CITIZENSHIP IN INDIA 253
and harnessed for the benefit of the hungry millions on the two sides
of the international boundary. Given goodwill and understanding and
the determination, a fair and acceptable solution can and should be
found.
Roonner.
2 July 1958
LAW OF CITIZENSHIP AND ALIENS IN INDIA
By A. N. SINHA
‘Tre pattern of political life, all the world over, is that people are
organized in separate nation-states and their dependencies. We give
our devotion to our own country. This ‘subjective psychological feel-
ing in a living people’, chis supremely effective intangible tie distinguishes
the people of a country whose ‘home’ it is from the men and women
from all corners of the world who happen to be in the territory of a
state. In the contemporary international order, though the amazing
material development of our age has made neighbourhood a fact on 2
global scale, there has been no swing in the opinion that the inhabitants
of a state are composed of citizens (or nationals) and aliens. As long
as we have records of man this distinetion has existed in some form or
other.
The position of a person in life depends on his status and capacity,
both civil and political. ‘There are many varieties of relationships of
status, eig., of marriage or of legitimacy and also of capacity, that is,
capacity to contract o to domicile of choice. Apart from civil status
there exist relationships of political status such 2s nationality, political
refugee or an alien enemy. A person stands usually not in one but 2
number of relationships of status which in their entirety define his posi-
tion in life in a country, be it his home country or the country of his
residence or sojourn. His status is also the basis for this capacity, res-
tricted capacity or incapacity.
‘A study of the law of citizenship and aliens of a country gives the
contour—if not the content—of an individual's rights, privileges, liabili-
ties and disabilities within and beyond the territory of a state. In India
the law on the topic has to be gathered from her Constitution and
various statute laws directly or incidentally dealing with aliens and
citizenship? Under the Constitution, the Parliament of India has the
More important among these sre:
(3) Ow citizenship.
Constitution of India Pare Wh, Arts f to 145 the Citizeaship Act, 1915 and che Ruler
franued under the Act viz., the Citzenthip Ruler 1916 2d the Cicizers (Registra:
tion at Indian Consulater) Rules, 195¢,254 A. N. SINHA
exclusive and enumerated powers to legislate on citizenship, naturali-
zation, aliens and other allied matters.”
Citizenship
‘What constitutes the Indians into a nation, to use the expression of
Ernest Renan ‘is not speaking the same tongue or belonging to the same
ethnic group, but having accomplished great things in common in the
past and the wish to accomplish them in future’, The Indian Indepen-
dence Act (10 & 11 Geo 6. Ch. 3) was enacted in 1947. After its
enactment the Indian States by their accession to the Dominion of India
joined the constitutional structure of India. India thus became a consti-
tutional entity. On 26 November 1949 this new constitutional entity
declared itself 2 Sovereign Democratic Republic and the People of India
enacted, adopted and gave to themselves the Constitution. Whoever,
therefore, was one of the people of India when the Constitution was
adopted became a member of the new state. Now who were those
people? They were persons who associated themselves together to form
the nation. Of this there can be no doubt. There may, however, be
dispute whether a particular person was one of the people at the time
but never as to his citizenship if he were one. Who shall exercise the
franchise for the governance of the country is of great importance in a
democracy. Moreover the Constitution itself conferred certain funda-
mental rights on and made other provisions for citizens only. All these
required that tests of citizenship should be provided for and such provi-
sions of the Constitution be brought into force before other provisions.
This was done by Part II of the Constitution which deals with citizen-
ship at the commencement of the Constitution. More than anything
else those provisions declare the initial citizenship of the new Indian
Union. They are concerned more with proof of citizenship than with
creating it. Before the Constitution came into force on 26 January
1950, the provisions regarding the initial citizenship in Articles § to 9
of Part II of the Constitution were brought into operation from 26
November 1949 except in the state of Jammu and Kashmir where they
were made applicable from 26 January 1950 with the addition of a new
proviso to Article 7. The tests adopted are that a person to be a citizen
of the Union of India at its inception must have some kind of territorial
(6) On aliens:
‘The Registration of Foreigners Act 1939;
the Reristration of Foreigners Rules 1939:
the Foreigners (Exemption) Order 1957.
(c) The Indian Pesspore Act 1920 and the Tadian Pasport Rules 1950.
2 The Cons of India, Articles 11, 246 and Seventh Schedule List 1, Union List
Entries 1, 9, 10, 13, 14, 15, 18, 19 and 21CITIZENSHIP IN INDIA 255
connexion with the Union whether by birth or descent or domicile,
and that he has not voluntarily acquired the citizenship of another
country. The citizenship of migrants to and from Pakistan presented
a peculiar problem to the Union of India. The Constitution made spe-
cial provisions for the citizenship of such migrants.
