Some Historical Background

The term Indian citizenship was born with the birth of Indian Republic on 26 January 1950 when the Constitution came into effect. India was brought under direct rule of the British Empire in 1858, when the Territories were broadly divided between two political groupings: the provinces of British India, which were administered by the British government, and the princely states, which were areas ruled by local monarchs given limited autonomy in exchange for accepting British sovereignty. Provincial residents were British subjects, while subjects of princely state rulers were considered British protected persons instead. But the protected persons could not travel to the UK without first requesting permission but were afforded the same consular protection as British subjects when travelling outside of the Empire.

Everyone born in British India, before Independence, was a British subject by virtue of the British Nationality and Status of Aliens Act, 1914. Section 6 of this Act was that “the words “native of India” shall include any person born and domiciled within the dominions of Her Majesty in India, of parents habitually resident in India, and not established there for temporary purposes only, and that it shall be lawful for the Governor General in Council to define and limit from time to time the qualifications of natives of India thus expressed”.

Partition and transition

When India became independent in 1947 and was partitioned into two nation states, the identity of citizens of the new nation was one of the biggest constitutional dilemmas for the framers of the Constitution.

After partition, India transitionally retained the British sovereign as its head of state until its continued membership in the Commonwealth of Nations as a republic was agreed upon at the 1949 Commonwealth Prime Ministers’ Conference. Indians continued to be British subjects until independent India enacted its own nationality legislation. Subjects of the princely states, who were previously considered British protected persons, became subjects of India when their states acceded to India.

British subject status was reformed under the British Nationality Act 1948. The Act abandoned the common nationality used across the Empire and redefined British subject to mean any citizen of a Commonwealth country. Because India had not enacted citizenship regulations by the time the 1948 Act took effect on 1 January 1949, Indians (and citizens of all other Dominions without citizenship laws) were provisionally classed as “British subjects without citizenship”.

To address the issue, as to who will be Citizen of India, the Constitution sets out the first framework for citizenship in the Constitution of India (Articles 5-11) at the beginning of the Constitution. Article 5 granted citizenship to people whose place of residence was India and who met certain criteria for birth, parentage and ordinary residence. Articles 6 and 7 spoke about migrants from India to Pakistan during Partition and the other Articles (8-11) about persons of Indian origin living in foreign countries, voluntary acquisition of foreign citizenship and Parliamentary authority to make laws on citizenship.

The Constitution expressly conferred right on the Parliament to make laws relating to the acquisition and termination of citizenship in Article 11. Parliament passed the Citizenship Act, 1955, which remains the main legislation on Indian citizenship. The Citizenship Act gives the legal definition of who can become a citizen by birth, descent, registration, naturalization and incorporation of territory, and includes provisions regarding the renouncement and termination and deprivation of citizenship. The Act has been amended several times over the years, making significant changes to the citizenship criteria by birth and setting more stringent requirements based on new demographic and national security concerns. One of the major amendments was insertion of Section 14-A in the Act in the year 2004 to prepare a National Identity Cards. But even after more than 20 years, the process has not been taken up.

While the legal foundation for citizenship laid down in the Citizenship Act is specified, it does not mention any particular document to be as definitive to nationality in all scenarios except to issue National Identity Card – who is Citizen is defined in the Act. except National Identity Card, there is no document to prove your citizenship.

Passport

The Indian passport is issued under the Passports Act, 1967. Section 5 is that” an application for the issue of a passport under this Act for visiting such foreign country or countries (not being a named foreign country) as may be specified in the application may be made to the passport authority and shall be accompanied by such fee as may be prescribed to meet the expenses incurred on special security paper, printing, lamination and other connected miscellaneous services in issuing passports and other travel documents. Thus, an application for the issuance of passport is made to visit a foreign country. Section 3 of the Passport Act, says “No person shall depart from, or attempt to depart from India unless he holds in this behalf a valid passport or travel document”.

An application for obtaining passport has all the ingredients as required in the Citizenship Act, as place of birth; Citizenship of India such as by Birth or by descent or Registration/ Naturalization. These are broad three categories to be recognized as a citizen of India under the Citizenship Act. In the drop-down menu, under the heading “Descent”, the documents asked are “Birth Registration Certificate issued by Embassy/ High Commission/ Consulate of India OR Old Passport in original with self-attested photocopy of its first two and last two pages, including ECR/Non-ECR page (previously ECNR) and the page of observation (if any), made by Passport Issuing Authority and validity extension page, if any, in respect of short validity passport OR Passport of parents with new name in original with self-attested photocopy of its first two and last two pages, including ECR/Non-ECR page (previously ECNR) and the page of observation (if any), made by Passport Issuing Authority and validity extension page, if any, in respect of short validity passport. The passport issued by Ministry of External Affair, Government of India incudes the Nationality of the passport holder. The passport is issued after clearance from Local police.

The word citizen is not used in the Passport Act. Section 3 mention “A person” not citizen. The passport does not mention the word “Citizen” at all. Neither the Act under which passport is issued or the passport itself does not even use the expression” Citizen”. But, is it a travel document as asserted by Ministry External Affairs?

I think, the stand of Ministry is partially correct. Yes, it is travel document which is issued after satisfying the pre-Conditions of Citizenship. The application form, and the process, which includes clearance form local police puts the passport at a higher pedestal. It satisfies the conditions of the Citizenship Act.

Aadhaar: Identity, Not Citizenship-

One of the most frequently misinterpreted documents is the Aadhaar Card. Aadhaar is a unique identity number, issued under the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 with a primary objective of efficient delivery of subsidies and welfare benefits to the government. The Supreme Court had ruled that Aadhaar was not meant to be a measure of citizenship but an identity card.

This legal situation is enshrined in Section 9 of the Aadhaar Act, which explicitly says that having an Aadhaar number does not give a person citizenship or domicile. Hence, non-Indians, too, can have Aadhaar if they meet the eligibility criteria as laid down in the Act.

Permanent Account Number Card and Voter Card

The PAN card is issued by the Income Tax Department to the person for the identification of Finance and for the administration in relation to tax. It is not possible to conclude that PAN is proof of citizenship since some foreign nationals who are legally residing in India can also get a PAN.

Likewise, the ration cards are welfare documents that are issued under the Public Distribution System to access subsidized food grains and essential commodities. Their purpose is to make the eligibility for government welfare schemes, not for nationality. An individual’s driving license verifies that a person is legally allowed to drive motor vehicles, and is issued according to where a person lives, not their citizenship. They can’t be used as a proof of Indian nationality either.

Administrative Challenges and Judicial Oversight-

Issues of constitutionality have also arisen in the electoral revision process, such as the power of the Election Commission, the requirement for citizens to prove their nationality and the difficulty for people without historical documentation.

Courts have time and again stressed that mere exclusion from an electoral roll does not necessarily mean that anybody is not an Indian citizen. However, there are concerns that incomplete or inconsistent records used for administrative decision making could have significant impacts on those accessing employment, welfare benefits and other public services.

These developments highlight the critical need for mechanisms which ensure the fairness of the proceedings and provide effective judicial monitoring in the context of citizenship issues.

Conclusion-

In the absence of a single document, the passport is the next best evidence of citizen ship issued after getting complete information and the verification of the information so furnished.

The determination of Citizenship can be conclusive determined in terms of Section 14A of the Citizenship Act. It will be social security card as in prevalent in many countries. All cards such as Aadhar, PAN, voter card, Ration Card can be subsumed in such a card, and put to rest, as who is citizen of India.