Citizenship

Citizenship constitutes the indispensable foundational principle of a democratic polity. It involves the individual’s full political membership in the State, his permanent allegiance to the State and the official recognition by the State of his integration into the political system. Citizenship brings certain rights, duties, privileges and obligations that do not belong to aliens. All public offices are open to a citizen, he is eligible for recruitment to all public services. The right to vote and certain fundamental rights are available only to citizens and citizens have obligations like paying taxes, defending the nation etc. Citizenship may also be viewed as the legal relationship between the individual and the State under which the individual pledges his loyalty to the State and the State offers its protection to the individual. This relationship is regulated by national law and recognized by international law.

Check out Polity notes in detail.

The partition of India and massive migrations created stupendous problems for citizenship determination. Citizenship provisions in the Constitution – Articles 5 to 11 – gave the Constitution Drafting Committee the maximum headache and took a large number of drafts and more than two years to be finalized. Even then, the Constitution only laid down the law in regard to who would be citizens of India at the time of the commencement of the Constitution. It did not provide for the mode of acquisition and termination of citizenship. Article 11 said that Parliament could regulate the right of citizenship by law, The Indian Citizenship Act passed in 1955 laid down the law for acquisition and termination of citizenship.

Article 5-8 conferred citizenship on ‘every person who was covered under one of the following categories at the time of the commencement of the Constitution: 1. Domiciled in India and born in India – these formed the bulk of the population of the Union of India.

Domiciled, not born in India but either of whose parents were born in India. Resident in India but migrated to Pakistan after 1 March 1947 and later returned to India on resettlement permit. Resident in Pakistan but who migrated to India before 19th July 1948 or who came after that date but had resided in India for more than six months and got registered in the prescribed manner. Resident outside India but who or either of whose parents or grandparents were born in India.

Thus, Citizenship at the commencement of the Constitution included provisions for Citizenship (i) by domicile (ii) of migrants from and to Pakistan, and (iii) of persons of Indian residing in foreign countries.

Domicile

Domicile is an important criterion for citizenship of any country. Though the term is. not defined in the Indian Constitution, domicile ordinarily connotes a person’s residence where he intends to live on a permanent basis. Thus, a permanent residence and the intention to reside there indefinitely are two important ingredients constituting ‘domicile’. Article 5 provides that a person becomes entitled to the Citizenship of India is, at the commencement of the Constitution, he has his domicile in the territory of India, he or either of his parents were born in India, or he has been ordinarily resident in the territory of India for not less than five years immediately before the commencement of the Constitution.

Domicile by birth or residence as aforesaid can be changed by a person by exercising his choc declaring his intention to reside in some other country for an indefinite period. In fact, Citizenship is denoted by domicile and not vice-versa. The latter is distinguishable from citizenship inasmuch as it is vitally connected with territory and not membership of the community, which is at the root of the notion of citizenship (Abdul Rehman v. State, AIR 1964 Pat. 384). The Constitution avoids dual citizenship; there is one citizenship related to the domicile in the territory of whole of india and not in a part of it. There is no separate State citizenship as in the U.S.A. Thus, it is not correct to say that a citizen of India is domiciled in one State or another forming part of the Union of India. The domicile which he has is only one domicile, namely, domicile in the territory of India. (Pradeep Jain vs. Union of India).

Migrants from Pakistan

Article 6 provides for citizenship rights of migrants from Pakistan before the commencement of the Constitution. It makes two types of distinctions among such migrants, i.e. those migrating to India before July 19, 1948 when the permit system for migration was introduced and those who came after that date. A person who migrated from Pakistan to India before July 19, 1948, shall be deemed to be a citizen of India on the commencement of the Constitution provided he or either of his parents or any of his grandparents was born in India as defined in the Government of India Act, 1935 and he had been ordinarily residing in India since the date of his migration. In the case of one migrating after July 19, 1948, the Government of India should have registered him as citizen of India by an officer appointed for the purpose. But, in the latter case, no person shall be so registered unless he has been residing in India for at least six months immediately preceding the date of his application.

Persons of Indian origin residing outside India

Article 8 thus provides that any person who or either of whose parents or grandparents was born in India as defined in the Government of India Act, 1935 and who is ordinarily residing in any country outside India shall be deemed to be a citizen of India if he has been registered as an Indian citizen by the diplomatic or consular representative of India in that country on an application made by him in the prescribed form to such diplomatic or consular representative, whether before or after the commencement of the Constitution. Thus article 8 takes care of the future citizenship needs of all Indians residing abroad.

Voluntary acquisition of citizenship of another country

Article 9 provides that if a person has voluntarily acquired the citizenship of a foreign State he shall forfeit the right of citizenship of India. While this was applicable to cases arising before the commencement of the Constitution, the cases arising after such commencement were to be dealt with in accordance with the provisions of the Citizenship Act, 1955. It has been held by the Supreme Court that the question whether a person has lost the citizenship of India on acquiring the citizenship of another country has to be determined by the Government of India and only after it has decided the matter can a States Government deal with him as an alien. The mere fact that a person has obtained a passport from a foreign country is not enough for deportation or prosecution.

Continuance of Citizenship rights

Article 10 provides that every person who is or is deemed to be a citizen of India under any of the provisions in articles 5 to 10 shall continue to be a citizen of India, subject to the provisions of any law that may be made by Parliament. In other words, it – means that the right of citizenship cannot be taken away from a citizen except through exöress parliamentary legislation.

Parliament’s power to regulate the right of Citizenship by law and the Citizenship Act, 1955:Article 11 endows Parliament with unfettered powers for enacting legislation pertaining to the acquisition and termination of the citizenship of India and all matters connected therewith. Parliament accordingly passed the Citizenship Act, 1955 providing for the acquisition and termination of citizenship. This Act was amended in 1986 to tackle the situation created by the large-scale unlawful immigration into India of persons from Bangladesh, Sri Lanka and some African countries. The amendment made the acquisition of Indian citizenship more stringent.

Briefly, the Citizenship Act 1955 provided that:

A person born in India after 26 January 1950 would, subject to certain exceptions – like those of children of diplomats and of enemy aliens – be a citizen of India by birth.
Anyone born outside India after 26 January 1950, subject to certain requirements, would be a citizen of India is his father was an Indian Citizen, at the time of his birth.
Under certain conditions, certain categories of persons could acquire Indian Citizenship by registration in the prescribed manner. Foreigners could acquire Indian Citizehship on application for naturalization on certain conditions;
If any territory became part of India, the Government of India could by order specify the persons who would become citizens of India as a result thereof.
Citizenship could be lost by termination, renunciation or deprivation on certain grounds;
A citizen of a commonwealth country would have the status of a commonwealth citizen in India.
The government could make suitable provisions on the basis of reciprocity, for the conferment of all or any of the rights of a citizen of India on the citizens of commonwealth countries.

It is important to remember in regard to the citizenship provisions in the Constitution and the law that it was in keeping with the aim of building an integrated Indian nation and a united fraternity that the constitution-makers decided to provide for a single Indian Citizenship. All citizens irrespective of the State in which they were born have the same rights and duties all over the country without any discrimination subject only to a few special protections in case of Jammu & Kashmir, tribal areas etc. and the power of Parliament under article 16 to prescribe residence within a State or Union Territory as a necessary qualification for certain classes of employment under that State or Union Territory.

Check out these notes on the citizenship Act and dual citizenship.