Author: N S Ajay, Advocate,
High Court of Kerala.
Though India is a
Federation having two levels of government, Centre and the States – there is
only a single citizenship, viz., the Indian citizenship, and so no separate
state citizenship. Arts. 5 to 11 in the Constitution lay down as to who are the
citizens of India at the commencement of the constitution i.e. on January 26,
1950. As regards the citizenship of India subsequent to the commencement of the
Constitution, the provisions are contained in the Citizenship Act. 1955 enacted
by the Union Parliament under Article 11.
CITIZEN, CITIZENSHIP
A citizen is a person who enjoys full civil and
political rights in that State. Citizenship simply means the membership of the
political community or the State. Citizenship is a legal status determined by
the specific rights and duties. It carries with it certain advantages. There
are certain Fundamental Rights which are available only to the citizens of
India. There are four categories of persons, identified between Articles 5 and
8 of the constitution, who were deemed eligible to become citizens of India when
the constitution came into effect.Citizenship carries with it certain
obligations as well. For example, the Fundamental Duties contained in Article
51-A are addressed to the citizens of India only. The concept of Indian
citizenship did not exist prior to November 26, 1949, when the constituent
Assembly adopted the Constitution, bringing into force, at once, the provisions
related to citizenship.
ALIEN AND FOREIGNER
Broadly speaking, a person is an alien if he is
not the citizen of that State. The Foreigner Act 1946 did not use the term
alien. Section 2(a) of the Act defined the term ‘foreigner’. The Act was
amended in 1957. Under the amendment Act, the term foreigner is defined to mean
the same thing as alien i.e., a person who is not a citizen of India.
Aliens
are either resident aliens or non-resident aliens. Resident aliens are those
persons, who for the time being reside within the territory of the State, and
so possess a temporary and territorial title to State- membership. They stand
on a lower level, as compared to citizens in the scale of legal rights, though
they have claim to the protection of the laws and government of the State. The
non-resident aliens, possess no title of membership and stand altogether
outside the body politic.
Friendly aliens are those persons who are not
enemy aliens. An enemy alien is a person who is a subject of a State at war
with India. It also includes Indian subjects voluntarily residing in or trading
with, an enemy country. While, a friendly alien residing in India may be
conferred with full civil rights as opposed to political rights, an enemy
alien is not held entitled to such rights.
CITIZENSHIP OF INDIA AT THE COMMENCEMENT OF THE CONSTITUTION
The problem related to Citizenship of India, at
the time of independence was tackled by the three-fold provisions made in the
Constitution. A person, at the commencement of the Constitution, could be a
citizen of India in the following ways-
· By
domicile
· By
migration
· By registration
1. Citizenship
by domicile (Article 5) - At the commencement of this Constitution, every
person who has his domicile in the territory of India and
- ·
who was born in the territory of India; or
- ·
either of whose parents was born in the territory of India; or
- · 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.
Conditions specified are alternative and any one
of them needs to be fulfilled by a person having domicile in India, to be a
citizen of India. The expression territory of India meant the territory of
India as is defined under Article 1(3), at the commencement of the
Constitution.
Domicile
The term ‘domicile’ is not defined in the
Constitution. Ordinarily, it means the home or the place where a person resides
with the intention to retain himself there permanently and without any present
intention to remove himself there from.
Two elements are necessary for constituting the
domicile of a person-
1. actual
residence at that place, and
2. the
present intention to retain there permanently
Thus, there must be both factum and animus, to
constitute the existence of domicile, for neither mere residence nor mere
intention to reside at the place is sufficient to constitute the domicile of
the person. The burden to prove intention lay on the petitioner. In Mohd.
Raza v. State of Bombay, the appellant came to
India in 1938 and stayed here till 1945. He went for a pilgrimage to Iraq and
on his return he registered himself as a foreigner. He worked as a cashier in
India. In 1957, his request for extension of his stay was rejected as his intention
was not to make India his permanent residence.
