A Muslim man waves an Indian flag during a march to celebrate India’s Independence Day in Ahmedabad, India, August 15, 2016. REUTERS/Amit Dave - RTX2KWWX
Indian Citizenship
Section 3. Citizenship by birth.
3. Citizenship by birth.―(1) Except as provided in sub-section (2), every person born in India―
(a) on or after the 26th day of January, 1950, but before the 1st day of July, 1987;
(b) on or after the 1st day of July, 1987, but before the commencement of the Citizenship (Amendment) Act, 2003 (6 of 2004) and either of whose parents is a citizen of India at the time of his birth;
(c) on or after the commencement of the Citizenship (Amendment) Act, 2003 (6 of 2004), where―
(i) both of his parents are citizens of India; or
(ii) one of whose parents is a citizen of India and the other is not an illegal migrant at the time of his birth,
shall be a citizen of India by birth.
(2) A person shall not be a citizen of India by virtue of this section if at the time of his birth―
(a) either his father or mother possesses such immunity from suits and legal process as is accorded to an envoy of a foreign sovereign power accredited to the President of India and he or she, as the case may be, is not a citizen of India; or
(b) his father or mother is an enemy alien and the birth occurs in a place then under occupation by the enemy.]
Section 4. Citizenship by descent
(1) A person born outside India shall be a citizen of India by descent,–
(a) on or after the 26th day of January, 1950, but before the 10th day of December, 1992, if his father is a citizen of India at the time of his birth; or
(b) on or after the 10th day of December, 1992, if either of his parents is a citizen of India at the time of his birth:
Provided that if the father of a person referred to in clause (a) was a citizen of India by descent only, that person shall not be a citizen of India by virtue of this section unless–
(a) his birth is registered at an Indian consulate within one year of its occurrence or the commencement of this Act, whichever is later, or, with the permission of the Central Government, after the expiry of the said period; or
(b) his father is, at the time of his birth, in service under a Government in India:
Provided further that if either of the parents of a person referred to in clause (b) was a citizen of India by descent only, that person shall not be a citizen of India by virtue of this section, unless–
(a) his birth is registered at an Indian consulate within one year of its occurrence or on or after the 10th day of December, 1992, whichever is later, or, with the permission of the Central Government, after the expiry of the said period; or
(b) either of his parents is, at the time of his birth, in service under a Government in India:
Provided also that on or after the commencement of the Citizenship (Amendment) Act, 2003(6 of 2004), a person shall not be a citizen of India by virtue of this section, unless his birth is registered at an Indian consulate in such form and in such manner, as may be prescribed,–
(i) within one year of its occurrence or the commencement of the Citizenship (Amendment) Act, 2003(6 of 2004), whichever is later; or
(ii) with the permission of the Central Government, after the expiry of the said period:
Provided also that no such birth shall be registered 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.
(1A) 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.]
(2) If the Central Government so directs, a birth shall be deemed for the purposes of this section to have been registered with its permission, notwithstanding that its permission was not obtained before the registration.
(3) For the purposes of the proviso to sub-section 1, 2[any person] born outside undivided India who was, or was deemed to be, a citizen of India at the commencement of the Constitution shall be deemed to be a citizen of India by descent only.
Section 5. Citizenship by registration
(1) Subject to the provisions of this section and such other conditions and restrictions as may be prescribed, the Central Government may, on an application made in this behalf, register as a citizen of India any person not being an illegal migrant who is not already such citizen by virtue of the Constitution or of any other provision of this Act if he belongs to any of the following categories, namely:–
(a) a person of Indian origin who is ordinarily resident in India for seven years before making an application for registration;
(b) a person of Indian origin who is ordinarily resident in any country or place outside undivided India;
(c) a person who is married to a citizen of India and is ordinarily resident in India for seven years before making an application for registration;
(d) minor children of persons who are citizens of India;
(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, was earlier citizen of independent India, and is ordinarily resident in India for twelve months immediately before making an application for registration;
(g) a person of full age and capacity who has been registered as an 3[Overseas Citizen of India Cardholder] for five years, and who 4[is ordinarily resident in India for twelve months] before making an application for registration.
