Indian nationality law


The conferment of a person, as a citizen of India, is governed by Articles 5 to 11 Part II of the Constitution of India The legislation related to this matter 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, The Citizenship Amendment Act, 2005 and Citizenship Amendment Act,2015

Article 9 of Indian Constitution says that a person who voluntarily acquires citizenship of any other country is no longer an Indian citizen Also, according to The Passports Act, a person has to surrender his/her Indian passport and vote card and other Indian ID cards must not use after other country citizenship It is a punishable offence if the person fails to surrender the passport

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 The President of India is termed the first Citizen of India

Contents

  • 1 History
  • 2 Granting of citizenship
    • 21 Citizenship at the commencement of the constitution of India
    • 22 Citizenship by birth
    • 23 Citizenship by descent
    • 24 Citizenship by registration
    • 25 Citizenship by naturalisation
  • 3 Renunciation and termination of Indian citizenship
  • 4 Overseas Citizenship of India
  • 5 Persons of Indian Origin PIO Card
  • 6 Dual Citizenship
  • 7 Visa requirements
  • 8 See also
  • 9 Notes
  • 10 References
  • 11 External links

Historyedit

See also: History of British nationality law § Early English and British nationality law, and History of citizenship § Great Britain See also: Princely state

The Government of India Act 1858 established the British Raj and formally brought the majority of Indians under British imperial rule Until the Indian Independence Act 1947 took effect on 15 August 1947, Indians under the British Raj generally fell into one of two categories:

  • Indians resident and born in British India came under the direct dominion of and bore allegiance to the British Crown, and held the status of British subject From 1 January 1915, the British Nationality and Status of Aliens Act 1914 defined British subjects as those born or naturalised in the British Sovereign's dominions including British India, women married to men born or naturalised in the aforementioned Crown dominions and children legitimately born to a British subject father anywhere in the world1
  • Indians resident and born in a princely state also known as an "Indian state" or a "Native state" under the British Raj, or in any other British protectorate or protected state under the British government, held the status of British protected personnote 1 This status extended to the wives and legitimate offspring of male subjects of those states British protected persons were considered de jure foreigners, but could travel on British-issued passports

Effective from 15 August 1947, India was established as the independent Dominion of India Along with subjects of the other British Dominions, Indians resident, born and naturalised in Indian provinces legally remained British subjects by virtue of Section 183 of the Indian Independence Act, unless they had already acquired citizenship of the United Kingdom or any other country From 15 August, British protection over the princely states lapsed, and Indians who were subjects of a principality automatically lost their status as British protected personsnote 2 The rulers and Indian subjects of princely states which had acceded to the Dominion of India or to the Dominion of Pakistan on or prior to 15 August termed "Acceding States" became British subjects2note 3 Indians resident in a princely state which had not acceded to either Dominion by 15 August became temporarily stateless, lacking any recognized nationality or British subject status, though remaining subjects of their state

From 1 January 1949, when the British Nationality Act 1948 came into force, to 25 January 1950, Indians in the Indian provinces became British subjects with Indian citizenshipnote 4 As former princely states became integrated with India, their inhabitants also acquired this status From 26 November 1949, Indians domiciled in the territories of India became Indian citizens

With the promulgation of the Indian Constitution on 26 January 1950, which established the Republic of India, the majority of Indian citizens were no longer British subjects, but continued to enjoy the status of Commonwealth citizen also known as a British subject with Commonwealth citizenship, a status which does not entitle the holder 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

On 20 December 1961, India acquired the territories of Goa, Daman and Diu and Dadra and Nagar Haveli after the military action which were under the territories of Portugal The French territory of Puducherry, Karaikal, Mahé, Yanam and the Free town of Chandranagore, were acquired under treaty of cession with France Sikkim was also merged with India and became a constituent state with effect from 16 May 1975 Some of the enclaves in the eastern part of India, were also acquired under border agreements with Pakistan and Bangladesh respectively3

In order to expressly provide the citizenship for people in territories as mentioned above, the central government issued the Goa, Daman and Diu Citizenship Order, 1962, Dadra and Nagar Haveli Citizenship Order, 1962 and Citizenship Pondicherry Order 1962, in exercise of its powers under section 7 of the Citizenship act and for Sikkim, the President extended the Citizenship act, and the relevant rules under Article 371-Fn of Indian Constitution In case of acquired enclaves, that did not necessitate legislative action, as that was only a border demarcation agreement3

