Law of Citizenship
Forward to the Union Minister of Law and Justice, Ministry of Law and Justice, Government of India by K.K. Mathew, Chairman, Law Commission of India, on December 3, 1984.
Shri Jagannath Kaushal,
Law of Citizenship
Law of Citizenship
1.1. Articles 5 to 9 of the Constitution.—The law relating to Indian citizenship is set out in Articles 5 to 11, in Part II of the Constitution of India, and in the Citizenship Act (57 of 1955). Article 5 deals with the citizenship of persons who stayed in the territory allotted to India after partition of the country in 1947 into India and Pakistan. Such persons became Indian citizens provided they had their domicile in India by birth or descent, or, if they had been domiciled in India and were ordinarily resident in India for not less than five years immediately before the commencement of the Constitution. Article 6 deals with persons who were residing in the territory allotted to Pakistan, at the time of partition, but who wished to acquire an Indian domicile and become citizens of India. Article 7 deals with persons who, after March 1, 1947, had left India, that is the territory allotted to India on partition, for the territory allotted to Pakistan. Such persons were not deemed to be citizens of India. The proviso to the Article deals with the possibility that some of these persons might have left for Pakistan because of the violence and disorder which preceded and followed the partition, but since then desired to return to India. If such persons returned to India under a permit for resettlement or permanent return, they are deemed to be Indian citizens. Article 8 confers Indian citizenship on Indians residing abroad if they complied with the provisions of that Article. Article 9 provides that a person shall not be a citizen of India if he has voluntarily acquired the citizenship of any foreign State. The Supreme Court held that Article 9 applies only to cases of acquisition of citizenship of a foreign State prior to the commencement of the Constitution because of the phrase ‘has voluntarily acquired’ in the Article. This has led to the anomaly that the acquisition of foreign citizenship after January 26, 1950, did not involve the loss of Indian citizenship. Parliament, however, in section 9(1) of the Citizenship Act, 1955, dealt with the situation by providing that any citizen of India who, by naturalization registration or otherwise voluntarily acquires or has at any time between the 26th January, 1950, and the commencement of the Act voluntarily acquired, the citizenship of another country shall, upon such acquisition or, as the case may be, such commencement, cease to be a citizen of India. That is to say, if a person acquired foreign citizenship after January 26, 1950, and before the commencement of the Citizenship Act (December 30, 1955) then such person would cease to be an Indian citizen only on and from December 30, 1955.
1.2. Articles 10 and 11 of the Constitution.—Article 10 provides that any person who is a citizen of India, shall continue to be such citi.e.,subject to the provision of any law made by Parliament and Article 21 gives power to Parliament to legislate on the acquisition and termination of citizenship, and other matters relating to citizenship, even to the extent of modifying or overriding Articles 5 to 9.
1.3. Citizenship Act, 1955, sections 3 to 7.—The Citizenship Act, 1955, was passed in exercise of the power conferred on Parliament by Article 11. It deals with the acquisition and termination of citizenship on or after January 26, 1950. The Act provides for five modes of becoming an Indian citizen—(1) citizenship by birth (section 3); (2) Citizenship by descent (section 4); (3) Citizenship by registration (section 5); (4) Citizenship by naturalisation (section 6); and (5) Citizenship by incorporation of territory as part of India (section 7).
1.4. Sections 8 to 10, Citizenship Act.—Section 8 of the Act deals with renunciation of citizenship; section 9 with termination of citizenship and section 10 with deprivation of citizenship.
1.5. Sections 11 and 12, Citizenship Act.—Section 11 deals with Commonwealth citizenship and section 12 with the right of the Central Government to confer the rights of an Indian citizen on citizens of any other country.
1.6. Sections 13 to 19, Citizenship Act.—Section 13 provides for certifying that a person is a citizen of India in case of doubt and the remaining sections 14 to 19 deal with procedural and miscellaneous matters.
2.1. Problems relating to citizenship.—The Law Commission has suo motu examined the law relating to citizenship and has noticed the following problems in working the Citizenship Act:(1) How to make the provisions of rule 3, Schedule III of the Citizenship Rules, 1956, effective?(2) What is the scope of rule 9 of the Citizenship Rules?(3) Whether there should be a time limit for disposal of applications under section 9(2), Citizenship Act.
2.2. The First Problem.—The first problem relating to rule 3, Schedule III of the Citizenship Rules, arises in the following manner.
2.3. Sections 9(1) and (2), Citizenship Act.—Sections 9(1) and (2) of the Citizenship Act, 1955, are as follows:”(1) Any citizen of India who by naturalization, registration or otherwise voluntarily acqui.e., or has at any time between the 26th January, 1950 and the commencement of this Act voluntarily acquired the citizenship of another country shall, upon such acquisition or, as the case may be, such commencement, cease to be a citizen of India:Provided that nothing in the sub-section shall apply to a citizen of India, who, during any war in which India may be engaged, voluntarily acquires the citizenship of another country, until the Central Government otherwise directs.(2) If any question arises as to whether, when or how any person has acquired the citizenship of another country, it shall be determined by such authority, in such manner and having regard to such rules of evidence, as may be prescribed in this behalf.