Explanation 1.–For the purposes of clauses (a) and (c), 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.
Explanation 2.–For the purposes of this sub-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 such other territory which became part of India after the 15th day of August, 1947.]
(1A) The Central Government, if it is satisfied that special circumstances exist, may after recording the circumstances in writing, relax the period of twelve months, specified in clauses (f) and (g) and clause (i) of Explanation 1 of sub-section (1), up to a maximum of thirty days which may be in different breaks.]
(2) No person being of full age shall be registered as a citizen of India under sub-section (1) until he has taken the oath of allegiance in the form specified in the Second Schedule.
(3) No person who has renounced, or has been deprived of, his Indian citizenship or whose Indian citizenship has terminated, under this Act shall be registered as a citizen of India under sub-section (1) except by order of the Central Government.
(4) The Central Government may, if satisfied that there are special circumstances justifying such registration, cause any minor to be registered as a citizen of India.
(5) A person registered under this section shall be a citizen of India by registration as from the date on which he is so registered; and a person registered under the provisions of clause (b)(ii) of article 6 or article 8 of the Constitution shall be deemed to be a citizen of India by registration as from the commencement of the Constitution or the date on which he was so registered, whichever may be later.
(6) If the Central Government is satisfied that circumstances exist which render it necessary to grant exemption from the residential requirement under clause (c) of sub-section (1) to any person or a class of persons, it may, for reasons to be recorded in writing, grant such exemption.].
Section 6. Citizenship by naturalization
(1) Where an application is made in the prescribed manner by any person of full age and capacity 1[not being an illegal migrant] for the grant of a certificate of naturalisation to him, the Central Government may, if satisfied that the applicant is qualified for naturalisation under the provisions of the Third Schedule, grant to him a certificate of naturalisation:
Provided that, if in the opinion of the Central Government, the applicant is a person who has rendered distinguished service to the cause of science, philosophy, art, literature, world peace or human progress generally, it may waive all or any of the conditions specified in the Third Schedule.
(2) The person to whom a certificate of naturalisation is granted under sub-section (1) shall, on taking the oath of allegiance in the form specified in the Second Schedule, be a citizen of India by naturalisation as from the date on which that certificate is granted.
Notes: Indian Citizenship
Right of the Overseas Citizens of India (OCI) Cardholders is a midway right in the absence of dual citizenship. When a statutory right was conferred and such right is being withdrawn through a notification, the process for withdrawal is required to demonstrate that the action taken is reasonable and has nexus to the purpose. It should not be arbitrary, without basis and exercise of such power cannot be exercised unmindful of consequences merely because it is a sovereign power. Except for the bare statement in the objection statement, there is no material with regard to the actual exercise undertaken to arrive at a conclusion that the participation of OCI Cardholders in the selection process has denied the opportunity of professional education to the Indian citizens. There are no details made available about the consideration made as to, over the years how many OCI cardholders have succeeded in getting a seat after competing in the selection process by which there was denial of seats to Indian Citizens though they were similar merit-wise. [[2023] 5 S.C.R. 243 ANUSHKA RENGUNTHWAR & ORS. v. UNION OF INDIA & ORS. Paras 46, 47]