Types of Domicile
Domicile of origin – Every person has
a domicile at his birth called domicile of origin. The
domicile of origin of every person of legitimate birth is the place where, at
the time of birth his father is domiciled. The domicile of origin of an
illegitimate child is the place where, at the time of birth his mother in
domiciled. This continues until he acquires a new
domicile. A married woman takes the domicile of her
husband on her marriage. A widow retains the
domicile of her deceased husband till she changes it.
Domicile of choice - Every person of full
age and capacity can acquire a domicile of choice by abandoning his domicile of
origin. He can acquire the domicile of choice by moving away from the place of
his residence to another place and settling there with a definite intension to
stay there permanently. The onus to prove that a person has changed his
domicile of origin lies upon him.
Single Domicile in India
India has one citizenship only and no separate
State citizenship. A question has, however arisen whether the same is true for
domicile or not. In D.P Joshi v. State of Madhya Bharat, the
majority of the Supreme Court held the view, that, it was theoretically
possible to have a separate State domicile in India because domicile has the
reference to the system of law by which the person is governed. In Pradeep Jain
v. Union of India, the Supreme Court has
repudiated the notion of State Domicile. The Court has asserted that there is
only one domicile, namely domicile in India. India has one single indivisible
system with a single unified justicing system having the Supreme Court at the apex
of the hierarchy.
2. Citizenship by Migration (Article 6)
The independence of India was accompanied by a
large scale migration of people from Pakistan. As there people belonged to the
territory which ceased to be a part of India after the Independence, they could
not be regarded as Indian citizens under Art. 5 and, therefore, special
provisions had to be made for them in the Constitution.
Article 6 is applicable to persons of Indian
origin, i.e. those who themselves were born in the territory of India as
defined in the Government of India Act, 1935, or either of their parents or any
of their grandparents were born in India and, in addition, fulfilled either of
the following conditions:
i.
In case they migrated to India before July 19, 1948, they had been ordinarily
resident in India since the date of their migration; or
ii.
In case they migrated on or after July 19. 1948, they had been
registered as a citizen of India.
A person could so be registered only if he had
been resident in India for at least six months preceding the date of his
application for registration. He can be registered as the citizen of India by
an Officer appointed in that behalf by the Government of the Dominion of India.
Article 6 specifies July 19, 1948 for determining
the acquisition of citizenship by immigrants from Pakistan. It was on this date
that the Influx from Pakistan (Control) Ordinance, 1948. Promulgated by the
Governor-General of India, came into force.
Citizenship of migrants to Pakistan (Article 7)
Article 7 gives even more specification to
article 5 and 6 i.e. a person who might be called citizens as per these
articles may be disqualified by article 7, It states that:-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
Migrants returning back to India
Proviso to Article 7 contains an exception in
favor of persons who having migrated to Pakistan, returned back to India. It
provided that a person, who after having migrated to Pakistan after March 1,
1947 returns to India under a permit of resettlement or for permanent return,
Indian citizenship would be vested in him under Art. 6(b), as if he had
migrated to India after July 19, 1948. The ‘migration’ referred to in this
article refers to the migration between March 1,1947 and January 26, 1950 and
does not extend to migration after that date, which will be governed by the
Citizenship Act,1955.
Migration
The concept of ‘domicile’ or permanent residence
does not enter into the word ‘migration’, and a movement from India to
Pakistan, if it was not fir a specific period of purpose and not for a
short and limited period, would constitute migration under Art. 7. It follows that even a minor or married woman may be
held to have migrated, even though they may not acquire domicile of choice.
Departure from India to Pakistan for the purpose
of employment or labor for an indefinite period
constitutes migration. Movement to Pakistan by a Government servant who opted
for Pakistan is ‘migration’ within the meaning of Art. 7. The
fact that the person acquired no property there while he possessed considerable
property in India, or that he did not remove his
parents, are not relevant considerations for determining the question of
migration.
