Law Library Stacks

To view PDFs Acrobat Reader

Back to Citizenship Pathways and Border Protection

Summary

Citizenship in India is largely characterized as jus sanguinis and a person can become a citizen by birth, descent, registration, and naturalization.  The Foreigners Division of the Ministry of Home Affairs (MHA) formulates and administers policies, statutes, and rules related to visas, immigration, and citizenship, including “overseas citizenship.”

Border Protection and Security is administered by the Department of Border Management of the Ministry of Home Affairs.  However, a variety of law enforcement, paramilitary, and military forces under both the Ministry of Defence and the Ministry of Home Affairs protect the borders, which has reportedly lead to issues of coordination, accountability, and “turf battles.”

Back to Top

Overview of Immigration Laws

In India, the entry, stay, and exit of foreign nationals are primarily regulated by the Passport Act 1920,[1] Foreigners Act 1946,[2] and the Registration of Foreigners Act 1939.[3]  The Foreigners Division of the Ministry of Home Affairs (MHA) administers all matters, including policies, statutes, and rules, related to visas, immigration, citizenship, and “overseas citizenship.”[4] 

Available Visas

According to the Consular, Passport and Visa Division (CPV) of the Ministry of External Affairs, the “[v]isa regime is implemented abroad by Indian missions & posts and in India by Foreigners Regional Registration Offices (FRROs), home departments & district administrators in the states besides immigration posts. PV-II Section of CPV Division provides the interface with MHA in formulation and implementation of visa policy and is also entrusted with advising Indian Missions/Posts on visa matters.”[5]

In India, the types of visas include tourist, employment, business, student, entry, research, journalist, medical, return, project, conference, and transit.[6]  All foreigners[7] (including foreigners of Indian origin) visiting India for more than 180 days on a Student, Medical, Research or Employment Visa are required to register with the Foreign Registration Office within fourteen days of arrival.[8]

Permanent Residency

Permanent residency in India appears to be only available to persons of Indian origin through either the Persons of Indian Origin (PIO) program[9] or the Overseas Citizenship of India (OCI) program.[10]

 

Back to Top

Citizenship Requirements and Pathways

In India, citizenship requirements and pathways are predominantly regulated by the Indian Constitution[11] and the Citizenship Act, 1955.[12]  Under current law, Indian citizenship is largely determined by the rule of jus sanguinis (citizenship of the parents) as supposed to jus soli (place of birth), and India “provides for a single citizenship for the whole of India.”[13]  A person can be a citizen by birth, descent, registration, and naturalization.

Articles 5 to 11 of India’s Constitution include provisions that regulate citizenship at the commencement of the Constitution.[14]  The Citizenship Act regulates the acquisition, determination, and termination of Indian citizenship after the commencement of the Constitution.[15]

Citizenship by Birth

According to the 1955 Act, a person born in India on or after January 26, 1950, and before July 1, 1987, is a citizen by birth “irrespective of the nationality of his parents.”[16]  A person born in India on or after July 1, 1987, but before December 3, 2004, “is considered a citizen of India by birth if either of his parents is a citizen of India at the time of his birth.”[17]  A person born in India on or after December 3, 2004, is considered citizen of India by birth “if both the parents are citizens of India or one of the parents is a citizen of India and the other is not an illegal migrant at the time of his birth.”[18]

Citizenship by Descent

Different time periods are also important in determining citizenship by descent.  A person born outside of India on or after January 26, 1950, but before December 10, 1992, is a citizen of India by descent, “if his father was a citizen of India by birth at the time of his birth.”[19]  However, if the father was a citizen of India by descent only, “that person shall not be a citizen of India, unless his birth is registered at an Indian Consulate within one year from the date of birth or with the permission of the Central Government, after the expiry of the said period.”[20]

Secondly, a person born outside of India on or after December 10, 1992, but before December 3, 2004, is considered a citizen of India “if either of his parents was a citizen of India by birth at the time of his birth.”[21]  If either of the parents was a citizen of India by descent, that person is not considered a citizen of India, “unless his birth is registered at an Indian Consulate within one year from the date of birth or with the permission of the Central Government, after the expiry of the said period.”[22]

Thirdly, a person born outside of India to an Indian citizen parent on or after December 3, 2004, is not a citizen of India, “unless the parents declare that the minor does not hold passport of another country and his birth is registered at an Indian consulate within one year of the date of birth or with the permission of the Central Government, after the expiry of the said period.”[23]

