Indian nationality law

Indian nationality law details the conditions by which a person holds Indian nationality. The two primary pieces of legislation governing these requirements are the Constitution of India and the Citizenship Act, 1955.

The Citizenship Act, 1955
Emblem of India.svg
Parliament of India
  • An Act to provide for acquisition and determination of Indian citizenship.
CitationAct No 57 of 1955
Territorial extentIndia
Enacted byParliament of India
Enacted30 December 1955
Commenced30 December 1955
Status: Amended

All persons born in India between 26 January 1950 and 1 July 1987 automatically received citizenship by birth regardless of the nationalities of their parents. Between 1 July 1987 and 3 December 2004, citizenship by birth was granted if at least one parent was a citizen. Individuals born in the country since then receive Indian citizenship at birth only if both parents are Indian citizens, or if one parent is a citizen and the other is not considered an illegal migrant.

Foreigners may become Indian citizens by naturalisation after residing in the country for at least 12 years and renouncing any previous nationalities. Members of certain religious minority communities from neighbouring countries qualify for a reduced residence requirement of six years.

India was previously ruled by the British Empire and local residents were British subjects and British protected persons. Although India gained independence in 1947 and Indians no longer hold British nationality, they continue to have favoured status when residing in the United Kingdom; as Commonwealth citizens, Indians are eligible to vote in UK elections and serve in public office there.

TerminologyEdit

The distinction between the meaning of the terms citizenship and nationality is not always clear in the English language and differs by country. Generally, nationality refers a person's legal belonging to a nation state and is the common term used in international treaties when referring to members of a state; citizenship refers to the set of rights and duties a person has in that nation.[1]

In general discourse within the Indian context, the two terms are used interchangeably. However, the Supreme Court provides a more precise definition applicable in Indian law; citizenship is a legal status that can only be held by natural persons and determines the civil and political rights a person may exercise, while nationality is a status that can apply to both natural and juridical persons that determines the rights that entity has in the context of international law.[2]

Colonial-era historyEdit

Company administrationEdit

The East India Company was founded by royal charter in 1600 and granted a monopoly on all English trade with Asia. Over the course of the 17th century, the company secured a strong commercial presence in the Indian subcontinent through trade in indigo dye, saltpeter, and Indian textiles. Operations became more lucrative as the Mughal Empire entered into decline in the 18th century, giving the company opportunity to gain further advantages by intervening in regional politics. The vast financial resources of the firm and its superior military enabled it to defeat rival European trade companies and become the dominant power in India.[3] The company itself ruled as the direct governing body from 1757 to 1858, though sovereignty was often shared with the Crown. Although legislation was enacted referencing British subjects in India, no comprehensive nationality statute existed to define which persons were subjects, leaving the status of native Indians ambiguous throughout this period.[4]

Legislation passed in 1852 allowed foreigners residing in company territory to naturalise as British subjects by application to the government. There was no minimum residence requirement and candidates simply needed approval from a relevant official. The oath of allegiance administered to successful applicants required them to swear loyal service to the company, as well as allegiance to the British monarch.[5]

Direct imperial ruleEdit

India was brought under direct rule of the British Empire in 1858. Territories were broadly divided between two political groupings: the provinces of British India, which were administered by the British government, and the princely states, which were areas ruled by local monarchs given limited autonomy in exchange for accepting British suzerainty. Provincial residents were British subjects,[6] while those who were subjects of a princely state ruler were considered British protected persons instead.[7]

While Britain held comprehensive jurisdiction in both types of holdings, domestic law treated the princely states as foreign territory. British protected persons were treated as aliens in the United Kingdom, although both Indian British subjects and protected persons could be issued British Indian passports. Protected persons could not travel to the UK without first requesting permission, but were afforded the same consular protection as British subjects when travelling outside of the Empire. A person with connections both to directly governed portions of British India and one of the princely states could be a British subject and British protected person simultaneously.[8]