‘The provisions for citizenship in the Constitution were of limited
character. They stopped at laying down who were citizens at the com-
mencement of the Constitution. No provision was made about citizen-
ship after the commencement of the Constitution. But Parliament was
given plenary power to make any provision with respect to the acquisi-
tion and termination of citizenship and all other matters relating to
citizenship, notwithstanding the provisions in the Constitution in Part
IL On 30 December 1955, Parliament enacted the Citizenship Act of
1955, to privide for the acquisition and termination of citizenship of
India. Acquisition and termination of citizenship during the period
between 26 January 1950 and the commencement of the Citizenship
‘Act 1955 were provided for. This is a fairly comprehensive enactment,
‘on the model of the British Nationality Act 1948 but with some im-
portant variations.
A citizen of India is a person who is so under the Constitution of
India or the Citizenship Act 1955. The Constitution of India recog-
nizes only one citizenship, the citizenship of India.
CITIZENSHIP AT THE COMMENCEMENT OP THE CONSTITUTION
Every person irrespective of age, race, religion, place of birth, sex,
marital status, or nationality—unless he has voluntarily acquired the
citizenship of a foreign state—became automatically a citizen of India
at the commencement of the Constitution if he was then domiciled in
the territory which became the territory of India under the Constitution
and further was connected with that territory by his birth, or by the
birth of either of his parents or by being ordinarily resident for not less
than five years immediately before that date. Persons of Indian origin
living in any country outside what was known as British India, the
Indian States and the Tribal Areas (i.e. ‘India’ as defined by the Govern-
ment of India Act 1935 as originally enacted) could also become citizens
of India by registration on application made, before or after the com-
mencement of the Constitution, to appropriate diplomatic or consular
representatives of India in the country of his residence. The applicant
was required to establish for his Indian origin that either he himself or
either of his parents or any of his grandparents was born in British
India, Indian States or the Tribal Areas.
‘The emergence of the two new States, viz. the Union of India and
Pakistan by the partition of India, called for certain adjustments in the
matter of citizenship. People from the territory now in Pakistan256 A. N. SINHA
migrated to the territory now in India, or people from India migrated to
Pakistan and subsequently returned to India. The first condition for
citizenship of India for such a migrant was that he, or either of his
parents or any of his grandparents was born in undivided India, If the
migrant came to India before 19 July 1948 when the permit system was
introduced and had resided in India since then the migrant became
automatically a citizen of India. If the migrant arrived in India after
19 July 1948 he was to apply before the commencement of the Consti-
tution and get himself registered as a citizen on proof of residence for
six months in India immediately before the application. If a migrant
went to Pakistan after 1 March 1947 and subsequently returned to India
under a permit for resettlement or permanent return or under the
authority of any law he was to get himself registered as a citizen as if,
he had migrated from Pakistan after 19 July 1948. A person who
migrated to Pakistan after 1 March 1947, even though otherwise quali-
fied under other provisions of the Constitution, is not deemed to be a
citizen of India [Article 7, The State of Bihar vs. Kumar Amar Singh
(1955) 1S.C.R. 1259] and in spite of the fact that most countries within
the Commonwealth are not foreign states for the purpose of the Consti-
tution. (Noor Mohammed vs. The State, A.LR. 1956 Madhya Bharat
211; Mohd. Abdul Ghani vs. The State, ALR. 1957 Andhra Pradesh
143).
CANIZENSHIP AFTER THE COMMENCEMENT OF THE CONSTITUTION
‘The citizenship of natural persons born on or after 26 January 1950
is governed by the Indian Citizenship Act 1955. The Act contains 19
sections and three schedules. It provides for acquisition (Sections 3
to 7) and termination (Sections 8 to 10) of citizenship. Other provi-
sions of the Act are supplemental and they include provisions for re-
cognition in India of Commonwealth citizenship.
Acquisition of Citizenship. Citizenship may be acquired in India
by five modes (i) by birth, (ii) by descent, (iii) by registration, (iv)
by naturalization and (v) by incorporation of territory.
(i) By birth (Section 3): Every person born in India on or atter
26 January 1950 becomes 2 citizen of India. A person born aboard a
ship or aircraft registered in India or an unregistered ship or aircraft
of the Government of India is deemed to have been born in India. A
person born aboard a ship or aircraft not registered in India or if uncegis-
tered and belonging to the government of a country other than India even
though it may be in India is not deemed to be born in India (Section
2(3)). Though bora in India the child of 2 person not a citizen and
enjoying diplomatic immunity does not become a citizen by birth [Sec-
tion 3(2)(a)]. This is also the position of a child of an enemy alien
born at a place under occupation by the enemy [Section 3(2) (b)CITIZENSHIP IN INDIA 257
(ii) By descent (Section 4): This mode is limited to persons bora
outside India, Citizenship by descent may be traced through a citizen
of any description viz. by birth, descent, registration, naturalization or
incorporation of territory but it can be traced through male descent only.
