Citizenship: Abstract and Keywords

Citizenship
Citizenship
Niraja Gopal Jayal
The Oxford Handbook of the Indian Constitution
Edited by Sujit Choudhry, Madhav Khosla, and Pratap Bhanu Mehta
Print Publication Date: Mar 2016

Subject: Law, Constitutional and Administrative Law, International Law
Online Publication Date: Feb 2017 DOI: 10.1093/law/9780198704898.003.0010
Abstract and Keywords
This chapter examines the question of citizenship in the Indian Constitution. It first con
siders the debate in the Indian Constituent Assembly over jus soli vs jus sanguinis
citizenship, along with the constitutional settlement of citizenship and the key issues that
are most contested—and remain central to—citizenship jurisprudence. It then turns to a
discussion of four terms whose interpretation has been central to the case law on citizen
ship: domicile, intention, migrant, and passport. It also analyses the main provisions of
the Citizenship Act 1955 and the amendments to this piece of legislation from the
mid-1980s to the present. The rest of the chapter explores the gradual shift from a jus soli
conception of citizenship to one based on the principle of jus sanguinis, as well as the pat
terns of change and continuity in the constitutional and post-constitutional law of citizen
ship in India.
Keywords: citizenship, Citizenship Act 1955, domicile, Indian Constitution, intention, jurisprudence, jus sanguinis,
jus soli, migrant, passport
I. Introduction
THE chapter on citizenship in the Indian Constitution has two distinctive qualities. First,
more than any other set of provisions in the Constitution, the Articles on citizenship have
a pronounced quality of immediacy, of belonging only to the moment of their enactment.
This is unusual because constitutions generally reflect a quality of timelessness in their
phrasing, a sense of being enacted in perpetuity rather than speaking to a presumptively
fleeting moment in time. This avowedly momentary character is accentuated, secondly, by
the self-limiting provision that a more permanent and enduring law on citizenship will be
enacted by Parliament in due course. As he recommended to the assembly the adoption of
these Articles, Dr Ambedkar clearly stated that these provisions were not intended to lay
down a permanent or unalterable law of Indian citizenship, but ‘all that we are doing is to
decide ad hoc for the time being’ the question as to who would be citizens on the date of
the commencement of the Constitution.1 Every other matter relating to citizenship would
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Citizenship
be determined by Parliament. The phrasing of Article 11—‘Nothing in the foregoing provi

sions of this Part shall derogate from the power of Parliament to make any provision with
respect to the acquisition and termination of citizenship and all other matters relating to
citizenship’—reaffirms the transience and self-limiting character of these constitutional
provisions.
The immediacy and impermanence were dictated by the particular circumstances of the
Partition of India in 1947 that shaped these provisions substantively and in their self-con
scious temporariness. Ironically, however, it is the legacy of this historical context that
has proved to be the most enduring feature of citizenship law and jurisprudence in India.
The present chapter provides an account of the constitutional provisions on citizenship in
the Constituent Assembly of India, and the debates that preceded their adoption. It exam
ines also the subsequent legislation of the Citizenship Act of 1955, the case law on citi
zenship, as well as the amendments effected in the Act and its Rules from the mid-1980s
to the present. All of these, it is argued, strongly reflect the context of the Partition in
which the constitutional provisions were drafted and adopted. The legal and judicial tra
jectory of (p. 164) citizenship in independent India is thus illustrative of the ways in which
the Partition legacy continues to inflect this body of law and jurisprudence. Indeed, the
imprint of this event has become more, rather than less, deeply entrenched with the pas
sage of time. The Citizenship Act of 1955 encapsulates that innocent moment after the
physical and emotional upheaval of the Partition has settled and a fresh attempt is made
to legislate citizenship in a way that does not reflect this legacy. However, the legacy
creeps in again after the break-up of Pakistan and the influx of immigrants on the eastern
border of India. It also becomes more evident on the western border with the influx of
Hindu refugees from Sindh and Punjab in Pakistan in the 1990s and beyond.
As reflected in the amendments to the citizenship laws and rules, this legacy is visible in
the way in which jus soli citizenship has over time come to be visibly inflected by ele
ments of jus sanguinis. The Constituent Assembly witnessed a contest between these two
principles, and Section II of this chapter offers an interpretation of the debate and docu
ments the constitutional settlement of citizenship. It also identifies the core issues that
are most contested, and remain central to citizenship jurisprudence, much of which
speaks to the legacy of the Partition. This is done through a focus on four terms whose in
terpretation has been central to the case law on citizenship: domicile, intention, migrant,
and passport. Section III explicates the main provisions of the Citizenship Act 1955 and
contextualises the amendments to the Citizenship Act from the mid-1980s to the present.
Section IV documents the gradual shift from a jus soli conception of citizenship to one in
creasingly inflected by elements of jus sanguinis, reflecting the peculiar quality of the im
brication of the constitutional and statutory law of citizenship in the Partition of India.
The apparent exception of recent amendments intended to accommodate the claims of
the diaspora is actually less of an exception than it appears, as it echoes the shift from jus
soli to jus sanguinis, albeit in a context discontinuous from that of the Partition. The con
cluding section reflects on the patterns of change and continuity in the constitutional and
post-constitutional law of citizenship.
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II. Citizenship for Extraordinary Times

