There are two well-known principles for the grant of citizenship:
- While ‘jus soli’ confers citizenship on the basis of place of birth, ‘jus sanguinis’ gives recognition to blood ties.
- From the time of the Motilal Nehru Committee (1928), the Indian leadership was in favour of the enlightened concept of jus soli.
- The racial idea of jus sanguinis was also rejected by the Constituent Assembly as it was against the Indian ethos.
Nationality vs Citizen:
Citizenship may be distinguished from nationality of a person. While the former refers to the relationship of an individual with the State from the internal aspect, the latter refers to similar relationship from the international aspect. While all citizens of a State must be its nationals, all nationals may not be its citizens. In India, the term nationality is neither used in the Constitution nor in the Citizenship Act, 1955. Therefore, every citizen of India would also be regarded as an Indian national.
| Nationality | Citizen |
| Nationality denotes where an individual has been born or holds citizenship with a state. Nationality is obtained through inheritance from his/her parents. | Citizenship is a legal status in a political institution such as a city or a state. The relationship between a citizen and the institution that confers this status is formal, |
| Ethnic or Racial | Legal or Juristic |
| Birth and Inheritance (subject to the rules prevalent in the country) | Birth, Inheritance, Marriage, Naturalization, |
| Nationality cannot be changed | Citizenship can be changed |
Rights to be enjoyed by citizen in India:
- Article 15 – Prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth
- Article 16 – Equality of opportunity in matters of public employment
- Article 19 – Protection of Six Fundamental Rights
- Article 29 – Protection of language, script and culture of minorities
- Articles 30 – Right of minorities to establish and administer educational institutions
- Right to vote
- Right to contest elections
Alien and Foreigner:
A person is an alien in a State if he is not a citizen of that State. The Foreigners 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 amended Act, the term ‘foreigner’ is defined to mean the same thing as an alien, i.e., a person who is not a citizen of India. The question, whether a person is an alien or not with respect to a State, is to be determined by the law of that State.
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 resident in India may be conferred with full civil rights as opposed to political rights, an enemy alien is not held entitled to neither civil nor political rights.
Rights enjoyed by foreigners except enemy aliens:
| Fundamental rights available to both citizens and foreigners except enemy aliens |
| Article 14 – Equality before the law and equal protection of laws. Article 20 – Protection in respect of conviction for offences. Article 21 – Protection of life and personal liberty. Article 21A – Right to elementary education. Article 22 – Protection against arrest and detention in certain cases. Article 23 – Prohibition of traffic in human beings and forced labour. Article 24 – Prohibition of employment of children in factories etc. Article 25 – Freedom of conscience and free profession, practice and propagation of religion. Article 26 – Freedom to manage religious affairs. Article 27 – Freedom from payment of taxes for promotion of any religion. Article 28 – Freedom from attending religious instruction or worship in certain educational institutions. |
Refugee
A refugee is a person who has fled their own country because they are at risk of serious human rights violations and persecution there. The risks to their safety and life were so great that they felt they had no choice but to leave and seek safety outside their country because their own government cannot or will not protect them from those dangers. Refugees have a right to international protection.
Rights of Refugees
- Non-Refoulement: Article 33 (1) of the 1951 Refugee convention, non-refoulement refers to the obligation of States, not to refoul, or return, a refugee to the territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. This principle is universally acknowledged as a human right.
- Right to freedom from torture or inhumane treatment: Article 5 of the Universal Declaration of Human Rights states that ‘No one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment.
India and Refugees:
According to UN estimates, India hosts almost 213,000 refugees and asylum seekers, most hailing from Sri Lanka, Afghanistan, China or Myanmar. India’s location in South Asia – surrounded as it is by ethnic violence in Sri Lanka and Myanmar, conflict in Afghanistan, and political and ethnic suppression in China puts the country at the centre of refugee movements. India is not a party to the 1951 Refugee Convention and its 1967 Protocol, but India has had a stellar record on the issue of refugee protection. India has a moral tradition for assimilating foreign people and culture.
Further, the constitution of India also respects the life, liberty, and dignity of human beings.
