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Who is a Citizen? How Citizenship may be acquired through domicile?

Synopsis:
1. Introduction:
2. Fundamental Rights Available to the Citizens:
3. Meaning and Definition of Citizenship:
4. Significance of Citizenship:
5. Modes of Acquiring Citizenship:
6. Acquisition of Citizenship By Domicile:
7. Conclusion:

Introduction:
The term citizen is used in many contexts in the constitution of India. So, it is necessary
to have a detailed discussion of the term Citizenship. The population of a country can be
divided into two classes namely
1. Citizens and
2. Aliens.
A citizen of a state is a person who enjoys full civil and political rights. Citizens are
different from aliens who do not enjoy all these rights. Citizenship carries with it certain
advantages conferred by the Constitution. Part- II Articles 5 to 11 of the constitution deals with
the Citizenship.
Fundamental Rights Available to the Citizens:
The following fundamental rights are available only to citizens:
(1) The right not to be discriminated against any citizen on the grounds of religion, race, sex, or
place of birth.
(2) The right to equality of opportunity in the matter of public employment.
(3) The six freedoms enumerated in Article 19, i.e., freedom of speech and expression;
assembly; association; movement; residence; profession.
(4) Cultural and educational rights.
(5) There are certain offices under the constitution which can be occupied by citizens only e.g.,
office of the President, Vice-President, Judges of the Supreme Court or a High Court, Governor
of a State etc.
(6) The right to vote for election to the House of the People and the Legislative Assemblies of
States is available to the citizens.
The rights guaranteed by Articles 14 and 21 are available to aliens also.
Meaning and Definition of Citizenship:
Citizenship is membership of a society living under the one Government. It confers the
status and carries with it certain privileges of the state. According to Hans Kelson,
Citizenship is a legal status determined by the specific rights and duties of which the statute is
the condition. Citizen of a State is he who has political rights, the duty of military service and
diplomatic protection afford by the state concerned. Citizenship may also be defined as the
legal relationship between an individual and the state under which an individual pledges his
loyalty to the state, and the state offers protection to the individual. Citizenship is confined to
only natural or physical persons. It is not extended to Corporations and juristic persons.
Significance of Citizenship:
It determines the relationship between the state and the citizens. It signifies permanent
commitment of an individual to the country. That is through citizenship, a citizen expresses his
loyalty to the nation. In return, the nation provides protection to the citizen. Citizenship grants
to a person the right to vote and the right to contest in the election. Citizenship provides certain
special right i.e., fundamental rights to a person. It provides to a person an opportunity to hold
public offices.

Modes of Acquiring Citizenship:


1. Citizenship at the commencement of the Constitution
1. Citizenship by Domicile
2. Citizenship of Migrants to India from Pakistan
3. Citizenship of Migrants of Pakistan.
4. Citizenship of persons of Indian residing outside India
2. Citizenship under the Citizenship Act- 1955
1. By Birth
2. By Descent
3. By Registration
4. Naturalization
5. By Incorporation of territory.

Acquisition of Citizenship By Domicile:


Article-5 of the Constitution deals with the provisions relating to Acquisition of
Citizenship by Domicile. Domicile of a person is his permanent home. No person can be
without a domicile and no person may have more than one operative domicile. National
boundaries do not constitute a hindrance in ones choice of domicile. This implies that a person
may be national of one country, but his/her domicile may be another country. Domicile denotes
the connection of a person with a territorial system of law. There is only one citizenship, which
is of the Union of India, there is no separate state Citizenship as in the United States of
America.
Persons domiciled in the territory of India as on 26 November 1949 automatically
became Indian citizens 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 January 1950. According to Article-5 a person entitled to citizenship by domicile if he
fulfills the following 2 conditions:
1. He must be at the commencement of the constitution, have is domicile in the territory of
India.
2. such person must fulfill any one of the 3 conditions laid down in that article, namely:
He was born in India
Either his parents was born in India
He must have been ordinarily resident in the territory of India for not less than 5 yrs
immediately before the commencement of the constitution.
Therefore domicile in India is considered as an essential requirement for acquiring the
status of Indian Citizenship. The civil status of a person, his legal rights and duties, capacity to
marry are determined by the law of his domicile.
The term Domicile is not defined in the Constitution. The domicile of a person is in that
Country in which he either has or is deemed by law to have his permanent house. There is a
distinction between Domicile and Residence. Residence alone in a place is not sufficient to
constitute domicile. It must be accompanied by the intention to make it his permanent home.
But it is basically a legal concept for the purpose of determining what is the personal law
applicable to an individual, and even if an individual has no permanent home, he is invested
with a domicile by law.
Classes of Domicile:
1. Domicile of Origin: Domicile of Origin is attached to the individuals by birth.
2. Domicile by Choice: Domicile by Choice is acquired by the residence in territory
subject to a distinctive legal system, with the intention to reside there permanently.

In Pradeep Jain v/s Union of India (AIR 1984 SC 142): In this case the Supreme
Court has held that in India Article-5 recognises only one domicile i.e., domicile of India. It
does not recognise the idea of state domicile. Domicile is not same thing as residence. Mere
residence in a place is not sufficient to constitute domicile. It must be accompanied by the
intention to make it his permanent home.
The concept of domicile has relevance to the applicability of municipal laws whether
made by the Union of India or by the States. Two elements are necessary for the existence of
domicile: ---
(i) A residence of a particular kind, and
(ii) An intention of a particular kind.

The residence need not be continues but it must be indefinite, not purely fleeing. The
intention must be a permanent intention to reside forever in the country where the residence has
been taken up. Domicile is not the same thing as residence. Mere residence in a place is not
sufficient to constitute domicile. It must be accompanied by the intention to make it his
permanent home.

In Mohammad Raza v/s State of Bombay (AIR 1956 SC 1436):


The Supreme Court held that though he was original resident, he did not acquire Indian
Citizenship because he did not have a domicile in India. Further it was held that there was an
insufficient to establish that there was a change in his mind of the kind necessary to acquire a
new domicile.
A minor married woman is not independent person, neither of these classes has the legal
capacity to make a change of domicile. Therefore, the domicile of an infant generally follows
the domicile of his father, while a married women takes the domicile of her husband. A widow
retains the domicile of her husband until changed by her own act.
Intention is an important element in determining the domicile of a person. It can be
inferred from the conduct of the persons. Thus a person in Government Services, who was
given the choice for opting for India or Pakistan, who opted for Pakistan, actually went to
Pakistan, served there under the Government of Pakistan, but who subsequently resigned his
job there and came to India cannot claim the benefit of Article-5 for he never became the
citizen of India.
Conclusion:
Citizenship constitutes the indispensable foundational principle of democratic polity. A
citizen means a person owing commitment to and entitled to the protection of a sovereign state.
Citizenship provides rights such as right to vote, and are also subjected to duties or obligation,
such as paying taxes.