Introduction:
Citizenship refers to the legal right recognized by law as being the legal member of a nation or a state. It refers to providing a state of position to a person who is a member of the state, it defines the nationality of a person with a state. The constitution of India elucidates and enshrines the concept of citizenship effectively under Articles 5 -11 of the constitution. The term citizenship refers to the enjoyment of full membership of any state during which a citizen enjoys certain civil and political rights. The member forms a legal relationship with a particular state. Every citizen has certain duties to be fulfilled for the nation such as paying taxes, serving the army in time of need, respecting national principles and values, etc. The constitution of India grants single citizenship and prohibits dual citizenship, the act was formulated by Parliament in 1955 to provide for acquisition, renunciation, termination, deprivation, and determination of Indian citizenship. The qualification of a person to be declared as a citizen of the country stands on the ground and is governed by law. The constitution of India provides and discusses the provisions of citizenship under part II from Article 5 of Article 11 of the Indian constitution.
History
The Government of India Act 1858 formed country raj and placed the bulk of Indians under the imperial rule of the British there is classified into two categories the one who was resident of India and born in undivided India and that they held the position as the subject of British, another style of a resident who was born in the princely state came under the position of British protected person.
On 15 August 1947, India was formed because the independent dominion Of India with the implementation of British Nationality Act 1948 most Indians became Indian nationals and subject of British with the extra position as Commonwealth citizen.
On 26 Jan 1950, the constitution of India has established the country as a republic within the commonwealth. On 20 Dec 1961 after group action, the country captured the territories of Goa, Daman, and Diu, and lots of more states got under the country and therefore the classification.
The British Raj Period
- The Government of India Act 1858 established the nation Raj and formally brought the bulk of Indians under British imperial rule. Indians under Brits Raj generally fell into two categories:
Indian resident and born in British India came under the direct dominion of and bore allegiance to land Crown and held the status of “British subject”. From 1 January 1915, Brits Nationality and standing of Aliens Act 1914 defined British subjects as those born or naturalized within the British Sovereign’s dominions - Indian resident and born in a very princely state under British Raj, or the other protectorate under Brits government, held the status of “British protected person”. British-protected persons were considered de jure foreigners but could travel on British-issued passports.
Dominion Of India
Effective from 15 August 1947, India was established because of the independent Dominion of India. All Indians residents, born in or naturalized within the Indian provinces legally remained British subjects by virtue of Section 18(3) of the Indian Independence Act 1947. Indian residents within the princely states that acceded to India were also thought to be British subjects, while those residents in British protectorates retained the status of British protected persons.
Under the Brits Nationality Act 1948 (effective from 1 January 1949), most subjects of a people’s Dominions, including India, became citizens of their respective dominion. Most Indians thus became “Indian nationals and British subjects”, with the extra status of “Commonwealth citizen”. From 26 January 1950, when the Constitution of India established India as a republic within the Commonwealth, most Indians, though retaining Commonwealth citizenship, lost British subject status. A percentage of people resident in India didn’t acquire Indian citizenship on 26 January 1950 and remained British subjects without citizenship.
Territorial Acquisition
On 20 December 1961, after group action, India acquired the territories of Goa, Daman, and Diu and Dadra, and Nagar Haveli which were under the territories of Portugal. The French territories of Puducherry, Karaikal, were acquired under the treaty of cession with France in 1954 (ratified by the French National Assembly in 1962). Previously, the French territory of Chandernagore had voted in an exceeding referendum to affix the Indian Union in 1949. Sikkim was also merged with India and has become a constituent state with effect from 16 May 1975.
In order to expressly provide citizenship for people in territories as mentioned above, the central government issued the Goa, Daman, and Diu (Citizenship) Order, 1962, Dadra and Nagar Haveli (Citizenship) Order, 1962 and Citizenship (Pondicherry) Order 1962, in the exercise of its powers under section 7 of the Citizenship act and for Sikkim, the President extended the Citizenship act, and also the relevant rules under Article 371-F(n) of Indian Constitution. just in case of acquired enclaves, that didn’t necessitate legislative action, as that was only a border demarcation agreement.[1]
Importance of Citizenship
- Citizenship defines a relationship of an individual with a nation and describes the duties and obligations of the two parties. For instance, duties and obligations of both the citizens as well as the nation.