2.4. Rule 30, Citizenship Rules.—Rule 30 of the Citizenship Rules provides that:”(1) If any question arises as to whether, when or how any person has acquired the citizenship of another country, the authority to determine such question shall, for the purposes of section 9(2) be the Central Government, and(2) the Central Government shall, in determining any such question, havedue regard to the rules of evidence specified in Schedule III.”
2.5. Rule 3, Schedule III, Citizenship Act.—Rule 3 of Schedule III provides:”The fact that a citizen of India has obtained on any date a passport from Government of any other country shall be conclusive proof of his having voluntarily acquired the citizenship of that country before that date.”
2.6. Judicial interpretation of section 9(2) and rule 3, Schedule III.—The scope of section 9(2) and rule 3, Schedule III has been the subject matter of several decisions. Some of them1 took the view that the idea of ‘conclusive proof’ is a matter of substantive law arid not a rule of evidence, and hence, rule 3, Schedule III was beyond the scope of section 9(2) and hence ultra vires. Others2 have taken the view that rule 3, Schedule III only provides for rule of evidence and is ultra vires section 9(2). This conflict was recorded by a majority of 3 to 2 by the Supreme Court in favour of the latter view that rule 3, Schedule III, is intra vires.1. Md. Zhan v. Andhra Pradesh, AIR 1957 AP 97; Sharafat v. Uttar Pradesh, 1960 All 637.2. AIR 1958 Raj 172; AIR 1969 Born 192; and AIR 1961 Mad 129.
2.7. The problem.—Assuring that rule 3, Schedule III of the Citizenship Act only provides for a rule of evidence, the validity of the rule is still doubtful and the majority decision of the Supreme Court1 may not be correct.Article 5 of he Constitution provides:”At the commencement of the constitution, every person who has his domicile in the territory of India and—(a) who was born in the territory of India; or(b) either of whose parents was born in the territory of India; or(c) who has been ordinarily resident in the territory of India for not less than five years immediately proceeding such commencement;shall be a citizen of India.”The relevant portion of Article 9 of the Constitution provides: No person shall be a citizen of India by virtue of Article 5………If he has voluntarily acquired the citizenship of any foreign State. (Emphasis supplied).Therefore, when section 9(2) of the Citizenship Act deals with the question of acquisition of the citizenship of another country, it contemplates voluntary acquisition as provided for in Article 9 of the Constitution. If this is so, under rule 30 of the Citizenship Rules, the Central Government is the authority to decide whether a person has voluntarily acquired the citizenship of another country, and the Central Government shall do so in accordance with the rules of evidence specified in Schedule III. In the case of a person who has obtained a passport of any other country, since rule 3, Schedule III is a rule of evidence, the Central Government will have to automatically decide that such person has voluntarily acquired the citizenship of another country and ceased to be a citizen of India under Article 9. This leads to the following contradiction. The question whether a person did something voluntarily is a question of fact because it is a question regarding his state of mind. But rule 3, Schedule III, does not allow any inquiry into by state of mind of the person who has acquired a passport from another country. The rule is thus repugnant to section 9(2), Citizenship Act, which contemplates an enquiry, and hence void.1. AIR 1962 SC 1052
.2.8. The second problem.—The second problem relating to rule 9, Citizenship Rules, has arisen because of a decision of the Calcutta High Court.11. AIR 1965 Cal 160.
2.9. Section 5, Citizenship Act.—Section 5 of the Citizenship Act provides for the acquisition of citizenship by registration. Sub-section (1)(a) provides that subject to the provisions of the section and such conditions and restrictions as may be prescribed, the prescribed authority may, on application made in this behalf, register as a citizen of India any person who is not already such citizen by virtue of the constitution or by virtue of any of the other provisions of the Act and belongs to any of the following categories: (a) persons of Indian origin who are ordinarily resident in India and have been so resident for 6 months immediately before making an application for registration.
2.10. Rules 8 and 9, Citizenship Rules.—Rules 8 and 9 of the Citizenship Rules provide:”Rule 8—The authority to register a person as a citizen of India under section 5 shall be the Collector, and in any other case under these rules, the Central Government.Rule 9—The Collector shall, before registering a person under section 5(1)(a), satisfy himself that the person—(a) is of Indian origin and has been actually resident in India for 6 months immediately preceding the date of application;(b) has close connection in India;(c) has an intention to make India his permanent home;(d) has signed an oath of allegiance specified in the Second Schedule to the Act;(e) is of good character and is otherwise a fit and proper person to be registered as citizen of India.”