Constitutions do not ordinarily define citizenship. Despite its invocation of the Declara
tion of the Rights of Man (1789), its vesting of national sovereignty in the French people,
and its canonically inclusive conception of citizenship, the Constitution of the Fifth Re
public in France does not actually define this concept. In the American Constitution, citi
zenship remained undefined until after the adoption of the Fourteenth Amendment, in the
aftermath of the Civil War and as a reaction to the Supreme Court’s decision in Dred
Scott v Sanford (1857).2 Even the famously progressive Brazilian Constitution of 1988,
which (p. 165) privileges the value of citizenship as a founding principle of the republic,
and defines expansively the social and economic rights of the people, does not actually in
dicate what the source and basis of citizenship will be.
When India’s Constituent Assembly began its deliberations in December 1946, there was
no thought of a separate chapter on the topic of citizenship. By the time the Constitution
was adopted, the Partition had intervened and citizenship had become the subject of Part
II of the Constitution, following the first part on the Union and Its Territories. The seven
Articles that comprise this section took two years to be finalised, leading Dr Ambedkar,
the Chairman of the Drafting Committee, to say of what eventually became Article 5, the
opening Article of the section:
Except one other article in the Draft Constitution, I do not think that any other ar
ticle has given the Drafting Committee such a headache as this particular article. I
do not know how many drafts were prepared and how many were destroyed as be
ing inadequate to cover all the cases which it was thought necessary and desir
able to cover.3
Article 5 was originally a part of the fundamental rights chapter. The discussion on citi
zenship was in fact initiated in the Sub-Committee on Fundamental Rights in March
1947, where there was consensus on a single citizenship for the Indian Union. There was
also some preliminary discussion of the alternative bases of citizenship (jus soli and jus
sanguinis), as members of the Constituent Assembly were anxious to avoid giving the im
pression that they were adopting the same ‘racial’ principle against which the Indian na
tionalists had offered solidarity to the struggles of Indians in South Africa. As Vallabhbhai
Patel said, ‘It is important to remember that the provision about citizenship will be scruti
nized all over the world.’4
The announcement of the Partition in June 1947 gave a new impetus to the debate on citi
zenship in the Constituent Assembly. The division of British India along broadly religious
lines triggered the massive movement of population from one country to the other and (in
some cases) back again to the first. It was accompanied by large-scale violence, displace
ment, and homelessness, which made it impossible to discuss even fundamental rights
without some clarity about who the bearers of rights, or citizens, would be in the new re
public.5 An ad hoc committee was set up to re-examine the question of citizenship in the
wake of the changed circumstances of the Partition. In the early discussions, (p. 166) a va
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riety of possible challenges were articulated, ranging from provisions for marriages be
tween citizens of India and Pakistan, to provisions for residents of seceding areas who
wished to retain their Indian citizenship. There was also some debate on the entitlements
of Indian residents of Burma, Ceylon, Malaya, and other countries that had sizeable Indi
an populations. Determining an appropriate cut-off date to determine citizenship entitle
ments for persons migrating to India from Pakistan was obviously important. But the most
contentious issues were around the concepts of domicile, migration, and the intention to
settle, and we will return to these after a brief delineation of the constitutional provisions
on citizenship in Articles 5–11 of the Constitution.
Article 5 confers citizenship, at the commencement of the Constitution, on 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 preceding such commencement.
Article 5 was a preliminary foundational statement of jus soli citizenship, albeit one that
applied only to persons already living rather than to future persons born after the com
mencement of the Constitution. It was chosen as a form of ‘enlightened, modern civilized’
and democratic citizenship, over the rival principle of jus sanguinis described by the con
stitution makers as ‘an idea of racial citizenship’.6 If Article 5 was an enunciation of citi
zenship for ordinary times, Articles 6 and 7 were articulations of citizenship for extraordi
nary times. Article 6 provides for citizenship for persons who migrated to India from the
territory now included in Pakistan if either of their parents or grandparents was born in
India. If such a person migrated to India before 19 July 1948, he7 should have been resi
dent in India since the date of his migration; and if he migrated after that date, he should
have been registered as a citizen of India by a designated government official. If Article 6
was intended to accord rights of citizenship to those people who migrated from Pakistan
to India around the time of the Partition, Article 7 was correspondingly designed to ex
clude from citizenship those persons who migrated from India to Pakistan after 1 March
1947. However, it provided for rights of citizenship for those who had so migrated from
India to Pakistan but returned to India with a permit of resettlement or permanent return
issued by an authorised government official, after the same date and by a process similar
to that provided for in Article 6. As we shall see, Article 7 was a hugely embattled provi
sion in the Constituent Assembly.
Article 9 states that individuals who voluntarily acquire the citizenship of a foreign state
cannot be citizens of India. Article 10 provides for the continuance of the rights of citizen
ship for anyone deemed to be a citizen under the earlier provisions ‘subject to the provi
sions of any law that may be made by Parliament’, and Article 11 gives Parliament com
plete power to ‘make any provision with respect to the acquisition and termination of citi
zenship and all other matters relating to citizenship’.8 The last two Articles underscore
(p. 167) unambiguously the stopgap and ad hoc nature of the constitutional provisions on
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citizenship, which are intended to provide for the specific situation of the extraordinary
event of the Partition while a conception of citizenship for normal times awaits the atten
tion of an elected Parliament.
Echoes of the communally charged atmosphere of the Partition resounded in the assem
bly as it debated what eventually got enacted as Article 7. Though the markers of reli
gious difference were not openly displayed, they are easily recognisable in the debates on
Articles 6 and 7 of the Constitution. Article 6 was obviously unexceptionable as it guaran
teed rights of citizenship for what were largely Hindu migrants from Pakistan, commonly
described in the discourse of the time as refugees. Article 7, however, implicitly referred
to those Muslims who had fled India for Pakistan in the wake of Partition-related violence,
but later returned to reclaim their lives, livelihoods, and property. This Article was neces
sitated by the fact that the numbers of such people were considerable, the High Commis
sion claiming that it received one thousand applications from Muslim refugees on a daily
basis.9 These people were euphemistically described as ‘migrants’, and this was the most
intensely contested Article on citizenship in the Constituent Assembly. It is important to
note that though the Constitution does not use the terms refugee and migrant, these
words occurred frequently in the speeches made in the Constituent Assembly, and subtly
encoded religious identity in a shared universe of meaning.
There was heated contention in the assembly about the necessity for a provision such as
this. Jaspat Roy Kapoor labelled Article 7 the ‘obnoxious clause’, arguing that:
Once a person has migrated to Pakistan and transferred his loyalty from India to
Pakistan, his migration is complete. He has definitely made up his mind at that
time to kick this country and let it go to its own fate, and he went away to the
newly created Pakistan, where he would put in his best efforts to make it a free
progressive and prosperous state.10
Other detractors of this Article declared that Indian citizenship was being ‘sold too cheap
ly’ and that the migration of these people from India to Pakistan had been intentional.
They could now be saboteurs, spies, and fifth columnists, seeking to re-enter India. At
best, they might have changed their minds about where to settle once they found Pak
istan to be a less comfortable place than they had anticipated; or they might be returning
to restore control over the properties they had abandoned when they fled. Loyalty and in
tentionality were recurring themes in this view, and intention was to become, as we shall
see, a central motif in the adjudication of cases in subsequent years.
In contrast, those who advocated Article 7 favoured a more inclusive conception of legal
citizenship. They argued that the Muslim migrants who had left India because of the com
munal riots and violence should be welcomed back. Their loyalties and intentions could
not be treated as suspect because they had, to quote Mahajan CJ in Central Bank v Ram
Narain just a few years later:
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[I]n October or November 1947, men’s minds were in a state of flux. The partition of In
dia and the events that followed in its wake in both Pakistan and India were unprecedent