Indian law has followed that of the United Kingdom which has a long
history about transmission of citizenship by descent? In Australia,
Canada, South Africa, and Ceylon citizenship by descent can be ac-
quired through the mother also by a child born out of wedlock. Women
of India have thus been denied equality of sex guaranteed by the Consti-
tution in the matter of citizenship by descent and to that extent the
provision of Section 4 of the Citizenship Act 1955 is void. Citizenship
by descent is not restricted to any particular number of generations. It
is automatic when descent is from a father who is a citizen otherwise
than by descent. In other cases, with an exception in favour of children
of government servants, the birth of the person has to be registered
within one year, or any extended period. The status and description
of the father at the time of his death determines the citizenship by des-
cent of a posthumous child and if the father died before the Act he is
considered as if he had died after the Act.
(iii) By regittration (Section 5): This mode offers citizenship to
persons who have some link with the country on terms more favourzble
than those prescribed for the naturalization of aliens. A person must
not already be a citizen either under the Constitution or any other pro-
vision of the Citizenship Act. There are five categories—of whom two.
are persons of Indian origin—of persons who can apply for registration
asaccitizen: (i) persons of Indian origin ordinarily resident in India
before the application; (ii) persons of Indian origin ordinarily resident
in a country outside undivided India. A person is deemed to be of
Indian origin if he or either of his parents or any of his grandparents
was born in undivided India; (iii) women who are or have been married
to citizens of India; (iv) minor children of citizens of India; and (v)
persons who are citizens of countries within the Commonwealth or the
Republic of Ireland, if major and not of unsound mind. Such per-
sons are to be citizens under an enactment of the legislature of their
respective countries and the law must be recognized by the Government
of India by notification, but in the case of the South African Govern-
ment the notification has to be issued with previous approval of both
the Houses of Parliament [Sections 5(e) and 2(1) (b) and 2(1)(c)].
Rules are yet to be framed on the reciprocal basis for the registration of
citizens of Commonwealth countries and the Republic of Ireland.
"See Sir Frank Newam: ‘The Home Office Para Two, Chapter X pp. 102-104; J. Mervyn,
Jonci: British Nationality Law (Revised Ed. 1955) Appendix 4 pp. 216-218; Rex vx Albany.
Street Police Supdt, Ex parte Percy Carlebich 1915, 3 K.B, 716 at p, 723—Pee Lord Reading
GJ at p. 726 per Datling J.258 A. N. SINHA
Besides the five categories noted above there are two other special
categories of persons who are eligible for registration: (i) a person who
has previously renounced or whose citizenship has terminated, and (ii)
any minor. A person is required to take the oath of allegiance and the
citizenship takes effect from the date of registration.
(iv) By naturalization (Section 6 and Third Schedule). A person
who is not a minor, not of unsound mind, and not a citizen of any Com-
monwealth country or the Republic of Ireland may acquire citizenship
by naturalization. Citizenship by naturalization is not confined to an
alien who is a citizen of another country, he may be 2 stateless alien too.
‘Unless the applicant is a distinguished person he must fulfil seven condi-
tions: (i) he must not be a citizen of a state which debars Indian citi-
zens from becoming naturalized in that state; (ii) he must renounce his
previous citizenship; (iii) he must have been resident, unless given any
exemption chortening the period, in India for 12 months immediately
before his application for naturalization; if the alien is 2 government
servant he is allowed to include in the period the time he spends out of
India; (iv) he must have been resident in India or in government ser-
vice for four years, within eight years or any extended period before
his application; (v) he must be of good character; (vi) he must have
an adequate knowledge of any of the 14 languages mentioned in the
Eighth Schedule to the Constitution; and (vii) he must intend, if the
certificate of naturalization is granted to him, to reside in India or enter
into or continue in the service of the Central ot any State Government
in India or of an international organization of which India is a member
or of a society, company or a body of persons established in India. A
person who has rendered distinguished service to the cause of science,
philosophy, art, literature, world peace or human progress generally may
be naturalized waiving all or any of the above conditions. This provi-
sion differs from similar provisions in other countries in that it is not
necessary that the distinguished service should be rendered to India or
be advantageous to India. Citizenship by naturalization becomes effec-
tive from the date of the certificate on the person taking the oath of
allegiance within one month or any extended period.
(v) By incorporation of territory (Section 7): This is a type of
collective naturalization. When a territory becomes a part of India the
Central Government may by order notified in the official Gazette specify
the persons who shall be citizens of India by reason of their connexion
with that territory, Citizenship takes effect from the date of the order.
(vi) Citizenship in cases of doubt (Section 13): The Central
Government may, in such cases as it thinks fit, certify that a person
with respect to whose citizenship 2 doubt exists is a citizen of India.CITIZENSHIP IN INDIA 259
Termination of Citizenship
(i) Renunciation (Section 8): A citizen of India, if he or she is of
sound mind and not a minor unless a married female, who is also a citizen
of another country may renounce his or her Indian citizenship (Section
8). On such renunciation minor children of such citizen also cease to
be Indian citizens but they are given the right to declare themselves
Indian citizens within one year after attaining majority (18 years) and
on such declaration they resume their Indian citizenship.
