Introduction
Citizenship of a country is a recognition given to an individual. Every person has their own identity in a country, they principally represent their country. Citizens together form a country. Being a citizen of a country gives one the right to access the basic necessity or to avail any benefit given to the citizens by the country and at the same time, the citizen is duty-bound to contribute towards their country in every aspect, from social transformation to country’s economic growth.
A person who is not born in India is not an Indian citizen; a foreign national is not an Indian citizen. Any person who is not a citizen of India by birth or descent within the meaning of section 3 and section 4 of the Citizenship Act, 1955 cannot be called an Indian citizen. By being a resident of India for several years would not fall for the criteria to become an Indian Citizen. It’s the right of every individual to choose to be citizen of a country.
The Central Government has the power and discretion to grant citizenship of India in conformity with the settled principle of law. In India, no person is discriminated on the basis of their birthplace, every individual can avail the citizenship of India if they fulfill all the requirements to acquire citizenship under the Citizenship Act, 1955.
Rights of Foreign Nationals under Indian Constitution
A foreign national who is residing in India for several years, and has started its business in India cannot be said to have the right to seek citizenship under the Citizenship Act, 1955. The Supreme Court held that the fundamental right of the foreigner is confined to Article 21 viz. protection of life and personal liberty but does not include the right to reside and settle in the country as mentioned under Article 19(1)(e).
Any person who is residing in India continuously and uninterruptedly cannot be said to be citizen of India. For a foreign national to be an Indian Citizen must have been registered under section 5 of the Citizenship Act. The Supreme Court in Louis De Raedt v. Union of India [1991] 3 SCC 554 at 562 held that “the fundamental right of the foreigner is confined to Article 21 for life and liberty and does not include the right to reside and settle in this country, as mentioned in Article 19 (1) (e) which is applicable only to the citizens of this country As such Articles 19 (1) (d) and (e) are unavailable to foreigners because those rights are conferred only on the citizens. Certainly, the machinery of Article 14 cannot be invoked to obtain that fundamental right. Rights under Article 19 (1) (d) and (e) are expressly withheld to foreigners.”
The foreign nationals have the right to marry an Indian citizen and can reside in the territory of India. They have the right to carry out any business within the Indian territory as per prescribed norms by the statute. All these rights cannot be ground to become citizens of India. For any foreign national to procure the citizenship of India shall register under the Citizenship Act, 1955.
Citizenship Act, 1955
The Citizenship Act proposes different situations wherein a person becomes an Indian Citizen. To provide acquisition and determination of Indian Citizenship is the main purpose of the Citizenship Act. A person by birth or descent as per section 3 and section 4 of Citizenship Act, 1961 respectively is called an Indian Citizen. A foreign national must acquire citizenship of India under the Citizenship Act, 1955 to become an Indian Citizen.
Acquisition of citizenship can be by birth within section 3 or by descent within section 4 or by registration within section 5 of the Citizenship Act, 1955. Section 5 of the Citizenship Act deals with the registration of citizens to become an Indian citizen. A person if satisfies the requirements under section 5 of the Citizenship Act, then the person can be registered as a citizen of India under the said Act.
The Citizenship Act does not provide for a situation where a person residing in India, upon relinquishing his/her original Citizenship becomes an India Citizen. Mere relinquishment of original foreign citizenship does not confer Indian Citizenship. Even if the foreign national surrender his original citizenship and resides in India without any interlude doesn’t give him the right to be known as an Indian citizen.
For a foreign national to acquire Indian Citizenship it is a fundamental rule to seek citizenship by registration under section 5 of Citizenship Act, 1955. Section 9 of the Citizenship Act deals with the termination of citizenship wherein a person ceases to be an Indian citizen on the acquisition of citizenship of another country or wherein the question of legality in acquiring citizenship of India is raised.
PAN Card or Adhaar Card cannot be proof of Indian Citizen
An identity card cannot be proof of being an Indian Citizen. A PAN Card is issued to any individual, companies, trust, society or any non-residential who pays taxes in India. The Court in Jabeda Khatun v. Onion of India & Others (WP© 7451/2019) held that ‘the PAN Card cannot be a piece of valid evidence establishing person’s citizenship of India.”
