An Exposition of Section 5 of the Indian Citizenship Act, 1955: Acquisition of Citizenship by Registration

An Exposition of Section 5 of the Indian Citizenship Act, 1955: Acquisition of Citizenship by Registration

Introduction

The Citizenship Act, 1955 (hereinafter "the Act") is the principal legislation governing the acquisition and termination of Indian citizenship. Enacted by the Parliament of India under the powers conferred by Article 11 of the Constitution, the Act provides a comprehensive framework that complements the constitutional provisions on citizenship (Articles 5 to 11), which primarily dealt with citizenship at the commencement of the Constitution.[1] Amongst the various modes of acquiring Indian citizenship post-Constitution, Section 5 of the Act, which provides for "Citizenship by Registration," holds significant importance. This provision caters to specific categories of individuals who have close ties to India, either through origin, marriage, or other prescribed connections, allowing them to be registered as Indian citizens upon fulfilling certain conditions. This article aims to provide a comprehensive analysis of Section 5, its various clauses, the procedural requirements, the scope of administrative discretion, and the judicial interpretation of this crucial statutory provision.

Constitutional Context and Legislative Framework

Part II of the Constitution of India (Articles 5 to 11) lays down the foundational principles of Indian citizenship. Articles 5, 6, and 8 define who were citizens of India at the commencement of the Constitution (January 26, 1950).[2] Article 9 stipulates that no person shall be a citizen of India if they have voluntarily acquired the citizenship of any foreign State.[2] Article 10 ensures the continuance of citizenship rights subject to laws made by Parliament, and Article 11 unequivocally empowers Parliament to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship.[1], [2]

It is in the exercise of this power under Article 11 that the Citizenship Act, 1955 was enacted. The Supreme Court in UNION OF INDIA v. PRANAV SRINIVASAN (2024) reiterated the understanding that Articles 5 to 9 of the Constitution determine who were Indian citizens at its commencement, and thereafter, citizenship is regulated by the 1955 Act.[1] Section 5 of this Act is dedicated to the acquisition of citizenship by registration, distinct from other modes such as by birth (Section 3), descent (Section 4), naturalisation (Section 6), and incorporation of territory (Section 7).[3]

Deciphering Section 5: Categories and Conditions

Section 5(1) of the Act empowers the Central Government, subject to the provisions of the section and prescribed conditions and restrictions, to register as a citizen of India any person (not being an illegal migrant) who is not already a citizen by virtue of the Constitution or any other provision of the Act, if they belong to any of the specified categories.[1], [4]

General Conditions

A crucial prerequisite for an applicant under Section 5 is that they must not be an "illegal migrant" as defined in Section 2(1)(b) of the Act. Furthermore, the registration is subject to "such other conditions and restrictions as may be prescribed" by the Central Government through the Citizenship Rules, 1956 (now Citizenship Rules, 2009).[1]

Key Categories under Section 5(1)

Section 5(1) enumerates several categories of persons who may apply for registration. Some of the prominently invoked clauses include:

  • Section 5(1)(a) - Persons of Indian Origin (PIOs): This clause allows for the registration of persons of Indian origin who are ordinarily resident in India and have been so resident for a specified period (currently seven years) immediately before making the application.[4] Cases like Moosa & Ors. v. Union Of India[4] and Abdul Halim Mia v. The Sub-Divisional Officer, Katwa And Others[5] have dealt with applications under this clause. The validity of registration certificates issued under this provision has also been a subject of judicial scrutiny, as seen in Dinesh Chandra Saha v. State Of Assam.[6] The Supreme Court in Ghaurul Hasan And Others v. State Of Rajasthan And Another quashed an order by a Collector cancelling citizenship registration obtained under Section 5(1)(a), highlighting protections for registered citizens.[7]
  • Section 5(1)(c) - Persons married to citizens of India: This clause permits the registration of persons who are, or have been, married to citizens of India and are ordinarily resident in India for a specified period (currently seven years, with a requirement of being ordinarily resident for twelve months continuously before applying, and for six years in the aggregate in the eight years preceding the twelve months) before making an application.[8] This provision was central to the case of Hari Shanker Jain v. Sonia Gandhi, where the respondent's citizenship, acquired under this clause, was challenged.[8], [9] The Allahabad High Court in Rakesh Singh v. Sonia Gandhi observed that Section 5 provides a "better right" to citizenship, especially through marriage, compared to Section 6 (naturalization).[10]
  • Section 5(1)(e) - Persons of full age and capacity who are citizens of a country specified in the First Schedule (Commonwealth countries): This clause allows citizens of Commonwealth countries to apply for registration, subject to conditions ensuring reciprocity.[4]
  • Section 5(1)(f) - Persons of full age and capacity whose parents are registered as citizens of India under Section 5(1)(a) or Section 6(1).
  • Section 5(1)(g) - Persons of full age and capacity who, or either of their parents, was a citizen of Independent India, and has been residing in India for one year immediately before making an application.
  • Other categories include minor children of Indian citizens (Section 5(4)).