There is a restriction on renunciation during any war in which India
may be engaged. In India distinction is made, as is done in the United
Kingdom, between a foreign national and a citizen of a Commonwealth
country in the matter of renunciation of citizenship during war.
Gi) Loss by voluntary acquisition of another citizenship (Section 9):
‘At the commencement of the Constitution a person could not be a citizen
of India if he had voluntarily acquired citizenship of a foreign state.
From 26 January 1950 a citizen of India ceases to be a citizen if he, by
naturalization, registration or otherwise voluntarily acquires the citizen
ship of ‘another country” An Indian citizen who during any war in
which India may be engaged voluntarily acquires the citizenship of an-
other country does not lose his citizenship until the Central Government
so directs. The Central Government is to determine how and when
any person has acquired the citizenship of another country. The Citi
zenship Rules 1956 (Rule 30 and Schedule III) deal with this matter.
One of the rules (the Citizenship Rules 1956 Para 3 of Schedule Ill)
provides that if an Indian citizen has obtained on any day a passport
from the government of any other country, that fact shall be conclusive
proof of his having voluntarily acquired the citizenship of that other
country. This provision has been struck down by a High Court being
in excess of the powers under the Citizenship Act 1955 (Section 9(2))
and also as unconstitutional. (Syed Mohammad Khan ys. The Govt.
of Andhra Pradesh A.LR. 1957 Andhra Pradesh 1947). Other conside-
rations applied by the Rules to test whether there has been a voluntary
acquisition of citizenship of another country are whether the Indian
citizen migrated to a foreign country with a view to making a perma-
nent home there, whether in fact he has taken up permanent residence
in that country and any other circumstances relevant to the purpose.
‘An Indian citizen may be asked to prove that he has not acquired an-
other citizenship. Special rules have been prescribed for determination
whether an Indian citizen has acquired the citizenship of Pakistan, Loss
of citizenship on voluntary acquisition of another citizenship by a person
does not affect the citizenship of his or her children or of the other
use.
“ (iii) Deprivation of Citizenship (Section 10): Three classes of
citizens may be deprived of the citizenship of India. They are (i)260 A. N. SINHA
citizens by naturalization; (ii) persons who became citizens at the com-
mencement of the Constitution because of their domicile in India then,
and of five years residence in India prior to that dates (iii) citizens by
registration excepting persons who registered themselves as citizens (a)
after migration from Pakistan on or after 19 July 1948 and (b) being
of Indian origin and ordinarily resident in India. Besides the ultimate
test of public good there are five grounds on which a citizen can be
deprived of his citizenship after giving him an opportunity to ask for
an inquiry except in the case of deprivation on the ground of residence
outside India. The grounds are (i) fraudulent acquisition of citizenship,
(ii) disloyalty or disaffection, (iii) unlawful trading and other acts
giving sid and comfort to enemy during war; (iv) imprisonment for
more than a year within five years after naturalization and (v) residence
out of India for a continuous period of seven years
CITIZENSHIP OF CORPORATIONS
‘A corporation is a legal person. It is usual to speak of nationality or
citizenship of legal persons. We import thereby something that we
predicate of natural persone into an area where it can be applied by
analogy only. To corporations most of the effects of being a ‘citizen’
of an ‘alien’ in a state are inapplicable, e.g., duties of allegiance, military
service, franchise and other political rights. But there are other areas,
eg., holding or acquiring property, where corporations can fit in and
enjoy rights like those of natural persons. The test of nationality of a
corporation is important both for Public and Private International Law.
‘A state can give diplomatic protection only to its nationals whether they
are natural or artificial persons. Whether a corporation has ‘enemy’
character in war time should be distinguished from that of its nationality.
In India citizenship of corporations has a special importance because of
the fact that the Indian Constitution has gusranteed some of the funds-
mental rights to ‘citizens’ only (Articles 15, 16, 19, 29 and 30). Some
of those rights a corporation is incapable of exercising but there are
others, like freedom to acquire, hold and dispose of property, to carry
on trade or business, or to form associations, which it can enjoy. Are cor-
porations citizens for the enjoyment of those fundamental rights? The
High Courts in India hold conflicting views on the matter: some hold
that they can, while others hold that they cannot and still others have pro-
ceeded on the assumption without deciding the question that a corposa-
tion is a citizen. The Supreme Court while holding that a corporation
4A mote exhaustive list of the grounds for lore and deprivation of citizenship and dis-
qualifications for naturalization monly with « view eo thwetting communism it to be found
Jin the Immigeacion and Naturalization Act of the United States (MeCarran—Walter Act,
1952) which the Congres enacted over the President's veco on 27 Janz 1952 and became efee-
tive from 24 December of that Year which is a comprehensive statute as it repealad 48 Acts
for parse of ActsCITIZENSHIP IN INDIA 261
is a ‘person’ for the enjoyment of fundamental rights of persons has so
far left open in at least two cases (The Bengal Immunity Co, Ltd. vs.
