Part II

Citizenship
(Art. 5-11)
{nig(rkRv}
PATEL NEHABEN JAYANTIBHAI
ASSISTANT PROFESSOR
SARVAJANIK COLLEGE OF LAW
Citizenship at the commencement of the
Constitution {b>FirNni p\ir>B[ nig(rkRv} (Art.5)

Rights of citizenship of certain persons who have

migrated to India from Pakistan {pi(kAtinmi>Y)
AYiLi>tr kr) Birt mi> aiv[l k[Tl)k Äy(ktai[ni
nig(rkRvni a(Fkiri[} (Art.6)

Rights of citizenship of certain migrants to

Pakistan {pi(kAtin AYi>tr kr[l Äy(ktai[n&> nig(rkRv}
(Art.7)

Rights of citizenship of certain persons of Indian

origin residing outside India {m*L Birtn) pr>t&
Birt bhir rh[t) k[Tl)k Äy(ktai[ni nig(rkRvni
a(Fkir} (Art.8)
 Persons voluntarily acquiring citizenship of a
foreign State not to be citizens {Av[µCia[ (vd[S)
nig(rkRv} (Art.9)

Continuance of the rights of citizenship

{nig(rkRvni a(Fkiri[n&> sitRy} (Art.10)

Parliament to regulate the right of citizenship

by law {nig(rkRv a>g[ kiydi[ GDvin) s>sdn) s_ii}
(Art.11)
Citizenship at the commencement of the
Constitution {b>FirNni p\ir>B[ nig(rkRv} (Art.5)
At the commencement of this Constitution, every person who has his
domicile in the territory of India and—
(a) who was born in the territory of India {j[ni[ jºm Birt)y p\d[Smi> Yyi[ hi[y}; or
(b) either of whose parents was born in the territory of India {t[ni
miti(ptimi>Y) ki[e a[kni[ jºm Birt)y p\d[Smi> Yyi[ hi[y}; or
(c) who has been ordinarily resident in the territory of India for not less than
five years immediately preceding such commencement {j[ ki[e ÄyIkt aivi
p\ir>Bni trt agiuni> pi>c vOi<n) ai[Ci> nh) t[Tli smy miT[ Birt)y p\d[Smi> simiºy
r)t[ (nvis) hi[y;},
shall be a citizen of India { t[ dr[k ÄyIkt Birtn) nig(rk gNiS[}
• Citizens by domicile {a(Fvis oiri nig(rkRv}
• To be entitled to citizenship by domicile, Article 5 lays down 2 conditions.
1. At the commencement of this Constitution, every person who has his
domicile in the territory of India.
2. Such a person must fulfil any one of the 3 conditions laid down in the
article
(a) who was born in the territory of India {j[ni[ jºm Birt)y p\d[Smi> Yyi[ hi[y}; or
(b) either of whose parents was born in the territory of India {t[ni
miti(ptimi>Y) ki[e a[kni[ jºm Birt)y p\d[Smi> Yyi[ hi[y}; or
(c) who has been ordinarily resident in the territory of India for not less than
five years immediately preceding such commencement {j[ ki[e ÄyIkt aivi
p\ir>Bni trt agiuni> pi>c vOi<n) ai[Ci> nh) t[Tli smy miT[ Birt)y p\d[Smi> simiºy
r)t[ (nvis) hi[y;},
• There are two kinds of domicile :
1. Domicile of origin {m*L a(Fvis}
2. Domicile of choice {ps>dg)ni[ a(Fvis}
1. Domicile of origin {m*L a(Fvis}
• Every person is born with a domicile of origin.
• It is a domicile received by him at his birth.
• The domicile of origin of every person of legitimate birth is the
country in which at the time of his birth his father was domiciled.
• Hence, the domicile of origin, though received at birth, need not be
either the country in which the infant is born, or the country in which
his parents are residing, or the country to which his father belongs by
race or allegiance, or the country of the infant’s nationality.
• In the case of a posthumous child {mrNi[_ir biLk}, the rule is that, the
domicile of the posthumous child {mrNi[_ir biLk} will be that of the
country in which his father was domiciled at the time of his (father’s)
death.
• An independent person is allowed to give up his domicile of origin.
• But the domicile of origin prevails until a new domicile has been
acquired.
Domicile of choice {ps>dg)ni[ a(Fvis}
• Every independent person can acquire a domicile of choice by
combination of
1) Actual residence in a particular place, and
2) Intention to remain there permanently or for an indefinite place
Cases
• Mohd. Reza Debstani V. State of Bombay
• Louis De Raedt V. Union of India
Rights of citizenship of certain persons who have migrated to India from
Pakistan {pi(kAtinmi>Y) AYiLi>tr kr) Birt mi> aiv[l k[Tl)k Äy(ktai[ni
nig(rkRvni a(Fkiri[} (Art.6)

