Law and You > Constitutional Law > Citizenship Under the Constitution (Articles 5 to 11)
In this article, we shall discuss citizenship under the Constitution of India.
Citizenship Acquired Under the Constitution:
Articles 5 to 8 contain the provisions determining the citizenship of India at the commencement of the Constitution, that is, (26 January 1950). The following are the persons who become citizens of India at the
commencement of the Constitution:-
1. Citizenship by domicile (Article-5)
2. Citizenship by migrants from Pakistan (Article-6)
3. Citizenship of Migrants to Pakistan (Article-7)
4. Citizenship of Indians Abroad (Article-8)
Citizenship by Domicile:
Article 5: 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.
According to Article 5, a person is entitled to citizenship by domicile if he fulfills the following two conditions:
Firstly – he must at the commencement of the Constitution, have his domicile in the territory of India.
Secondly – Such a person must fulfill any of the three conditions laid down in Article 5 – (i) he was born in India, (ii) either of his parents was born in India (iii) he must have been ordinarily resident in the territory of India for not less than five years immediately before commencement of the Constitution.
In Ali Ahmad v. K. Pati, AIR 1965 Pat 371 case, the court held that the domicile is not the same thing as the residence. Residence implies a purely physical fact, the fact of just being and living in a particular place. But domicile is not only the residence, but it is the residence coupled with the intention to live indefinitely in the place.
In Mohammad Raza v. State of Bombay, AIR 1966 S.C. 1436, the Supreme Court has held that the term domicile means a permanent house or place where the person concerned resides with the intention of remaining for an indefinite period.
In Kedar Pandey v. Narain Bikram Sah AIR 1966 SC 160 case, the Court held that every person is born with a domicile of origin. It is 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 father was domiciled.
In Abdus Samad v. State of West Bengal, AIR 1973 SC 505 case the Court held that to attract Article 5(c) of Constitution, person applying must have Indian domicile. Domicile denotes a connection with the territorial system of law.
In Pradeep Jain v. Union of India, (1984) 3 S.C.C. 654, it was held that the domicile of a person is in that country in which he either has or is deemed by law to have his permanent house.
For a posthumous child (child born after father’s death), domicile will be that of the country in which his father was domiciled at the time of his father’s death.
Citizenship by Migration from Pakistan:
At the time of the partition, there was a migration of Hindus from Pakistan to India and at the same time, there was a migration of Muslims from India to Pakistan. Article 6 deals with the migrants who moved from Pakistan to India and Article 7 deals with the migrants who moved from India to Pakistan.
Article 6: 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 commencement of this Constitution if—
(a) he or either of his parents or any of his grandparents 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 therefor 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.
Article 6 overrides Article 5. Article 6 deals with persons who have migrated from Pakistan to India before the commencement of the Constitution. For purpose of classifications such persons are classified into two categories, namely 1) those who came to India before 19th July 1948 and 2) those who came to India on or after 19th July 1948
Those who came to India before 19th July 1948 shall be deemed to be a citizen of India if the following two conditions are satisfied.
- 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
- he has been ordinarily resident in the territory of India since the date of his migration.
Those who came to India on or after 19th July 1948 shall be deemed to be a citizen of India if the following four conditions are satisfied.
- 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
- he must make an application for the citizenship;
- he must prove that he has resided in India for six months; and
- he has been registered as a citizen of India by an officer appointed either by Government of India under the Act of 1935 or the Union Government under the present Constitution.
Citizenship of Migrants to Pakistan:
Article 7: 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 nineteenth day of July 1948.
Article 7 overrides Article 5. 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. An exception is made in favour of 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 to India.
In Ali Ahmad v. Electoral Registration Officer, AIR 1965 Cal 1 case, the court held that Article 7 overrides Article 5. 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. A similar view was expressed in Wahid Mian Hiddan Mian v. State of Uttar Pradesh AIR 1961 All 111.
