CITIZENSHIP

Meaning of Citizenship.-The population of State is divided into two classes Citizens and aliens.
A citizen of a State is a person who enjoys full civil and political rights. Citizens are different
from aliens who do not enjoy all these rights. Citizenship carries with it certain advantages
conferred by the Constitution. Aliens do not enjoy these advantages. The following fundamental
rights are available only to citizens :

(1) The right not to be discriminated against any citizen on grounds of religion, race, caste, sex or
place of birth (Article 15). 16). (2) The right to equality of opportunity in the matter of public
employment Article

(3) The right to six freedoms enumerated in Article 19. Le.. freedom of speech and

expression; assembly association: movement; residence; profession. (4) Cultural and educational
rights conferred by Articles 29 and 30.

(5) There are certain offices under the Constitution which can be occupied by citizens only eg.
office of the President [Article 58 (1)(a)): Vice-President [Article 67 (3)a)]: Judges of the
Supreme Court [Article 124 (3)] or of a High Court (Article 217 (2)): Attorney-General Article
76(1): Governor of a State [Article 157): Advocate- General of a State Article 165).

(6) The right to vote for election to the House of the People and the Legislative Assemblies of
States is available to the citizens only and only they can become members of the Union and the
State Legislatures.

The rights guaranteed by Articles 14 and 21 are available to alien also.

Constitutional Provisions.

The Constitution does not lay down a permanent or comprehensive provision relating to
citizenship in India. Part II the Constitution simply describes classes of persons who would be
deemed to be the citizens of India at the commencement of the Constitution, the 26th January,
1950, and leaves the entire law of the citizenship to be regulated by law made by Parliament.
Article 11 expressly confers power on Parliament to make laws to provide for such matters. In
exercise of its power the Parliament has enacted the Indian Citizenship Act, 1955. This Act
provides for the acquisition and termination of citizenship subsequent to the commencement of
the Constitution

Citizenship at the commencement of the Constitution, i.e., January 26, 1950.-The following
persons under Articles 5 to 8 of the Constitution of India shall become citizens of India at the
commencement of Constitution :

1. Citizenship by domicile (Article 5).

2. Citizenship of emigrants from Pakistan (Article 6).

3. Citizenship of migrants to Pakistan (Article

4. Citizenship of Indians abroad (Article 8).

(1) Citizenship by Domicile (Article 5)-According to Article 5 a person is entitled to citizenship

by domicile if he fulfils the following two conditions: Firstly, he must, at the commencement of
the Constitution, have his domicile in the territory of India. Secondly, such person must fulfil any
one of the three conditions laid down in that Article, namely (1) he was born in India, (2) either
of his parents was born in India, (3) he must have been ordinarily resident in the territory of India
for not less than five years immediately before the commencement of the Constitution.

Domicile in India is considered an essential requirement for acquiring the status of Indian
Citizenship. But the term 'domicile' is not defined in the Constitution. The domicile of a person is
in that country in which he either has or is deemed by law to have his permanent house. There is
distinction between 'domicile' and 'residence. Residence alone in a place is not sufficient to
constitute the domicile. It must be accompanied by the intention to make it his permanent home.
But it is basically a legal concept for the purpose of determining what is the personal law
applicable to an individual, and even if an individual has no permanent home, he is invested with
a domicile by law.

There are two main classes of domicile viz, domicile of origin and domicile of choice. While the
former attaches to the individual by birth, the latter is acquired by residence in territory subject to
a distinctive legal system, with the intention to reside there permanently. In Pradeep Jain v.
Union of India,' the Supreme Court has held that in India Article 5 recognises only one domicile
viz. domicile of India. It does not recognise the notion of State domicile. When a person who is
permanently resident in one State goes to another State with intention to reside there permanently
or indefinitely, his domicile, does not change and he does not acquire a new domicile of choice.
India is not a federal State in the traditional sense of the term. It has only one citizenship viz, the
citizenship of India. It has also one single unified legal system applicable throughout the country.
The concept of 'domicile has relevance to the applicability of municipal laws whether made by
the Union of India or by the States.

Two elements are necessary for the existence of domicile

 a residence of a particular kind, and

 an intention of a particular kind.

The residence need not be continuous but it must be indefinite, not purely fleeing. The intention
must be a permanent intention to reside for ever in the country where the residence has been
taken up. Domicile is not the same thing as residence. Mere residence in a place is not sufficient
to constitute domicile. It must be accompanied by the intention to make it his permanent home.
Thus, there must be both the factum and animus to constitute the existence of domicile for
neither domicile nor mere residence is sufficient to make him an Indian citizen. Domicile
accompanied with five years' residence are necessary to make a person a citizen. Thus a person
born in Goa of Goan parents came to Bombay in his boyhood, was educated there, had resided
there, since then and did his father's business there. He was held to be an Indian citizen by
domicile.

