Citizenship: India
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The basics
The Constitution of India provides for a single citizenship for the whole of India. Every person who was at the commencement of the Constitution (26 January 1950) domiciled in the territory of India and: (a) who was born in India; or (b) either of whose parents was born in India; or (c) who has been ordinarily resident in India for not less than five years became a citizen of India. The Citizenship Act, 1955, deals with matters relating to acquisition, determination and termination of Indian citizenship after the commencement of the Constitution.
Court verdicts
Person born at mother’s house in Pakistan
Swati Deshpande, 50 yrs on, ‘Pak man’ set for Indian citizenship, June 3, 2018: The Times of India
Six months after the Bombay high court directed the Indian government to consider a citizenship plea made by a Pakistan-born man residing for 50 years in the city, the Mumbai collector administered him the oath of allegiance, the first step towards citizenship.
The court, while granting Asif Karadia (53) protection against deportation in January, had observed after hearing his lawyer Sujay Kantawala and government pleader Purnima Kantharia that it was a “unique case”. Karadia was born in Pakistan and came to India as a toddler. His father, Abbas, is an Indian citizen.
Karadia (L) came to India in 1967
Karadia’s dad got married in Guj in 1962
Asif Karadia’s father had got married in 1962 in Gujarat to a woman who had a passport from Pakistan, which said she was born in Mumbai. The HC observed that “though conceived in India, as per customs, his (Asif ’s) mother went to her parents’ place in Karachi where he was born on April 19, 1965.” Mother and child came to India in 1967 and have lived here since. Asif has been residing on long-term visas.
The father had filed the petition to seek Indian citizenship for his son after a deportation scare. Asif had applied for citizenship in March 2015. Their case was that under Section 5 of the Citizenship Act, Asif was eligible to be granted Indian citizenship. Article 5 of the Indian Constitution allows a person “either of whose parents was born in the territory of India” to become a citizen. Asif ’s name was stamped on his mother’s Pakistani passport after his birth. But in 1972, the Indian government granted citizenship to his mother after she surrendered her passport.
Renouncing Indian citizenship
2018 rules
In Line With Polygamy Law, Only One Foreign Origin Spouse Of PIOs Can Apply For OCI Card
Those renouncing Indian citizenship on account of being national of another country will have to declare the circumstances or reasons due to which they intend to acquire foreign citizenship.
The home ministry, while notifying the Citizenship (Amendment) Rules, 2018, also made it clear that only one living spouse of foreign origin of a citizen of India or overseas citizen of India (OCI) would be eligible to apply for registration as an OCI card-holder. “This is in conformity with the law in India that bans polygamy (except in case of Muslims by virtue of their personal law),” said a ministry official.
The amended rules also require Persons of Indian Origin who are ordinarily resident in India for six months, spouse of a citizen of India and minor child of a citizen of India to specify their religion in their applications for registration as a citizen under Section 5 of the Citizenship Act.
The government has notified a revised form for declaration of renunciation by Indian citizens who are also nationals of another country, bringing it in line with the Citizenship Rules, 2009, that require the applicants to specify under which provision of law they are Indian citizens and also the circumstances in which they intend to acquire foreign citizenship.
“While the Citizenship Rules required the said information to be given in the declaration of renunciation of Indian citizenship, Form XXII prescribed for the purpose did not have entries to record the same. The revised form corrects this anomaly,” said the official.
The revised form requires the applicant to specify whether he/she is/was an Indian citizen by birth, descent, registration or naturalisation; as well as the circumstances that have led him/her to acquire foreign citizenship.
An MHA functionary clarified that the information seeking reasons for renunciation of Indian citizenship is only for record and shall not be used as a ground for rejection of the application.