ed and it is (p. 168) difficult to cite any historical precedent for the situation that arose.
Minds of people affected by this partition and who were living in those parts were com
pletely unhinged and unbalanced and there was hardly an occasion to form intentions
requisite for acquiring domicile in one place or another. People vacillated and altered
their programmes from day to day as events happened. They went backward and for
ward; families were sent from one place to another for the sake of safety … No one, as a
matter of fact, at the moment thought that when he was leaving Pakistan for India or vice
versa that he was forever abandoning the place of his ancestors.11
The intention to acquire domicile was not only difficult to establish but also seen to be un
reasonable, as it sought to establish rational and deliberate intent in a situation dominat
ed by the raw emotions of fear and insecurity. All these—domicile, intention to perma
nently settle, and the meaning of migration—became points of contention in the case law.
Even as the Citizenship Act was passed by Parliament in 1955, the legacy of the Partition
continued to be unsettled and ubiquitous in citizenship jurisprudence. In the body of case
law following 1950, there are only a few cases—such as the State Trading Corporation
case about whether or not a corporate entity enjoys the fundamental rights of a citizen—
that are altogether unrelated to the event of Partition.12
Since the term ‘domicile’ in Article 5 was not defined in the Constitution, it came to be
contested in several cases that invariably referred to the basic principles of English law
making a distinction between domicile of origin and domicile of choice. While there is a
wealth of legal commentary on the term in the context of the Conflict of Laws,13 what is
relevant for our purposes is the relationship between domicile and citizenship adjudicat
ed in a number of cases, including as recently as 1991. In Louis de Raedt v Union of
India, a Belgian missionary who had been living in India since 1937, petitioned the court
in 1987 claiming that he had, on 26 November 1949, become a citizen under Article 5(e)
of the Constitution.14 The Supreme Court ruled that mere residence in the country did not
constitute domicile; it must be accompanied by the intention to make a permanent home
in the country, which de Raedt had not demonstrated. The Court’s verdict was that de
Raedt had applied for a one-year extension of his permission as recently as 1980, which
did not indicate a decision to reside permanently in India. At best it indicated the
petitioner’s uncertainty about his permanent home:
For the acquisition of a domicile of choice, it must be shown that the person concerned
had a certain state of mind, the animus manendi. If he claims that he acquired a new
domicile at a particular time, he must prove that he had formed the intention of making
his permanent home in the country of residence and of continuing to reside there perma
nently. Residence alone, unaccompanied by this state of mind, is insufficient.15
While intent or animus manendi was an important consideration in several cases, the
Supreme Court had held, as early as 1955, that both factum and animus were essential,
and neither by itself was sufficient. In Central Bank of India v Ram Narain, Ram Narain
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was being tried in India for an offence committed in Pakistan in November 1947.16 On be
half (p. 169) of his firm, Ram Narain had taken an advance from the Central Bank of India
in Multan District, against stocks (bales of cotton). In the disturbances that occurred dur
ing the Partition, the guard of the bank’s warehouse fled and the stocks disappeared. In
January 1948, an inquiry found that Ram Narain himself had stolen the goods and booked
them to Karachi. Ram Narain had already moved his family to Gurgaon, India, and him
self moved to India in November 1947. The Bank demanded that he refund the money, but
to no avail. It then got a sanction from the government of East Punjab to prosecute Ram
Narain, whose plea was that he was not an Indian citizen, but a Pakistani national, at the
time of the offence and therefore Indian courts did not have jurisdiction. The High Court
upheld this plea, arguing that the courts had no jurisdiction over an accused who was not
a citizen of India at the time of the commission of the offence. The Supreme Court dis
missed the Bank’s appeal, saying that both factum and animus were essential, and that in
this case even if animus could be inferred from Ram Narain relocating his family to India
in advance of his own move, the factum was found wanting and hence it could not be es
tablished that he was indeed domiciled in India at the time the offence was committed.17
It is worth noting that the domicile of women and minor children was inferred from the
domicile of their husbands and fathers, respectively. A woman migrating from India to
Pakistan with her husband in December 1947 would lose her Indian domicile and termi
nate her citizenship by virtue of such a move. However, Article 7 overrides Article 5, and
domicile is not a criterion in Articles 6 and 7. This means that if a woman, born and domi
ciled in India, migrated to Pakistan after 1 March 1947, she would lose her Indian citizen
ship and domicile even if her husband remained in India. Minors were also considered to
have migrated if they accompanied their fathers, though there was uncertainty about sit
uations in which a minor migrated to Pakistan independently of his father, who remained
in India. Could such a minor be deemed to have migrated, or to have formed an intention
to make Pakistan his permanent home? In Rashid Hassan Roomi v Union of India, the pe
titioner was the son of Indian parents who had lived in India for five years before the
commencement of the Constitution.18 His father migrated to Pakistan, while the son con
tinued to live in India, and eventually went on to become the Chairman of the Town Area
Committee. He retained his domicile and citizenship on the grounds that his father had
deserted him.19
The relationship between domicile and migration was no more obvious than that between
domicile and citizenship. In Shanno Devi v Mangal Sain, the Court adopted a narrow in
terpretation, in accordance with Article 6, defining migration as coming to India with the
intent of permanent residence.20 In Kulathil Mammu v State of Kerala, by contrast,
(p. 170) a broader view prevailed as the Court interpreted migration as coming and going
from one territory to another, a meaning that could attach to both Articles 6 and 7 with
out bringing in the concept of domicile.21 This was justified by the argument that both
these Articles began with a non obstante clause, as they were designed to deal with the
abnormal situation of movement of populations between India and Pakistan. This particu
lar case pertained to a twelve-year-old boy who had migrated to Pakistan with his father
in 1948, had returned to India on a Pakistani passport with an Indian visa, gone back and
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forth a few times, and finally returned to live in India. In October 1964, Aboobacker
(whose father had held Indian nationality but was by now dead) was arrested and de
tained by the State government. His plea before the court that he was an Indian citizen
and ‘had simply gone to Karachi in search of livelihood as he was poor’ was contested by
the State, which treated his migration as intentional and therefore not attracting the pro
visions of Article 7.22 The Kerala High Court had upheld the State’s view, but the
Supreme Court settled on a wider interpretation that focused only on movement from one
place to another ‘whether or not there is any intention of settlement in the place to which
one moves’ and held that such an interpretation was indeed the intent of the Constitution
makers.23 The wide interpretation adopted in this verdict then implied that the idea of an
imus manendi did not apply in the abnormal situation of the Partition.24
A piece of evidence that was frequently cited in judicial decisions at this time as a deci
sive criterion for determining intention was the passport. In the case of the Belgian mis
sionary Louis de Raedt, it was argued on behalf of the petitioner that his case could not
be rejected only because he held a foreign passport. Around the time of the Partition, peo
ple often had to acquire a Pakistani passport in order to return to India. In some cases,
such as State of Andhra Pradesh v Abdul, the court took the view that passports were not
conclusive evidence of the person having voluntarily obtained Pakistani citizenship or of
having renounced Indian nationality.25 In others, such as Izhar Ahmad Khan v Union of In
dia, the possession of a Pakistani passport was interpreted as evidence of such volition
and intent.26 In State of Gujarat v Saiyad Aga Mohmed Saiyed Mohmed, the Supreme
Court prevented the government from deporting the plaintiff, despite his possessing a
Pakistani passport because:
If a plea is raised by the citizen that he had not voluntarily obtained the passport, the citi
zen must be afforded an opportunity to prove that fact. Cases may be visualized in which
on account of force a person may be compelled or on account of fraud or misrepresenta
tion he may be induced, without any intention of renunciation of his Indian citizenship to
obtain a passport from a foreign country.27
In section III, we shall see how the exercise of judicial reasoning in the early decades is,
on some of these terms, inverted when the determination of citizenship for people pre
sumed to be illegal immigrants from Bangladesh comes to be litigated.
(p. 171) III. Citizenship Laws for Ordinary Times

