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 and Anr. 1969 3 SCR 1006; 1969 INSC 79.
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 INSC 22; 1965 2 SCR 884.
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, 1984 INSC 117; (1984)3 SCR 942.
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 crireria is defiedn in Article 6 of the Constitution. Article 6 specifically deals with the aspect of partition and people coming from Pakistan to india interms 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.
State of U.P. v. Shah Mohammad and Anr., 1969 3 SCR 1006; 1969 INSC 79.
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.
UNION OF INDIA v. IZHAR AHMAD KHAN, 1962 INSC 58; [1962] SUPP. 3 SCR 235.
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 manag 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 pweron migrated to Pakistan after March 1st, 1947, He will not be consider as Indian citizen.
Exception: In case he returen before cut-off time line (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 leagally and permanantly for othere citizenship is denied.
Status: Unamended provision.
UNION OF INDIA v. IZHAR AHMAD KHAN, [1962] INSC 58; [1962] SUPP. 3 SCR 235.
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 And Others v. Commissioner Of Police, Madras, [1965] INSC 22; [1965] 2 SCR 884.
Question: Deportation and citizenship status of a person suspected to have migrated to Pakistan.
Councluded: 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] INSC 58; [1962] SUPP. 3 SCR 235.
MOHD. Ayub Khan And Others v. Commissioner Of Police, Madras, [1965] INSC 22; [1965] 2 SCR 884.