‘The State of Bihar, (1955) 2 S.C.R. 603 at pp. 618-9; State of Bombay
vs. R. M. D. Chamarbaugwala A.LR. 1957 S.C. 699 at p. 721) the ques-
tion whether a corporation is a ‘citizen’ for the purpose of the funda-
mental rights. The Citizenship Act 1955 and Pare II of the Consti-
tution relate to citizenship of natural persons. A natural person comes
into being by process of nature and the law has to confer citizenship on
him or label him as such to create a tie between the state and the indivi-
dual, Born and regulated by statutes, corporations do not require any
further label of citizenship for the tie is already there. So viewed there
is, in principle, no difference between citizenship of natural persons and
corporations and the later come well within the term ‘citizens’ for the
enjoyment of fundamental rights they are capable of exercising. Specific
Provisions conferring nationality on corporations are, however, to be
found in the Constitution of El Salvador, 1950 (Article 16); Mexican
Nationality and Naturalization Act 1934 (Article 4); and Spanish
Civil Code 1931 (Article 28).
COMMONWEALTH CITIZENSHIP
India has adopted in her Citizenship Act (Section 11) what is known
as the Common Clause and every citizen of a Commonwealth country
has the status of 2 Commonwealth citizen in India. Commonwealth
citizenship is not in itself a nationality, ‘The Citizenship Act 1955 has
not defined an ‘alien’ but under the Foreigners Act (as amended in
1957) a ‘foreigner’ is a person who is not a citizen of India. The
adoption of the Common Clause and the fact that a country within the
Commonweslth is not a foreign state for the purposes of the Consti-
tution have not the effect of making a citizen of any other Common-
wealth country a citizen of India. The status of a Commonwealth
citizen in short is that he is a ‘foreigner’ [The Foreigners Act 1946, Sec-
tion 2 (2) ] on whom certain rights and privileges of Indian citizens may
be conferred on a basis of reciprocity (the Citizenship Act 1955 Section
12) or he may be exempted from the operation of the Foreigners Act
[Section 3A (a) ] and the Foreigners (Exemption) Order 1957, He is
not a full-fledged alien so that he can become a citizen of India by
naturalization [the Citizenship Act 1955, Section 6(1)]. He has the
privilege of acquiring citizenship by registration. Voluntary acquisi-
tion of citizenship of another country, which includes a Commonwealth
country, by an Indian citizen results in loss of Indian citizenship though
this is not the result in the U.K., Southern Rhodesia and New Zealand.
Aliens
‘The term ‘alien’ or ‘foreigner’ is broadly applied with reference to
ea anges seo yg werpornpwe Nope vera aon forleerToseat
3262 A, N. SINHA
state. An alien may be a citizen of another state, i.c., a foreign national.
‘He may also be a stateless person and the fact that he has no nationality
places him in an abnormal and inferior position. An alien whether
resident in a state or on a sojourn is subject to the laws of his state of
residence so long as he is permitted to remain in the state.
derive his rights directly from international law but from the municipal
‘particularly applies to an alien with nationality—chooses to have a dual
and ambiguous status as an inhabitant of the country of his residence
and a foreign citizen he derives advantages from both the domestic
law of the country of residence and international law. The alien's
home state can enter into diplomatic remonstrance against his expulsion
or deportation in a proper case. By reason of his allegiance to his home
state an alien leaves outstanding a foreign call to his loyalties which
international law not only permits a state to recognize but commands
it to respect, An alien remains immune from some of the burdens, e.
mulitary service, which 2 citizen must shoulder, Unde# the Gael
= protection against arrest and pore eee unless he is an enemy
alien; right against exploitation; right to freedom of religion which
includes freedom of conscience, profession and practice of religion, and
freedom to manage religious affairs, freedom from taxation for the
promotion of any particular religion, freedom from attending religious
instruction in state-maintained or state-aided educational institutions;
cultural and educational rights for linguistic and religious minorities;
right to property; and to enforce the above rights by appropriate pro-
ceedings before the Supreme Court or the High Courts, guaranteed by
the Constitution of the country.
‘An alien has absolutely no right of franchise for Parliament or the
State legislatures in India. He is also disqualified—such disqualification
is removable—from voting or being elected as a member of the munici-
pal corporations, viz., Calcutta, Bombay, Delhi, From certain high
public offices, e.g. President of India, Vice-President, Governor of a
State, Judge of the Supreme Court and High Court unless he was alreadyCITIZENSHIP IN INDIA 263
in service as a High Court judge at the commencement of the Consti-
tution, Attorney-General of India and Advocate-General of a state,
aliens are absolutely excluded by the Constitution. An alien is eligible
for other employments if so permitted. Apart from the general dis-
abilities of an alien in the matter of offices and employment there are
certain occupations, eg., chartered accountancy, nursing, dentistry,
pharmaceutical work, which an alien may not carry on in India unless
his home state metes out reciprocal recognition and treatment to Indian
citizens.
