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.
Article 5 of the Constitution prescribes the criteria for qualifying as an Indian Citizen. Important to note Citizenship is covered under Union List in the Seventh Schedule, Constitution of India making it under authority of the Central Government. Criteria mentioned below;
- By Birth, or
- A child of Indian Parents or
- A minimum 5 years resident in India after the date of enactment of act.
- No direct amendments to Article 5.
- In scope of Citizenship, The Citizenship Act, 1955 the former central Act with the Amendments enacted and governs citizenship aspect like changes or cancellation or getting new citizenship. It also gives the important procedural details.
‘State of U.P. v. Shah Mohammad in (1969) ‘CaseNo-1
- ISSUE: Whether, if a person is domiciled of the India territory but currently residing outside India (temporarily) - Can claim citizenship under Article 5?
Court Holding: The Court held that domicile is a matter of intention and residence. Temporary absence would not have negative attribution on domicile. - Precedent: The Citizenship under Article 5 is a function of domicile and qualifying the requirements of Article 5, not simply stay/presence.
‘MOHD. Ayub Khan And Others v. Commissioner Of Police, Madras (1965)‘CaseNo-2
- ISSUE: Whether a person claiming to be a citizen of India having linkages with Pakistan can be treated as a citizen of India
- Court Holding: The Court strongly pointed that the domicile is a residence with intent to stay there which is not short term\temporary.
- Precedent: It was emphasized that citizenship under Article 5 is not a question of fact but a question of legal intent.
‘Pradeep Jain v. Union of India in (1984)‘CaseNo-3
- The Court elaborated the constitutional meaning of domicile in India. It was mainly on domicile and reservation in the field of education.
- Court Holding: In this case the Court differentiated between 'home of origin' and 'home of choice', linked to citizenship provisions.
- Precedent: Expanded constitutional definition of domicile under Article 5 with established framework for citizenship.
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 grand-parents 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.
-Structure: Article 6 of the Constitution contents two clauses,
- clause (a)
- clause (b) with two subclauses (i) and (ii).
The citizenship is one of crucial aspect of the Constitution. Post independence the citizenship criteria is defined in Article 6 of the Constitution. Article 6 specifically deals with the aspect of partition and people coming from Pakistan to India in terms of timelines (Pre and Post) partition.
- Article 6 has not been amended directly since its enactment in 1950.
- The Citizenship Act, 1955 drives the administrative and procedural aspect of citizenship in India but Article 6 itself remains unchanged.
- The Supreme Court examined whether a Pakistani immigrant could be granted Indian citizenship, if he returned back but unregistered using due process. It was concluded that the "rights of citizenship" under Article 6 were conditional, not automatic, and that migrants after 1948 had to adhere to mandatory registration requirements.
- The people who moved to India after 1948 and didn't register, citizenship was denied. The Court held the registration is mandatory requirement for migrants who came after year 1948 cut-off and preserved the distinction between pre and post year 1948 migrants. It made the legislative intention to systematically manage citizenship under Article 6 even clearer.
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.
Structure: Article 7 contents one article and only one proviso with it.
The Constitution Article 7:
If a person migrated to Pakistan after March 1st, 1947, He will not be consider as Indian citizen.
Exception: In case he returns before cut-off timeline (Date: July 19th, 1948) referring the Constitution Article 6(b) will be treated as migrant, if with 'valid permission for resettlement' or 'permanent return'.
Article 7 safeguards hose who returned legally and permanently for other citizenship is denied.
Status: Unamended provision.
‘Union Of India v. Izhar Ahmad Khan(1962)‘CaseNo-6
- Question: Can those who migrated to Pakistan and later returned claim Indian citizenship?
- Conclusion: The Court reaffirmed that immigrants to Pakistan do not have a entitlement to claim citizenship via Article 7 unless they hold a valid resettlement permit. It resulted in a more strict application of immigration laws
MOHD. Ayub Khan v. Commissioner of Police, Madras, (1965)‘CaseNo-7
- Question: Deportation and citizenship status of a person suspected to have migrated to Pakistan.
- Concluded: The Court said that unless a bona fide return is shown, the movement to Pakistan does not entitle citizenship under Article 7.
Notwithstanding anything in article 5, any person who or either of whose parents or any of whose grand-parents 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.
The Constitution Article 8:
Article 8 of the Constitution confers citizenship of India on persons of Indian origin residing out of India. It includes any person whose parents or ancestors were born in India under the Government of India Act,1935. Most live outside India, but they can acquire Indian citizenship by registering with an Indian diplomat or consul in their country of residence. The clause was intended to protect legal relations with the Indian immigrants and to assure that their background would be respected.
No Amendments to Article 8 of the Constitution post enactment.
‘Union Of India v. Izhar Ahmad Khan(1962)‘
‘MOHD. Ayub Khan v. Commissioner of Police, Madras, (1965)‘
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.
The Indian Constitution's Article 9 clearly restricts Citizenship in certain cases. A person who has voluntarily gained the citizenship of a any foreign State, shall not be deemed to be a citizen of India under Articles 5, 6 or 8.
This clause recognizes the 'Doctrine of Single Citizenship' of the Indian Constitution and states that Indian citizenship cannot be held in parallel with foreign citizenship. It was meant to restrict 'Dual Nationality' and safeguard Indian sovereignty by forcing people to take a definite stand on whose side they are on.
No Amendments to Article 9 of the Constitution post enactment.
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.
Article 10
The article enforces that those who acquire or are deemed to possess Indian citizenship under article 5 to 9 shall be presumed to be so.
- It guarantees a person's right to continuity of citizenship. This provision ensures that if a person becomes or is considered to be a citizen of India, he or she will not lose this status unless legislation makes provision for it.
- This right is to have a status which can't be arbitrarily cancelled or altered by executive order.
- Parliament's power to make laws on the constitution is plenary, thus it may enact legislation, alter or repeal any laws of this article.
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.
Article 11
The article confers upon the Indian Parliament plenary and exclusive jurisdiction over all matters relating to citizenship and nationality.
- The principle of the article is that no provisions in the existing articles 5-10 (Part II) will derogate or affect the power vested in Parliament. This is an enabling provision.
- This power allows Parliament to make complete legislation relating to acquisition, termination and determination of citizenship.
- The power under the article gives absolute discretion to the Parliament to bring new laws concerning the nation's and its constituent's citizenship needs, so long as they do not abrogate existing laws.
- The Citizenship Act of 1955 and its later changes are based on this article.
- Consequently, even though Articles 5 to 10 settled the issue of citizenship rights when the Republic was born, Article 11 was framed with a prospective operation, and it leaves entire range of citizenship rights to the statute enacted by the Parliament.