Notwithstanding anything in article 5, a person who has migrated to

the territory of India from the territory now included in Pakistan shall
be deemed to be a citizen of India at the commencement of this
Constitution if—
(a) he or either of his parents or any of his grandparents was born in
India as defined in the Government of India Act, 1935 (as originally
enacted); and
(b)
(i) in the case where such person has so migrated before the
nineteenth day of July, 1948, he has been ordinarily resident in the
territory of India since the date of his migration, or
(ii) in the case where such person has so migrated on or after the
nineteenth day of July, 1948, he has been registered as a citizen of
India by an officer appointed in that behalf by the Government of
the Dominion of India on an application made by him therefor to
such officer before the commencement of this Constitution in the
form and manner prescribed by that Government:
Provided that no person shall be so registered unless he has been
resident in the territory of India for at least six months immediately
preceding the date of his application.
• This article deals with persons who have migrated from Pakistan to
India before the commencement of the constitution.
• Such persons have, for the purposes of citizenship, been classified
into two categories namely,
1. Those who came to India before 19 July, 1948,
2. Those who came on or after 19 July, 1948.
1. Those who came to India before 19 July,
1948,
• A person falling in this category, shall be deemed to be a citizen of
India if the following 2 conditions are fulfilled.
1. he or either of his parents or any of his grandparents was born in
India as defined in the Government of India Act, 1935 and
2. He has been ordinarily residing in India since the date of his
migration.
2. Those who came on or after 19 July, 1948.
• A person falling in this category, shall be deemed to be a citizen of
India if the following conditions are fulfilled.
1. he or either of his parents or any of his grandparents was born in
India as defined in the Government of India Act, 1935;
2. He must make an application for citizenship;
3. He must prove that he has resided in India for 6 months and
4. He must be registered as a citizen by an officer appointed either by
the Government of India under the Act of 1935 or the Union
Government under the present constitution.
Rights of citizenship of certain migrants to Pakistan
{pi(kAtin AYi>tr kr[l Äy(ktai[n&> nig(rkRv} (Art.7)
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 Pakistan 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.
• Article 6 and 7 deal with the special issue of migration of people from
one part of country to the other on its division as India and Pakistan.
• Though the division did not require people to move from their homes
in one division to other, unprecedented migration of Hindus from the
territory designated as Pakistan to Indian territory and of Muslims
from the latter to the former took place.
• Article 6 deals with ----- who shall be deemed to be citizen
Article 7 deals with ----- who shall not be deemed to be citizen
• Article 7 overrides Article 5, for even if a person is a citizen of India by
virtue of Article 5, he cannot be deemed to be a citizen of India, if he
has migrated to Pakistan after 1st March 1947.
• Migration in this article refers to one before 26 January, 1950, i.e.
between 1 March 1947 and 26 January 1950.
• Migration to Pakistan after 26 January 1950, is determined under the
provisions of the citizenship Act, 1955.
Rights of citizenship of certain persons of Indian origin residing outside
India {m*L Birtn) pr>t& Birt bhir rh[t) k[Tl)k Äy(ktai[ni nig(rkRvni
a(Fkir} (Art.8)

Notwithstanding anything in article 5, any person who or either of

whose parents or any of whose grandparents was born in India as
defined in the Government of India Act, 1935 (as originally enacted),
and who is ordinarily residing in any country outside India as so defined
shall be deemed to be a citizen of India if he has been registered as a
citizen of India by the diplomatic or consular representative of India in
the country where he is for the time being residing on an application
made by him therefor to such diplomatic or consular representative,
whether before or after the commencement of this Constitution, in the
form and manner prescribed by the Government of the Dominion of
India or the Government of India.
• Article 8 begins with the non-obstante clause, “notwithstanding
anything in Article 5”.
• This article confers Indian citizenship on a person who on the face of
it had no domicile in India, if certain conditions mentioned therein are
fulfilled.
• It is, therefore, clear that when Article 8 as well as Article 6 and 7 use
the non-obstante clause, the intention clearly is to exclude the
concept of domicile from these articles.
• This article deals with persons who or whose parents or grandparents
were born in India, but are residing abroad.
• Such persons shall be deemed to be citizens of India if they have been
registered as citizens of India by the diplomatic and consular
representative of India in the country where they are residing.
• The registration shall be made only on an application from the citizen.
• It may be noted that Article 8, unlike Article 5 and 6, delas with Indian
citizenship not only at the date of commencement of the constitution
but also for the future.
Persons voluntarily acquiring citizenship of a foreign
State not to be citizens {Av[µCia[ (vd[S) nig(rkRv} (Art.9)
No person shall be a citizen of India by virtue of article 5, or be deemed
to be a citizen of India by virtue of article 6 or article 8, if he has
voluntarily acquired the citizenship of any foreign State.
• This article enacts that a person who has voluntary acquired the
citizenship of a foreign state shall not remain citizen of India.
• It does only with voluntary acquisition of citizenship of a foreign state
before the constitution came into force.
• Cases of voluntary acquisition of foreign state citizenship after the
commencement of the constitution will have to be dealt with by the
government of India under the citizenship act, 1955.
Continuance of the rights of citizenship
{nig(rkRvni a(Fkiri[n&> sitRy} (Art.10)
Every person who is or is deemed to be a citizen of India under any of
the foregoing provisions of this Part shall, subject to the provisions of
any law that may be made by Parliament, continue to be such citizen.
• Ebrahim Vazir Mavat V. State of Bombay
Parliament to regulate the right of citizenship by
law {nig(rkRv a>g[ kiydi[ GDvin) s>sdn) s_ii} (Art.11)
Nothing in the foregoing provisions 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.
• Parliament has power to make laws with respect to make rule with
respect to citizenship, naturalisation and aliens.
• The object of this article is to make it clear that notwithstanding the
fact that certain rules relating to citizenship are contained in Part II,
parliament shall have unfettered power to make any provision
relating to acquisition, termination, etc. of citizrnship.