In Mohammad Raza v. State of Bombay' the appellant came to India in 1938. He went on
pilgrimage to Iraq in 1945. On return, he was registered as a foreigner and several times his stay
in India was extended. In 1957 his request to extend the stay period was refused. He contended
that he must be regarded as a citizen of India under Article 5, but his appeal was dismissed. The
Court held that though he was original resident, he did not acquire Indian citizenship because he
did not have a domicile in India. When the appellant returned from Iraq, he took over the job of a
cashier in a hotel. That by itself was held insufficient to establish that there was a change in his
mind of the kind necessary to acquire a new domicile. His application for extending his stay in
India made from time to time fortified this conclusion. The domicile of choice continues until the
former domicile has been resumed or another has been acquired.

In Louis De Raedt v. Union of India, the petitioners, who were foreign nationals challenged the
order of the Central Government expelling them from India on their failure to acquire Indian
Citizenship. The petitioners came to India before Independence and were staying continuously
on the basis of foreign passport and residential permits. They were engaged in Christian
missionary work. They contended that they became citizens of India by virtue of Article 5 (c) of
the Constitution as they were staying in India for more than S years immediately before the
commencement of the Constitution. The Court held that they failed to establish that they had an
intention to reside in India permanently. The petitioners did not have their domicile in India. For
the acquisition of a domicile of choice, it must be shown that the person concerned had a certain
state of mind, the animus manendi. If he claims that he had acquired a new domicile a particular
time he must prove that he had formed the 'intention of making his permanent home in the
country of residence'. Residence alone, unaccompanied by this state of mind, is insufficient.
Domicile of origin is lost only on acquisition of domicile of choice and not on mere continuous
stay in other country.

A minor or married woman is not independent person. Neither of these classes has the legal
capacity to make a change of domicile. Therefore, the domicile of an infant generally follows the
domicile of his father, while a married woman takes the domicile of her husband. A widow
retains the domicile of her husband until changed by her own act.

Intention is an important element in determining the domicile of a person. It can be inferred from
the conduct of persons. Thus a person in Government service, who was given the choice for
opting for India or Pakistan, who opted for Pakistan, actually went to Pakistan, served there
under the Government of Pakistan. but who subsequently resigned his job there and came to
India cannot claim the benefit of Article 5 for he never became the citizen of India

(2) Citizenship of Migrants to India from Pakistan (Article 6).—Persons who have migrated from
Pakistan to India have been classified into two categories for the purpose of citizenship. i.e. (i)
those who came to India before July 19, 1948, and (ii) those who came on or after July 19, 1948.
Article 6 provides that a person who has migrated to India from Pakistan shall be deemed to be a
citizen of India at the commencement of the Constitution, i.e., on 26th January, 1950, if he or
either of his parents or any of his grandparents were born in India defined in the Government of
India Act, 193i5, and in addition to above condition. ich applies in both cases fulfill one of the
following two conditions:- (i) in case he migrated to India before July 19, 1948 (the date on
which the permit ystem for such migration was introduced) he has been ordinarily residing in
India since the date of his migration or

(i) in case he migrated on or after July 19, 1948 he has been registered as citizen of India by an
officer appointed by the Government of India for the purpose : Provided that no person shall be
so registered unless he has been residing in India for at least six months immediately before the
date of his application for registration. If the above conditions are satisfied, a person shall be
deemed to be a citizen of India.

(3) Citizenship of Migrants of Pakistan (Article 7).-Under Article 7 a citizen by domicile (Article
5) or by migration (Article 6) ceases to be a citizen if he has migrated to Pakistan after March 1,
1947. An exception is, however, made in favour of a person who has returned to India on the
basis of permit for resettlement in India. Such a person is entitled to become a citizen of India if
he fulfils other conditions necessary for immigrants from Pakistan after July 19, 1948, under
Article 6. He can register himself as citizen of India in the same manner as a person migrating
from Pakistan after July 19. 1948.Article 7 thus overrides Articles 5 and 6. Both Articles 6 and 7
use the term migrated'.

The meaning of the term 'migrated' came for consideration before the Supreme Court in Kulathi
v. State of Kerala. According to the Court the term 'migrated' used in Anicles 6 and 7 has to be
construed with reference to the context and purpose and the prevailing political condition at the
time the Constitution was being enacted. So interpreted, the word 'migrated' could mean nothing
except voluntarily going from India 10 Pakistan permanently or temporarily. The majority held
that the word 'migrate' was used in a wider sense of moving from one country to another with the
qualification that such movement was not for a short visit or for a special purpose.