2.11. Calcutta High Court decision.—On the question whether a summary dismissal of an application under section 5(1)(a) without making any enquiry was in contravention of rule 9, it was held that it was not, because, the Collector may inform himself in such manner as he thinks fit, that is, by making confidential enquiries, or act on his own personal knowledge. The Calcutta High Court observed that neither the Act nor the Rules require him to make an enquiry in case he rejects the application, since the action of the Collector is an executive and political act, and the Collector is not bound to register an applicant as a citizen even if all the conditions of rule 9 are satisfied, and that he is not bound to assign any reason for the grant of refusal of the application.
2.12. The Third Problem.—The third problem relating to quick disposal of applications under section 9(2), arises in the following circumstances.
2.13. Decision of the Allahabad High Court.—In a case from Allahabad,1 the petitioner who came to India was ordered to be arrested and deported under the Foreigners Act, while his application to the Central government under section 9(2) that he be declared a citizen of India was pending. The Court observed that any action could be taken against the petitioner only after the question of his citizenship was determined by the Central Government. The point to be noted however is that in that case the petitioner applied under section 9(2), Citizenship Act, in 1958, and the matter was not disposed of even till 1964, when the matter was considered by the High Court. According to the High Court, no action could be taken against him because his application was pending before the Central Government. If it was ultimately decided that he was a foreigner, the result would be that an undesirable foreigner gets a stay in India for more than seven years and this makes the Foreigners Act, an ineffective statute.1.AIR 1965 All 191.
3.1. Comments.—In response to the working paper issued by us, we have received the following comments:(1) The Advocates Association1 has commented that the first problem need not be dealt with by the Commission in view of the fact that that decision of the Supreme Court2 has been the law for the last 22 years. As regards the second problem the Association agrees with the suggestion of the Commission; and as regards the third, the Association doubted whether a mere fixation of time limit would be sufficient.(2) One gentleman3 has pointed out that some persons, living in foreign countries, take up foreign citizenship for professional purposes and that such an action thrusts foreign citizenship on the minor children. He suggested that Indian citizenship should be automatically restored to such persons and the children or the Government of India should recognise dual citizenship for such persons.There is at present a provision for a minor to apply for Indian citizenship when he becomes a major. As regards the person who has acquired foreign citizenship, he also can apply for Indian citizenship,(3) An Advocate4 has pointed that in Bombay, the application under section 5(1)(a), Citizenship Act in to be filed before the Chief Metropolitan Magistrate, that the application is then forward to the CID office, then to the Passport section in the Bombay Secretariat and finally to the Home Office or Foreign Office at New Delhi. He pointed out that this processing of the application causes enormous delay in the disposal of the application.1. Law Commission File No. 2(11)/84-L.C., S. No. 9(R).2. Izhar Ahmed’s case, AIR 1962 SC 1052.3. Law Commission File No. 2 (11)/8-L.C., S. No. 7(R).4. Law Commission File No. 2(11)/8-L.C., S. No. 6(R).
3.2. Commission’s views.—The Commission has given full consideration to the views expressed for which it records its appreciation. After giving adequate consideration, the Commission has made the suggestion set out in the next Chapter.
4.1. Problem re: rule 3, Schedule III.—The decision in Izhar Ahmed’s1 case, has been approved in the later decision of the Supreme Court2that rule 3, Schedule III is intra vires. The Supreme Court in the later decision has however taken the view that, in spite of rule 3, the obtaining of a foreign passport does not operate as conclusive proof that the applicant has acquired foreign citizenship. In view of this coherent conflict on the scope and effect of the rule (not a section of the Act), the Commission feels that the matter should be left to the Supreme Court of India to resolve the conflict. The Commission is therefore not making any suggestion with respect to the matter.1. Izhar Ahmed v. Union of India, AIR 1962 SC 1052.2. Md. Ayub Khan v. Union of India, AIR 1965 SC. 3.
4.2. Problem re: opportunity under section 5(1)(a) and time limit under section 9(2).—As regards problems (2) & (3) considered by it, the Commission makes the following suggestions:—Problem (2): The Commission considers that there should be an enquiry with adequate opportunity to the applicant under section 5(1)(a), Citizenship Act before his application is rejected by the Collector under rule 9, Citizenship Rules.Problem (3): The Commission considers that a reasonable time limit of six months should be fixed in the Citizenship Act for disposal of the application under section 9(2), so that quick action can be taken against undesirable foreigners.
K.K. Mathew Chairman.J.P. Chaturvedi Member.Dr. M.B. Rao Member.P.M. Bakshi Part-time Member.Vepa P. Sarathi Part-time Member.A.K. Srinivasamurthy Member-Secretary.
Dated: 3rd December, 1984.