3. Citizenship by Registration (Article 8)
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 therefore 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.
Article 8 is to cover overseas Indians having no domicile in the territory of India. Under article 8, unlike Articles 5 and 6, a person could become a citizen of India, not only at the commencement of the Constitution but also subsequent to such commencement.
No Dual Citizenship (Article 9)
Under
Art.9, no person can be a citizen of India under Articles 5, 6 and 8, if he has
voluntarily acquired the citizenship of a foreign country. This provision thus
recognizes the principle that no Indian citizen can claim a dual or plural
citizenship. Cases of loss of Indian citizenship by reason of acquisition of
the citizenship of a foreign State since January 26, 1950 are governed by
section 9 of the Citizenship Act, 1955.
The
question whether an Indian Citizen has acquires the citizenship of a foreign
country, is one for the determination by the Central Government and not by the
Court. Mere proof of the fact that a person has
obtained a passport from a foreign country, is not sufficient, to order his
deportation from India or prosecute him, unless there has been a decision of
the Central Government in this respect. The enquiry by the Central Government
in such a matter is quasi-judicial.
Continuance of the right of citizenship (Article 10)
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.
In Ebrahim Wazir v. State of Bombay, the appellant, a citizen of India, having entered
India from Pakistan without a permit, was ordered to be removed to Pakistan,
under Section 7 of the Influx from Pakistan(Control) Act, 1949. The Supreme
Court held Section 7 ultra vires the Parliament because it allowed the forcible
removal of an Indian citizen from India, destroying his right of Citizenship.
Parliament to regulate the right of citizenship by law (Article 11)
Though
there are certain provisions relating to citizenship but the parliament along
with the Citizenship Act, 1955 shall have effect on the citizenship
regulations:-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. In absence of a law expressly made under Article 11,the right
of citizenship which a person had acquired under Part II, could not be
destroyed by an Act made for a different purpose.
Acquisition of Citizenship of India after the Commencement of the Constitution (i.e. after 26th January, 1950)
The
Citizenship Act, 1955 provides the following modes of acquiring Indian
citizenship after the commencement of the Constitution –
1. Citizenship by Birth (Section 3)
Section 3 of the Citizenship Act, 1955 provides
that every person born in India on or after 26th January, 1950, shall be a
citizen of India by birth. However, no such person as above said shall be a
citizen of India, if at the time of his birth –
(a) His father (or mother) possesses such immunity from suits and legal
processes as is accorded to an envoy of a foreign sovereign power and (he or
she, as the case may be) is not an Indian citizen;
or
(b) His father (or mother) is an enemy alien and his birth takes place in a
territory then under enemy occupation.
The Citizenship Act, 1955 has been amended by
the Citizenship (Amendment) Act 1986 with the object of making the acquisition
of citizenship of India somewhat difficult. The object is to prevent persons
coming to India from Bangladesh, Sri Lanka and other African countries from
becoming citizens of India. The Citizenship (Amendment) Act, 2003 has amended
Section 3 to the effect that a person born in India on or after the
commencement of this Amendment Act (i.e. 3-12-2004) shall be a citizen of India
by birth if at the time of birth
v Both of his parents are citizens of
India; or
v One of whose parents is a citizen of
India and the other is not an illegal migrant
2. Citizenship by Descent (Section 4)
Section 4 of the Citizenship Act, 1955 provides
that a person born outside India on or after 26th January, 1950, shall be
a citizen of India by descent, if , at the time of his birth, his father
(either of his parents) is a citizen of India.
However, if the father (parent) of such a person
is himself a citizen of India by descent, then, such a person shall not be a
citizen of India unless-
(a) His birth is
registered at the Indian Consulate, or
(b) His father is, at the time
of his birth, in the service under a Government of India,
The birth of such a person can be registered,
with the Indian Consulate, within one year of its occurrence or within one year
of the commencement of the Citizenship Act, 1955, or within such period as
extended by the Government of India. The Citizenship (Amendment) Act, 2003 has
amended Section 4 to the effect that the birth of such a person as aforesaid
shall not be registered on or after the commencement of this Amendment Act,
unless the parents of such person declare, in such form and in such manner as
may be prescribed, that the minor does not hold the passport of another
country.