British nationality law during this time was uncodified and did not have a standard set of regulations,[9] relying instead on past precedent and common law.[10] Until the mid-19th century, it was unclear whether naturalisation rules in the United Kingdom were applicable in other parts of the Empire. Each colony had wide discretion in developing their own procedures and requirements for admitting foreigners as subjects.[11] Naturalisation in Britain was achieved through individual Acts of Parliament until 1844, when a more streamlined administrative process was introduced.[12] In 1847, the Imperial Parliament formalised a clear distinction between subjects who naturalised in the UK and those who did so in other territories. Individuals who naturalised in the UK were deemed to have received the status by imperial naturalisation, which was valid throughout the Empire. Those naturalising in colonies were said to have gone through local naturalisation and were given subject status valid only within the relevant territory;[13] a subject who locally naturalised in Bengal was a British subject there, but not in England or New South Wales. Like protected persons, locally naturalised British subjects were still entitled to imperial protection when travelling outside of the Empire.[14]

The Imperial Parliament brought regulations for British subject status into codified statute law for the first time with passage of the British Nationality and Status of Aliens Act 1914. British subject status was standardised as a common nationality across the Empire.[15][16][17] This Act allowed Dominions and British India to grant subject status to aliens by imperial naturalisation, but did not prevent further grants of local naturalisation under local legislation.[18] The continued application of local naturalisation allowed British Indian authorities to avoid adding English language requirements to the naturalisation process.[19]

Unequal statusEdit

Following the Indian Rebellion of 1857, Queen Victoria issued a royal proclamation to the "Princes, Chiefs and People of India" in 1858, declaring the Crown to be "bound to the natives of our Indian territories by the same obligations of duty which bind us to all our other subjects".[20] Official rhetoric emphasised British subject status as a platform of equity, illustrating an imperial philosophy that all subjects of the Crown were equal before the law, regardless of race or background.[21]

This ideal was directly contradicted by a series of immigration restrictions in other colonies and Dominions that were created to exclude non-white migrants, including Indian British subjects, from entering their borders.[22] Australia, Canada, New Zealand, and South Africa all enacted legislation severely restricting Indian immigration in some form by the early 20th century.[23] Indians had greater success exercising their British subject rights in Britain itself, exemplified by the election of two Indian candidates to the House of Commons, Dadabhai Naoroji and Mancherjee Bhownaggree.[24]

Demands for an equal imperial citizenship with the same status and rights as European British subjects were a primary motivator for Indian civil rights movements throughout the Empire in the late 19th and early 20th centuries.[25] While the imperial government had recognised these claims as legitimate prior to the First World War, it was nervous at the prospect of these movements becoming revolutionary in nature and decided to forcefully suppress local unrest rather than politically address Indian concerns.[26] As it become apparent that equality within the British Empire would not be possible, the focus of post-war Indian political movements turned towards independence.[27]

Post-independence policiesEdit

Partition and transitionEdit

British India was partitioned into two independent nations on 15 August 1947, the Dominion of India and Dominion of Pakistan.[28] India transitionally retained the British sovereign as its head of state until its continued membership in the Commonwealth of Nations as a republic was agreed upon at the 1949 Commonwealth Prime Ministers' Conference.[29] Indians continued to be British subjects until independent India enacted its own nationality legislation.[30] Subjects of the princely states were previously considered British protected persons but lost that status when the Indian Independence Act 1947 released those states from British vassalage. The states' subsequent accession into India meant that former protected persons became British subjects of India.[31]

British subject status was reformed under the British Nationality Act 1948. The Act abandoned the common nationality used across the Empire; a British subject under the 1948 Act was redefined to mean any citizen of a Commonwealth country. Commonwealth citizen is defined in this Act to have the same meaning. British subject/Commonwealth citizen status co-existed with the citizenships of each Commonwealth country. Because India had not enacted citizenship regulations by the time the 1948 Act took effect, Indians (and citizens of all other Dominions without citizenship laws) were provisionally classed as "British subjects without citizenship".[32]

Republic and a national citizenshipEdit

The citizenship provisions of the Constitution of India came into force on 26 November 1949,[33] in advance of the document's full effective date and conversion into a republic on 26 January 1950.[34] Partition resulted in large-scale population movements across the new borders separating India and Pakistan. In this context, the Constituent Assembly limited the scope of the Constitution's citizenship provisions for the immediate purpose of determining citizenship of these migrants. The Citizenship Act later enacted by Parliament in 1955 provides a full framework detailing citizenship requirements after that point.[35]