Citizenship by Registration

Persons of Indian Origin (PIOs)[24] can also be registered as Indian citizens.  Section 5 of the Citizenship Act stipulates that the Central Government can register as a citizen, on application, a person (who is not an illegal immigrant) who belongs to the following categories, namely,

  • a person of Indian origin who is ordinarily resident in India for seven years before making an application (including throughout the period of twelve months immediately before making an application and for six years in the aggregate in the eight years preceding the twelve months);
  • a person of Indian origin who is ordinarily resident in any country or place outside undivided India;
  • a person who is married to a citizen of India and is ordinarily resident in India for seven years before making an application for registration;
  • minor children of persons who are citizens of India;
  • a person of full age and capacity whose parents are registered as citizens of India;
  • a person of full age and capacity who was (or has a parent who was) previously a citizen of independent India, and who has been residing in India for one year immediately before making an application for registration; and
  • a person of full age and capacity who has been registered as an overseas citizen of India for five years, and who has been residing in India for one year before making an application for registration.[25]

Citizenship by Naturalization

In India, citizenship by naturalization can be acquired by “a foreigner (not illegal migrant) who is ordinarily resident in India for twelve years (throughout the period of twelve months immediately preceding the date of application and for eleven years in the aggregate in the fourteen years preceding the twelve months).”[26]  The applicant must also meet the qualifications specified in the Third Schedule of the Act.[27]  These requirements, however, can be waived if “in the opinion of the Central Government, the applicant is a person who has rendered distinguished services to the cause of science, philosophy, art, literature.”[28]

The person to whom a certificate of naturalization is granted shall, “on taking [an] oath of allegiance in the form specified in the Second Schedule, be a citizen of India by naturalization as from the date on which that certificate is granted.”[29]

Overseas Indian Citizens

The Overseas Indian Citizens program does not actually grant persons Indian citizenship, and all the rights it entails, because India’s Constitution does not recognize dual citizenship. According to the Ministry of Overseas Indian Affairs,

[a] registered Overseas Citizen of India is granted multiple entry, multi purpose, life-long visa for visiting India, he/she is exempted from registration with Foreign Regional Registration Officer or Foreign Registration Officer for any length of stay in India, and is entitled to general ‘parity with Non-Resident Indians in respect of all facilities available to them in economic, financial and educational fields except in matters relating to the acquisition of agricultural or plantation properties’.[30]

Back to Top

Illegal Entry and Overstay

In India, illegal entry and overstay are criminally prohibited.  According to rule 3 of the Passport (Entry into India) Rules, 1950, “no person proceeding from any place outside India shall enter, or attempt to enter, India by water, land or air” unless “he is in possession of a valid passport conforming to the conditions prescribed.”[31]  Any person who contravenes the above rule or “or attempts to enter, India on a forged passport or visa” shall be “punishable with imprisonment for a term which may extend to three months or with fine or with both.”[32] According to section 14 of the Foreigners Act, 1946, whoever “remains in any area in India for a period exceeding the period for which the visa was issued to him”[33] shall “be punished with imprisonment for a term which may extend to five years and shall also be liable to fine.”[34]

According to the State Department Bureau of Consular Affairs, “[i]f you overstay your Indian visa, or otherwise violate Indian visa regulations, you may require a clearance from the Ministry of Home Affairs in order to leave the country.  Generally you will be fined, and in some cases may be jailed, until deportation can be arranged.”[35]  It appears that short overstays (of up to three months) when there is a reasonable explanation can be regularized by Foreigner Regional Registration Offices but still be subject to a small overstay fine.[36]  According to the Airports Authority of India, “[c]ases of overstay exceeding 3 months are decided by MHA.”[37]

Back to Top

Border Management and Security

India’s land borders extend over 15,107 km (9,387 miles) and it has a coastline 7,517 km (4,671 miles) in length.[38]  A total of ninety-two districts, spread over seventeen states, are classified as border districts.[39]  India shares a total of “14,880 kilometres of boundary with Pakistan (3323 km), China (3488 km), Nepal (1751 km), Bhutan (699 km), Myanmar (1643 km), and Bangladesh (4096.7 km).”[40]

The Department of Border Management of the Ministry of Home Affairs deals with managing borders, including coastal borders.[41]  A 2007 report by the South Asia Terrorism Portal describes some of the Department’s initiatives and programs:

As a part of the strategy to secure the borders as [sic] also to create infrastructure in the border areas of the country, several initiatives have been undertaken by the Department of Border Management. These include expeditious construction of fencing, floodlighting and roads along [the] Indo-Pakistan and Indo-Bangladesh borders, action for development of Integrated Check Posts (ICPs) at various locations on the international borders of the country, [and] construction of strategic roads along [the] Indo-China border.”[42]

In addition to security measures, the Department is also involved in “socioeconomic development of the border areas” in order “to meet the special developmental needs of the people living in remote and inaccessible areas situated near the international border”[43] through its Border Area Development Programme (BADP).[44]

The Border Security Force (BSF), which is administratively run by the MHA, is a paramilitary force mandated to guard India’s land borders during peacetime and prevent transnational crime.[45]  Other border paramilitary or law enforcement forces controlled by the MHA include the Indo-Tibetan Border Police (ITBP)[46] for security along the India’s border with the Tibet Autonomous Region of China, and the Sashastra Seema Bal (SSB) for the Indo-Nepal and Indo-Bhutan borders.[47]  The Assam Rifles, a paramilitary force that is administratively run by the MHA but operationally controlled by the Indian military, is responsible for guarding the Indo-Myanmar border.[48]  The Indian army also plays a significant role in securing India’s borders, particularly disputed boundaries with Pakistan and China.  Border security along the Line of Control (LOC) and the Line of Actual Control (LAC) is its responsibility. According to a 2007 report by IPCS, “India’s borders continue to be manned by a large number of military, paramilitary and police forces, each of which has its own ethos and each of which reports to a different central ministry at New Delhi, resulting in almost no real coordination in managing the borders.”[49]

This situation has also lead on some occasions to “turf battles” between the Home Ministry and Defense Ministry over border management.[50]  A 2001 Group of Ministers report held that border management should be “re-fashioned on a one-border-one-force principle so as to obviate problems of conflict in command and control and lack of accountability arising from a multiplicity of forces on the same border.”[51]

A report by an Indian Aerospace and Defense advisory firm, Aviotech, states that “[l]arge tracts of India’s political borders are either disputed, poorly demarcated or not demarcated by natural features.  In addition to the risk of conventional international disputes, these uncertain borders also present the challenge of cross-border infiltration, illegal migration, smuggling and other forms of criminal activity.”  Moreover, according to Arvind Gupta, Director General of the Institute for Defence Studies and Analyses (IDSA), “[t]he absence of co-ordination among various agencies, lack of technological resources, difficulties of co-ordination between states and the centre, the lack of mobile teams, sparse use of cyber technologies, and the absence of co-operation with neighbouring states are some of the obvious weaknesses in the Indian system.”[52]

According to IDSA, “[t]ravel along India’s borders with Bangladesh, Myanmar and Bhutan highlights the porous nature of these borders, which pass through difficult terrain of forest, rivers and mountains and make the task of guarding all the more challenging.”[53]

In the last few years India has held a series of bilateral meetings with some of its neighbors, including Bangladesh, Mynamar, China, Nepal, and Bhutan, to coordinate and enhance border management and security.  The issue of illegal economic migration from Bangladesh appears to be one of the most serious issues facing border management and security in India.  In 2011, India and Bangladesh signed a series of agreements on managing their common border.  In March 2011, in response to the Border Security Force’s (BSF’s) “shoot to kill” policy against Bangladeshi nationals crossing the border illegally, India agreed to the non-use of lethal weapons by the BSF. 

In July 2011, India and Bangladesh agreed to a Coordinated Border Management Plan, which aimed to “enhance [the] quality of border management as well as ensure cross-border security” by addressing “challenges to the peace and sanctity of the border posed by human and drug trafficking, gun running and cross border crimes.  Under the Plan, India and Bangladesh have agreed to conduct joint coordinated patrols in areas susceptible to trafficking and other crimes based on shared intelligence inputs.”[54]  On March 13, 2012, Border Guard Bangladesh (BGB) and the BSF started “coordinated patrolling” and “night coordinated patrolling” at 120 border points pursuant to the Coordinated Border Management Plan (CBMP).[55]

Back to Top

Tariq Ahmad
Legal Research Analyst
March 2013

 

[1] Passport (Entry into India) Act, No. 34 of 1920, available at http://indiankanoon.org/doc/1715361/.