A minor, who is a citizen of India by virtue of
this Section and is also a citizen of any other country, shall cease to be a
citizen of India if he does not renounce the citizenship or nationality of
another country, within six months of attaining full age.
Citizenship by Registration (Section 5)
Section 5 of the Citizenship Act, 1955 provides
for the registration of certain categories of persons as citizens of India.
This Section lays down that the prescribed authority may, on application made
in this behalf, register as citizen of India, any person, who is not a citizen
by virtue of any provision of the Constitution or by virtue of any other
provisions of the Citizenship Act, 1955 and belongs to the following
categories:
a. Persons
of Indian origin who are ordinarily resident in India for six months (five
years) (seven years) immediately
before making application for registration
b. Persons
of Indian origin who are ordinarily resident in any country or place outside
undivided India
c. Women,
who are or have been married to citizens of India, after the passing of the
Citizenship (Amendment) Act, 1986, this provision reads as “persons who are, or
have been so resident for five years (seven years) immediately
before making as application for registration
d. Minor
children whose both parents are Indian citizens.
e. Persons
of full age who’s both parents are registered as citizens of India mentioned in
the First Schedule to the Citizenship Act, 1955.
Category (e) is substituted by the Citizenship
(Amendment) Act, 2003 by the following categories:
(e) a person of full age and capacity whose
parents are registered as citizens of India under clause (a) of this
sub-section or sub-section (1) of Section 6;
[(f) a person of
full age and capacity, who or either of his parents were either 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 5 years and residing
in India for two year before making application for registration.
For the purpose of clauses (a) and (c) above, an
applicant shall be deemed to be ordinarily resident in India if,-
1. If he has resided in India
throughout the period of twelve months immediately before making an application
for registration; and
2. He has resided in India during the eight
years immediately preceding the said period of twelve months for not less than
six years.
For the purpose of this Section, a person shall
be deemed to be Indian origin if he or either of his parents was born in
undivided India or such other territory which became part of India after
15thday of August, 1947. The Central Government, for reasons recorded in
writing, may grant exemption from the residential requirement under clause (c)
of sub-section (1) to any person or a class of persons, if it is satisfied that
circumstances exist which render it necessary to do so.
Section
5 of the Citizenship (Amendment) Act, 1955, further provides that the Central
Government may lay down conditions and restrictions subject to which the above
categories of persons may be registered. The Government has framed the rules
for this purpose. A certificate of registration is conclusive evidence of
acquiring Indian Citizenship except when it is proved otherwise.
Citizenship by Naturalisation (Section 6)
Naturalisation
means to adopt to introduce to any other country to admit to citizenship or to
naturalise as a citizen of a State. In the context of citizenship,
naturalisation is “the act by which rights of citizenship are conferred by a
State upon a person who was before, an alien to that State”. Section 6 of the
Citizenship Act, 1955, provides for the acquisition of citizenship of India by
naturalisation. It is applicable to persons of full age and capacity.
The
Government of India may, if satisfied that the applicant is qualified for
naturalisation, grant him a certificate of naturalisation. The qualifications
for naturalisation of a person are as follows-
(a) That he must not be a
citizen of a country where Indian citizens are prevented from becoming citizens
of that country by naturalisation;
(b) That he [has renounced the citizenship of his own country
according to the law of that country and has notified such renunciation to the
Central Government];
(c) That he has either
resided in India or has been in service of Government of India for 12 months
immediately preceding the date of making the application of naturalisation;
(d) That during 7 years
immediately preceding the above period of 12 months, he has either resided in
India or has been in the service of Government or partly the one and partly the
other, for period amounting in aggregate to not less than 4 years.