The government has notified a revised form for declaration of renunciation by Indian citizens who are also nationals of another country. The form requires the applicant to specify if he/she is/was an Indian citizen by birth, descent, registration or naturalisation; as well as the circumstances that have led him/her to acquire foreign citizenship
Voters: determination of their citizenship status
Exclusion, 2017-18
Shariff is chief scholar at the US-India Policy Institute; Bhat is an assistant professor at Jindal Global Law School; Saifullah is a research associate at Centre for Research and Debates in Development Policy.
On August 21, 1992, the Election Commission of India asked registration officers deputed to prepare the voters’ list to identify and delete foreign nationals from the electoral rolls. It also asked district collectors and the police to prepare a list of suspected foreign nationals. The police listed the residents of the localities, it believed, had a substantial presence of foreign nationals based on “intelligence reports”. Only those who were not in this list could apply for enrolment as voters. The others had to provide documentary evidence to satisfy registration officers that they were Indian citizens.
Expectedly, this enumeration and the rejection of voters in thousands led to mayhem. Alleging harassment and disenfranchisement, citizen groups went to the Supreme Court, which came down heavily on an extremely embarrassed state machinery. The right of citizens to participate in elections, according to the principle of adult franchise, is central to their citizenship status. Responding to these concerns in the L B Hussein case, the court ruled that determination of the citizenship status of voters should be treated like a court proceeding. The EC must adopt the highest procedural standards if it wishes to deny any person the right to vote.
Unfortunately, we may have come full circle. Two of us conducted an empirical study showing that millions of adults may have been excluded from electoral lists (EPW, May 19, 2018). Up to 15% of the total electorate of around 130 million adult citizens is missing from the electoral rolls. Data also showed a disproportionate exclusion of Muslims, and pointed to the possibility of similar exclusion among marginalised castes.
To assess the extent to which rejections by the EC contribute to this, we studied data from Karnataka. Out of 2.8 lakh new applications for enrolment during 2017-18, a high 62% were rejected — as many as 18% were denied on the ground of not being Indian citizens and 24% for unspecified reasons. To put it more dramatically, among the total number of rejects, around 30% were rejected on the ground of not being Indian citizens and 39% for reasons not publicly available.
We visited a selection of rejected households to assess the procedures that the EC had followed. The claimants were oblivious of the fact that they had been rejected and the reasons for it. They had been given no meaningful opportunity to present contrary evidence to the commission. We found that the rejected individuals had Aadhaar for their residential address and were able to produce additional documents like electricity bills. Others reported to have been born at their registered residential addresses and were able to produce school certificates in lieu of birth certificates.
As more evidence comes in, it is becoming increasingly apparent that there has been a disconcerting level of procedural violation. Under Indian election law, a person can be disqualified from the electoral rolls if he/ she is not a citizen. The EC is expected to take the citizenship status into account as it updates the rolls. But the law also requires that this be done strictly in line with principles of natural justice and transparency.
The Representation of People’s Act 1950 provides that registration officers must evaluate fresh claims for enrolment only after “proper verification of facts”. A detailed due process is further provided under the Registration of Electors Rules 1960, including notification to claimants, in-person hearing and the recording of reasons.
The L B Hussein case further emphasised the importance of these procedural safeguards. The SC lay down that individuals already on the rolls will be presumed to be citizens. Individuals who are rejected will have to be given reasons why their citizenship is suspect, and then allowed to present evidence to contest that. The court rejected any attempt at limiting the range of documents that individuals could produce to establish citizenship. Finally, the EC must independently apply its mind in each individual case and not rely on external instructions. The court found it unacceptable that the EC relied on generalisations based on police reports.
Procedural safeguards are crucial for upholding the constitutional promise of universal adult franchise. Without due process, there is a danger of abuse of power on the ground and disenfranchisement of the weakest sections of society. The unusually high proportion of individuals being rejected on the ground of not being Indian citizens, without getting a fair opportunity to contest their exclusion, amounts to a crisis for democracy. The Election Commission must immediately respond with a rectification protocol to ensure that citizens do not miss the opportunity to vote.