[3] Registration of Foreigners Act, No. 16 of 1939, http://www.mha.nic.in/pdfs/The%20Registration%20of%20 Foreigners%20Act,%201939.pdf.  Additional laws, regulations, and codes are also relevant.  See Regulations Applicable to Foreigners in India, Ministry of Home Affairs – Foreigners Division, http://mha.nic.in/foreig Div/pdfs/Regulations-Foreig-11.pdf.

[4] About Foreigners Division, Ministry of Home Affairs – Foreigners Division, http://mha.nic.in/foreigDiv/ abtDiv.html (last visited Mar. 4. 2013).

[5] Visa Services, Ministry of External Affairs – Consular, Passport & Visa Division, http://passportindia. gov.in/AppOnlineProject/online/visaServices (last visited Mar. 7, 2013).

[6] Id.

[7] Separate registration requirements exist for Pakistan and Afghan nationals.

[8] Registration of Foreign Nationals Visiting India, Ministry of Home Affairs – Foreigners Division, http://mha. nic.in/foreigDiv/pdfs/RegForeigners-11.pdf (last visited Mar. 7, 2013).

[9] Frequently Asked Questions about the Persons of Indian Origin (PIO) Card Scheme, Ministry of Home Affairs, http://mha.nic.in/pdfs/ForeigD-FAQs-PIO-Crd.pdf (last visited Mar. 7, 2013).

[10] Overseas Citizenship of India (OCI), Ministry of Home Affairs – Foreigners Division, http://mha.nic.in/ foreigdiv/oci.html (last visited Mar. 7, 2013).

[12] The Citizenship Act, No. 57 of 1955, http://mha.nic.in/pdfs/ic_act55.pdf.

[13] India Policy, High Commission of India – London, http://hcilondon.in/indianpolicy.html (last visited Mar. 8, 2013).  This site explains that “[e]very person who was at the commencement of the Constitution (26 January 1950) domiciled in the territory of India, and (a) who was born in India, or (b) either of whose parents was born in India, or (c) who has been ordinarily resident in India for not less than five years, became a citizen of India.”

[14] Id.

[15] Id.

[16] Acquisition of Indian Citizenship (IC), Ministry of Home Affairs – Foreigners Division, http://indian citizenshiponline.nic.in/acquisition1.htm; see also The Citizenship Act § 3(a).  For more information on Citizenship rules see Online Indian Citizenship, Ministry of Home Affairs – Foreigners Division, http://indiancitizenship online.nic.in/; Indian Citizenship Law; Annex H, UK Border Agency, http://www.ukba.homeoffice.gov. uk/sitecontent/documents/policyandlaw/nationalityinstructions/nichapter14/ch14annexh?view=Binary.  For information on citizenship procedures see Procedure For Applying Online For Indian Citizenship, Ministry of Home Affairs – Foreigners Division,   http://indiancitizenshiponline.nic.in/Ic_GeneralInstruction.pdf (all last visited Mar. 7, 2013).

[17] Acquisition of Indian Citizenship (IC), supra note 16 (construing The Citizenship Act § 3(b)). 

[18] Id. (construing The Citizenship Act § 3(c)).

[19] Id. (construing The Citizenship Act § 4).

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] For more information on Persons of Indian Origin (PIO) and the associated card program, see Frequently Asked Questions about the Persons of Indian Origin (PIO) Card Scheme, Ministry of Home Affairs, http://mha.nic.in/ pdfs/ForeigD-FAQs-PIO-Crd.pdf (last visited Mar. 7, 2013).  According to the FAQ, a person is a PIO if  “(i) the person at any time held an Indian passport; or (ii) the person or either of his/her parents or grand parents or great grand parents was born in, and was permanently resident in India, provided further that neither was at any time a citizen of any of the aforesaid excluded countries; or (iii) the person is the spouse of a citizen of India or a person of Indian origin covered under (i) or (ii) above. Presently, the specified countries in this regard are Pakistan, Bangladesh, Sri Lanka, Bhutan, Afghanistan, China and Nepal. Citizens of these countries are not eligible to get PIO cards.” Id. 

[25] The Citizenship Act § 5.

[26] Acquisition of Indian Citizenship (IC), supra note 16.

[27] Id.

[28] Citizenship in India, Ministry of Home Affairs, http://censusindia.gov.in/2011-Act&Rules/notifications/ CitizenshipAct1955.pdf (last visited Mar. 7, 2013).