In State of M.P. v. Peer Mohd., AIR 1963 SC 645 case, the respondent migrated from the territory of India to territory of Pakistan after the first day of March 1947 but after January 26, 1950. The Court held that a person who has migrated after January 26, 1950, cannot fall within the relevant clause because the requirement of the clause is that he must have migrated at the date when the Constitution came into force. It is only persons who had migrated prior to the commencement of the Constitution that fall within the scope of Article 7. Article-7 refers to migration which has taken place between the Ist day of March 1947 and January 26, 1950. The
question about the citizenship of persons migrating after 26th January 1950. will have to be determined under the provisions of Citizenship Act.
In State of Bihar v. Kumar Amar Singh, AIR 1955 SC 282 case, a lady went to Karachi in July 1948 (after first day of March 1947) leaving her husband in India. She said that she went to Karachi for treatment was proved to be baseless. She returned to India in December 1948, after obtaining a temporary permit. In her application, she had declared that she is domiciled in Pakistan and is a Pakistani national. She went back to Pakistan in April 1949. When her property in India was being given to custodian, she pleaded to be an Indian citizen. The Court held that as she has migrated to Pakistan after the first day of March 1947 she is not a citizen of India although her husband has Indian citizenship.
Citizenship of Indian Residing Abroad:
Article 8: 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 therefor 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 overrides Article 5. This Article confers Indian citizenship to persons who are not domiciled in India. At the same time, no date is prescribed in Article 8, hence it deals with Indian citizenship not only at the date of commencement of the constitution but also for the future.
According to Article 8, a person residing outside India shall be deemed to be a citizen of India if he fulfills the following two conditions,
- he or either of his parents or any of his grandparents must have been born in undivided India (but residing abroad), and
- he must have been registered as a citizen of India by the diplomatic or consular representatives of India in the country where he is for the time being residing on an application made to such representative in prescribed form and manner.
In Kulathil Mammu v. State of Kerala, AIR 1966 SC 1614 case, Court opined that the Articles 6, 7, and 8 starts with non-obstante clause “notwithstanding anything in Article 5”, the intention is to exclude the concept of domicile from these three articles.
Termination of Citizenship:
Article 9: Persons voluntarily acquiring citizenship of a foreign State not to be citizens:
No person 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 is applicable to a person who has voluntarily acquired the citizenship of a foreign State before the Constitution came into force. According to Article 9, no person shall be a citizen of India by virtue of Articles 5, 6 and 8 if he has voluntarily acquired the citizenship of a foreign state.
All the 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. Article 367, clause (3) defines foreign State as for the purpose of this Constitution, ‘Foreign State’ means any state other than India.
The Citizenship Act, 1955 was amended in 2003 and again in 2005 to introduce the concept of overseas citizenship for citizens of other countries.
In State of Uttar Pradesh v. Shah Mohd., AIR 1969 SC 1234 case, It was observed that Article 9 deals with cases where citizenship of foreign State has been acquired by Indian Citizen prior to Constitution and means that he cannot claim citizenship of India by virtue of Article 5, 6 or 8.
Continuance of the rights of citizenship:
Article 10: Continuance of the rights of citizenship:
Every person who is or is deemed to be a citizen 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 by Article 11 is empowered to make any provision with respect to acquisition and termination of citizenship. Article 10 says that till Parliament do not take away the citizenship by any provision, the person remains a citizen of India.
The case Ebrahim Vazir Mavat v. State of Bombay AIR 1954 SC 229 involved the constitutional validity of 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 person enters India without a permit, he commits an offence punishable under the Act. Besides Section 7 of the Act authorized the Central Government to direct the removal from India of any person who committed, or against whom, reasonable suspicion existed that he had committed an offence under the Act. The Court held that Section 7 was ultra vires the powers of Parliament because to allow the forcible removal of an Indian citizen from India would be tantamount to destroying the right of citizenship conferred by Part II of the Constitution.
Article 11: Continuance of the rights of citizenship:
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.
Parliament by Article 11 is empowered to make any provision with respect to acquisition and termination of citizenship. Under this power conferred by Article 11, Parliament enacted the Citizenship Act, 1955.
The Citizenship Act, 1955 was amended in 2003 and again in 2005 to introduce the concept of overseas citizenship for citizens of other countries (Indian diaspora).