Indian nationality law

"Indian citizenship" redirects here. For the United States law, see Indian Citizenship Act of 1924.
The Citizenship Act, 1955
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 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, 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/her Indian passport; it is a punishable offence 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

From 1858 till its Independence in 1947, India was a part of the British Empire. 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, 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 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

Cover of an Indian passport

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, 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

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 citizens.[2]

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.

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 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 s/he belongs to any of the following categories:

Citizenship by naturalisation

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 citizenship

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 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/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 (e.g., 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 passports.[3]

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 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 2006.[4] 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[5] 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 travelling to India.[6]OCI 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".[7]

Persons of Indian Origin (PIO) 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.[8]

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.[9] This new card was proposed to be called the Overseas Indian Card.[10]

As of 9 January 2015, the PIO card scheme has been discontinued and applicants are to apply for OCI only.[11] 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 cards.[12]

Visa requirements

Visa requirements for Indian citizens
  India
  Visa free
  Visa issued upon arrival
  Electronic authorisation or eVisa
  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 2014 Visa Restrictions Index, holders of an Indian passport can visit 52 countries and territories visa-free or with visa on arrival, and India is currently ranked 85th[13] in terms of travel freedom.

See also

References

  1. 1 2 Nationality and International Law in Asian Perspective - Google Books. Books.google.co.in. Retrieved 2013-07-03.
  2. ↑ "Passport alone no proof of citizenship: Bombay HC". Times of India. 2013-10-29. Retrieved 2013-07-03.
  3. ↑ Letter from British High Commission Nairobi
  4. ↑ Overseas Citizenship of India (OCI); Ministry of Home Affairs, Government of India website, Diaspora Services: Overseas Citizenship of India Scheme
  5. ↑ Dual Nationality: India and the United States
  6. ↑ "Flying to India? Carry old passport with OCI card - Rediff.com India News". News.rediff.com. 2009-10-29. Retrieved 2013-07-03.
  7. ↑ "Nationality Instructions, Chapter 14, Annex H, Section 7.5" (PDF). United Kingdom Border Agency.
  8. ↑ PIO card eligibility, benefits NRI / PIO news. My NRI club.
  9. ↑ PM announces merging of OCI, PIO cards
  10. ↑ New Overseas Indian Card to replace OCI, PIO Archived 13 October 2012 at the Wayback Machine.
  11. ↑ http://www.immihelp.com/nri/piocard/
  12. ↑ http://indembassybern.ch/eoi.php?id=PIO
  13. ↑ Henley & Partners Visa Restrictions Index

External links

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