‘The statute laws of India have not followed any uniform nomencl:-
i jefine an ‘alien’
‘A foreigner’ is a person who is not a citizen of
India [the Foreigners Act 1946, Section 2(a)]. Certain tests have
been laid down by the Foreigners Act 1946 (Section §) for the determi-
nation of the nationality of a foreigner in India. If he acquired a
nationality—at birch he is deemed to retain that nationality except in
cases where the Central Government has directed otherwise. ‘The
foreigner may prove any subsequent acquisition of a different national-
ity. If he has more than one nationality—he may be treated as the
national of the country with which he appears to be most closely con-
nected for the time being in interest and sympathy.
he was last closely connected in interest and sympathy. If a foreigner
does not fall within the above categories and any question arises about
his nationality he is to prove whether he is a foreigner or a foreigner of
particular class or description.
ADMISSION
A person, be he an alien or a citizen, must not enter India by land,
water ot air from any place outside India without a valid passport unless
exempted from such requirement by the Central Government. An
entry by water or air is not deemed to be from a place outside India by
reason only of the fact that a person has traversed territorial waters or
land in course of this journey [Indian Passport Act 1920, Section 33
Indian Passport Rules 1950, Rule 3 Explanation and 4(1) (i) and 4(2)]
‘Breach of this law leads to conviction, In case of an alien the convic-
tion may lead to his removal or expulsion but not so in case of a citizen.
‘The latter as a citizen has a fundamental right to reside in India [The
Constitution of India; Article ra s .
SoM ES264 A. N. SINHA
regarding passports of the Commonwealth countries. A. passport issued
by a foreign government other than Pakistan (for which there are spe-
cial pr Ne
Such visa may be for ‘a single
journey’ valid for a specified period not exceeding one year; or a ‘transit
‘visa? for the sole purpose of reaching any destination outside India with
permission to break journey in India ordinarily for not more than 15
days on each such journey and valid cither for the specified period not
exceeding one year or the period of validity of the visa for the country
of ultimate destination; or an ‘ordinary’ one valid for any number of
journeys to India for a period specified not exceeding one year [Indian
Passport Rules 1950, Rule 5 (iv) (a), (b) and (c)]. For Pakistan, in
order to liberalize travel facilities, there are different categories of vita
from ‘A’ to 'F’, a ‘transit visa’ and a ‘seamen’s visa’ [Ibid Rule 5 (iv) A].
A Nepalese passport is valid if it is either specifically valid for entry in
India, or endorsed by a competent authority as valid for entry in India.
A passport to be valid in India should not have been obtained by fraud
or misrepresentation [Ibid Rule 5 (v)]. Persons, if domiciled in India,
‘or Nepalese or Bhutanese entering India by land or air over the Nepalese
‘or Tibetan frontiers are exempted from passport requirements. There
are a number of exemptions in favour of seamen, eg, certain alien
seamen, Portuguese Indian seamen, seemen domiciled in India. Certain
persons from the Tibet region of China, viz. traders and their families,
border inhabitants, porters and mule-team drivers in transportation ser-
vices, and pilgrims of the Lamaist and Buddhist faiths, are also exempted
from the requirement of a passport for entry into India.
Entry through approved port or place
Every alien, unless exempted, must enter India through an approved
port or place on her borders and with the leave of the civil authority of
the place through which he enters India [the Foreigners Act 1946, Sec.
tion 3 (2) (a) and the Fotcigners Order 1948, Para 3(1)].
Leave to enter India may be granted on any conditions attached to
it and the conditions may be varied or cancelled [the Foreigners Order
1948 Para 3(3)]. Ordinarily leave to enter India is refused if the alien
is not in possession of a valid passport or vise for India unless he is
exempted from such requirement. Even though an alien has complied
with the requirements of the Indian Passport Act 1920 and the rules
made under it he may be refused leave to enter in India in the interest
of public safety; or if he is of unsound mind or mentally defective; or
suffers from a loathsome disease likely to prejudice public health; or hasCITIZENSHIP IN INDIA 265
been sentenced in a foreign country for any extradition offence; or if
his entry is prohibited either under an order issued by a competent autho-
rity or under the specific orders of the Central Government [the
Foreigners Order 1948, Para 3(2) and (4)]. Alien seamen or crew
of aircraft, in addition to the above, are prohibited from landing in
India without a special permit to be issued on an undertaking given by
their employer that the latter would maintain them while in India and
also pay for the expenses of their departure from India (ibid Para 4).
‘An alien who has been refused leave to enter India may be detained 2t
any approved place and if he has come by sea he may be brought ashore
for such detention. While in such detention the alien is deemed to be
in legal custody and not to have entered India [ibid Para 3 (5)
= EEE statute laws provide for their registration,
change of name, residence, movements and employments with wide
power to the executive to place special restrictions in proper cases and
for their expulsion.
‘An alien while in India must not assume, without permission of the
Central Government, any name other than the one by which he was
ordinarily known immediately before the date on which he first enters
India [the Foreigners Act 1946, Section 5(3)]. A married woman,
however, may use her husband’s name.