The Supreme Court in the National Human Rights Commission vs. State of Arunachal Pradesh (1996) held that “while all rights are available to citizens, persons including foreign citizens are entitled to the right to equality and the right to life, among others.”
Issues due to lack of policy framework
- The absence of legal framework for refugees leads to policy ambiguity whereby India’s refugee policy is guided primarily by adhocism and ‘political utility’.
- At the same time, the absence of a legal framework increases the possibility of the domestic politicisation of refugee protection and complicates its geopolitical fault lines.
- The absence of a clearly laid down refugee protection law also opens the door for geopolitical considerations while deciding to admit refugees or not.
- For example, India’s decision in the recent case of admitting Myanmar’s refugees fleeing to India was influenced by the possibility of irking the Generals in Naypyitaw.
Reasons India does not have enabling policy
- Social consequences of permitting refugees: Violence in Arunachal Pradesh after citizenship amendment act.
- Refugees might create an identity crisis with the indigenous people. For example, Bangladeshi refugees in Assam and Arunachal threaten to overtake the indigenous population of the region.
- Difficult to identify and deport them back to their country after a few years. For example, the Rohingya refugees entered through the North-East. But later they spread to all other states.
- Economic consequence of permitting refugees:
- Increased financial responsibility of the state.
- Decreases domestic wage level and replaces the native people. Since illegal immigrants and refugees require food and shelter, they also work at very low wages in their settling areas.
- Political consequence of permitting refugees: Disturbing level playing electoral field as seen in Assam
- Issue of terrorism: These refugees, since not accepted by governments, are vulnerable to join terror outfits for work and revenue.
Suggestion:
- A National Immigration Commission can be appointed to frame a National Migration Policy and a National Refugee Policy for India.
- The government must strengthen the Foreigners Act 1946 and also sign bilateral agreements with neighbourhood countries regarding deportation.
- The states must cooperate with the centre on the refugee problem. As law and order is a state list while international relations come under the Union list.
- The states should follow the MHA guidelines of 2018 to identify illegal immigrants. The MHA recommendations include:
- Restrictions of Illegal Migrants specific locations as per provisions of law
- Capturing their biographic and biometric particulars
- Cancellation of fake Indian documents
- Initiating legal proceedings including deportation proceedings as per provisions of law
Asylum seeker
An asylum seeker is a person who has left their country and is seeking protection from persecution and serious human rights violations in another country, but who hasn’t yet been legally recognized as a refugee and is waiting to receive a decision on their asylum claim. Seeking asylum is a human right. This means everyone should be allowed to enter another country to seek asylum.
Migrant
Migrants choose to move not because of a direct threat of persecution or death, but mainly to improve their lives by finding work, or in some cases for education, family reunion, or other reasons. Unlike refugees who cannot safely return home, migrants face no such impediment to return. If they choose to return home, they will continue to receive the protection of their government.
Constitutional Provisions:
- Citizenship is listed in the Union List under the Constitution and thus is under the exclusive jurisdiction of Parliament.
- The Constitution does not define the term ‘citizen’ but details of various categories of persons who are entitled to citizenship are given in Part 2 (Articles 5 to 11).
- Unlike other provisions of the Constitution, which came into being on January 26, 1950, these articles were enforced on November 26, 1949, itself, when the Constitution was adopted.
- Article 5:
- It provided for citizenship on commencement of the Constitution.
- All those domiciled and born in India were given citizenship.
- Even those who were domiciled but not born in India, but either of whose parents were born in India, were considered citizens.
- Anyone who had been an ordinary resident for more than five years, too, was entitled to apply for citizenship.
- According to Article 5 of the Constitution , a person shall be a citizen of India, if , he fulfils the following two conditions :
- 1. He must at the commencement of the Constitution, have his domicile in the territory of India and
- 2. Such a person must fulfil any one of the following three conditions
- a) he was born in the territory of India
- b) either of his parents was born in the territory of India; or
- c) he must have been ordinarily resident in the territory of India for not less than 5 years immediately preceding the commencement of the constitution.
- Article 6:
- It provided rights of citizenship of certain persons who have migrated to India from Pakistan.
