CONCEPT OF DOMICILE , RESIDENCE & CITIZENSHIP WITH RESPECT TO CITIZENSHIP AMENDMENT ACT (CAA)

Introduction:

The citizenship Act , 1955 is the Indian Nationality law which states a person's nationality.On December 30, 1955, the Indian Parliament passed it, and it went into force the same day. This act was made to “to provide for the acquisition and determination of Indian citizenship”

The main provision under this act was renunciation , termination and deprivation of citizenship.

At the outset of the Indian Constitution, it granted citizenship to all citizens of the nation and made no distinctions based on religion.


The Citizenship Amendment Act of 1955 was amended 5 times. The recent amendment passed on 11th December ,2019 by the Indian Parliament and was notified that the act will be in force from January 10 2020.

The act was amended in 2019 with the intention of granting Indian citizenship to illegal immigrants from six communities, namely Hindus, Sikhs, Buddhists, Christians, Parsis, and Jain (the muslims are excluded)who come from the three neighbouring countries - Afghanistan, Bangladesh, and Pakistan.


Analysis:

Indian states were granted the freedom to join or quit the Union during the period of India and Pakistan's partition.Part II of the Indian Constitution :- Articles 5-11 states the Citizenship of India.

The constitution itself must incorporate the citizenship law.The Indian Parliament was given the authority to enact laws governing citizenship rights under Article 11.


Domicile refers to a person who resides permanently in a certain country. Despite the fact that it could occasionally change, a person is only allowed to have one domicile.

This concept is derived from the term Domicilium , [1]According to a modern Canonist ,”The term is derived from domum colere, to foster or inhabit the home. Domicile is not any place of residence but a place of habitual residence.”

Domicile is a crucial prerequisite for obtaining Indian citizenship. Although the constitution does not define this phrase, it refers to a person's permanent residence , as stated above.

Since there is no standardized definition of domicile, the lex fori is mostly responsible for determining what it means.


Domicile is frequently mistaken with the term residence; a residence is a place where you may live for a short while or for a long time, whereas domicile is your legal residence.

The key distinction between these two terms is how long one wants to reside there.One can therefore have multiple residences, but only one domicile.


There are three types of domicile -

● Domicile of Origin - one acquires it at birth.

● Domicile of Choice - being physically present in the place where the domicile is asserted on one's own volition.

● Domicile by Operation of Law - It is important to ascertain where the domicile of the person in question.

Domicile has two prerequisites which are - Residence and intention .

An existing domicile indicates a person's relationship to a territorial system of law and is assumed to exist unless it can be demonstrated that a new domicile has been acquired.


There are three requirements to meet in order to receive citizenship by domicile :

  1. [2]Who was born in the territory of India

  2. Either of whose parents was born in the territory of India

  3. 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.

It is important to understand the relationship between domicile and citizenship adjudicated in number of cases -


Louis de Raedt v. Union of India [3]-

A Belgian missionary Mr. Louis De Raedt lived in India since 1937 , for over 5 years prior to the commencement of the constitution , petitioned the court claiming that he had acquired Indian Citizenship on 26th November 1949 under Article 5 (c) of the Constitution.

The Supreme Court held that mere residence is insufficient to establish domicile, and that Mr. Louis De Raedt must have the intent to settle permanently in the nation.


There must be animus manendi for the acquisition of a domicile of choice , which Mr. Louis did not have even though he applied for an one year extension to reside as had no intention to permanently stay in India.

A person who intends to live permanently in the country where they are already residents , must prove the same to claim the domicile . Residence by itself is insufficient without this intent or state of mind.

In 1955 , the Supreme Court held that both factum and animus are instrumental and both in isolation won't suffice.

In other words, domicile suggests a relationship with the nation rather than membership to the citizenry of the territory, which is the basis of the concept of citizenship or nationality. A person can have a domicile but no nationality.

With regard to the nation of which a person is a citizen, citizenship has a broader meaning.

