Immigration, Nationality and Citizenship
By Y.SRINIVASA RAO, Principal Senior Civil Judge, Tirupati.
Articles 5 to 11 of the Constitution of India govern the citizenship of a person in India. The Citizenship Act, 1955 is amended in 1986, 1992, 2003, and 2015. A person who voluntarily acquires citizenship of any other country is no longer an Indian citizen according to Article 9 of the Indian Constitution. It is here important to consider two terms. 1. citizenship by right of blood. It is known as ”jus sanguinis”. 2. citizenship by right of birth within the territory. It is known as ”jus soli”. In india, as to right of citizenship is concerned, ”jus sanguinis” is largely being followed. The Government of India Act 1858 was an Act of the parliament of UK. It was passed on 02-08-1858. Later, a bill was introduced for the transfer of control of the Government of India from the East India Company to the Crown. In earlier, there were two categories. One is the Indians resident and born in British India came under the direct dominion of and bore allegiance to the British Crown. Another is the Indians resident and born in a princely state (which is popularly known as an “Indian state” or a “Native state”) under the British Government. From 15-08-1947, India was established as the independent Dominion of India.
The word ”Immigration’, in general, means that the action of coming to live permanently in a foreign country. In other words, it can be said that a person who has come to a different country in order to live there permanently. A person residing in the country without an official permission is treated as an illegal immigrant. As per 2001 census report, there are 3,084,826 people in India who came from Bangladesh. One of the reasons for this is that the tour to Indian from Bangladesh is very cheap. As per Hindustan Times Report in 2011, by 2009, India had over 13,000 illegal immigrants from Afghanistan; From pakistan, it was above 7,700; There are estimated 50,000-100,000 Burmese Chin immigrants residing in India. The Illegal Migrants (Determination by Tribunal ) (IMDT) Act was struck down by the Apex Court 2005 in Sarbananda Sonowal v. Union of India (Writ Petition (civil) 131 of 2000), date of judgment : 12-07-2005.
The abbreviation ‘NRI’ stands for Non-Resident Indian. ”NRI” means an individual, being a citizen of India or a person of Indian origin who is resident outside India. Section 2 of Foreign Exchange Management Act, 1999 (Act 42 of 1999) (FEMA) only defines ”a person resident in India” and also define ”a person resident outside India”. But, it does not define the word ‘Non-Resident Indian’. The word ‘OCI’ stands for ‘Overseas Citizens Of India’. These ‘Persons Of Indian Origin–PIOs’ are now called ‘Overseas Citizens Of India (OCI)’ as defined under Citizenship (Amendment) Act, 2005. See. The Article published in 2017 4 ALT (Jou.) 23, with title ”NRI MARRIAGES – ISSUES AND CHALLENGES WITH SPECIAL REFERENCE TO CUSTODY OF CHILDREN” written by Sri Y.Srinivasa Rao.
Immigration fundamentally refers to the motility of people from one country to another for the intention of long-term settlement. The Immigration laws in India are concerned, under the Passport (Entry in India) Act, 1920 that the foreigners entering India are required to get visa from India Missions whereas the Foreigners Act, 1946 modulates the entry and the residence of the foreigners within the Indian borders until their departure from the country. Besides this, the Registration of Foreigners Act, 1939 and the Registration of Foreigners Rules, 1992
authorizes that certain foreigners who stay past their specified visa period must register with the Registration Officer. Under the Immigration laws, the Government of India allows various types of visas such as Student visas, Employment visas, Intern visas, Business visas, Transit visas, Film visas, etc., all of which can be applied as a traditional visa or an E-visa. As per recent amendment in immigration laws in India, Any visitor on an employment visa has the liberty to change his/her employer once they have arrived in India by applying to the Ministry of Home Affairs. A dependent visa or a (X) visa may be converted into an employment visa subject to the eligibility of the X visa holder and employment status of the spouse. Illegal immigration is a crime. See. Yakub Abdul Razak Memon Vs. State of Maharashtra, through CBI, Bombay – 2015 (7) SCJ 474 ( D.B. )
A person domiciled in the territory of India as on 26 November 1949 automatically became Indian citizens. It is by virtue of operation of the relevant provisions of the Indian Constitution coming
into force, and most of these constitutional provisions came into force on 26-01-1950. In Indian constitution, there is a provision regarding citizenship for migrants from the territories of Pakistan which had been part of India before partition. Any person who was born in India on or after 26-01-1950, but prior to the commencement of the 1986 Act on 01- 07-1987, becomes a citizen of India by birth. Further, a person who was born in India on or after 01-071987 is a citizen of India if either parent was a citizen of India at the time of the birth. A birth certificate, passport or even an Aadhaar card alone may not be enough to prove Indian citizenship, unless the parents are Indian citizens as was held by the Hon’ble Bombay High Court in 2013. Persons who was born outside India on or after 26-01-1950 but before 10-12-1992 are citizens of India by descent if their father was a citizen of India at the time of their birth. From 03-12-2004 onwards, persons who were born outside