Nationality and Citizenship Distinguished

Two rows of that table deserve a sentence each.

Nationality attaches to things that cannot vote. A ship has the nationality of its flag State, an aircraft of its State of registration, and a company of its State of incorporation. Nobody speaks of a citizen ship. That alone shows the two words are not synonyms.

A person can lose citizenship rights without losing nationality. A convicted prisoner may be disqualified from voting in many systems and remains a national throughout, so the State must still admit him and may still protect him abroad.

The position in Indian law

India uses the word citizenship in its Constitution and in its statute, and uses nationality almost nowhere. That is a drafting choice, not a denial of the distinction, and three features of Indian law show the distinction operating.

The Constitution deals with citizenship, and only at the commencement

Part II of the Constitution, articles 5 to 11, is headed Citizenship, and it is narrower than students expect. It determines who was a citizen at the commencement of the Constitution and then hands the subject to Parliament.

Article 5 makes a person a citizen at commencement if he had his domicile in India and was born in India, or either of whose parents was born in India, or who had been ordinarily resident in India for not less than five years immediately preceding the commencement.

Articles 6 and 7 deal with the migrations of Partition, in both directions.

Article 8 covers persons of Indian origin residing outside India, on registration with a diplomatic or consular representative.

Article 9, dealt with in [Double Nationality and Statelessness], excludes a person who has voluntarily acquired the citizenship of a foreign State.

Article 10 continues the rights of citizenship subject to any law Parliament may make.

Article 11 is the operative delegation: Parliament shall have the power to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship. The Citizenship Act 1955 is made under it.

The Constitution then distinguishes citizens from persons

The distinction between a citizen and a mere national or foreigner does real work in Indian constitutional law, because some fundamental rights are given to citizens and others to persons.

Rights available only to citizens include those in article 15, prohibiting discrimination on grounds of religion, race, caste, sex or place of birth; article 16, equality of opportunity in public employment; article 19, the six freedoms including speech, assembly, association, movement, residence and profession; and article 29, protection of the interests of minorities.

Rights available to every person, citizen or not, include article 14, equality before the law, article 20, protection in respect of conviction for offences, article 21, protection of life and personal liberty, and article 25, freedom of conscience and religion.

That division is the constitutional expression of exactly the distinction this chapter is about: some things follow from being inside the community, and some follow from being human and present.

The Overseas Citizen of India: the clearest Indian illustration

Sections 7A to 7D of the Citizenship Act 1955 create the Overseas Citizen of India Cardholder, and the scheme is the best single illustration of the distinction available to an Indian student.

The cardholder is a foreign national. He holds another State's nationality and India's card. He gets a lifelong visa, and parity with non-resident Indians in specified economic, financial and educational fields. He does not get the vote, eligibility for public office, eligibility for public employment, or the right to acquire agricultural or plantation property. Section 7D permits cancellation of the registration.

So the OCI scheme hands over a package of practical benefits while withholding the political core. It is citizenship with the citizenship taken out, and the word in its name is the trap.

A worked example

Mr K holds the passport of State L. His grandfather was born in undivided India, so he qualifies for and obtains an OCI card. He lives in Mumbai for nine years, runs a business, pays Indian tax, and buys a flat.

Is he an Indian citizen? No. He is a national of State L, and his OCI card does not change that.

Can he vote in a Lok Sabha election? No. The vote is an incident of citizenship and the card confers none.

Can he be appointed to a post in the Union public service? No, for the same reason, and article 16's guarantee of equality of opportunity in public employment is in terms a right of citizens.

Can he buy an apartment? Yes, under the parity the scheme gives with non-resident Indians. Can he buy a farm? No; agricultural and plantation property is excluded.

If he is arrested in Mumbai, can he claim article 21? Yes. Article 21 protects every person, not only citizens. Can he claim article 19's freedom of movement? No; article 19 is a right of citizens.

If he is mistreated on a business trip to State M, which State can protect him? State L, because that is his State of nationality. India cannot, because he is not its national, and the card does not create the bond that diplomatic protection requires.

Notice how the same person is treated differently by the two systems, and how each answer followed from asking whether the question pointed inwards or outwards.

What it does NOT mean

Nationality is not the weaker status. It is the status that matters at the international level; citizenship is the status that matters domestically. Neither is a subset of the other in importance.

They are not always distinguished in drafting. Many statutes, and many States, use the two words as synonyms, and the United Kingdom's own legislation has used several categories of nationality with different citizenship consequences. A candidate should say the distinction is analytical and is not always reflected in the words a legislature chooses.

Citizenship is not the same as domicile or residence. Domicile is a private international law connection used for succession and family law; residence is a fact. A person can be an Indian citizen domiciled abroad, and a foreign national resident in India for decades.

An OCI cardholder is not an overseas citizen. The name says he is. The statute says he is a foreign national with a card. Trust the statute.