Granting of citizenshipedit

Cover of an Indian passport

Citizenship at the commencement of the constitution of Indiaedit

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, and most of these constitutional provisions came into force on 26 January 1950 The Constitution of India also made provision regarding citizenship for migrants from the territories of Pakistan which had been part of India before partition

Citizenship by birthedit

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 In September 2013, Bombay High Court gave a judgement that a birth certificate, passport or even an Aadhaar card alone may not be enough to prove Indian citizenship, unless the parents are Indian citizens4

Citizenship by descentedit

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

Persons born outside India on or after 10 December 1992 are considered 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 diplomatic mission within one year of the date of birth In certain circumstances it is possible to register after one year with the permission of the Central Government The application for registration of the birth of a child must be made to an Indian diplomatic mission and must be accompanied by an undertaking in writing from the parents of the child that he or she does not hold the passport of another country

Citizenship by registrationedit

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 s/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 51a throughout the period of twelve months immediately before making application and for six years in the aggregate in the eight years preceding the 12 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 naturalisationedit

Citizenship of India by naturalisation can be acquired by a foreigner not illegal migrant who is ordinarily resident in India for 12 years throughout the period of 12 months immediately preceding the date of application and for 11 years in the aggregate in the 14 years preceding the 12 months and other qualifications as specified in Third Schedule to the Citizen Act

Renunciation and termination of Indian citizenshipedit

Renunciation is covered in Section 8 of the Citizenship Act 1955 If an adult makes a declaration of renunciation of Indian citizenship, s/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 18, he or she has the right to have his or her Indian citizenship restored 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"

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 91 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/her 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 eg, a US-born child of Indian parents who is automatically deemed to be a US citizen according to US law, and who is therefore required by US law to have a US passport in order to enter and leave the US It does not matter that a person continues to hold an Indian passport This rule seemingly even applies if the foreign nationality was automatically had from birth, and thus not voluntarily acquired after birth 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 passports5

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/her 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 s/he ceases to be a citizen of India in consequence of such naturalisation or registration"

Overseas Citizenship of Indiaedit

Main article: 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

In response to persistent demands for dual citizenship, particularly from the diaspora in North America and other developed countries, the Overseas Citizenship of India OCI scheme was introduced by amending The Citizenship Act, 1955 in August 2005 The scheme was launched during the Pravasi Bharatiya Divas convention at Hyderabad in 20066 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 such as a child born in the United States or in Australia to Indian parents, and the Indian courts have given the executive branch wide discretion over this matter Therefore, Overseas Citizenship of India is not an actual citizenship of India7 and thus, does not amount to dual citizenship or dual nationality or anyone no longer to use Indian IDs after OCI 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 travelling to India8OCI Cards are now being printed without the lifelong “U” Visa Sticker which is normally pasted on the applicant's passport The proof of lifelong visa will be just the OCI Card which will have “Life Time Visa” printed on it The OCI Card will be valid with any Valid Passport"However, countries may consider the OCI as dual citizenship: for example, the UK government considers that, for purposes of the British Nationality Act 1981, "OCI is considered to be citizenship of another State"9

Persons of Indian Origin PIO Cardedit

Main article: Persons of Indian Origin Card Front cover of a PIO card

This was a form of identification issued to an individuals who held a passport in a country other than Afghanistan, Bangladesh, Bhutan, China, Nepal, Pakistan and Sri Lanka and could prove their Indian origin up to three generations before

In early 2011, the then Prime Minister of India, Manmohan Singh, announced that the Person of Indian Origin card will be merged with the Overseas Citizen of India card10 This new card was proposed to be called the Overseas Indian Card11

As of 9 January 2015, the PIO card scheme has been discontinued and applicants are to apply for OCI only All currently held PIO cards are treated as OCI cards PIO card holders will get a special stamp in their existing PIO card, saying "lifelong validity" thus making them equal to existing OCI cards12

Dual Citizenshipedit

It is generally difficult to have dual citizenship of India and another country, due to the provisions for loss of Indian nationality when an Indian national naturalizes in another country see "Loss of citizenship" above, and the requirement to renounce one's existing citizenships when naturalizing in India see "Naturalization" above

There are still some ways in which a person may have dual citizenship of India and another country, including:

  • Children of foreign diplomats, who are born in India, are also given dual citizenship till the period of their parents' service in India
  • A minor child of Indian origins may hold dual citizenship of India and another country So that the minor can decide within six months of completing 18 years of age as to whether he/she prefers Indian citizenship

A public interest litigation PIL seeking dual citizenship13 for overseas Indians was filed in the Supreme Court on 6 January 201514 on the eve of the inauguration of the Pravasi Bharatiya Divas PBD in Gujarat‟s capital Gandhinagar by Prime Minister Narendra Modi

On 20 April 2015, the Supreme Court of India dismissed the Public Interest Litigation PIL In dismissing the said PIL, the Supreme Court reasoned that Mr Venkat Narayan cannot plead on somebody else's behalf as he is not the aggrieved party and those who need to assert their right should come forward15

Visa requirementsedit

Main article: Visa requirements for Indian citizens Visa requirements for Indian citizens   India   Visa free   Visa issued upon arrival   Electronic/Pre Arrival Authorisation or eVisa   Visa available both on arrival or online   Visa required prior to arrival

Visa requirements for Indian citizens are administrative entry restrictions by the authorities of other states placed on citizens of India According to the 2017, Indian citizens had visa-free or visa on arrival access to 49 countries and territories, ranking the Indian passport 87th in terms of travel freedom according to the Henley visa restrictions index16

See alsoedit

  • Persons of Indian Origin Card
  • Non-Resident Indian and Person of Indian Origin
  • 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

Notesedit

  1. ^ For example, see attached regulations for the 1851 Research Fellowship for Indians, with reference to Indians from princely states as British protected persons Current Science - Science Notes and News
  2. ^ Indians then residing in the states of the Aden Protectorate or in the states under the Persian Gulf Residency, and their wives and families, remained British protected persons Both administrations had been previously transferred to the control of the British Foreign Office, the Aden Protectorate in 1917 and the Persian Gulf Residency in April 1947 Members of the Indian diaspora then resident in any other British protectorate or protected state also remained under British protection
  3. ^ Though the Instrument of Accession each prince signed upon acceding to either Dominion did not legally affect their sovereignty within their state
  4. ^ From 1 January 1949, the term British subject became interchangeable with Commonwealth citizen

Referencesedit

  1. ^ legislationgovuk: "British Nationality and Status of Aliens Act 1914" original as printed
  2. ^ "The Gazette of India - Extraordinary" PDF Press Information Bureau of India - Archive Retrieved 21 August 2017 
  3. ^ a b Nationality and International Law in Asian Perspective - Google Books Booksgooglecoin Retrieved 2013-07-03 
  4. ^ "Passport alone no proof of citizenship: Bombay HC" Times of India 2013-10-29 Retrieved 2013-07-03 
  5. ^ Letter from British High Commission Nairobi
  6. ^ Overseas Citizenship of India OCI; Ministry of Home Affairs, Government of India website, Diaspora Services: Overseas Citizenship of India Scheme
  7. ^ Dual Nationality: India and the United States
  8. ^ "Flying to India Carry old passport with OCI card - Rediffcom India News" Newsrediffcom 2009-10-29 Retrieved 2013-07-03 
  9. ^ "Nationality Instructions, Chapter 14, Annex H, Section 75" PDF United Kingdom Border Agency 
  10. ^ PM announces merging of OCI, PIO cards
  11. ^ New Overseas Indian Card to replace OCI, PIO Archived 13 October 2012 at the Wayback Machine
  12. ^ http://indembassybernch/eoiphpid=PIO
  13. ^ "Dual Citizenship for Overseas Indians" wwwdualcitizenshipin Retrieved 2017-06-14 
  14. ^ ANI 2015-01-08 "PIL filed in SC seeking dual citizenship for NRIs" Business Standard India Retrieved 2017-06-14 
  15. ^ "Supreme Court Dismisses Plea For Voting Rights of Overseas Citizens" NDTVcom Retrieved 2017-06-14 
  16. ^ "Global Ranking - Visa Restriction Index 2017" PDF Henley & Partners Retrieved 14 March 2017 

External linksedit

  • Overseas Citizenship of India OCI - Indian Ministry of Home Affairs
  • Extracts from the Citizenship Act 1955 - Indian Ministry of Home Affairs
  • Constitutional provisions - Indian Citizenship
  • Pdf versions of the Citizenship Act 1955 and Citizenship Rules 1956
  • Dual Nationality - US Embassy, New Delhi


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