Persons who have migrated from Pakistan to India have been classified into two categories for the purpose of citizenship, i.e. (i) those who came to India before July 19, 1948; and (ii) those who came on or after July 19, 1948.
Article 6 of the Indian Constitution provides that persons who have migrated to India from Pakistan shall be deemed to be a citizen of India at the commencement of the Constitution i.e. on 26th January 1950, if he or either of his parents or any of his grandparents were born in India as defined in the Government of India Act, 1935, and in addition to the above condition, which applies in both cases fulfills one of the following two conditions:-
- In case he migrated before to India before July 19, 1948 (the date on which he permit system for such migration) was introduced he has been ordinarily residing in India since the date of his migration; or
- In case he migrated on or after July 1948, he has been registered as citizen of India by an officer appointed by the Government of India for the purpose :
Provided that no person will be so registered unless he has been residing in India for at least six months immediately before the date of his application for registration. If the above conditions are satisfied, a person shall be deemed to be a citizen of India.
Citizenship of Migrants to Pakistan
Under Article 7 a citizen by domicile or by migration ceases to be a citizen if he has migrated to Pakistan after March 1, 1947. The proviso to Article 7 makes an exception in favour of a person who has returned to India on the basis of permit for resettlement in India. Such a person is entitled to become a citizen of India if he fulfills other conditions necessary for immigrants from Pakistan After July 19, 1948, under Article 16. He can register himself as a citizen of India in the same manner as a person migrating from Pakistan after July 19, 1948.
The meaning of the term ‘migrated’ came for consideration before the Supreme Court in Kulathi v. State of Kerala[1] where the majority held that the word ‘migrate’ was used in the wider sense of moving from one country to another with the qualification that such movement was not for a short visit of for special purpose. This was followed even in the case of Mashkurul Hassan v. Union of India[2]. In this case the Supreme Court has overruled its earlier decision in Smt. Shanno Devi v. Mangal Sain[3], in which it was held that the word migrated meant going from one place to another with the intention of permanently residing in the latter place.
The Supreme Court in Nisar v. Union of India[4] held that it is a question of fact that whether a person has migrated to or has gone to Pakistan on a temporary visit only and has to be decided in the facts and circumstances of the case. However a temporary visit on business or otherwise cannot amount to migration as held in the case of Ataur Rehaman v. State of Madhya Pradesh[5].
In Bhawanrao Khan v. Union of India[6] the Supreme Court held that those who had voluntarily migrated to Pakistan and became citizens of Pakistan cannot claim the citizenship of India on the ground that they had been living in India for a very long time and their names have been included in the voter’s list.
Conclusion
India witnessed a bloody partition on the basis of religion. The country was divided into India and Pakistan. Article 6 and 7 were enacted to safeguard the citizenship of people migrating to India from Pakistan.
References
Dr. J.N. Pandey, “Constitutional Law of India” (Central Law Agency 57th Edition 2020) 35
M. Laxmikanth, Indian Polity (Mc Graw Hill Education (India) Private Ltd. 6th Edition) 120
[1] AIR 1967 SC 1614
[2] AIR 1967 SC 565
[3] AIR 1961 SC 58
[4] AIR 1958 Raj. 65.
[5] AIR 1951 Nag. 44
[6] AIR 2002 SC 1614
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