REGISTRATION
An alien who has attained the age of 16 years, immediately on entry
into India must present personally, unless exempted from personal attend-
ance, a report, called the registration report, to the appropriate Registra-
tion Officer giving his address in India [the Registration of Foreigners
Rules 1939, Rule 5; Registration of Foreigners (Exemption) Order 1957,
para 2].
t any time if the authorities are not satisfied with the
documents of identificetion of the alien they may either get photo-
graphs from the alien or fingerprint him to make one of the photographs
for make one set of fingerprints a part of the Certificate of Registration
[the Registration of Foreigners Rules 1939, Rules 6 (2) Second Proviso,
nd 9]. The eatfcate of an alien ofher than tht of & tours enaio
r
Every alien entering = on oo ape 7 2 visa must peep er obtain
a permit indicating the period he is authorized to remain in India and
he is required to depart from India before the expiry of the period (the266 A. N. SINHA
Foreigners Order 1948, Para 7). Such permit may be obtained either
from the Registration Officer of the place of entry, or from the Regis-
tration Officer of his place of residence in India if the alien is not a
tourist, nor entered India on a transit vise (ibid). An alien who is not
a tourist has to make reports about absence from registered address with
particulars of his itinerary, change of registered address, and about
changes other than the registered address to keep accurate his Certificate
of Registration (the Registration of Foreigners Rules 1939, Rules 10, 11,
and 12). In order to avoid reporting every time absence from a register-
ed address travel permits are issued in special circumstances [ibid,
Rule 10(2) }.
TOURIST
A ‘tourist’ in India is an alien who has no residence or occupation
in India, His stay in India does not ordinarily exceed three months.
He has no object in visiting India other than recreation, sightseeing or
attending, in a representative capacity, meetings convened by the
Government of India or international bodies. A tourist is given a spe-
cial Certificate of Registration [che Registration of Foreigners Rules
1939, Rules 2(j), 6(2) ]- If 2 tourist enters India on a transit visa his
Certificate of Registration is co-extensive with the validity of the transit
visa. For any other tourists the Certificate of Registration is valid not
ordinarily exceeding three months. A tourist who remains in India after
the expiration of his Certificate of Registration ceases to be a tourist and
should surrender the certificate and get a general Certificate of Regis-
tration. Any Registration Officer may cancel at any time the period
of validity of a tourist’s certificate and upon such cancellation a tourist
ceases to be so (ibid, Rule 13). A tourist is exempt from reporting
absence from his registered address, or change of registered address or
other changes [ibid, Rule 13 (1) ].
Every alien must produce, within 24 hours or any extended period,
and deliver on taking a receipt, his passport or other proof of identity,
and his Certificate of Registration when demanded by any Registration
Officer, magistrate or police officer not below the rank of a head const-
able for any purpose connected with the enforcement of the Registra
tion of Foreigners Rules 1939 (ibid, Rules 8 and 9).
CONTROL AND SUPERVISION OF MOVEMENTS ETC.
ep a preeereAERED) | Witrow che pee
mission of appropriate authority an alien must not visit or reside in any
prohibited place as defined in the Indian Official Secret’s Act 1923 (ibid,
Para 8) ot do anything prohibited in any area declared to be a protected
area (ibid, Para 9). An alien may be asked to remove himself from anyCITIZENSHIP IN INDIA 267
cantonment within a specified time (ibid, Para (12). He must not
also without permission enter any premises relating to or be employed
in any undertaking for the supply to the Government or to the public
of light, petroleum power, or water or other undertaking as may be
specified (ibid, Para 10). Authorities may also close or otherwise regulate
premises used asa restaurant, place of public resort or entertainment or as
a club frequented by foreigners (the Foreigners Act 1946, Section 7A, the
Foreigners Order 1948, Para 13). Obligations have been cast on hotel.
keepers generally, householders and others in 2 prohibited place or a
protected area in particular to keep records and furnish particulars about
aliens accommodated by them with corresponding obligations on aliens
to furnish such information [the Foreigners Act 1946, Section 7; the
Foreigners Order 1948, para 8(3), 9(2)(c); the Registration of
Foreigners Rules 1939, Rule 14]. The pilot of any aircraft and master
of vessel arriving or leaving India are also under obligation to furnish
information about aliens (the Registration of Foreigners Rules 1939,
Rules 4 and 16; the Foreigners Act 1946, Section 6). He is also under
liability to remove an alien brought by his aircraft or vessel at his own
expense within two months of arrival if the alien has been refused entey
or has entered India without permission (the Foreigners Act 1946, Sec
tion 6 (4) ; the Foreigners Order 1948, Para 6).