The Citizenship Act 1955 was enacted in pursuance of Article 11 of the Constitution. It
provides for the acquisition of citizenship in five ways: by birth, descent, registration, nat
uralisation, and the incorporation of territory. The most significant amendments to the
Citizenship Act have been to Sections 3 (citizenship by birth) and 6 (citizenship by natu
ralisation) to address concerns about illegal immigration from Bangladesh. Section 7 (citi
zenship by incorporation of territory) has also been substantively amended to provide for
overseas citizenship of India.
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There were originally two exceptions to citizenship by birth: (a) if the father possessed
diplomatic immunity and was not an Indian citizen; and (b) if the father was an enemy
alien and the birth occurred at a place under enemy occupation. While these (obviously
infrequent) exceptions remain, another set of exceptions was later introduced that have
immediate relevance to migrants from Bangladesh. This is expressed in two sub-clauses
of the amended Section 3, which now accords citizenship to those persons born in India
(a) on or after 26 January 1950 and before 1 July 1987; (b) those born on or after 1 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’; and, in 3(c):
[O]n or after the commencement of the Citizenship (Amendment) Act, 2003, where
(i) both of his parents are citizens of India;

(ii) one of whose parents is a citizen of India and the other is not an illegal migrant
at the time of his birth.
While Section 3(b) gives citizenship to those born in India before the amendment of 2003
with either parent being a citizen of India at the time of his birth, 3(c) excludes all those
born after the commencement of the amendment of 2003 with one parent who is an ille
gal migrant at the time of their birth. The explanation to this lies in the amendment to the
provision relating to citizenship by naturalisation in Section 6 of the Citizenship Act.
Meanwhile, Section 4 relating to citizenship by descent for persons born outside India to
Indian parents has been rendered gender-neutral. Until 1992, this applied to persons
whose father was a citizen of India at the time of his birth. Since 1992, citizenship by de
scent is available to those born outside India either of whose parents is a citizen of India
at the time of his birth. In 2004 and 2005, the provisions of citizenship by registration
(Section 5) were amended to, on the one hand, exclude from such citizenship any person
who is an illegal migrant and, on the other, to lower the residence requirement for a per
son registered as an overseas citizen of India (for five years) from two years to one.
The most significant amendments to the Act have, however, been to the provisions of Sec
tion 6, which deals with citizenship by naturalisation. Section 6A was introduced in 1985
to make special provisions for the citizenship of those covered by the Assam Accord. Mi
gration from Bangladesh peaked in 1971 (at the time of the break-up of Pakistan) and
continued steadily thereafter. The subsequent enfranchisement of large numbers of
refugees/migrants took on a communal colour and generated massive protests by the All
Assam Students’ Union, between 1979 and 1985, against the swamping of Assam by ‘for
eigners’. In February 1983, in the midst of elections based on electoral rolls that alleged
ly (p. 172) included a large number of ‘illegal’ voters, a terrible massacre took place in
Nellie, killing over 2,000 people.
The Assam Accord, the political settlement arrived at between the Assam movement and
the central and State governments, provided that (a) all those who had migrated before
1966 would be treated as citizens; (b) those who had migrated between 1966 and 1971
could stay by putting themselves through the designated process of registration as for
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eigners; and (c) all those who migrated after 1971 would be deemed to be illegal immi
grants. The numbers of such illegal immigrants are commonly estimated to be upward of
10 million. Many of them had acquired forms of what Kamal Sadiq has called ‘documen
tary citizenship’, including ration cards and election cards, which had enabled them to
vote in elections.28 The amendment to the Citizenship Act in 1985 was intended to ensure
that the names of those who came in after 1966 would be deleted from the electoral roll.
Such persons would then have to wait for a period of ten years from their ‘detection’ as a
foreigner before becoming legal citizens and voters once again.
In 2004, the section on Citizenship by the Incorporation of Territory into India was sub
stantially amended to include a section (7A) on the registration of Overseas Citizens of In
dia. This provides for any person who is an adult citizen of another country but either was
eligible to be a citizen at the time of the commencement of the Constitution or is a child
or grandchild of such a citizen. A year later, the Union government specified the rights of
such citizens, which include the grant of a lifelong multiple-entry visa to India, but ex
clude such citizens from voting or contesting election to public office or recruitment to
government jobs. Citizens of Pakistan and Bangladesh, or even those who have ever held
citizenship of these two countries, are ineligible for registration as overseas citizens of In
dia.
The restrictions on citizenship for migrants deemed to be illegal, on the one hand, and
the expansion of citizenship to include the diaspora, on the other, are suggestive of a dilu
tion of the jus soli principle established in the Constitution and an increasing recognition
of elements of jus sanguinis. Section IV of the chapter discusses three issues that are in
dicative of such a move from jus soli to jus sanguinis in the citizenship law of India.
IV. Three Paths to Jus Sanguinis

