India.[2] There is no plan to issue Indian passports to Overseas Citizens of India, although the registration certificate will be in the form of a passport-like booklet (similar to the Person of Indian Origin Card mentioned below). The Cabinet has also directed the Ministry of Overseas Indian Affairs to work on a proposal to give biometric smart cards to registered Overseas Citizens of India.

The Central Indian Government, on application, may register any person as an Overseas Citizen of India if that Person is of Indian Origin and is from a country which allows dual citizenship in some form or the other. Broadly speaking, a "Person of Indian Origin" is a citizen of another country who:

  • was a citizen of India on 26 January 1950 or at any time thereafter; or
  • belonged to a territory that became part of India after the 15 August 1947; or
  • is the child or grandchild of a person described above; and
  • has never been a citizen of Pakistan or Bangladesh.

Note that children of Indian parents do not automatically fulfil these requirements, and are therefore not automatically eligible for OCI.

The introduction of Overseas Indian Citizenship does not entitle people who have acquired, or are planning to acquire, foreign nationality or to retain their Indian passports. The law continues to require that Indian citizens who take foreign nationality must immediately surrender their Indian passports. Those who are only eligible can then apply for registration as Overseas Indian Citizens.

Indian Missions are authorized to grant applications for Overseas citizenship of India within to cases where there is no involvement in serious offences like drug trafficking, moral turpitude, terrorist activities or anything leading to imprisonment of more than a year.

Acquiring Overseas citizenship of India prevents British nationals from registering as full British citizens under Section 4B of the British Nationality Act of 1981 (which requires that nationals have no other citizenship in order to register.) It does not prevent them from acquiring full British citizenship by a different method and it does not revoke their British citizenship if they have already registered under Section 4B.[2][3]

An Overseas Citizen of India will enjoy all rights and privileges available to Non-Resident Indians on a parity basis excluding the right to invest in agriculture and plantation properties or hold public office.[3] The person has to carry his existing foreign passport which should include the new visa called ‘U’ visa which is a multi-purpose, multiple-entry, life-long visa. It will entitle the Overseas Citizen of India to visit the country at any time for any length of time and for any purpose.

An Overseas Citizen of India will not enjoy the following rights even if resident in India: (i) the right to vote, (ii) the right to hold the offices of President, Vice-President, Judge of Supreme Court and High Court, Member of Lok sabha, Rajya Sabha, Legislative Assembly or Council, (iii) appointment to Public Services (Government Service). Also Overseas Citizens of India are not eligible for an inner line permit, they have to apply for a Protected area permit if they want to visit certain areas in India.

An interesting problem is that whether a person registered as an Overseas Citizen of India will lose the right of diplomatic protection by their home country while in India. Article 4 of the Hague Convention on Certain Questions relating to the Conflict of Nationality Laws of 1930 provides that "a State may not afford diplomatic protection to one of its nationals against a state whose nationality such person also possesses". The case depends on two things: first, does the Indian government itself recognize Overseas Citizenship of India as a true citizenship and on that basis refuse the right of diplomatic protection by the other country; and second, does the person's home country recognize it and accept India's refusal. Both points are doubtful. India does not give Overseas Citizens an independent travel document but instead puts a visa in the other country's passport. If a person is eligible to have only another country's passport but not any form of Indian travel document, it is hard to avoid the conclusion that the person is a sole citizen of the other country for the purposes of diplomatic protection.

Though not a full fledged a Dual citizenship,[4] the privileges afforded by acquiring an OCI card is that now Multinational companies are finding it simpler to hire the OCI cardholders, who enjoy a multiple entry, multipurpose lifelong visa to visit India. The card provides a lifelong visa to the holder, sparing them the need to obtain separate work permits. OCI holders are treated on par with NRIs for economic, financial and educational matters and only don’t have political rights and rights to buy agricultural and plantation properties or hold public office.[5] They are also exempt from registration with the Foreigners Regional Registration Officer (FRRO) on their arrival in the country and can stay or live for as long as they wish. OCI cardholders can travel at very short notice and take up assignments in India, while others could get caught up in bureaucratic delays over their employment visa. Many companies are following an active policy of moving PIOs to India for business expansion. Indian missions overseas are witnessing a deluge in OCI applications, the number of OCI cards issued by consulates around the world have been steadily rising with several Indian consulates grappling with a huge backlog of applications.[6]

Persons of Indian origin (PIO) card

Front Cover of a PIO Card

Any person currently holding a non-Indian passport, who can prove their Indian origin up to three generations before. The same holds for spouses of Indian citizen or persons of Indian origin. Citizens of Pakistan, Bangladesh, and other countries as may be specified by the central government are not eligible for grant of Persons of Indian Origin Card.[7]

A PIO Card is generally valid for a period of fifteen years from the date of issue. It gives the holder the following benefits:

  • exemption from registration at a Foreigners' Regional Registration Office (FRRO) for periods of stay less than 180 days,
  • enjoy parity with non-resident Indians in economic, financial and educational fields,
  • acquire, hold, transfer, or dispose of immovable properties in India, except for agricultural properties,
  • open rupee bank accounts, lend in rupees to Indian residents, and make investments in India etc.,
  • being eligible for various housing schemes under the Life Insurance Corporation of India (LIC) or the central or state governments,
  • their children can obtain admission in educational institutions in India in the general category quota for non-resident Indians.

Possession of a PIO card will not entitle the holder to:

  • being eligible for the exercise of any political rights
  • visit restricted or protected areas without permission
  • undertake mountaineering, research, and missionary work without permission.

Overseas Indian Card

In early 2011, the Prime Minister of India, Manmohan Singh, announced that the Person of Indian Origin card will be merged with the Overseas Citizen of India card. [8] This new card is proposed to be called the Overseas Indian Card. [9]

British nationality and India

Prior to 1 January 1949, Indians were British subjects under United Kingdom law. See British nationality law. Between 1 January 1949 and 25 January 1950, Indians remained British subjects without citizenship unless they had already acquired citizenship of the UK & Colonies or another Commonwealth country.

On commencement of the Indian Constitution on 26 January 1950, under British Nationality law a person who became an Indian citizen also had the status of Commonwealth citizen (also known as a British subject with Commonwealth citizenship, a status which does not entitle the person to use a British passport) by virtue of their Indian citizenship and India's membership of the Commonwealth. However, a number of Indians 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. Any person who is solely a British subject (otherwise than by connection with the Republic of Ireland) will automatically lose British subject status on acquiring any other nationality or citizenship including Indian citizenship or Indian Overseas citizenship.

British subjects may register as British citizens under section 4B of the British Nationality Act 1981 without requiring any UK residence if they have no other citizenship or nationality and have not after 4 July 2002 renounced, voluntarily relinquished or lost through action or inaction any citizenship or nationality. This facility has been available since 30 April 2003. Those who have immigrated to the UK may have additional options for acquiring British citizenship, which are usually preferred because they give transmissible British citizenship with otherwise than by descent status.

From 1949 the meaning of the term British subject was substantially different from what had previously been the case and meant little more than a term to describe someone holding the citizenship of a Commonwealth country. Only a British subject without citizenship was entitled to a British passport. See British subject.

See also

  • French nationality law, which entitles children born to a parent who was born in one of its overseas dependencies or—in limited circumstances—in one of its ex-colonies, to French citizenship
  • Portuguese nationality law-in regards to those who were citizens of Portuguese India before 1961.
  • to know more about Overseas citizen of India please visit [4]


References

External links



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