(e) That he is of good
character
(f) That he has adequate
knowledge of at least one language recognized by the constitution of India
(g) That in the event of a
certificate of naturalisation being granted to him, he intends to reside in
India or to serve under a Government in India or under an International
Organization or under a society, company or body of persons established in
India.
The Government of India may waive all or any of
the above conditions for naturalisation, in the case of a person who, in its
opinion has rendered distinguished service for the cause of science, philosophy,
art, literature, world peace or human progress generally.
Citizenship by Incorporation of Territory (Section 7)
Section
7of the Citizenship Act, 1955 provides that if any territory becomes a part of
India, the Central Government, may by orders notified in the Official
Gazette, specify the persons who shall be citizens of India by reasons of their
connection with that territory, and those persons shall be citizens of
India as from the date to be specified in the order.
Citizenship of Persons covered by Assam Accord 1985
The
Citizenship (Amendment) Act, 1985 inserted Section 6-A in the Citizenship Act,
1955, to give effect to the Memorandum of Settlement relating to the
foreigners’ issue in Assam. This Section provides citizenship of India for persons
of Indian origin who had come to Assam before 1st January 1966.
Those who came to Assam after 1st January
1966 but before 25th March, 1971 and have been detected to be foreigners
would have to register themselves. Such persons shall have the same rights and
obligations as citizens of India. But, such persons shall be deemed to be
citizens of India for all purposes as from the date of expiry of a period of
ten years from the date on which they have been detected to be foreigners.
Overseas citizenship for persons of indian origin
The
Citizenship (Amendment) Act 2003 provides for dual citizenship to Persons of
Indian Origin (PIOs) residing in 16 countries. As per the Act, the PIOs who
seek dual citizenship, would be allowed free movement without visas and be able
to own properties, build or invest directly in projects in the country.
Overseas Citizenship of India
“Overseas
Citizen of India” means “a person who- (i) is of Indian origin being a citizen
of a specified country or (ii) was a citizen of India immediately before
becoming a citizen of a specified country and is registered as an Overseas
Citizen of India by the Central Government under Sub-Section (i) of Section
7-A.”
Section 7-A of the Citizenship (Amendment) Act
2003 provides for registration of the following persons as overseas citizens of
India:
a. Any person of Indian origin of full age and
capacity who is a citizen of any country specified in the Fourth Schedule, to
the Act;
b.Any person of full age and capacity who has
obtained the citizenship of a specified country on or after the commencement of
the Amendment Act 2003 and who was a citizen of India immediately before such
commencement;
c. Any minor children of a person mentioned in
the above mentioned categories (a) and (b).
The
registration as an overseas citizen of India may be done by the Central
Government, subject to such conditions and restrictions including the condition
of reciprocity, as may be prescribed by the said Government. The person so
registered shall be an overseas citizen of India, as from the date on which he
is so registered. No person who has been deprived
of his Indian Citizenship under the Citizenship (Amendment) Act, 2003 shall be
so registered except by an order of the Central Government.
Rights of Overseas Citizens of India
Section
7-B of the Citizenship (Amendment) Act 2003 provides that the Central
Government may by Notification in the Official Gazette specify the rights to
which an overseas citizen of India would be entitled, except the rights conferred
on Citizen of India under Article 16, 58, 66, 124, 217, Sections 3, 4, 5, 5-A,
6, 16 of the Representation of People Act 1951.
An
overseas citizen of India shall not be appointed to public services and posts
in connection with the affairs of the Union or any State except for appointment
in such services as the Central Government in that behalf, specify by special
order.
After
the amendment of CITIZENSHIP (AMENDMENT) ACT, 2019 a provision is
inserted that "Provided that no order under this section shall be passed
unless the Overseas Citizen of India Cardholder has been given a reasonable
opportunity of being heard”.