Two of three paths to jus sanguinis have been briefly mentioned in section III. These are,
first, the constraint applied to the jus soli principle by the provision excluding from citi
zenship those Indian-born persons one of whose parents is an illegal migrant at the time
of their birth; and, secondly, the provisions relating to overseas citizenship of India, which
give recognition to members of the diaspora who have not been born in India but are chil
dren or grandchildren of those who have. The third aspect of the citizenship law that indi
cates such a move is contained in the 2004 amendment to the Citizenship Rules 1956 in
respect of their application to the States of Gujarat and Rajasthan. In this section, I first
return to the (p. 173) amendments excluding the Indian-born children of illegal migrants,
and the events leading up to these; then turn to the amendments to the Citizenship Rules
for migrants from Pakistan to Rajasthan and Gujarat; and finally to the amendments relat
ing to Overseas Citizenship.
The amended Citizenship Act is not shy of acknowledging that these amendments or ‘spe
cial provisions’ are a product of the Assam Accord. As such, the reference to illegal mi
grants is a thinly veiled reference to Muslim migrants. In the earlier section we noted
that a large number of these migrants had acquired the franchise by means that Sadiq
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has labelled as ‘networks of profit’ and ‘networks of complicity’.29 In other words, kinship
networks and money were reasonable guarantees of registration on the electoral rolls.
Assiduously courted by the Congress Party, the vulnerability of these people on account of
their religious identity had made them Congress sympathisers and eager voters. In 1983,
the Congress government at the Centre responded to the political unrest in Assam by en
acting the Illegal Migrants (Determination by Tribunals) Act (IMDT Act), which provided
for complaints about illegal migrants to be filed and adjudicated by tribunals especially
instituted to detect and expel foreigners. While this conveyed the impression of assuaging
nativist Assamese sentiment, networks of ethnic solidarity could be and were relied upon
to render such complaints meaningless. The law also entailed making an Assam-specific
exception to India’s law on foreigners, which ordinarily places the burden of proving citi
zenship status on the individual in question. The IMDT Act removed the burden of prov
ing their citizenship from the persons suspected of being illegal immigrants. The pres
ence of illegal immigrants in the area could now be reported by their neighbours, and if
the tribunal decided, upon its examination of the complaint, that the person so accused
was indeed an illegal migrant, it had the power to order his/her deportation.
The IMDT Act was challenged in the Supreme Court by a writ petition filed by Sarbanan
da Sonowal, one of the leaders of the students’ agitation against immigration. The plea
was that the Act was ultra vires the Constitution, because it made it ‘impossible for citi
zens who are resident in Assam to secure the detection and deportation of foreigners
from Indian soil’.30 Its legality was brought into question because though the professed
aim of the IMDT Act was to facilitate the detection and deportation of illegal foreign mi
grants in Assam, the procedure prescribed here did not conform to the Foreigners Act
1946, which is applicable to all foreigners throughout India. An exception had effectively
been made for non-Indians who had entered Assam clandestinely after 1971 and were al
leged to have brought about a change in the ‘whole character, cultural and ethnic compo
sition of the area’.31 Such migration, it was claimed, had the potential to create internal
disturbance, and should be treated as aggression under Article 355 of the Constitution,
which binds the Union to protect States against such aggression.
The petition was supported by the National Democratic Alliance coalition, headed by the
Hindu nationalist Bharatiya Janata Party (BJP) when it came to office at the Centre. The
new government communicated to the Supreme Court its intention to repeal the Act both
because of the internal security implications of the population influx, and also because
the application of the Act to only one State was clearly discriminatory.32 In 2000, the
State (p. 174) government headed by the Asom Gana Parishad (AGP) (the All Assam Stu
dents’ Union grown into a political party) claimed that the provisions of the IMDT Act ac
tually protected illegal migrants. To support its case that the small numbers of foreigners
detected and deported could be directly attributed to the provisions of the Act, it showed
that while it had initiated 310,759 inquiries, the total number of people declared to be il
legal immigrants was 10,015, of whom only 1,481 had actually been expelled. The Court
was therefore asked to order a repeal of the IMDT Act for being ‘an ineffective piece of
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legislation’, which was obstructing rather than facilitating the detection, deportation, and
the deletion of the names of illegal migrants from the electoral rolls.33
Religious bias was writ large in the claim, common enough in contemporary political dis
course, that while the Hindu population of the State had risen by 41.89 per cent during
1971–91, the Muslim population of Assam had risen 77.42 per cent during the same peri
od.34 In 2004, the Congress Party returned to power at the Centre, and informed the
Supreme Court that the Union government would retain the IMDT Act in its current form.
Thus, the AGP and the BJP interpreted the small numbers actually deported as a sign that
the Act was performing its intended purpose of protecting illegal immigrants for electoral
gain for the Congress Party. For its part, the Congress interpreted the same small num
bers of those deported as showing that the Act was effective in ensuring that true Indians
were not wrongfully deported on the suspicion of being foreigners.
The case was decided in 2005, with the Supreme Court striking down the Act as ultra
vires the Constitution and transferring all cases pending before the tribunals to the tri
bunals constituted under the Foreigners (Tribunals) Order 1964 to be decided in the man
ner provided in the Foreigners Act. The Court concerned itself chiefly with determining
the constitutional validity of the Act and especially the question of its applicability only to
the State of Assam, thus creating a State-specific exception to a national law. It ruled that
the Act violated Article 14 of the Constitution to the extent that the exception was based
solely on geography rather than any substantive connection with the object and policy of
the Act.35 It refused to entertain any consideration of the election manifesto of a political
party as a relevant factor in judging the constitutional validity of any law.36 The judgment
affirmed the procedure laid down in the Foreigners Act, which places the burden of prov
ing citizenship upon the person in question, and noted that not only did the IMDT Act not
contain any provision similar to Section 9 of the Foreigners Act regarding burden of
proof, but that it was also ‘conspicuously silent about it’.37 This, it argued, placed a very
heavy burden on both the applicant and the authorities of the State to prove that a per
son is an illegal migrant liable for deportation. Indeed, said the Court:
Not every person feels that he owes a duty towards the nation and he should initiate pro
ceedings for deportation of an illegal migrant. The applicant also incurs risk to his own
security and safety besides spending time and energy in prosecuting the matter … This
shows how one-sided the provisions of the IMDT Act are. They have been so made that
they only result in giving advantage and benefits to an illegal migrant and not for achiev
ing the real objective of (p. 175) the enactment, namely, of detection and deportation of a
Bangladeshi national who has illegally crossed the border on or after 25th March, 1971.38
Accordingly, the Court upheld the contention of the petitioners that the Act itself was the
biggest obstacle to the identification and deportation of illegal migrants, that citizens
were hardly likely to initiate such proceedings for deportation, and that, as it had result
ed in expulsions in less than half of one per cent of all cases initiated, the Act seemed to
have been deliberately designed to protect and shelter illegal migrants rather than to
identify and deport them.39
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The verdict quoted extensively from a 1998 report of the Governor of Assam, stating that
the illegal migrants coming into Assam from Bangladesh were ‘almost exclusively Mus
lims’.40 The xenophobic sentiments expressed in the report raised fears of swamping, and
even terror:
The influx of these illegal migrants is turning these districts into a Muslim majority re
gion. It will then only be a matter of time when a demand for their merger with
Bangladesh may be made. The rapid growth of international Islamic fundamentalism may
provide for [sic] driving force for this demand.41
The view that the illegal migrants had reduced the people of Assam to a minority in their
own State was endorsed by the Supreme Court, which echoed the petitioner’s concern
that their presence represented a threat of ‘external aggression and internal distur
bance’.42 It thus came to the conclusion that the IMDT Act contravened Article 355 of the
Constitution, which mandates the Union government to protect States against external
aggression and internal disturbance.43 However, the fact that the IMDT Act was struck
down by the Court has had no impact whatever on the law on citizenship, in particular
the 2004 amendment to the Citizenship Act that modifies the provision of citizenship by
birth to exclude from it such persons born in India as have one parent who is an illegal
migrant at the time of their birth (Section 3(c)(ii)).
It is instructive to contrast this with the amendments to the Citizenship Rules. These
were enacted to address the claims to citizenship of Hindu migrants from Pakistan mi
grating across the western border into the States of Rajasthan and Gujarat.44 This region
has experienced several waves of such immigration: from the wars between India and
Pakistan in 1965 and 1971, and most recently after the demolition of the Babri Masjid in
Ayodhya in December 1992. Following this event, the insecurity of members of the Mus
lim minority in India found parallels in the insecurity of the Hindu minority in Pakistan,
approximately 17,000 of whom migrated to India. Most of these people, being Pakistani
passport holders, travelled on Indian visas that they simply overstayed. They then be
came applicants for citizenship. The Union government had already, in response to the
widespread allegations about the manipulation of citizenship certification in Assam, with
drawn to itself the powers of district collectors all across India to confer citizenship in ac
cordance with the law. To enable the grant of citizenship by District Collectors in Ra
jasthan and (p. 176) Gujarat, the Union government had to make an exception to this with
drawal of powers, and this was accomplished in 2004, through an amendment to the Citi
zenship Rules 1956, for a specified and limited period and within a limited jurisdiction.
This made it possible for District Collectors in these specific States to hold ‘Citizenship
Camps’ to process the applications for citizenship of these migrants from Pakistan. There
still remain a few thousand people who are awaiting the legalisation of their citizen sta
tus. The most significant feature of this amendment is its open declaration of the reli
gious identity of the migrants. Until this point, and to the present as far as the main Act is
concerned, the religious identity of migrants (illegal or otherwise) was covertly indicated,
but never explicitly mentioned. The 2004 amendment to the Rules dispenses with such
signalling. It even avoids the description of these people as migrants, much less illegal
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migrants, the coded ‘dog-whistle’ label used to indicate immigrants from Bangladesh.
Rule 8A of the Citizenship Rules 1956 reads:
In respect of minority Hindus with Pakistan citizenship who have migrated to India more
than five years back with the intention of permanently settling down in India and have ap
plied for Indian citizenship, the authority to register a person as a citizen of India … shall
be the concerned Collector of the district where the applicant is normally resident.45
Let us return to Article 7 of the Constitution and compare the amended Rules to what was
once described as ‘the obnoxious clause’:
Notwithstanding anything in articles 5 and 6, a person who has after the first day of
March, 1947, migrated from the territory of India to the territory now included in Pak
istan shall not be deemed to be a citizen of India:
Provided that nothing in this article shall apply to a person who, after having so
migrated to the territory now included in Pakistan, has returned to the territory of
India under a permit for resettlement or permanent return issued by or under the
authority of any law and every such person shall for the purposes of clause (b) of
article 6 be deemed to have migrated to the territory of India after the nineteenth
day of July, 1948.46
A quick reading shows that though the history of the Partition and the debates in the Con
stituent Assembly make it clear that Article 7 of the Constitution was intended to cover
returning Muslims who had migrated to Pakistan, it forbore from making any mention of
the religious identity of these people. The amendment to the Citizenship Rules, by con
trast, does not hesitate to assume and name the religious identity of the recent migrants
from Pakistan, who are explicitly referred to as ‘minority Hindus with Pakistan citizen
ship’. Further, recall the repeated questioning of the intention of returning Muslims, both
in the Constituent Assembly as well as in a vast range of case law. By contrast, the Hindu
migrants are not required to prove their intention to permanently settle in India so long
as they have been resident for at least five years. The requirement for a permit of reset
tlement has naturally been done away with.
In both these amendments to the Citizenship Act and the Citizenship Rules, it is clear that
elements of jus sanguinis have infiltrated the constitutional regime of jus soli. On the
(p. 177) one hand, persons born in India but with one parent who is an illegal migrant at
the time of their birth have become ineligible for citizenship. On the other hand, a special
dispensation has been made for ‘minority Hindus with Pakistan citizenship’. Both these,
one covert and the other explicit, suggest that religious identity has acquired a greater
role in the construction of legal citizenship than might be supposed by simply looking at
apparently identity-neutral constitutional provisions.
A third path to jus sanguinis has become manifest in the amendment of Section 7 of the
Act, allowing for Overseas Citizenship of India. This is by no means dual citizenship. The
website of the Ministry of Overseas Indian Affairs is at pains to labour the point that ‘OCI
Page 14 of 21