of India shall not be considered citizens of India unless their birth is registered at an Indian diplomatic mission within 1 year of the date of birth. Of course, in certain special circumstances, the Government of India may grant permission even after one year for such registration. A foreigner can acquire Indian citizenship if he/she is ordinarily resident in India for the period of twelve (12) years and other qualifications as contemplated under section 6 (1) of the Citizenship Act,1955. Besides this , with regard to dual citizenship, Overseas Citizenship of India (OCI) scheme was introduced by amending the Citizenship Act, 1955 in 2005. It is also significant to see that As of 09-01-2015, relating to the Persons of Indian Origin (who are knows as PIOs). The earlier PIO card scheme was discontinued and applicants are now to apply for OCI only. It was announced that all currently held PIO cards are treated as OCI cards. See. The Ordinance passed on January 9th, 2015
Assam Sanmilita Mahasangha’s case:- The judicial response as to section 6A of the Citizenship Act can be seen in Assam Sanmilita Mahasangha and others Vs. Union of India and others – 2015 (1) SCJ 701 (Division Bench). The Hon’ble Apex Court observed as follows:-
”We feel that the following questions need to be answered by an appropriate Bench as most of them are substantial questions as to the interpretation of the Constitution which have to be decided by a minimum of 5 Judges under Article 145(3). An enumeration of these questions is as follows:
(i) Whether Articles 10 and 11 of the Constitution of India permit the enactment of Section 6A of the Citizenship Act in as much as Section 6A, in prescribing a cut-off date different from the cut-off date prescribed in Article 6, can do so without a variation of Article 6 itself; regard, in particular, being had to the phraseology of Article 4 (2) read with Article 368 (1)-
(ii) Whether Section 6A violates Articles 325 and 326 of the Constitution of India in that it has diluted the political rights of the citizens of the State of Assam;
(iii) What is the scope of the fundamental right contained in Article 29(1)- Is the fundamental right absolute in its terms- In particular, what is the meaning of the expression culture and the expression conserve- Whether Section 6A violates Article 29(1)-
(iv) Whether Section 6A violates Article 355- What is the true interpretation of Article 355 of the Constitution- Would an influx of illegal migrants into a State of India constitute external aggression and/or internal disturbance- Does the expression State occurring in this Article refer only to a territorial region or does it also include the people living in the State, which would include their culture and identity-
(v) Whether Section 6A violates Article 14 in that, it singles out Assam from other border States (which comprise a distinct class) and discriminates against it. Also whether there is no rational basis for having a separate cut-off date for regularizing illegal migrants who enter Assam as opposed to the rest of the country; and
(vi) Whether Section 6A violates Article 21 in that the lives and personal liberty of the citizens of Assam have been affected adversely by the massive influx of illegal migrants from Bangladesh.
(vii) Whether delay is a factor that can be taken into account in moulding relief under a petition filed under Article 32 of the Constitution-
(viii) Whether, after a large number of migrants from East Pakistan have enjoyed rights as Citizens of India for over 40 years, any relief can be given in the petitions filed in the present cases-
(ix) Whether section 6A violates the basic premise of the Constitution and the Citizenship Act in that it permits Citizens who have allegedly not lost their Citizenship of East Pakistan to become deemed Citizens of India, thereby conferring dual Citizenship to such persons-
(x) Whether Section 6A violates the fundamental basis of Section 5 (1) proviso and Section 5 (2) of the Citizenship Act (as it stood in 1985) in that it permits a class of migrants to become deemed Citizens of India without any reciprocity from Bangladesh and without taking the oath of allegiance to the Indian Constitution-
(xi) Whether the Immigrants (Expulsion from Assam) Act, 1950 being a special enactment qua immigrants into Assam, alone can apply to migrants from East Pakistan/Bangladesh to the exclusion of the general Foreigners Act and the Foreigners (Tribunals) Order, 1964 made thereunder-
(xii) Whether Section 6A violates the Rule of Law in that it gives way to political expediency and not to Government according to law-
(xiii) Whether Section 6A violates fundamental rights in that no mechanism is provided to determine which persons are ordinarily resident in Assam since the dates of their entry into Assam, thus granting deemed Citizenship to such persons arbitrarily- (Para 33)
These matters be placed before the Chief Justice for constitution of an appropriate bench to answer the above questions. As notice is yet to be issued in Writ Petition (Civil) No. 876 of 2014, we direct that notice be issued and served on the Respondents in the said writ petition. (Para 34) As Section 6A of the Citizenship Act must be deemed to be valid until the larger Bench decides these matters, we will proceed, for the purposes of this order, on the footing that Section 6A of the Citizenship Act is valid. (Para 35)
On an overall consideration of the immediate dimensions of the issues and the potential that the same have for the future we issue the following directions under Article 142 of the Constitution of India.