The main object of PAN Card is to keep a record of the financial transaction and is beneficial in assessing an individual or company’s tax liability wherein the status of Indian citizenship cannot be proved. The Adhaar Card is issued to avail certain benefits and services within the purview of section 7 of the Adhaar Act, 2016 and this gives no proof of an Indian Citizen. To avail of Adhaar Card it is necessary for a person to be an Indian resident for a period of 182 days or more and that the status of one’s citizenship is not examined. Being just a resident of India and acquiring Adhaar Card would not make one an Indian Citizen. The Bombay High Court held that “It is necessary to note that the Aadhaar card, PAN card, driving license or ration card cannot be termed as documents proving citizenship in a sufficient manner as the said documents are not meant for the purpose of citizenship.”
Every citizen of India possesses the Voter Id Card wherein the citizen to be a voter has to apply on prescribed Form-6 of Election Commission attached with Id proof, Indian nationality, age, and residence. In Vijoy Kumar Chaudhary v. The State (LPA No.510 of 2008) the Court held that “the voter ID is not sufficient and conclusive evidence of Citizenship. Enrolment in a voter roll is based on the applicant filing a declaration with authority via Form 6 under Rules 13(1) and 26 of Registration of Electors Rules, 1960, stating that they are a citizen of India.
The legal status of the applicant’s Citizenship precedes her enrolment on the electoral rolls. If such a declaration of Citizenship is found to be false, the applicant is liable for punishment.” So Voter Id Card can be considered as proof of the citizenship of the person unless the authenticity of the declaration during the time of registration of voter’s id is not in question.
Citizenship Status of a Foreign National in India after her Marriage
The foreign nationals are not barred to marry an Indian citizen and reside in India permanently with their husband. But marrying an Indian man will not directly make a foreign woman an Indian citizen. Mere solemnization with an Indian citizen, ipso facto, does not make one an Indian citizen. In a scenario where a woman who married an Indian man and is residing in India with her husband for continuous seven years or more and also gave birth to children in India cannot directly give her citizenship of Indian. To become an Indian citizen a person must get himself/herself register under the Citizenship Act, 1955. After marrying an Indian man the foreign national who is residing with her husband needs to get register under the Citizenship Act.
The Patna High Court held that “Indian citizens can marry a foreign national under the Special Marriage Act 1954. The foreign national does not become an Indian citizen on marriage with a citizen under the Act. After the marriage, the foreign national has an option to get registered as an India citizen. Even then, the person must fulfill the requirement of residency before they can apply for Indian Citizenship.”
A woman who marries an Indian man cannot inevitably become a citizen of India. Even if the woman who relinquishes her original citizenship won’t give her Indian citizenship simply by marrying an Indian man. An oath of allegiance is necessarily required to be taken by the woman who is a foreign national and is residing in India with her husband. It is compulsory for a foreign national to get herself register under section 5 of the Citizenship Act, 1955.
Conclusion
Every person is recognised by their citizenship. The ones who are not born in India or who are not descent as per Citizenship Act, 1955 can register under section 5 of the Citizenship Act to procure Indian citizenship. And this is a single remedy for a foreign national to avail the citizenship of India.
Attaining any identity card in India will not give the citizenship status of India. The foreign national residing in India and has established her business upon her own property or a woman by marrying an Indian man would not make her an Indian Citizen. For whatsoever purpose, where any foreign national if resides in India firstly, must satisfy the requirement of residency and then shall procure the Indian Citizenship.
To be an Indian Citizen, one must be born in India or be descent or by registration of citizenship in India. Any foreign national to become an Indian Citizen shall acquire registration under section 5 of the Citizenship Act, 1955. In any scenario, no person can seek the right of citizenship unless the person gets registered as a citizen of India under the Citizenship Act.
This article is authored by Ayushri Thakkar, a law graduate and practicing advocate at Gujarat High Court.
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