Citizenship
is not to be misconstrued as “dual citizenship” ’.47 Despite political promises made and re
iterated over the years, India still has a regime of single citizenship and does not recog
nise dual citizenship. This means that unlike, for instance, the possibility of an American
citizen being also simultaneously a German or Irish citizen, or the possibility of a Pak
istani citizen being simultaneously a British citizen, Indian law requires that an Indian cit
izen who is acquiring British or American citizenship must renounce her Indian citizen
ship. Moreover, persons who have at any time held citizenship in Bangladesh or Pakistan
are specifically excluded from the purview of this provision.
Around the time India became independent, it had been the consistent position of its po
litical leadership that Indians living in other countries must give their complete alle
giance to their adoptive homes. This position was adopted despite the anxiety of Indians
in other countries of south and south-east Asia, as well as Africa, of being rendered sec
ond-class citizens in the countries where they lived. There was a shift in this approach
when India was facing international sanctions for its nuclear tests. In 1998, the then
Prime Minister announced the constitution of a high-level committee to examine the ques
tion of dual citizenship for Non-Resident Indians (NRIs), Indians who live abroad even as
they retain their Indian citizenship. The government floated the Resurgent India Bonds
scheme to attract investment but these were offered only to select Indians (NRIs as well
as former citizens) in the US, Canada, and Europe. The explicit exclusion of citizens of the
less prosperous members of the diaspora in places like the Caribbean, Mauritius, and Fiji,
elicited accusations of ‘dollar and pound apartheid’. The high interest rates and tax ex
emptions offered by the bonds scheme made it hugely popular and the success of the
scheme led to a second, the India Millennium Deposit scheme, in 2000. Together, these
two bonds schemes raised close to USD 10 billion. The demand for dual citizenship from
such Indians has been a long-standing one.
Meanwhile, the High Level Committee on the Indian Diaspora submitted its report (also
known as the Singhvi Report) in 2001.48 Lyrically eulogising the diaspora as the ‘National
Reserve of India’ and ‘the National Resource of India’, the report recommended dual citi
zenship by an amendment to the Citizenship Act.49 The substantive argument made in
support of dual citizenship invoked the bonds of emotion that tied the emigrants to their
land of origin, and referred to their desire for dual nationality as ‘a higher form of the
(p. 178) acknowledgement of their linkage with Mother India’.50 The Singhvi Report re
jected outright such arguments against dual citizenship as referred to national security
concerns. In fact, it remarked that the IMDT Act (which was still undecided in court at
the time) had failed to check illegal migration into the country. By contrast, people enter
ing the country with dual citizenship would, it argued, be easier to monitor and regulate.
It also betrayed a class bias in promising that the process of dual citizenship would be ex
tremely selective. For instance, those whose ancestry could be traced back to first-wave
émigrés (indentured labourers) would be kept out. As regards the common anxieties
about divided allegiance and disloyalty, the Singhvi Report offered the assurance that
overseas citizens would not be allowed to join the bureaucracy, the police force, or the de
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fence services. It specifically ruled out the grant of political rights such as the right to
vote or hold public office for these groups.51
In 2002, a scheme was inaugurated allowing for individuals of Indian origin in a select
group of sixteen countries, all advanced industrial societies of the global North, to be reg
istered as Persons of Indian Origin (PIOs). The justification for the choice of countries in
voked the principle of reciprocity in that it was limited to those that recognised dual citi
zenship. In 2005, the Citizenship Act was amended to introduce the category of ‘Overseas
Citizen of India (OCI)’, and the privileges accompanying the status were expanded. Today,
it is only those individuals who are or have been at any previous time citizens of Pakistan
or Bangladesh that continue to be excluded from this.
In Talat Jamal Siddiqui v Union of India (2011) the Delhi High Court upheld a rejection or
der of the government that denied a PIO card to a woman holding a British passport, be
cause she had once held a Pakistani passport.52 This was despite the fact that both her
parents were born in pre-Independence India, that she was the spouse of a PIO, and the
parent of two PIOs. Among the grounds on which the petitioner contested the rejection in
the High Court was the gendered language used in the official notification, claiming that
the use of words such as ‘he’ and ‘himself’ clearly did not apply to her. The Court was un
fortunately not persuaded even to the modest extent of ordering a gender-neutral rewrit
ing of the rules.
Over the past decade, overseas Indians have clamoured for dual citizenship, and rhetori
cal promises to this effect have in fact been made, almost on an annual basis. Some OCIs,
professionals such as doctors and dentists, advocates, and chartered accountants, have
been given permission to practise their professions in India.53 The rights that OCIs do not
enjoy include the right to vote and the right to contest elections for political office. They
are also ‘normally’ ineligible for public employment, though exceptions can and have
been made from time to time. OCIs also do not have the duty to pay taxes. Nevertheless,
the manifestly greater engagement of the diaspora in a range of political activities in re
cent times—from mobilising funding to providing technical expertise for election cam
paigns—suggests that members of the diaspora have, even without dual citizenship, be
come more politically engaged in India. This may well betoken the impending realisation
of dual citizenship.
(p. 179) V. Conclusion