Termination of Citizenship
Article
9 of the Constitution as already discussed above lays down that a citizen of
India, shall cease to be a citizen of India, if he had voluntarily acquired the
citizenship of a foreign State prior to or at the commencement of the Constitution.
As regards the termination of citizenship of
India subsequent to the commencement of the Constitution the Citizenship Act
1955 provides the following ways:
v By renunciation or
v By termination or
v By deprivation
(a) Renunciation (Section 8)
Renunciation
is covered in Section 8 of the Citizenship Act 1955. If any citizen
of India of full age and capacity, who is also a citizen or national of
another country, makes in the prescribed manner a declaration
renouncing his Indian citizenship; the declaration shall
be registered by the prescribed authority, and upon such
registration, that person shall cease to be a citizen of Indian. Provided
that if any such declaration is made during any war in which India may
be engaged, registration thereof shall be withheld until the Central
government otherwise directs.
Clause
(2) of Section 8 provides that where a male person renounces his citizenship
every minor of that person shall also cease to be a citizen of India. However
such a child may resume Indian citizenship by making a declaration to that
effect within one year of his attaining majority.
The
Citizenship (Amendment) Act 1992 has amended sub-section (2) of Section 8 to
the effect that in place of the words “a male person” the words “a person”
shall be substituted. Thus the minor children of a person, whether male or
female who renounces his/her Indian citizenship shall also cease to be citizen
of India.
Section 7-C of the Citizenship (Amendment) Act
2003 enables an overseas citizen of India of full age and capacity to renounce
his overseas citizenship of India by making a declaration and getting it
registered with the Central Government. Upon such registration he shall cease
to be an overseas citizen of India. Every minor child of such a person shall also
cease to be an overseas citizen of India.
(b) Termination of Citizenship (Section 9)
Section
9 of the Citizenship Act 1955 provides that if a citizen of India voluntarily
acquires the citizenship of any other country, subsequent to the commencement
of the Constitution he shall cease to be a citizen of India. But, it will not
apply to a citizen of India who during any war in which India may be engaged,
voluntarily acquires the citizenship of another country.
The
question falling within section 9 has to be determined to the extent indicated
therein, by the Central Government and not by the courts. The
question is a question of fact which would require careful scrutiny of
evidence.
(c) Deprivation of Citizenship (Section 10)
The
Central government under section 10 of the Indian citizenship Act, 1955
deprives any citizen of Indian Citizenship if it is satisfied that-
- The registration or certificate
of naturalization was obtained by means of fraud, false representation or
concealment of any material fact; or
- That citizen has shown himself
by act or speech to be disloyal or disaffected towards the Constitution of
India as by law established; or
- That citizen has, during
the war in which India may be engaged, unlawfully traded or communicated
with an enemy or been engaged in or associated with, any business that was
to his knowledge carried on in such manner as to assist any enemy in that
war; or
- That citizen has, within five
years after registration or naturalization, been sentenced in any country
to imprisonment for a term of not less than two years; or
- That citizen has been
ordinarily resident out of India for a continuous period of seven years,
and during that period, has neither been at any time a student of any
educational institution in a country outside India or in the service of a
Government of India or of an International organization of which India is
a member, nor registered annually in the prescribed manner at an Indian
consulate his intention to retain his citizenship of India.
- The Central Government
shall not deprive a person of citizenship unless it is satisfied that it
is not conducive to the public good that person should continue to be a
citizen of India.
Before making an order depriving a
person of his Indian citizenship the Central Government is to give to him a
written notice containing the grounds on which the order is proposed to be
made. If the order is made on any of the above mentioned grounds specified in
clauses (i) to (iv), that person might his case referred to a Committee of
Inquiry.
As regards the Overseas Citizens of India Section 7-D of the Citizenship (Amendment) Act 2003 provides that the Central Government may by order cancel the registration of such a person on any of the grounds mentioned in clauses (i) to (iv) above as also if it’s necessary to do so in the interest of the Sovereignty and Integrity of India, friendly relations with any foreign country or in the interests of the general public.
