Indian nationality law
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Indian citizenship/nationality law: The Constitution of India provides for a 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) Ordinance 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.
[edit] 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 was a citizen of India by birth. A person born in India on or after 1 July 1987 was 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.
[edit] 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.
[edit] 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) a person of Indian origin who is ordinarily resident in India for seven years before making an application for registration;
(b) a person of Indian origin who is ordinarily resident in any country or place outside undivided India;
(c) 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;
(d) minor children of persons who are citizens of India;
(e) a person of full age and capacity whose parents are registered as citizens of India by ordinary residence in India for seven years;
(f) 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;
(g) 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.
[edit] Citizenship by Naturalisation
Citizenship of India by naturalisation can be acquired by a foreigner who has resided in India for twelve years. The applicant must have lived a total of 11 years in India in a period of 14 years, and must have spent in India the past 12 months preceding the application.
[edit] 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. This is because during the framing of the constitution, British India was partitioned into India and Pakistan (both seceding from the British Empire) and the constitution framers thought it was necessary to provide in some manner, for the legitimisation of refugee entrants from Pakistan who were previously citizens of British India. Therefore, migrants during the time of partition, shortly before or thereafter were also provided automatic citizenship.
[edit] 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."
[edit] Automatic Termination of Indian citizenship
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. It also provides that any citizen of India who voluntarily 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.
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". 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."
[edit] Overseas citizenship of India
There now exists a provision for a new form of Indian nationality, the holders of which are to be known as Overseas Citizens of India. The Constitution of India does not permit 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 can't have a second country's passport simultaneously with an Indian one, 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.
The Central Government may, on application, 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
- was eligible to become a citizen of India on 26 January 1950; or
- belonged to a territory that became part of India after the 15th day of August, 1947;
- is the child or grand-child of a person described above; and
- has never been a citizen of Pakistan or Bangladesh.
Note that children of Indian parents do not automatically fullfill these requirements, and are therefore not automatically eligible for OCI.
Indian Missions are authorized to grant applications for Overseas citizenship of India within 15 days 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.
The introduction of Overseas Indian Citizenship does not entitle people who have acquired, or are planning to acquire, foreign nationality, 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 eligible can then apply for registration as Overseas Indian Citizens.
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 PIO Card - see 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.
An Overseas Citizen of India will enjoy all rights and privileges available to Non-Resident Indians excluding the right to invest in agriculture and plantation properties. There is no visa requirement for travel to India. The person has to carry his existing foreign passport along with Registration Certificate. Alternately, the Overseas Citizen of India can apply for a new type of visa called ‘U’ visa which is a multi-purpose, multiple-entry, life-long visa for those that wish to acquire it. 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).
Although Overseas Citizenship of India is not a full citizenship of India, it is a form of Indian nationality. Article 4 of the Hague Convention on Certain Questions relating to the Conflict of Nationality Laws, 1930 provides that "a State may not afford diplomatic protection to one of its nationals against a state whose nationality such person also possesses". Therefore, international law limits the ability of a country to provide consular protection to its citizens or nationals in their country of second nationality. A person registered as an Overseas Citizen of India, who is also a citizen of another country will therefore lose their right to consular protection of their home country when in India , assuming the other state recognizes the status of Overseas Citizen of India as a form of nationality. The latter point is doubtful since this status does not include possession of a travel document (i.e. the holder enters India on another country's passport, and must renew the other country's passport if it expires while in India) nor most of the other attributes of nationality (e.g. presumably a holder of an OCI card may be denied entry or deported from India, may have the status removed arbitrarily at any time, etc.) It's also not clear whether India will provide consular protection to holders of OCI cards while present in third countries. This matter has not been tested in the courts yet.
Many persons of Indian origin eligible to apply for Overseas Citizenship of India are considering whether they prefer to obtain Overseas Citizenship of India, or a Person of Indian Origin card (PIO card - see below) which offers virtually identical benefits while preserving their right to consular protection in India (if one accepts the theory stated above that OCI is a kind of nationality).
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. [1][2]
The Government of India's Public Information Bureau issued a press release which explains the Scheme for Overseas citizenship of India on 29 June 2005.
Full details of the OCI scheme can be found on the Government of India, Ministry of Home Affairs Web Page: (external link) http://mha.nic.in/oci/oci-main.htm
A number of other articles have been written including:
- Fool's Gold published December 2004 in Little India
- Dual Citizenship or Dupli City? by Narayanan Komerath, published 28 January 2005
- Read the Small Print on Indian Overseas Citizenship Offer, Warns British Immigration NGO by Joint Council for Welfare of Immigrants, released 10 August 2005
- Overseas citizenship of India/Dual Nationality - US Embassy, New Delhi
[edit] Person of Indian Origin (PIO) Card
Any person currently holding a non-Indian passport, who can prove their Indian origin up to three generations before (or is the spouse of a citizen of India or person of Indian origin), is eligible for a Person of Indian Origin card. Citizens of Pakistan, Bangladesh and other countries as may be specified by the Central Government are not eligible for grant of PIO Cards.
PIO cards give the holder the following benefits: (a) visa-free entry into India for fifteen years, (b) exemption from registration at a Foreigners' Regional Registration Office if the period of stay in India does not exceed 180 days (for stay of more than 180 days, the PIO card holder needs to register at a FRRO office), and (c) PIO card holders enjoy parity with Non-Resident Indians in economic, financial and educational fields.
A PIO Card is generally valid for a period of fifteen years from the date of issue.
PIO holders can acquire, hold, transfer or dispose of immovable properties in India (except agricultural/ plantation properties), open rupee bank accounts in India, lend in rupees to Indian residents, make investments in India etc.
PIO holders’ children can obtain admission in educational institutions in India in the general category quota for Non-Resident Indians, including Medical, Engineering colleges, IITs & IIMs.
PIO holders are eligible for various Housing schemes under Life Insurance Corporation of India (LIC) or Central/State Governments.
Possession of a PIO card will not entitle the holder to: (a) be eligible for the exercise of any political rights, (b) visit restricted/protected areas without permission, and (c) undertake mountaineering, research and missionary work without permission.
[edit] British Nationality and India
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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 to 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.
[edit] Special Provisions with respect to Jammu and Kashmir
The Constitution of India, by its Article 370, grants a special status and autonomy to the state of Jammu and Kashmir, wherby the state has the right to keep its own state constitution (unlike any other state of the Union). However, the people of Jammu and Kashmir do not, de jure, possess any separate citizenship of the state (unlike in the United States, wherein there is both a Fedral citizenship and state citizenship); they do possess the legal status of being residents of the state of J&K, and hence some special rights in the state.
[edit] External links
- Extracts from the Citizenship Act 1955 - Indian Ministry of Home Affairs
- Constitutional provisions - Indian Citizenship
- India Visa Information
- Pdf versions of the Citizenship Act 1955 and Citizenship Rules 1956
- OCI Card
- South China Morning Post of 25 September 2006, highlighting the plight of Indian ethnic minority BN(O)s in Limbo in Hong Kong
- South China Morning Post of 23 October 2006, criticising failure to properly process British citizenship applications of Indian-origin ethnic minority British nationals in Hong Kong
- Dual Nationality - US Embassy, New Delhi
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