There are citizens and non-citizens who make up the population of a country . A citizen is the one who enjoys all the civil and political rights whereas non-citizens can’t enforce these rights.

Articles 15 - 16 ,19,29 & 30 of the Indian Constitution can only be enforced on citizens of India.


D.P Joshi v State of Madhya Bharat [4]

A Student from Delhi enrolled himself in a medical college in Madhya Pradesh. He filed a petition stating the college charged different fees for non residents of Madhya Pradesh and students residing in Madhya Pradesh.

The non-residents had to pay more than the students who reside in MP.

The issue was whether discrimination of domicile is against Article 14 and 15(1) of the Constitution.

The writ petition was dismissed , as the court held that citizenship and domicile are two different concepts. Since Madhya Pradesh's rules were deemed to be legally binding by the majority, it was determined that it was not in violation of the constitution.


Citizenship under CAA :-

Recent changes reflect the transition from jus soli to jus sanguinis and reflect the particular quality of the intertwining of constitutional and statutory citizenship law in the partition of India.The 1955 Citizenship Act captures the naivety that followed the Partition's physical and psychological catastrophe. Over time, aspects of jus sanguinis citizenship have begun to be clearly discernible in jus soli citizenship.

Acquiring Citizenship of India[5] -

According to the Citizenship Amendment Act, there are 5 ways to become a citizen.


  1. By Birth (Section 3)

  2. By Descent (Section 4)

  3. By Registration (Section 5)

  4. By Naturalization (Section 6)

  5. Incorporation of territory (Section 7)

“Citizenship is a fundamental building block of a nation-state. It is the quintessential DNA that powers life and vitality in a democracy. Any impairment in citizenship renders a democracy dysfunctional,” - Justice V. Gopala Gowda


Conclusion:

The Citizenship Act of 1955 governs how citizenship is acquired and determined when the Constitution takes effect.

Any person who has been resident in a country on a visa for purposes of job, travel, or a preference for the country is considered to be a domicile. The term "citizen of the country" refers to a person's citizenship, either as a naturalized citizen or as a permanent resident.According to common law, a married woman was assumed to have the same domicile as her husband, meaning that the children of the marriage were born and raised in the same place and time.


A reliable mechanism for individual identification was provided, and the law was amended to screen out undocumented immigrants.

The CAA was subsequently enacted to grant Indian citizenship to undocumented immigrants who arrived in India on or before December 31, 2014.


--

[1]https://www.lawteacher.net/free-law-essays/family-law/domicile.php#:~:text=The%20concept%20of%20domicile%20in,a%20place%20of%20habitual%20residence.%E2%80%9D [2] INDIA CONSTI.art 5 amended by The Constitution (One Hundred and Fifth Amendment) Act,2021. [3] Louis De Raedt v Union of India , 1991 AIR 1886, 1991 SCR (3) 149 [4] D.P Joshi v State of Madhya Bharat , 1955 AIR 334 1955 SCR (1)1215 [5] https://indiancitizenshiponline.nic.in/


References:

[1] indiankanoon

https://indiankanoon.org/doc/305990/

[2] egazette.nic

[3] timesofindia

[4] alsi.edu

[5] lawteacher

[6] indiafilings

[7] corporatefinanceinstitute

[8] legalserviceindia

[9] investopedia

https://www.investopedia.com/terms/d/domicile.asp#:~:text=A%20residence%20is%20a%20location,state%20where%20you%20pay%20taxes.

[10] lawctopus

[11] getgoldenvisa

https://getgoldenvisa.com/domicile-vs-residence

[12] britannica

https://www.britannica.com/topic/citizenship

[13] blog.ipleaders

[14] constitutionofindia

[15] legislative.gov

[16] indiacode.nic

[17] lexforti

https://lexforti.com/legal-news/difference-between-citizenship-and-domicile/

[18] thefactfactor

https://thefactfactor.com/facts/law/constitutional_law/citizens/981/


This article is written by K. V Sreeja of CMR School of Legal Studies.

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