In Satish Nambiar v. Union of India overseas citizenship granted to the appellant on 18th May 2006, was cancelled on 14th February 2007, in the interest of security of India and the relationship with foreign countries. The order was based on the adverse report of the Special Security Agency. Holding that the order of cancellation of OCI was primarily an administrative decision taken with reference to the peculiar facts and circumstances of the case, the Bombay High Court said the order could not be examined by the Court.
Issue of National Identity Cards
Section
14-A inserted in the Citizenship Act 1955 as amended by the Citizenship
(Amendment) Act 2003 empowers the Central Government to provide for compulsory
registration of every citizen of India and issue him a national identity card.
For that purpose the Government may establish a National Registration Authority
who shall maintain a National Register of Indian Citizens. The details for that
purpose are to be prescribed by the Central Government.
Company or Corporation whether a Citizen of India
Though
a company is a legal person, it is not a citizen under the constitutional law
of India or the Citizenship Act, 1955. The reason as to why a company cannot be
treated as a citizen is that citizenship is available to individuals or natural
persons only and not to juristic persons.
The question whether a corporation is a citizen was decided by the Supreme Court in State Trading Corporation of India v. Commercial Tax Officer, wherein it was contended on behalf of the petitioners that the corporation was incorporated under the Companies Act and all shares were held by the President of India and two Secretaries in their official capacities and since all these three persons were citizens of India, the corporation should also be treated as a citizen. Rejecting the plea putforth by the petitioners the Supreme Court refused to recognize the corporation as a citizen. The court observed: “.......if all of them (i.e. members) are citizens of India, the company does not become a citizen of India any more than, if all are married, the company would be a married person.”
In Chiranjilal Chaudhari v. Union of India [1951] 21 Comp. CAS. 33(SC),the Supreme Court held that the fundamental rights guaranteed by the Constitution are available not merely to individual citizens but to corporate bodies as well except where the language of the provision or the nature of the right compels the interference that they are applicable only to natural persons.
Similarly
in Bennet Coleman Comp. v. Union
of India[1972]
S.C.C. 788,806, the Supreme Court extended the rule by stating “it is now clear
that the fundamental rights of shareholders as citizens are not lost when they
associate to form the company. When their fundamental rights as shareholders
are impaired by State action, their rights as shareholders are protected the
reason is that the shareholders’ rights are equally and necessarily affected if
the rights of the company are affected.
THE CITIZENSHIP (AMENDMENT) ACT, 2019 (47 of 2019) come into force on 10th day of January, 2020. Some of the provisions are inserted in old act and give more clarification on migrant from Afghanistan, Bangladesh or Pakistan. It says that “ Provided that any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December, 2014 and who has been exempted by the Central Government by or under clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any rule or order made thereunder, shall not be treated as illegal migrant for the purposes of this Act.
Special provisions as to citizenship of
person covered by proviso to clause (b) of sub-section (1) of section 2 is
inserted after section 6A. On and from the date of commencement of the
Citizenship (Amendment) Act, 2019, any proceeding pending against a person in
respect of illegal migration or citizenship shall stand abated on conferment of
citizenship to him. Provided that such person shall not be disqualified for
making application for citizenship under this section on the ground that the
proceeding is pending against him and the Central Government or authority
specified by it in this behalf shall not reject his application on that ground
if he is otherwise found qualified for grant of citizenship. Provided further
that the person who makes the application for citizenship under this section
shall not be deprived of his rights and privileges to which he was entitled on
the date of receipt of his application on the ground of making such
application. Prior to 2019, the
amendments in the Citizenship Act, 1955 never explicitly restricted grant to
citizenship to certain religious communities. The previous governments had a
holistic approach – either they never provided for citizenship to illegal
migrants or provided citizenship to illegal migrants belonging to all the
communities.
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