Any individual domiciled in India automatically became an Indian citizen in 1949 if they were: born in India, born to at least one parent who themself was born in India, or living in India for at least five years prior to the Constitution's commencement.[33] Individuals of Indian descent living outside of the country could register for citizenship, but a person who had voluntarily acquired a foreign nationality was barred from Indian citizenship.[36]

Persons who migrated from the area that became part of Pakistan could be registered as Indian citizens if they (or a parent or grandparent) were born in any part of pre-partition India as defined in the Government of India Act 1935 and had either: become domiciled in Indian territory before 19 July 1948, or had been registered as a citizen of India by Dominion officials after that date but before commencement of the Constitution. Migrants from Pakistan were required to have been living in India for at least six months prior to applying for registration. Conversely, persons who migrated from India to Pakistan and settled there before 1 March 1947 were not considered Indian citizens.[37]

Territorial acquisitionsEdit

Remaining European colonial possessions in India were reintegrated by 1961. French-administered Chandernagore held a referendum in 1949 resulting in the city's merger with West Bengal,[38] while the rest of French India was relinquished by 1954.[39] Portuguese India was taken by force with two military offensives in 1954 and 1961.[40] Although most residents of these territories were given a choice between acquiring Indian citizenship and retaining their previous nationalities, those from Dadra and Nagar Haveli were not.[41] Portugal did not recognise the annexation of its former Indian territories;[42] persons born in applicable areas before 3 June 1975 are Portuguese citizens.[43] After dissolution of the Kingdom of Sikkim and its accession in 1975, any person registered as a Sikkimese subject before 26 April 1975 became an Indian citizen.[44]

Commonwealth citizenshipEdit

Under the 1955 Act, citizens of other Commonwealth member states were eligible to obtain Indian citizenship by registration rather than naturalisation, though there were no specific advantages to this method of acquisition.[45] This pathway was available until Commonwealth citizen status was removed from Indian law in 2003.[46] The UK itself updated its nationality law to reflect the more modest boundaries of its remaining territory and overseas possessions with the British Nationality Act 1981,[47] which redefined British subject to no longer also mean Commonwealth citizen. Indian citizens remain Commonwealth citizens in British law[48] and are still eligible to vote and stand for public office in the UK.[49]

Legislative responses to migrationEdit

Indian nationality regulations were broadly permissive when they were first created at the time of the republic's founding. Successive governments since the 1980s have gradually increased the difficulty of acquiring Indian citizenship in response to changing patterns of immigration from neighbouring countries.[50]

Following the 1971 Bangladesh Liberation War, significant numbers of Bangladeshi migrants settled in the state of Assam.[51] Foreigners were discovered to compose a substantial portion of the enrolled electorate in Mangaldoi during a local election in 1979. Ensuing backlash triggered the multi-year Assam Movement, which began as a series of non-violent mass demonstrations against illegal immigration.[52] Confrontations turned deadly and eventually led to the 1983 Nellie massacre.[53] The government and protest organisers agreed on the 1985 Assam Accord, which resulted in an amendment to the Citizenship Act that same year. Under these changes, any person who had been living in Assam since before 1966 was an Indian citizen; those who settled there between 1966 and 1971 were removed from electoral rolls and subject to a 10-year waiting period before becoming eligible to register for citizenship. Migrants arriving after 1971 were all considered to be illegal migrants.[51]

Ethnic conflict in neighbouring Sri Lanka led to civil war in 1983. Following the start of hostilities, about 100,000 people sought refuge in India. This event, combined with sustained unrest in Assam, led to another amendment to the Citizenship Act in 1986 that limited citizenship by birth to children born to at least one Indian parent. A further amendment in 2003 restricted that entitlement only to children with two Indian parents, or those with one parent who is a citizen and if the other is not considered an illegal migrant.[54] Mandatory registration in the National Register of Citizens was introduced in that year,[55] as well as overseas citizenship for Indian diaspora living abroad.[41]

Restrictions were selectively relaxed in 2019 for migrants from neighbouring countries belonging to certain religious groups who illegally entered India before 2015; persons from Afghanistan, Bangladesh, or Pakistan who are Hindus, Sikhs, Buddhists, Jains, Parsis, or Christians are not counted as illegal migrants for nationality purposes[56] and eligible for a reduced six-year residence requirement for naturalisation.[57] The enactment of these changes sparked widespread protests for countering the secular nature of earlier citizenship law.[58]