[29] Id.

[30] Overseas Citizenship of India Scheme, Ministry of Overseas Indian Affairs, http://moia.gov.in/services. aspx?id1=35&id=m3&idp=35&mainid=23 (last visited Mar. 7, 2013).

[31] Passport (Entry into India) Rules, 1950, Rule 3.

[32] Id., Rule 6.

[34] Id.

[35] India Country Specific Information, U.S. Department of State – Bureau of Consular Affairs, http://travel. state.gov/travel/cis_pa_tw/cis/cis_1139.html (last visited Mar. 7, 2013).

[36] Frequently Asked Questions, Airports Authority of India: Chennai International Airport, http://www.air portsindia.org.in/chennai/faq.jsp (last visited Mar. 7, 2013).

[37] Visa Extension/Conversion, Airports Authority of India: Chennai International Airport, http://www. airportsindia.org.in/chennai/visaextensions.jsp (last visited Mar. 7, 2013).

[38] Aviotech, India’s Border Security Infrastructure: Land Borders 3 (Thought Leadership Series, Jan. 2012), http://www.aviotech.com/pdf/Aviotech_Thought_Leadership_Series_India-Border-Security-LAND-borders_Jan_2012.pdf.  

[39] Id.

[40] India’s Border Management 1 (Pushpita Das ed., Institute for Defence Studies and Analyses, Apr. 2010).

[41] Department of Border Management: Border Management Division, Ministry of Home Affairs, http://mha.nic. in/uniquepage.asp?Id_Pk=450 (last visited Mar. 7, 2013).

[42] South Asian Terrorism Portal, Border Management para. 3.4, http://www.satp.org/satporgtp/countries/ india/document/papers/MHA09-10/3.pdf.

[43] Border Area Development Programme, Ministry of Home Affairs, http://mha.nic.in/pdfs/BM_BADP%28 E%29.pdf (last visited Mar. 7, 2013).

[44] Border Area Development Programme, Ministry of Home Affairs, http://mha.nic.in/pdfs/BADP.pdf (last visited Mar. 7, 2013).

[45] Welcome to Border Security Force, Border Security Force, http://bsf.nic.in/ (last visited Mar. 7, 2013).

[46] History and Role of ITBP, Indo-Tibetan Border Police (ITBP), http://itbpolice.nic.in/itbpwebsite/mar.html (last visited Mar. 7, 2013).

[47] See generally History, Sashastra Seema Bal (SSB), http://www.ssb.nic.in/index.asp?linkid=59&sublinkid=32 (last visited Mar. 7, 2013).

[48] Shivananda H., Why Replace the Assam Rifles along the Indo-Myanmar Border?, Institute for Defence Studies and Analyses (IDSA) (July 29, 2011), http://www.idsa.in/idsacomments/WhyReplacetheAssamRifles alongtheIndoMyanmarBorder_shivanandah_290711.

[49] Gurmeet Kanwal, Indian Border Security Poor Management in Evidence 1 (Institute of Peace and Conflict Studies Issue Brief No. 55, Oct. 2007), http://www.ipcs.org/pdf_file/issue/380296651IPCS-IssueBrief-No55-GurmeetKanwal.pdf.

[51] Group Of Ministers’ Report On “Reforming The National Security System,” Press Information Bureau (May 23, 2001), http://pib.nic.in/archieve/lreleng/lyr2001/rmay2001/23052001/r2305200110.html.

[52] Arvind Gupta, India Can Learn From the US Experience in Securing its Borders, IDSA (Dec. 14, 2009), http://www.idsa.in/idsacomments/IndiacanlearnfromtheUSexperienceinsecuringitsborders_agupta_141209.

[53] Shanthie Mariet D’Souza, Border Management and India’s North East, IDSA (July 18, 2006), http://www.idsa.in/idsastrategiccomments/BorderManagementandIndiasNorthEast_SMDSouza_180706.

[54] Pushpita Das, The India-Bangladesh Border: A New Beginning, The Daily Star (Oct. 15, 2011), http://www.thedailystar.net/newDesign/news-details.php?nid=206540.

[55] S. Binodkumar Singh, India – Bangladesh Relations: Continuous Consolidation – Analysis, Eurasia Review (Feb. 5, 2013), http://www.eurasiareview.com/05022013-india-bangladesh-relations-continuous-consolidation-analysis/.