- Since Independence was preceded by Partition and migration, Article 6 laid down that anyone who migrated to India before July 19, 1949, would automatically become an Indian citizen if either of his parents or grandparents was born in India.
- But those who entered India after this date needed to register themselves.
- Article 7:
- Provided Rights of citizenship of certain migrants to Pakistan.
- Those who had migrated to Pakistan after March 1, 1947, but subsequently returned on resettlement permits were included within the citizenship net.
- The law was more sympathetic to those who migrated from Pakistan and called them refugees than to those who, in a state of confusion, were stranded in Pakistan or went there but decided to return soon.
- Article 8:
- Provided Rights of citizenship of certain persons of Indian origin residing outside India.
- Any Person of Indian Origin residing outside India who, or either of whose parents or grandparents, was born in India could register himself or herself as an Indian citizen with Indian Diplomatic Mission.
- Article 9:
- Provided that if any person voluntarily acquired the citizenship of a foreign State will no longer be a citizen of India.
- Article10:
- It says that every person who is or is deemed to be a citizen of India under any of the foregoing provisions of this Part shall, subject to the provisions of any law that may be made by Parliament, continue to be such citizen.
- Article 11:
- It empowers Parliament to make any provision with respect to the acquisition and termination of citizenship and all matters relating to it.
Acquisition and Termination of Indian Citizenship:
There are four ways in which Indian citizenship can be acquired: birth, descent, registration and naturalisation. The provisions are listed under the Citizenship Act, 1955.
- By Birth:
- Every person born in India on or after 26.01.1950 but before 01.07.1987 is an Indian citizen irrespective of the nationality of his/her parents.
- Every person born in India between 01.07.1987 and 02.12.2004 is a citizen of India given that either of his/her parents is a citizen of the country at the time of his/her birth.
- Every person born in India on or after 3.12.2004 is a citizen of the country given both his/her parents are Indians or at least one parent is a citizen, and the other is not an illegal migrant at the time of birth.
- By Descent:
- 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 is a citizen of India. However, if the father of such a person is himself a citizen of India by descent, then, such a person shall not be a citizen of India unless-his birth is registered at the Indian Consulate, or his father is, at the time of his birth, in the service under a Government in India.
- The Citizenship (Amendment) Act, 2003 has amended Section 4 and now 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.
- By Registration
- Citizenship can also be acquired by registration. Some of the mandatory rules are:
- A person of Indian origin who has been a resident of India for 7 years before applying for registration.
- A person of Indian origin who is a resident of any country outside undivided India.
- A person who is married to an Indian citizen and is ordinarily resident for 7 years before applying for registration.
- Minor children of persons who are citizens of India.
- A person of full age and capacity who has been registered as an overseas citizen of India for five years and who has been residing in India for two years before making an application for registration.
- For the purpose of clauses (a) and (c) above, an applicant shall be deemed to be ordinarily resident in India if- (I)he has resided in India throughout the period of twelve months immediately before making an application for registration; and (ii) he has resided in India during the eight years immediately preceding the said period of twelve months for a period of not less than six years. For the purpose of this Section, a person shall be deemed to be of Indian origin if he or either of his parents was born in undivided India or in other territory which became part of India after the 15th day of August.
- By Naturalisation:
- 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.
- Eligibility:
- He must not be a citizen of a country where Indian citizens are prevented from becoming citizens of that country by naturalisation.
- He has renounced the citizenship of his own country according to the law of that country and has notified that he has renounced renunciation to the Central Government)
- He has either resided in India or has been in the service of Government of India for 12 months immediately preceding the date of making the application for naturalisation.
- That for 14 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 of the other, for period amounting in aggregate to not less than 11 years.
- He is of good character.
- He has adequate knowledge of at least one language recognised by the Constitution of 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 a human progress generally.” Citizenship by incorporation of Territory: Section 7 of the Citizenship Act, 1955, provides that if any territory, not being part of the territory of India, becomes a part of the territory of India, the Government of India may, by order, notified in the Official Gazette, specify the persons, who are residents of such territory, to be citizens of India from the date to be specified in the order.