Acquisition and loss of citizenshipEdit

All persons born in India between 26 January 1950 and 1 July 1987 automatically received citizenship by birth regardless of the nationalities of their parents. From 1 July 1987 until 3 December 2004, children born in the country received Indian citizenship by birth if at least one parent was a citizen. Since then, citizenship by birth is granted only if both parents are Indian citizens, or if one parent is a citizen and the other is not considered an illegal migrant.[59][60]

Children born overseas are eligible to become Indian citizens by descent if at least one parent is a citizen. The birth of eligible persons must be registered at an Indian diplomatic mission within a certain timeframe for citizenship to be granted. Individuals born before 3 September 2004 were not required to have had their birth registered and received citizenship by descent automatically, unless either parent was an Indian citizen by descent, in which case registration of their birth was mandatory. Prior to 10 December 1992, only children of Indian fathers (not mothers) were eligible for citizenship by descent.[61] Indian citizens by descent who hold another nationality automatically cease to be Indian citizens six months after reaching the age of 18, unless they renounce their foreign nationality.[62]

Certain non-citizens qualify for citizenship by registration if they are married to an Indian citizen, are minor children of Indian citizens, or are of Indian origin and living either in the country or outside the area of pre-partition India.[63] Persons whose parents are Indian citizens, who themselves or their parents had previously held Indian citizenship, or have held overseas citizenship for at least five years are also eligible to acquire citizenship by registration. Eligible individuals must be resident in the country for at least 12 months prior to an application for registration, and are subject to additional residence requirements depending on the criterion they qualified under.[64]

All other foreigners may become Indian citizens by naturalisation after residing in the country for at least 11 of the previous 14 years, with an additional 12 months of residence immediately preceding an application, a total of 12 years.[57] Anyone acquiring Indian citizenship through either naturalisation or registration must renounce their previous nationalities.[45] Between 2010 and 2019, about 21,000 people naturalised as Indian citizens.[65]

Any person deemed to be an illegal migrant is typically barred from obtaining citizenship through both naturalisation and registration.[66] However, migrants from Afghanistan, Bangladesh, or Pakistan who belong to selected religious communities (Hindus, Sikhs, Buddhists, Jains, Parsis, or Christians) and arrived in India prior to 2015 are not considered illegal migrants.[56] They are eligible for naturalisation with a reduced residence requirement; at least five years of residence during the previous 14-year period, along with the additional 12 months of residence immediately preceding an application.[67]

Indian citizenship can be voluntarily relinquished by any person above the age of majority. Minor children of a person who gave up citizenship also cease to be citizens. On reaching adult age, these children have the option of resuming Indian citizenship within one year. Before 2003, relinquishment required holding nationality of another country, and all married women were considered to be of full age for the purposes of giving up citizenship regardless of their actual age. Minor children lost citizenship only if their fathers (not mothers) relinquished that status until 1992. Any Indian citizen who voluntarily acquires citizenship of another country at any time automatically loses Indian citizenship.[68] Between 2015 and 2019, about 670,000 people lost their Indian citizenship either through renunciation or automatic loss after acquiring a foreign nationality.[69]

Overseas citizenshipEdit

Former Indian citizens and descendants of citizens have been eligible for overseas citizenship since its creation in 2003.[70] This status gives its holders a lifelong entitlement to live and work in the country but they cannot vote in elections, stand for public office, and are subject to restrictions on entry into protected and restricted areas. Overseas citizenship is a status created specifically to work around the constitutional prohibition on holding multiple nationalities; it is not considered a full form of Indian citizenship.[71]

