Indian nationality law

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"Indian citizenship" redirects here. For the United States law, see Indian Citizenship Act of 1924.
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 conferment of a person, as a citizen of India, is governed by Articles 5 to 11 (Part II) of Indian Constitution. 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, and the Citizenship (Amendment) Act, 2005.

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 Indian passport, it is a punishable offense under the act if he 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.

History[edit]

Until its Independence in 1947, India was a part of the British Empire. However, between 1 January 1949 and 25 January 1950, Indians were British subjects, by virtue of Section 18(3) of Indian Independence Act, unless they had already acquired citizenship of United Kingdom or any other country.

On commencement of the Indian Constitution on 26 January 1950, the Indians were no longer British subjects. Moreover, they enjoyed 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.

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, Mahe 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 respectively[1]

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-F(n) of Indian Constitution. In case of acquired enclaves, that did not necessitate legislative action, as that was only a border demarcation agreement.[1]

Granting of citizenship[edit]

Citizenship at the commencement of the constitution of India[edit]

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 birth[edit]

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.

Citizenship by descent[edit]

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[edit]

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[edit]

Citizenship of India by naturalization can be acquired by a foreigner (not illegal migrant) who is ordinarily resident in India for twelve years (throughout the period of twelve months immediately preceding the date of application and for eleven years in the aggregate in the fourteen years preceding the twelve months) and other qualifications as specified in Third Schedule to the Citizen Act.

Renunciation and termination of Indian citizenship[edit]

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".

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. 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 passports.[2]

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[edit]

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 2006.[3] 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 India[4] 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.[5]

However countries may consider the OCI as dual citizenship; for example, under British nationality law the UK government as per Chapter 14, Annex H, Section 7.5 of the British Nationality Act 1981 takes this position: "For the purposes of British nationality law, OCI is considered to be citizenship of another State".[6]

Eligibility[edit]

The Central Indian Government, on application, may register any person as an Overseas Citizen of India if the person:-

  • 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 15 August 1947; or
  • is the child or grandchild of a person described above; and
  • has never been a citizen of Pakistan or Bangladesh; and
  • has had no involvement in serious offences like drug trafficking, moral turpitude, terrorist activities or anything leading to imprisonment of more than a year.
  • Applicant's country of citizenship allows dual citizenship (even though OCI is not an actual Indian citizenship).

Privileges[edit]

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.[7] It is very important that the person carry his existing foreign passport which should include the new visa called ‘U’ visa which is a multi-purpose, multiple-entry, lifelong 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. Any changes to the foreign passport, should be conveyed to the Indian Embassy, so that everything will be consistent.

Overseas citizens 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, and they have to apply for a protected area permit if they want to visit certain areas in India.

Though not actual dual citizenship, 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.[8]

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.[9]

Effect on granting British citizenship[edit]

Acquiring Overseas citizenship of India prevents British nationals (Overseas) from registering as full British citizens under Section 4B of the British Nationality Act 1981 (which requires that nationals have no other citizenship in order to register).[citation needed] 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.[10][11]

Persons of Indian origin (PIO) card[edit]

Front cover of a PIO card

This is issued to any person currently holding foreign 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.[12] The PIO card must be produced alongside the foreign passport when entering or departing any port in India. Any changes in the foreign passport - name changes or passport renewal - must also be reflected in the PIO card.

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.

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 card.[13] This new card is proposed to be called the Overseas Indian Card.[14]

See also[edit]

References[edit]

  1. ^ a b Nationality and International Law in Asian Perspective - Google Books. Books.google.co.in. Retrieved 2013-07-03. 
  2. ^ Letter from British High Commission Nairobi
  3. ^ Overseas Citizenship of India (OCI); Ministry of Home Affairs, Government of India website, Diaspora Services: Overseas Citizenship of India Scheme
  4. ^ Dual Nationality: India and the United States
  5. ^ "Flying to India? Carry old passport with OCI card - Rediff.com India News". News.rediff.com. 2009-10-29. Retrieved 2013-07-03. 
  6. ^ "United Kingdom Border Agency website, British Nationality Act 1981, Chapter 14, Annex H, Section 7.5". 
  7. ^ What is the basic difference between an NRI/PIO/PIO Card Holder and an OCI? Overseas Indian Facilitation Centre, a not for profit public private initiative of Ministry of Overseas Indian Affairs (MOIA) and Confederation of Indian Industry (CII), was launched on 28 May 2007; Official Government of India portal
  8. ^ What is the basic difference between an NRI/PIO/PIO Card Holder and an OCI? Overseas Indian Facilitation Centre, a not for profit public private initiative of Ministry of Overseas Indian Affairs (MOIA) and Confederation of Indian Industry (CII), was launched on 28 May 2007; Official Government of India portal
  9. ^ OCI cardholders are hot for Indian assignments; 15 Nov 2009, Ishani Duttagupta, ET Bureau; The Economic Times; India, Growing demand among NRIs to become overseas citizens of India; 24 Mar 2009, IANS; The Economic Times, India
  10. ^ [1][dead link]
  11. ^ "Press Release Services - News Release Distribution Services - PRWeb". Emediawire.com. Retrieved 2013-07-03. 
  12. ^ PIO card eligibility, benefits NRI / PIO news. My NRI club.
  13. ^ PM announces merging of OCI, PIO cards
  14. ^ New Overseas Indian Card to replace OCI, PIO[dead link]

External links[edit]