DEPARTURE
+ Every alien has to leave India through an approved port or other
ized place of departure and with leave [the Foreigners Order
1948, Para 5(1)]. At the time of his departure from India an alien
must surrender his Certificate of Registration (the Registration of
Foreigners Rules 1939, Rule 15) and also the permit restricting his
sojourn in India (the Foreigners Order 1948, Para 7)
ac any person bes is not ra “ in i a fa) lia or who, even if
domiciled in India at the time of his departure has no intention of
returning to India, must not leave India—unless exempted—by land,
sea or air without a tax clearance certificate stating that he has no tax
liabilities or that satisfactory arrangements have been made for pay-
ment of taxes [the Indian Income Tax Act 1922, Section 46A; The
Income Tax (Tax Clearance Certificate) Rules 1953]. Above all, an
alien may be prohibited from leaving India if such departure would not
be conducive to the public interest (ibid, Para 5(3) ].268 A. N. SINHA
EXPULSION OR DEPORTATION AND DETENTION
His resources may be availed of
in similar manner if the alien has been refused permission to enter India
or has entered India without permission (the Foreigners Order 1948,
Para 14). When the Central Government orders expulsion of an alien
it may direct, on payment at current rates for passage and maintenance,
the master of a vessel or the pilot of an aircraft carrying the passenger
to take the alien and his dependants to such port or place outside India
where the vessel or the aircraft is due to call [the Foreigners Act 1946,
Section 6(5), the Foreigners Order 1948, Para 6(2)].
EXEMPTIONS: REGISTRATION OF FOREIGNERS RULES
Aliens who have not attzined the age of 16 years are exempt from
the provisions of the Registration of Foreigners Rules 1939 [the Regis-
tration of Foreigners (Exemption) Order 1957; Para 2]. Others who
include citizens of Commonwealth countries on a basis of reciprocity,
diplomatic personnel, representatives of members to the principal and
subsidiary organs of the United Nations have been exempted from com~
pliance with those Rules in varying degrees (ibid, Paras 3 to 7).
FOREIGNERS ACT 1946 AND FOREIGNERS ORDER 1948
They do not ordinarily apply to citizens of the United Kingdom,
Canada, Commonwealth of Australia, New Zealand, Ceylon, Federation
of Rhodesia and Nyasaland and the Republic of Ireland [the Foreigners
(Exemption) Order 1957, Para 2]. ‘They may, however, be made appli-
cable to any of those citizens in the interests of the defence, security,
general public or any section of it of India; or of friendly relations of
India with any country outside India (ibid, Para 3).
PENALTIES
Contravention of the provisions of law is visited with penalties on
conviction. Sentences that may be passed against an alien vary from
imprisonment for six months to five years or fine or both (the
Indian Passport Rules 1950, Rule 6; the Registration of Foreigners Act
1939; the Foreigners Act 1946, Sections 13 and 14).
FAIR TREATMENT OF ALIENS
A state enjoys wide discretion in the matter of treatment of aliens,BUSINESS MAY SEEM PROSAIC 269
Ie may not at all receive an alien. It may at any time revoke the licence
of an alien to remain in the state. Once an alien is received by a state
there arises a network of legal relationships between the state of residence
and the home state of the alien. Of all international relations the pro-
tection of its national by a state when resident abroad is one of the most
delicate and important. Experience has shown that friendly relations
even with friendly countries may be jeopardized from real or imagined
wrong to another's subject or citizen inflicted or permitted by a govern-
ment. Treaties and international practice have established some broad
limits for the treatment of aliens. This standard a state must not
violate without incurring international responsibilities and being liable
to damages for arbitrary and maltreatment of aliens. In her Constitu-
tion and laws India has given ample recognition to this standard. More-
over one of the Directive Principles of State Policy laid down in the
Constitution of India (Article 50) is that she shall endeavour to promote
international peace and security; maintain just and honourable relations
between nations; foster respect for international law and treaty; and
encourage settlement of international disputes by arbitration.
New Deren
23 June 1958
THE BUSINESS MAY SEEM PROSAIC*
By NICHOLAS MANSERGH
‘Tne title I have chosen for my inaugural lecture may seem to some
among you to foreshadow only too well its probable content and charac-
ter. Yet I need hardly explain, it was not for that reason I chose it. It
is taken from Lord Salisbury’s opening address to the first Colonial Con-
ference, held in London in 1887, the year of Queen Victoria’s Golden
Jubilee celebrations, in the course of which he remarked “The decisions
of this Conference may not be, for the moment, of vital importance;
the business may seem prosaic, and may not issue in any great results at
the moment. But we are all sensible that this meeting is the beginning
of a state of things which is to have great results for the future’?
Rather more than 60 years have passed since Lord Salisbury spoke these
words. On two points, seemingly unrelated but as I think closely con-
nected, he may be seen from this vantage point in time to have shown
considerable foresight. The Colonial Conference of 1887 did mark the
beginning of ‘a state of things’ which had great results; not I venture to
SInaumvral adder delivered on 17 March 1956 a» Visiting Profewor of Commonmeslsh
History and Insticutions in che Tadian School of International Studies, New Del
* Proceedings of the Colonial Conference 1887 Vol. 1 (C. 5091), p. 3. HL
Re
. (18t7) Is,