The core features of contestation and the central anxieties around the legal status of citi
zenship in India exhibit some significant continuities and inversions. Some of the core
principles on which judicial verdicts were based in the early decades after the adoption of
the Constitution retain their centrality even as they come to be inverted after the 1990s.
Two examples will suffice to demonstrate this. In the earlier phase, courts viewed an
individual’s possession of a Pakistani passport in either of two ways: as something that in
dicated that individual’s intention to permanently settle in Pakistan or, more uncommonly,
as something that had been acquired more or less involuntarily. In 1991, the court saw de
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Citizenship
Raedt’s possession of a Belgian passport as conclusive evidence showing that he never

had the intention to permanently reside in India. Now, even the possession of an Indian
passport has lost its evidentiary value. The courts have expressed cynicism about the In
dian passports offered by individuals (alleged to be illegal immigrants from Bangladesh)
as proof of their Indian citizenship. In Motimiya Rahim Miya v State of Maharashtra,54 as
also in Razia Begum v State,55 the courts have ruled that Indian passports may have been
acquired by misrepresentation and fraud. ‘Documentary’ citizenship thus comes to be
mistrusted, with passports being potentially as compromised as ration cards and election
cards.56
Similarly, the question of intention to settle has retained its importance, albeit in an in
verted manner. In the post-Partition period, as we have seen, the determination of citizen
ship rested heavily on the intent to permanently settle. Intention was positively valued as
a condition of entry into the privileged circle of citizenship. In the present, such intention
continues to carry positive connotations with reference to the Hindu migrants from Pak
istan who, as the amended Citizenship Rules say, have come with ‘the intention of perma
nently settling down in India’. However, in the context of Bangladeshi immigration, the in
tention to permanently settle by acquiring a ration card, election card, or passport, is a
matter for suspicion. Intention is here ascribed and deployed to deny, rather than affirm,
claims to citizenship.
This chapter has sought to demonstrate the contention over citizenship from the Con
stituent Assembly to the present. It has also shown that the divisive legacy of the Parti
tion and the religious identities implicated in it continue to lie at the core of this con
tention. This is the reason why, despite the victory of the jus soli conception of citizenship
at the constitution-making stage, there has been a gradual and subtle shift towards a jus
sanguinis conception. While jus soli remains the governing principle of citizenship in In
dia, citizenship law and jurisprudence have come to be manifestly inflected by elements
of jus sanguinis. Whether it is the issue of ‘illegal immigrants’ from Bangladesh on the
eastern border of India, or that of ‘minority Hindus with Pakistan citizenship’ on the west
ern border, the law and rules have tended to view these very differently, seeing the latter
(but not the former) as people with a rightful claim on Indian citizenship. This accenting
of Indian citizenship with jus sanguinis is reflected also in the expansive approach latterly
adopted towards the Indian diaspora.
Notes:
(1) Constituent Assembly Debates, vol 9 (Lok Sabha Secretariat 1986) 347, 10 August
1949.
(2) 60 US 393 (1857). S 1 of the Fourteenth Amendment to the United States Constitution
read: ‘All persons born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the state wherein they reside.’ Rogers M
Smith’s magisterial history of American citizenship, however, provides a compelling ac
count of the ambiguities in the Fourteenth Amendment in relation to foreign-born blacks
Page 17 of 21

Citizenship
as well as tribes. Rogers M Smith, Civic Ideals: Conflicting Visions of Citizenship in US

History (Yale University Press 1997) ch 10.
1949.
(4) B Shiva Rao, The Framing of India’s Constitution: A Study (Indian Institute of Public
Administration 1968) 152.
(5) See Constituent Assembly Debates, vol 2 (Lok Sabha Secretariat 1986) 338, 30 August
1947. In the discussion on fundamental rights, B Das said:
Many things have happened since we discussed Fundamental Rights in April last.
India has been divided up and Indian citizens who are born in both parts of India
now can claim citizenship in either Pakistan or Hindustan. There may be families
that may have a brother in Pakistan acquiring the citizenship of Pakistan while
others may be citizens of India. So it is natural that Government should legislate
that everybody must declare whether he is a citizen of Pakistan or Hindustan. One
would not like the best brains of India to go to Pakistan and when they come back
to India will they be taken as Indians or only recognized as citizens of Pakistan be
cause they have served after the separation in that country?
(6) Constituent Assembly Debates, vol 9 (Lok Sabha Secretariat 1986) 347, 29 April 1947.
(7) We retain here the constitutional usage of the masculine gender with some unease
and only in the context of the constitutional provisions.
(8) Constitution of India 1950, art 11.
(9) Vazira Fazila-Yacoobali Zamindar, The Long Partition and the Making of Modern South
Asia: Refugees, Boundaries, Histories (Viking Books 2007) 86.
1949.
(11) AIR 1955 SC 36 [11].
(12) State Trading Corporation of India v The Commercial Tax Officer, AIR 1963 SC 1811.
(13) HM Seervai, Constitutional Law of India, vol 1 (4th edn, Universal Book Traders
2002) 319–25.
(14) (1991) 3 SCC 554.
(15) Louis de Raedt (n 14) [10].
(16) AIR 1955 SC 36.
(17) Central Bank of India (n 16) [11].