I. Border fencing, Border Roads and provision for flood lights
The Union will take all effective steps to complete the fencing (double coiled wire fencing) in such parts/portions of the Indo-Bangla border (including the State of Assam) where presently the fencing is yet to be completed. The vigil along the riverine boundary will be effectively maintained by continuous patrolling. Such part of the international border which has been perceived to be inhospitable on account of the difficult terrain will be patrolled and monitored at vulnerable points that could provide means of illegal entry. Motorable roads alongside the international border, wherever incomplete or have not yet been built, will be laid so as to enable effective and intensive patrolling. Flood lights, wherever required, will also be provided while maintaining the present arrangements. The completed part of the border fencing will be maintained and repaired so as to constitute an effective barrier to cross border trafficking.
The progress achieved at the end of 3 months from today as against the position on the ground mentioned in the affidavit of the Union extracted above will be monitored by this Court and, depending on what is revealed upon such monitoring, further directions including a definite time schedule for completion of the works relating to border fencing, border roads and flood lights may be made by this Court.
II. Foreigners Tribunals
The Gauhati High Court is requested to expedite and to finalise the process of selection of the Chairperson and Members of the Foreigners Tribunals, if required in phases, depending on the availability of officers opting to serve in the Tribunals. Within 60(sixty) days of the selection being finalized by the Gauhati High Court, the State of Assam will ensure that the concerned Foreigners Tribunal become operational.
The Chief Justice of the Gauhati High Court is requested to monitor the functioning of the Tribunals by constituting a Special Bench which will sit at least once every month to oversee the functioning of the Tribunals. III. Existing Mechanism of Deportation of Declared Illegal Migrants While taking note of the existing mechanism/procedure for deportation keeping in view the requirements of international protocol, we direct the Union of India to enter into necessary discussions with the Government of Bangladesh to streamline the procedure of deportation. The result of the said exercise be laid before the Court on the next date fixed. (Para 46)
The implementation of the aforesaid directions will be monitored by this Court on the expiry of three months from today. In the event it becomes so necessary, the Court will entrust such monitoring to be undertaken by an empowered committee which will be constituted by this Court, if and when required. (Para 47)
Insofar as Writ Petition (C) No. 274/2009 is concerned, we are of the view that on and from the date of this judgment the following time schedule should govern the work of updating of the NRC in Assam so that the entire updated NRC is published by the end of January, 2016.
- Preparatory work such as selection of vendor system (system integrator); development by system integrator; appointment of staff and training etc. has already been directed to be completed by the end of January 2015 by order dated 27.11.2014 of the Court.
- The remaining work of updating the NRC will now conform to the following time schedule which will be strictly adhered to. (Para 48)
All the cases be listed in the last week of March, 2015 to take note of the progress of implementation of the above directions. (Para 49).”
Conclusion:- A person residing in the country without an official permission amounts illegal immigration. India has thousands of people from pakistan, Afghanistan, Burmese chin, Bangladesh etc. According to
2001 census Reports, there are 3,084,826 people in India who came from Bangladesh. Soft approach on this problem may lead to far reaching consequences. There were 30,995,729 Non-Resident Indians and PIOs are residing outside India as of 2018. There are certain ways of acquiring citizenship such as Birth, Descent, Registration, Naturalization and Incorporation of the territory. The Nationality can be obtained by Birth and Inheritance. A dependent visa or a (X) visa can be converted into an employment visa considering the eligibility of the X visa holder and employment status of the spouse. It is significant to note that the law relating to citizenship or nationality in India is primarily governed by the provisions of the Indian Constitution and it provides for single citizenship for the entire country.