The applicant in UNION OF INDIA v. PRANAV SRINIVASAN claimed citizenship under Section 5(1)(b) (persons of Indian origin who are ordinarily resident in any country or place outside undivided India), which was contested by the Union of India on the ground that the applicant was not a person of Indian origin.[1]

Procedural Aspects and Discretionary Powers

Application and Inquiry

The Citizenship Rules, 1956 (and subsequent amendments/replacement by Citizenship Rules, 2009) prescribe the form of application, the authority to whom it is to be made, and the procedure to be followed. Rule 9 of the 1956 Rules, as discussed in Abdul Halim Mia, mandated the Collector to make inquiries before registration under Section 5(1)(a) to satisfy himself regarding the applicant's Indian origin, residence, connections in India, intention to make India his permanent home, character, and fitness.[5] The Collector is often the initial receiving authority for applications.[11]

The Role of the Central Government and Prescribed Authority

The ultimate authority to grant or refuse registration under Section 5 generally lies with the Central Government or the authority prescribed by it. The "prescribed authority" varies depending on the specific clause of Section 5(1) under which the application is made, as detailed in the Citizenship Rules (e.g., Schedule I of the 1956 Rules). For instance, under the 1956 Rules, for applications under Section 5(1)(a) and (d), the Collector of the district where the applicant resided was often the prescribed authority.[5] For Section 5(1)(c) (marriage to an Indian citizen), the Central Government is typically the prescribed authority.[8]

There has been some judicial discussion on the Collector's role. While cases like Abdul Halim Mia[5] and Mr. Craig Maxwell Sterry, British National v. Ministry Of Home Affairs[12] suggest the Collector (as prescribed authority for certain clauses) has decision-making power, the Madras High Court in Devan Parameswaran v. Union Of India, citing the Supreme Court in National Human Rights Commission v. State Of Arunachal Pradesh And Another[13], observed that the Collector might act as a forwarding authority, with the power to reject or deal with the application resting with the appropriate authority under Rule 8 of the Citizenship Rules.[11] This distinction likely depends on whether the Collector is designated as the "prescribed authority" for that specific category of application under the Rules. In NHRC v. State of Arunachal Pradesh, the Supreme Court directed the State to forward citizenship applications of Chakma tribals (likely under S.5(1)(a) or similar provisions) to the Central Government, implying the Central Government's decisive role in that context.[13]

Discretion of the Authority (Section 14)

Section 14(1) of the Act confers significant discretion on the prescribed authority, stating that it "may in his discretion grant or refuse an application under section 5 or section 6 and shall not be required to assign any reasons for such grant or refusal." Section 14(2) adds that the decision of the authority "shall be final and shall not be called in question in any court," subject to Section 15 (power of revision by Central Government).[5], [12] The Calcutta High Court in Abdul Halim Mia noted that the Collector (as prescribed authority for S.5(1)(a)) has "ample power to refuse the certificate of citizenship under Section 5" and is "no way bound to register the application as a citizen even though all the conditions mentioned in Rule 9 are fulfilled."[5] Similarly, the Bombay High Court in Mr. Craig Maxwell Sterry reiterated that a foreigner has no inherent right to become a citizen of India.[12]

Limits to Discretion and Fair Consideration

Despite the wide discretion conferred by Section 14, judicial pronouncements have indicated that this power is not absolute or unreviewable. The Delhi High Court in Azimusshan Haider v. Union Of India held that the prescribed authority cannot misdirect itself and pass an order for a reason that is wholly extraneous to the scheme of the Act or relevant factors.[14] The court emphasized:

"No public authority in this country, howsoever high, can support its order even when the order proceeds on grounds irrelevant or extraneous on the face of the record. No authority exercising statutory or executive power can act arbitrarily or whimsically... even when a foreigner may have no fundamental right to settle in this country, he still enjoys the right to demand a fair and proper consideration of his request according to law of the land."[14]

More recently, the Madras High Court in Abirami.S v. The Union of India suggested that the Central Government possesses an implied power to relax the rigour of conditions set out in Section 5(1), recognizing the need for flexibility in deserving cases.[15]

Judicial Scrutiny of Section 5 Registrations

Validity of Citizenship Certificates

A certificate of citizenship granted under Section 5 is not immune from judicial scrutiny. The Supreme Court in Hari Shanker Jain v. Sonia Gandhi clarified that the validity of a certificate of citizenship issued under Section 5(1)(c) can indeed be examined during the trial of an election petition.[8] The Court observed that the High Court was not correct in taking a broad view that such a certificate is binding and cannot be questioned unless cancelled by the Central Government itself.[8] However, such challenges must be based on concrete evidence and clear factual allegations, not vague assertions.[9]

Cancellation of Registration and Deprivation of Citizenship

While Section 5 deals with acquisition, Section 10 of the Act provides for deprivation of citizenship acquired by registration or naturalisation on grounds such as obtaining registration by fraud, false representation, or concealment of a material fact, or if the citizen has shown himself to be disloyal or disaffected towards the Constitution. The Supreme Court in Ghaurul Hasan held that a Collector's order cancelling a citizenship registration under Section 5(1)(a) was illegal, emphasizing that such powers must be exercised strictly within the confines of the law.[7]

Judicial Review of Rejection

As established in Azimusshan Haider, the rejection of an application under Section 5 can be subjected to judicial review if the decision is arbitrary, based on non-application of mind, or proceeds on wholly irrelevant or extraneous grounds.[14] The court quashed the rejection order and remitted the matter for fresh consideration in accordance with law.

Interplay with Other Provisions and Broader Principles

Section 5 (Registration) v. Section 6 (Naturalization)

The Act distinguishes between citizenship by registration (Section 5) and citizenship by naturalization (Section 6). The Allahabad High Court in Rakesh Singh v. Sonia Gandhi observed that registration under Section 5, particularly for categories like persons married to Indian citizens, confers a "better right" compared to naturalization under Section 6, where the grant is more purely at the "pleasure of the Government of India."[10] Section 6 typically applies to individuals who do not fall under the specific categories of Section 5 but have resided in India for a longer period and fulfill other conditions, including an intention to make India their permanent home and possessing adequate knowledge of a constitutionally recognized language.

Section 5 v. Section 9 (Termination of Citizenship)

Section 5 deals with the acquisition of Indian citizenship. Section 9, on the other hand, deals with the termination of Indian citizenship if a person voluntarily acquires the citizenship of another country.[3], [16] The two provisions operate in different spheres. A person validly registered under Section 5 becomes an Indian citizen, but this citizenship can be lost under Section 9 if they subsequently acquire foreign citizenship. The Supreme Court has consistently held that the question of whether, when, or how a person has acquired foreign citizenship under Section 9(2) is to be determined exclusively by the Central Government.[17], [18]

Rights of Applicants and Registered Citizens

The process of applying for citizenship under Section 5 itself involves certain procedural rights. Even non-citizens, while their applications are pending, are entitled to the protection of Article 21 of the Constitution (right to life and personal liberty).[13], [14] Once registered as a citizen under Section 5, an individual acquires all the rights and becomes subject to all the duties of an Indian citizen, unless specifically restricted by law.

Conclusion

Section 5 of the Citizenship Act, 1955, provides a vital pathway for specific categories of individuals with established connections to India to acquire Indian citizenship by registration. It reflects a legislative intent to accommodate those who, though not citizens by birth or descent in all cases, have demonstrated a significant link to the nation through origin, marriage, or other defined relationships. While the provision grants considerable discretion to the executive in processing and deciding applications, this discretion is not unfettered and is subject to judicial review to ensure fairness, non-arbitrariness, and adherence to the statutory scheme. The jurisprudence surrounding Section 5 highlights a continuous effort to balance the sovereign prerogative of the State in granting citizenship with the principles of natural justice and the legitimate expectations of individuals seeking to formalize their relationship with India. As a cornerstone of India's citizenship law, Section 5 continues to be a subject of legal interpretation and application, adapting to the evolving socio-legal landscape of the nation.

References