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Citizenship
(18) AIR 1967 All 154.
(19) The presumption of equivalence between domicile and citizenship also provoked the
question of whether a single all-India citizenship implied that an individual could not be
domiciled in a particular State. This came up as a Conflict of Laws question in DP Joshi v
Madhya Bharat AIR 1955 SC 334, in which a constitutional bench of the Supreme Court
upheld State domicile in relation to college admissions, ruling that domicile and citizen
ship were two distinct concepts and that discrimination based on residence was not viola
tive of art 15(1). In Pradeep Jain v Union of India (1984) 3 SCC 654 [8], Bhagwati J stated
that it was ‘highly detrimental to the unity and integrity of India to think in terms of state
domicile’. Jurists have argued that the reality of legal pluralism—especially with respect
to personal laws—makes State domicile compatible with all-India citizenship. See Seervai
(n 13) 317–28.
(20) AIR 1961 SC 58.
(21) AIR 1966 SC 1614.
(22) Kulathil Mammu (n 21) [4].
(23) Kulathil Mammu (n 21) [5].
(24) Seervai (n 13) 331. Seervai was sharply critical of this judgment, which he argued
wrongly overruled the verdict in Shanno Devi.
(25) AIR 1961 SC 1467.
(26) AIR 1962 SC 1052.
(27) (1979) 1 GLR 71 [15].
(28) Kamal Sadiq, Paper Citizens: How Illegal Immigrants Acquire Citizenship in Develop
ing Countries (Oxford University Press 2009).
(29) Sadiq (n 28) 56–69.
(30) Sarbananda Sonowal v Union of India (2005) 5 SCC 665 [2].
(31) Sarbananda Sonowal (n 30) [2].
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Citizenship
(44) For a detailed account of this case, see Niraja Gopal Jayal, Citizenship and its Discon
tents: An Indian History (Harvard University Press 2013) ch 3.
(45) Citizenship Rules 1956, rule 8A (emphasis added).
(46) Constitution of India 1950, art 7.
(47) The Ministry of Overseas Indian Affairs, ‘Overseas Citizenship of India Scheme’
<http://moia.gov.in/services.aspx?id1=35&id=m3&idp=35&mainid=23>, accessed Octo
ber 2015.
(48) Government of India, Report of the High Level Committee on the Indian Diaspora
<http://indiandiaspora.nic.in/contents.htm>, accessed October 2015.
(49) Report of the High Level Committee on the Indian Diaspora (n 48) 526.
(52) Talat Jamal Siddiqui v Union of India (Delhi High Court, 21 January 2011).
(53) Ministry of Overseas Indian Affairs, notification number SO 36E, Gazette of India, 6
January 2009.
(54) AIR 2004 Bom 260.
(55) (2008) 152 DLT 630.
(56) Sadiq (n 28).
Niraja Gopal Jayal
Niraja Gopal Jayal is a Professor at the Centre for the Study of Law and Governance,
Jawaharlal Nehru University, New Delhi.
Page 20 of 21

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Citizenship

Print Publication Date: Mar 2016

Abstract and Keywords

Subscriber: University of Edinburgh; date: 20 January 2021

be determined by Parliament. The phrasing of Article 11—‘Nothing in the foregoing provi­

Subscriber: University of Edinburgh; date: 20 January 2021

II. Citizenship for Extraordinary Times

Subscriber: University of Edinburgh; date: 20 January 2021

Article 5 confers citizenship, at the commencement of the Constitution, on every person

(a) who was born in the territory of India; or

Subscriber: University of Edinburgh; date: 20 January 2021

Subscriber: University of Edinburgh; date: 20 January 2021

Subscriber: University of Edinburgh; date: 20 January 2021

Subscriber: University of Edinburgh; date: 20 January 2021

(p. 171) III. Citizenship Laws for Ordinary Times

Subscriber: University of Edinburgh; date: 20 January 2021

(i) both of his parents are citizens of India;

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IV. Three Paths to Jus Sanguinis

Subscriber: University of Edinburgh; date: 20 January 2021

Subscriber: University of Edinburgh; date: 20 January 2021

Subscriber: University of Edinburgh; date: 20 January 2021

Subscriber: University of Edinburgh; date: 20 January 2021

Subscriber: University of Edinburgh; date: 20 January 2021

Subscriber: University of Edinburgh; date: 20 January 2021

(p. 179) V. Conclusion

Subscriber: University of Edinburgh; date: 20 January 2021

Raedt’s possession of a Belgian passport as conclusive evidence showing that he never

Subscriber: University of Edinburgh; date: 20 January 2021

as well as tribes. Rogers M Smith, Civic Ideals: Conflicting Visions of Citizenship in US

(8) Constitution of India 1950, art 11.

(11) AIR 1955 SC 36 [11].

(14) (1991) 3 SCC 554.

(15) Louis de Raedt (n 14) [10].

(16) AIR 1955 SC 36.

(17) Central Bank of India (n 16) [11].

Subscriber: University of Edinburgh; date: 20 January 2021

(18) AIR 1967 All 154.

(20) AIR 1961 SC 58.

(21) AIR 1966 SC 1614.

(22) Kulathil Mammu (n 21) [4].

(23) Kulathil Mammu (n 21) [5].

(25) AIR 1961 SC 1467.

(26) AIR 1962 SC 1052.

(27) (1979) 1 GLR 71 [15].

(29) Sadiq (n 28) 56–69.

(30) Sarbananda Sonowal v Union of India (2005) 5 SCC 665 [2].

(31) Sarbananda Sonowal (n 30) [2].

(32) Sarbananda Sonowal (n 30) [3].

(33) Sarbananda Sonowal (n 30) [8].

(34) Sarbananda Sonowal (n 30) [7].

(35) Sarbananda Sonowal (n 30) [70].

(36) Sarbananda Sonowal (n 30) [19].

Subscriber: University of Edinburgh; date: 20 January 2021

(37) Sarbananda Sonowal (n 30) [40].

(38) Sarbananda Sonowal (n 30) [47].

(39) Sarbananda Sonowal (n 30) [47].

(40) Sarbananda Sonowal (n 30) [17].

(41) Sarbananda Sonowal (n 30) [17].

be determined by Parliament. The phrasing of Article 11—‘Nothing in the foregoing provi