Thus, it is a question of fact whether a person has migrated to or has gone to Pakistan on a
temporary visit only and has to be decided on the facts and circumstances of each case.
Citizenship comes to an end only when there is a migration and not where there was only a
temporary visit. But in the context of the Constitution, it has the notion of transference of
allegiance from India to Pakistan. A temporary visit on business or otherwise canrot amount to
migration.
In State of Bihar v. Kumar Amar Singh, one Kumar 'tani, who was admittedly born in the
territory of India and claimed to be the lawfully wedded wife of an Indian citizen whose domicile
was India at all material times, left India for Pakistan in July 1948, returned to India in
December, 1948 on a temporary permit and went back to Pakistan in April 1949. On May 14,
1953 she came back to India under permanent permit obtained from High Commissioner for
India in Pakistan, which was cancelled on k 1950, because it was wrongly issued without the
concurrence of the Govern 12 required by the rules made under the Influx form Pakistan
(Control) Act, 1949. She contended first that she had never ceased to be a citizen of India
because she was She India and her domicile was the domicile of her husband who was an Indian
consequently she was a citizen of India. She contended, alternatively that the provi Article 7
applied to her since she had returned to India on a permanent permit and th subsequent
cancellation of the permit was illegal and irrelevant. It was held that there could be no doubt that
the lady must be held to have migrated from the territory of India after Ist March, 1947, although
her husband stayed in India, but she could not prove that she went to Pakistan for a temporary
purpose". The Supreme Court observed: "Article 7 clearly overrides Article 5. It is pre-emptory
in its scope and makes no exception for such a case, i.e., of the wife migrating to Pakistan
leaving her husband in India".

In Bhawanrao Khan v. Union of India,' the Supreme Court has held that those who had
voluntarily migrated to Pakistan and became citizens of Pakistan cannot claim the citizenship of
India on the ground that they had been living in India for a long time and their names have been
included in the voters list. In this case, a lady Bhanwaroo Khan had claimed Indian citizenship
on the ground that she had returned to India in 1955 and had been living here since then. The
Court held that "a foreign lady cannot claim Indian citizenship merely on the ground of long stay
and inclusion of her name in the voters list".

(4) Citizenship of persons of Indian origin residing outside India.--Article provides that any
person or either of whose parents or any of those grand-parents was 8 born in India as defined in
the Government of India Act, 1935, and who is ordinarily residing in any country outside India,
shall be deemed to be a citizen of India as if he has been registered as a citizen of India by the
Diplomatic or Consular representatives of India in the country where he is for the time being
residing-on application made by him to such diplomatic or consular representative, whether
before or after 26th January, 1950, in the form and manner prescribed by the Government of the
Dominion of India or Government of India. Article 8 confers citizenship on Indian nationals
residing abroad on their complying with its provisions.
Article 9 provides that if a person voluntarily acquires the citizenship of any foreign State he
shall not be able to claim citizenship of India under Articles 5, 6 and 8. It deals only with
voluntary acquisition of citizenship of a foreign State before the Constitution came into force.
Cases of voluntary acquisition of a foreign citizenship before the commencement of the
Constitution will have to be dealt with the Government of India under the Citizenship Act of
1955.

Article 10 provides that every person who is or is deemed to be a citizen of India under any of
the foregoing provisions shall continue to be a citizen of India subject, however, to the
provisions of any law that may be made by Parliament. Thus, in exercise of this power,
Parliament may take away the right of citizenship of any person. But the right to citizenship
given under the foregoing provisions can only be taken away by an express law made by
Parliament. It cannot be taken away indirectly. In Ebrahim Wazir v. State of Bombay, the
constitutional validity of Influx from Pakistan (Control) Act. 1949. was involved. This Act
provides that no person domiciled in India or Pakistan shall enter India from Pakistan without a
permit. If a person enters India without a permit he commits an offence punishable under the
Act. Section 7 of the Act authorises the Central Government to direct the removal from India of
any person who has committed, or against whom a reasonable suspicion exists that he has
committed an offence under the Act. The Supreme Court held that Section 7 was ultra vires of
Parliament because to allow the forcible removal of an Indian citizen from India would be
tantamount to destroying the right of citizenship conferred by Part 2 of the Constitution. The
right of citizenship, the Court said, could only be taken away by recourse to Article 11 of the
Constitution. Thus, in absence of any law expressly made under Article 11 the right of
citizenship cannot be destroyed by an Act made for a different purpose.