INTRODUCTION
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.[1]
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[2] as
opposed to political rights, an enemy alien is not held entitled to such
rights.[3]
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
Ø who was born in the
territory of India; or
Ø either of whose parents
was born in the territory of India; or
Ø 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,[4]
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.[5]
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.[6] This
continues until he acquires a new domicile.[7] A
married woman takes the domicile of her husband on her marriage. [8]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.[9]
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,[10]
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,[11]
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.[12]
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 atleast
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.[13]
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.[14]
It follows that even a minor or married woman may be held to have migrated,
even though they may not acquire domicile of choice.[15]
Departure from India to Pakistan for the purpose of employment or labor[16] 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.[17] The fact that the person
acquired no property there while he possessed considerable property in India,[18] 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.[19]
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.[20] 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.[21]
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,[22] 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)[23]
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)[24]
is not an Indian citizen; or
(b) His
father (or mother)[25]
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[26]
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)[27]
is a citizen of India. However, if the father (parent)[28]
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.[29]
3.
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)[30](seven
years)[31]
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)[32]
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;
[33][(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,-
v If he has
resided in India throughout the period of twelve months immediately before
making an application for registration; and
v 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 15th
day 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.[34]
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-[37]
(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 [38][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[39]
(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.[40]
5.
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.
v 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.[41] 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.[42]
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.[43]
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.[44] The question is a question of fact which would
require careful scrutiny of evidence.[45]
(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-
i.
The registration or certificate of naturalization
was obtained by means of fraud, false representation or concealment of any
material fact; or
ii.
That citizen has shown himself by act or speech to
be disloyal or disaffected towards the Constitution of India as by law
established; or
iii. 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
iv.
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
v.
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.
vi.
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[46]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[47], 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.
[1]
See articles 15, 16, 19, 29,30 of the Constitution.
[2]
For example, rights secured by Articles 14, 20, 22 of Indian Constitution are
available to aliens also.
[3]
See, e.g., Clause 3(a) of Article 22 of the Constitution of India, infra, 365
[4]
AIR 1966 SC 1436
[5] Central Bank of India v. Ram
Narain, AIR 1955 SC 36
[6] Malkiat Singh v. State of Punjab, AIR 1959 Pb. 250
[7] Central Bank of India v. Ram
Narain, AIR 1955 SC 36
[8] Karmun Nisa v. State of Madhya Pradesh, AIR 1955 Nag 6
[9] Kedar Pandey v. Narain Bikram Sah, AIR 1966 SC 160
[10]
AIR 1955 SC 334
[11]
AIR 1984 SC 1420
[12] Narayandas v. State of Bombay, AIR 1958 Bom 68
[13] State of A.P v. Khader Abdul, AIR 1961 SC
1467
[14] Kulathil Mammu v. State of Kerala, AIR
1966 SC 1614
[15] State of Bihar v. Amar Singh, AIR 1955 (1) SCR
1259
[16] Kulathil Mammu v. State of Kerala, AIR
1966 SC 1614
[17] Aslam Khan v. Fazal Haque Khan, AIR 1959 All. 79
[18] Attaur Rahaman v. State of M.P., AIR 1951 Nag.
43
[19] State of U.P v. Shah Md. , (1969) II SCWR 223
[20] State of Andhra Pradesh v. Khader, AIR 1961 SC 1468
[21] Lal Babu Hussain v. Electoral Registration Officer, AIR 1995 SC 810
[22]
AIR 1954 SC 229
[23] Ins. by the Citizenship (Amendment) Act, 1986,
(w.e.f. 1-7-1987)
[24] Ibid
[25] Ibid
[26] The expression “illegal migrant” means a
foreigner who has entered into India without valid travel documents or having
entered into India with such documents, remains therein beyond permitted period
of time.
[27] Substituted for the term “father” by the
Citizenship (Amendment) Act 1992 (w.e.f. 10-12-2003)
[28] Ibid
[29] Proviso to sub-clause (ii) of clause (b) of
Section 4 of the Citizenship (Amendment) Act 2003.
[30] Substituted by the Citizenship (Amendment) Act
1986 for “six months”. (w.e.f. 26-11-1986)
[31] Substituted for “five years” by the
Citizenship (Amendment) Act 2003. (w.e.f. 3-12-2004)
[32] Ibid
[33] Inserted by Citizenship (Amendment) Act, 2003
[34] Hari
Shankar Jain v. Sonia Gandhi AIR
2001 SC 3689
[35] Ibid
[36] Madan
Lal Arya v. Union of India AIR
2003 All 11
[37] See Third Schedule to the Citizenship Act 1955
[38] There words are substituted for the words “he
undertakes to renounce the citizenship of that country in the event of his
application for Indian Citizenship being accepted
[39] See the Eighth Schedule to the Constitution,
as it stands amended by the Constitution (92nd amendment) Act 2003.
[40] Proviso to clause(1) of Section 6 of the
Citizenship Act 1955
[41] Clause (2) of the Citizenship (Amendment) Act
2003
[42] Clause (3) of Section 7-A of the Citizenship
(Amendment) Act 2003
[43] Sub-clause (9) of clause (2) of Section 7-A of
the Citizenship (Amendment) Act 2003
[44] S.K.
Moinuddin v. Government of India
AIR 1967 SC 1143
[45] Lal Babu
Hussain v. Electoral Registration
Officer AIR 1995 SC 1189
[46] AIR 2008 Bom 158
[47] AIR 1963 SC 1811
1 comment:
really good knowledge
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