Mentoassociates.com – Legal Articles

Part two of the constitution of India deals with citizenship. As per article 5, at the commencement of the constitution every person who has his domicile in the territory of India and who was born in the territory of India or either of whose parents are born in the territory India or who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement shall be a citizen of India.

A person who has pirated to the territory of India from the territory now included in Pakistan shall be deemed to 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

b) Incase such parents 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

c) Incase where such persons has so migrated on or after the nineteen day of July 1948, he has been registered as a citizen of India by an officer appointed in that behalf by the Government of Dominion of India on an application made by him therefore to such officer before the commencement of this constitution in the form and manner prescribed by that Government.

Notwithstanding anything in article 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 a citizen of India. Provided that nothing in this article shall apply to a person who, after having so migrated to the now included in Pakistan, has returned to India under a permit for resettlement or permanent return issue by or under the authority of any law or 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 nineteen day of July 1948.

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 and who is ordinarily residing in the 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 therefore 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.

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.

Every person who is or is deemed to be a citizen of India under any of the forgoing provision of this part shall, subject to the provisions of any Law that may be made by the Parliament, continue to be such citizen.

Nothing in the forgoing provision of this part shall derogate from the power of the Parliament to make any provisions with respect to the acquisition and termination of citizenship and all other matter relating to citizenship.

The term Non Resident Indian (for brevity NRI) is widely being used, without knowing its exact meaning. Let us see how law defines an NRI.

Income Tax Act, 1961 defines “resident”, “not ordinarily resident” and “non resident”.

An individual is said to be a resident in India in any previous year, in the following two cases:
(a) if he is in India in that year for a period amounting in all to 182 days or more.
(b) if he was in India for 365 days or more within four years preceding the previous year, and he is in India for a period of 60 days or more in the previous year.

Previous year here means, the previous financial year, commencing from 1st April and ending on 31st March.

If a person who is an Indian citizen, leaves India in a previous year, for the purpose of employment outside India, he will be treated as a resident of India, only if he was in India for 365 days or more within four years preceding the previous year, and he is in India for a period of 182 days or more in the previous year.

If a person who is an Indian citizen, or a Person of Indian Origin comes on a visit to India from out side India, in a previous year, he will be treated as a resident of India, only if he was in India for 365 days or more within four years preceding the previous year, and he is in India for a period of 182 days or more in the previous year.