Birth-Right Citizenship

This Article is written by Kinkini Chaudhuri (a student of Amity University, Kolkata)

Introduction

In India, citizenship is guaranteed under the Citizenship Act, 1955, with the latest amendment being in the year 2019 due to CAA(Citizenship Amendment Act) and NRC(National Register of Citizens). Article 9 of the Indian Constitution mentions that a person who voluntarily acquires citizenship of another country will no longer bear Indian citizenship, as dual citizenship is not allowed in India. Also, if we look at the Passports Act, then we will find a provision mentioning that a person can surrender his/her Indian passport or Voter’s ID card, and other Indian IDs should not be used after citizenship is obtained, as it could lead to a punishable offence if the person fails to surrender his passport. One thing that must be remembered is that India follows the concept of jus sanguinis, which means citizenship by decency.

Citizenship by Birth

A person can obtain citizenship by birth:

1. Except as has been mentioned in the sub section
2. Every person who takes birth in India-
3. On or after 26^th day of January, 1950, but before 1^st day of July, 1987
4. On or after the 1^st day of July, 1987, but before the commencement of the citizenship Amendment Act, 2003 and either of whose parents is a citizen of India at the time of his birth.
5. On or after the commencement of the Citizenship (Amendment) Act, 2003, where,
6. Both his parents are citizens of India, or
7. 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.

Granting of Citizenship: There are various methods where citizenship can be granted:

• Citizenship at the commencement of the Constitution of India: Those people who are living in the territory of the country, as on 26^th November, 1949, shall automatically become citizens of India, through the operation of the relevant provisions of the Constitution, where most of the provisions had come into force on 26^th January, 1950. The Constitution of India also mentions provisions regarding granting of citizenship to those migrants who had fled from the territories of Pakistan, which used to be a part of India.
• Citizenship by birth: Those people who are born on or after 26^th January, 1950, but prior to the commencement of the Act of 1986, will be considered as a citizen of India. A person who takes birth on or after 1^st July, 1987 but before 3^rd December, 2004 will be considered as citizens of India provided that one of their parents was a citizen of India at the time of the birth. A judgement was passed by the Bombay High Court on September, 2013, stating that birth certificate, Aadhaar Card alone may not be enough to prove that the person is a citizen of India, until and unless the parents are citizens of India. In another case, the Bombay High Court in the year 2012 had pronounced that, a man who was born in Pakistani administered Kashmir and had entered into the territory of India, will be granted an Indian passport, as he will be considered as a citizen of India, as Kashmir falls within the territory of India.
• Citizenship by decency:  Those persons who are born outside India on or after26th January, 1950, but before 10^th December, 1992 will be considered as the citizens of India only if their father was a citizen at the time of their birth. From 3^rd December, 2004 it was decided that from then onwards, those people who will be born out of India shall not be considered as citizens of India until and unless their birth is registered at an Indian diplomatic mission within one year of the date of birth. But, only after certain circumstances, with due permission from the central government, the registration can be made even after the completion of one year.
• Citizenship by registration: Under Section 5 of the Citizenship Act, 1955, the central government may grant citizenship, on an application, only if the person is not an illegal migrant, but belongs to the following categories:
• A person of Indian origin who is ordinarily resident in India for seven years before making application under Section 5(1)(a) (throughout the period of twelve months immediately before making application and for six years in the aggregate in the eight years preceding the 12 months).
• A person who is an Indian origin and ordinarily a resident of any other country, other than India.
• A person who has married an Indian citizen and is an ordinary resident in India for seven years before making an application for registration.
•  A minor child of persons, who are Indian citizens.
• A person who is of a full age and capacity, whose parents are registered as citizens of India.
• A person who is of a full age and capacity, amongst them, one of them was a citizen of undivided India and has been residing in India for one year immediately before making an application for registration for citizenship.
• A person who is of a full age and capacity, who has been registered as an Overseas Citizen of India (OCI) for five years, and has been residing in India for one year immediately before making an application for registration for citizenship.

Citizenship by neutralisation: A person (foreigner) who has been residing in India for the past twelve years (throughout the period of 12 months immediately preceding the date of application and for 11 years in the aggregate of 14 years preceding the 12 months) and other qualification as having been specified in provision 6(1) of the Citizenship Act, 1955.

Dual Citizenship: India does not allow the concept of “Dual Citizenship” due to the loss of Indian nationality when an Indian national neutralizes in another country, and the requires the renunciation of the existing citizenship.

Even after these, there are some special cases where a person may have dual citizenship of India and another country, including:

• Those children who are foreign diplomats, born in India, are served with dual citizenship only during their parents work in India.
• A minor child of an Indian origin may have dual citizenship of India and another country, if acquiring a passport of another country would terminate the citizenship of India.
• A minor, who holds citizenship of India by decency yet also possesses citizenship of another country, involuntarily may retain the same and hence will be a dual citizen until and unless the minor attains the age of 18 (i.e. becomes a major). After attainment of majority, within 6 months, the child has to decide whether he/she will renounce the nationality of Indian citizenship. If he/she does so, then the Indian citizenship will be terminated, and foreign citizenship will be in force.