ReferencesEdit

CitationsEdit

  1. ^ Kondo 2001, pp. 2–3.
  2. ^ Ashesh & Thiruvengadam 2017, p. 1.
  3. ^ Metcalf & Metcalf 2006, pp. 44–55.
  4. ^ Ashesh & Thiruvengadam 2017, pp. 3–4.
  5. ^ Indian Naturalisation Act 1852.
  6. ^ Ashesh & Thiruvengadam 2017, p. 4.
  7. ^ Jones 1945, p. 124.
  8. ^ Jones 1945, pp. 127–128.
  9. ^ Gosewinkel 2008, p. 13.
  10. ^ Karatani 2003, p. 41.
  11. ^ Karatani 2003, pp. 55–56.
  12. ^ Bagnall & Sherratt 2021, p. 286.
  13. ^ Historical background information on nationality, p. 8.
  14. ^ Karatani 2003, p. 55.
  15. ^ Baldwin 2001, pp. 527–528.
  16. ^ Historical background information on nationality, p. 10.
  17. ^ Ashesh & Thiruvengadam 2017, p. 5.
  18. ^ Parry 1954, p. 102.
  19. ^ Parry 1954, pp. 106–107.
  20. ^ Frost 2018, p. 849.
  21. ^ Huttenback 1973, pp. 108–109, 118.
  22. ^ Huttenback 1973, pp. 117–118.
  23. ^ Huttenback 1973, pp. 111, 116, 120, 134–135.
  24. ^ Frost 2018, p. 850.
  25. ^ Frost 2018, pp. 850, 856, 860.
  26. ^ Frost 2018, pp. 859–860.
  27. ^ Frost 2018, pp. 865–867.
  28. ^ Pachauri 2010, p. 1135.
  29. ^ Steinberg 1949, p. 39.
  30. ^ Ansari 2013, p. 287.
  31. ^ Parry 1954, p. 107.
  32. ^ Wade 1948, pp. 69–70, 73.
  33. ^ a b Ashesh & Thiruvengadam 2017, p. 6.
  34. ^ Winegard 2011, p. 2.
  35. ^ Jayal 2019, p. 34.
  36. ^ Ashesh & Thiruvengadam 2017, p. 8.
  37. ^ Ashesh & Thiruvengadam 2017, pp. 6–7.
  38. ^ Yechury 2015, p. 1150.
  39. ^ Yechury 2015, p. 1164.
  40. ^ Gonçalves 2003, p. 56.
  41. ^ a b Ashesh & Thiruvengadam 2017, p. 15.
  42. ^ Ferrao 2010, p. 249.
  43. ^ Ferrao 2010, p. 251.
  44. ^ Vandenhelsken 2021, p. 264.
  45. ^ a b Toxley 1967, p. 498.
  46. ^ Ashesh & Thiruvengadam 2017, p. 9.
  47. ^ Paul 1997, pp. 182–183.
  48. ^ Bloom 2011, p. 640.
  49. ^ Bloom 2011, p. 654.
  50. ^ Jayal 2019, pp. 34–35.
  51. ^ a b Jayal 2019, p. 35.
  52. ^ Ashesh & Thiruvengadam 2017, p. 11.
  53. ^ Ashesh & Thiruvengadam 2017, p. 14.
  54. ^ Ashesh & Thiruvengadam 2017, pp. 10–12.
  55. ^ Bose, Prasenjit (6 December 2019). "Restoring a secular notion of citizenship". The Hindu. Archived from the original on 12 January 2021. Retrieved 22 October 2021.
  56. ^ a b Chandrachud 2020, p. 34.
  57. ^ a b Chandrachud 2020, p. 20.
  58. ^ Chandrachud 2020, p. 1.
  59. ^ Seetharaman 2020, pp. 99–100.
  60. ^ Ashesh & Thiruvengadam 2017, pp. 10–11.
  61. ^ Chandrachud 2020, pp. 15–16.
  62. ^ The Citizenship Act, 1955, s 4.
  63. ^ Bhat 2019, p. 12.
  64. ^ Chothani, Poorvi (8 September 2021). "A complete guide to renouncing foreign citizenships and acquiring Indian citizenship". The Economic Times. Archived from the original on 20 October 2021. Retrieved 20 October 2021.
  65. ^ Jain, Bharti (4 February 2020). "Over 21,000 granted Indian citizenship in last 10 years: Govt". The Times of India. Archived from the original on 3 February 2021. Retrieved 21 October 2021.
  66. ^ Chandrachud 2020, p. 30.
  67. ^ Chandrachud 2020, pp. 20–21.
  68. ^ Ashesh & Thiruvengadam 2017, p. 16.
  69. ^ "Parliament proceedings: Over 6.7 lakh persons renounced Indian citizenship from 2015-2019". The Hindu. 10 February 2021. Archived from the original on 27 March 2021. Retrieved 22 October 2021.
  70. ^ Xavier 2011, pp. 34–35.
  71. ^ Xavier 2011, pp. 45–46.

General sourcesEdit

LegislationEdit