Limits and criticism

The distinction is blurring. In most modern States nationality and citizenship coincide exactly, because the class of nationals who are not citizens has all but disappeared with the empires that created it. Some writers say the distinction now survives mainly in textbooks.

But it has not disappeared. It survives wherever a State keeps a status that carries protection without political rights, and India has deliberately created such a status in the OCI card. It also survives structurally, because the word nationality still does work that citizenship cannot: it attaches to ships, aircraft and corporations, and it is the word that international tribunals use.

The gap it leaves is a real one. A person can be a lawful resident of a State for decades, pay its taxes, raise children who are its citizens, and have no vote in it, and this is a matter of policy that nationality law does not resolve.

Quick revision

Nationality points outwards and is the international law word: it entitles a State to protect the individual, obliges it to admit him, and follows him abroad.

Citizenship points inwards and is the municipal law word: it carries civil and political rights within the State.

Every citizen is a national; not every national is a citizen. The classical example is the colonial subject, protected abroad and without political rights at home.

Nationality attaches to ships, aircraft and corporations; citizenship does not.

Indian law: Part II of the Constitution, articles 5 to 11, fixes citizenship at commencement and article 11 hands the subject to Parliament, which enacted the Citizenship Act 1955.

Rights of citizens only: articles 15, 16, 19 and 29. Rights of every person: articles 14, 20, 21 and 25.

Sections 7A to 7D: the Overseas Citizen of India Cardholder is a foreign national with a lifelong visa and economic parity with non-resident Indians, and with no vote, no public office, no public employment and no agricultural land. Section 7D allows cancellation.

Test yourself

1. Distinguish nationality from citizenship, and give one example of each without the other.

Nationality is the status recognised by international law that links an individual to a State, entitling that State to exercise diplomatic protection and obliging it to admit him; citizenship is the municipal status carrying full civil and political rights within the State. Nationality without citizenship: the inhabitant of a colony who was a British subject, protected abroad but without political rights. Citizenship without nationality: this does not ordinarily arise for individuals, because citizenship presupposes membership of the State, but the point is illustrated in reverse by ships and aircraft, which have nationality and can have no citizenship at all.

2. Which fundamental rights in the Indian Constitution are available only to citizens?

Article 15, prohibition of discrimination on grounds of religion, race, caste, sex or place of birth; article 16, equality of opportunity in matters of public employment; article 19, the six freedoms; and article 29, protection of the interests of minorities. Articles 14, 20, 21 and 25 are available to every person, citizen or not.

3. Does the Constitution of India lay down a complete law of citizenship? Explain.

No. Part II, articles 5 to 11, determines who was a citizen at the commencement of the Constitution and deals with the migrations of Partition and with persons of Indian origin abroad. Article 9 excludes anyone who has voluntarily acquired a foreign citizenship, and article 10 continues the rights of citizenship subject to parliamentary law. Article 11 then expressly gives Parliament power to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to it. The working law of citizenship is therefore the Citizenship Act 1955, made under article 11.

4. Explain the status of an Overseas Citizen of India, and why the name is misleading.

Registration under sections 7A to 7D of the Citizenship Act 1955 makes a person an Overseas Citizen of India Cardholder. He remains a national of some other State and is a foreign national in India. He receives a lifelong visa and parity with non-resident Indians in specified economic, financial and educational matters. He receives none of the political incidents of citizenship: no vote, no eligibility for public office or public employment, and no right to acquire agricultural or plantation property. Section 7D allows the registration to be cancelled. The name is misleading because the word citizen appears in a status that is expressly not citizenship, and India permits no dual citizenship at all.

5. Mr P, a national of State Q, has lived in India for twenty years on an OCI card. He is detained by the police without being told the grounds. Which constitutional rights can he invoke?

Article 21 and article 22 protections extend to every person, so he may complain of deprivation of personal liberty otherwise than according to procedure established by law, and of the failure to inform him of the grounds of arrest. Article 14, equality before the law, and article 20, protection in respect of conviction for offences, also extend to persons. He cannot invoke article 19, because the six freedoms are guaranteed to citizens, nor articles 15, 16 or 29. The division follows exactly the distinction between rights that attach to membership of the community and rights that attach to being a person within the State's power.

6. "The distinction between nationality and citizenship is of no practical importance today." Discuss.

There is something in it, because in most modern States the two classes coincide exactly, the colonial category of nationals without political rights having disappeared with the empires that created it. But the distinction has not lost its work. It survives in India in the Overseas Citizen of India scheme, which deliberately confers benefits without the political core. It survives structurally, because nationality attaches to ships under article 91 of the Convention on the Law of the Sea, to aircraft under article 17 of the Chicago Convention, and to corporations, and citizenship attaches to none of them. And it survives functionally, because international tribunals ask about nationality and never about citizenship: it was nationality, not citizenship, that decided Nottebohm.