Maneka Gandhi v. Union of India (1978) 1 SCC 248 : [1978] 2 SCR 621; Navtej Singh Johar & Ors. v. Union of India Thr. Secretary Ministry of Law and Justice (2018) 10 SCC 1 : [2018] 7 SCR 379; LIC v. Consumer Education and Research Centre (1995) 5 SCC 482 : [1995] 1 Suppl. SCR 349; Universal Imports Agency & Ans. Vs. Chief Controller of Imports and Exports and Ors. [1961] 1 SCR 305; Navjyoti Coop.Group Housing Society and Ors. v. Union of India & Ors. (1992) 4 SCC 477 : [1992] 1 Suppl. SCR 709; J. K. Industry Ltd. v. Union of India (2007) 13 SCC 673 : [2007] 12 SCR 136; State of Punjab and Ors. v. Ram Lubhaya Bagga & Ors. (1998) 4 SCC 117 : [1998] 1 SCR 1120; Izhar Ahmed Khan & Ors. v. Union of India AIR 1962 SC 1052 : [1962] Suppl. SCR 235; Indo-China Steam Navigation Co.Ltd. vs. Jasjit Singh & Ors. AIR 1964 SC 1140 : [1964] SCR 594; State of A.P. v. Khudiram Chakma (1994) Supple 1 SCC 615 : [1993] 3 SCR 401; Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta & Ors. AIR 1955 SC 367 : [1955] SCR 1284; State of W.B. v. Anwar Ali Sarkar AIR 1952 SC 75 : [1952] SCR 284; Budhan Choudhary v. State of Bihar [1955] 1 SCR 1045;
State of Kerala v. N.M. Thomas (1976) 2 SCC 310 : [1976] 1 SCR 906; K. Thimmappa v. Chairman, Central Board of Directors (2001) 2 SCC 259 : [2000] 5 Suppl. SCR 368
National Register of Citizens
Prayer of the State Coordinator with regard to maintenance of security of the NRC data – This Court directed that an appropriate regime be enacted on lines similar to the security regime provided for AADHAR data – Only thereafter, the list of inclusions and exclusions shall be made available to the State Government, Central Government and Registrar General of India – Further it was directed that only hard-copies of the supplementary list of inclusions be published at the NRC Seva Centers, Circle Offices and Offices of the District Magistrates of the State – Also direction passed that the list of exclusions to be published on 31.8.2019 shall be published only on on-line and shall be family-wise – So far as the validity of orders passed under the IMDT Act are concerned, such cases shall be governed by the decision of the Gauhati High Court in Anowar Ali v. State of Assam [ ASSAM PUBLIC WORKS VS. UNION OF INDIA & ORS. [2019] 10 S.C.R. 217]
Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003: Schedule, Paragraph 3(2) and Paragraph 8 – Conflict between – Citizenship status of persons in the State of Assam
Paragraph 3(2) deals with separate class of persons who have been declared as illegal migrant or foreigners by the Competent Authority – Such persons cannot be included in the National Register of Citizens – Such persons cannot claim citizenship of India on the basis that he/she has been residing in the State of Assam – Whereas Paragraph 8 provides for a right of appeal to the person who had filed objections and is not satisfied with the outcome of the decision under the final list published under paragraph 7 – Such persons may prefer an appeal before the designated Tribunal constituted under the 1964 Order within a period of sixty days and on disposal of appeal by the Tribunal, such persons can accordingly be included or deleted from the NRC [ ABDUL KUDDUS VS. UNION OF INDIA AND OTHERS
[2019] 8 S.C.R. 669 ]
Foreigners’ Act, 1946: S.9 – Burden of proof – Citizenship status
Appellant’s great grandfather’s name and father’s name appear the same throughout the document– However, the only discrepancy is found in grand father’s name – In some of the documents Kefatullah later became Kematullah and in NRC Registration details of the year 1971, grandfather was noted to be Kefatullah – Appellant also produced Permanent Account Number, including photo identity cards issued by the Election Commission of India, identity cards issued to his brother including voters lists in which his name appears – In view thereof, it cannot be said thatKematullah is not the same despite being named Kefatullah in some of the documents – Grandfather and fathers’ identity etc. established successfully by the appellant. [SIRAJUL HOQUE VS. THE STATE OF ASSAM & ORS. [2019] 3 S.C.R. 1047]
Citizenship rights of Chakmas and Hajongs
It is acknowledged based on stand of the Government of India that the Chakmas have a right to be granted citizenship subject to the procedure being followed- There is recognition by judicial decisions that they cannot be required to obtain any Inner Line permit as they are settled in the State of Arunachal Pradesh – Thus, the Government of India and the State of Arunachal Pradesh directed to finalise the conferment of citizenship rights on eligibleChakmas and Hajongs and also to ensure compliance of directions in judicial decisions for the protection of their life and liberty and against their discrimination in any manner – Constitution of India, 1950 -Art. 32. [COMMITTEE FOR C.R. OF C.A.P. & ORS. VS. STATE OF ARUNACHAL PRADESH & ORS. [2015] 9 S.C.R. 1020]