- The concept of citizenship is defined by each state under preconditions it allows citizenship to people.
- All the rights whether civil, political, and social rights are not given to non-citizen of the nation, but only to the citizen. This means that only citizen of a country gets the right to enjoy all rights like fundamental rights are enjoyed by the citizen of a nation, but certain basic fundamental rights are granted to non-citizen as well.
- The basic human rights are allotted as a right to have a passport and the right to leave and return country.
Constitutional Provisions
Article 5 in The Constitution of India
5. Citizenship at the commencement of the Constitution: At the commencement of this Constitution every person who has his domicile in the territory of India and
(a) a person who is born in the territory of India; or
(b) a person either of whose parents are born in the territory of India; or
(c) a person who has been ordinarily resident in the territory of India for not less than five years preceding such commencement, shall be a citizen of India.
This provision classifies the three categories under which a person will be deemed to be a citizen of India following the date of 1947 commencement of the constitution. Any person who is born in the territory of India acquires the citizenship of India. Clause (b) states that a person who’s either of parents if born in the Indian territory automatically acquires the right to be a citizen. And clause ‘c’ states that a person who ordinally resides in the country for not less than five years preceding such commencement shall also be deemed to be a citizen.
In the case of Mohd Reza Debestani vs State of Bombay[2] the appellant repeatedly traveled from India to Iraq, and he was given repeated extensions to stay in India but later he was not allowed to stay, and he pleaded in the court, the court rejected the citizenship on the basis that he got employed in Iraq and thus he was not granted citizenship.[3]
Article 6 in The Constitution of India
Article 6 explicitly states the two conditions for people who have migrated from Pakistan to the territory of India with the deadline date of 19 July 1948. The article provides provision for a citizen of Pakistan to acquire citizenship who moves to the territory of India under the following conditions:
Clause a
The person who is born in India according to the term ‘citizen’ defined under Government Act 1935 will be regarded as a citizen, a person who’s either of his parents, grandfather, grandmother, paternal grandmother, and father of either side born in India will acquire the citizenship of India.
Clause b
In clause b two conditions need to qualify to be a citizen.
- A person who fulfills fills the first condition if migrates before 19 July 1948 or ordinarily resides in the territory of India since the date of migration then qualifies to be a citizen.
- A person fulfilling the first condition if migrates on or after 19 July 1948 if is registered as a citizen of India by applying before the commencement of the constitution on 26 Jan 1950. Inclusive of the fact that no person shall be registered unless he or she has been resident in India or at least resided six months immediately preceding the date of application.[4]
In the case of Kulathil Mammu v. State of Kerela, 1996[5]the term “migrated” was defined under this section, and was held that the term meant voluntarily and permanently leaving India. This case explained the definition of migration with a broader sense terming it as an act of moving from one place to another irrespective of the intention of the person provided that the movement should be voluntary and not for a specific purpose and a short-term period.
Article 7 in the Constitution of India
The article explains the rights of people who have migrated to Pakistan from India after March 1947 but then returned to India. The article played an important role during the partition where it had to be decided who would qualify to be a citizen of India. Any person who acquires citizenship by domicile or through migrating to India ceases to be a citizen of India if he or she has after March 1947 moved to the territory of Pakistan, providing exception of the fact that the person who returns after March 1947 from Pakistan, plans to resettle again or returns to live permanently in India then his or her citizenship would not cease, provided one needs to fulfill the conditions of article 6 of Indian constitution.
In the case of State of Bihar v Kumar Amar Singh[6], it was observed that the appellant was not given citizenship as she had migrated before the date mentioned in the provision.[7]
Article 8 in the Constitution of India
The article deals with the citizenship of people of Indian origin residing outside India for the purpose of employment, marriage, and education. Any person with Indian citizenship residing in any other country will not cease to be a citizen of India and they need to register with the Indian diplomat representatives present in the respective country where they have been residing. The Indian diplomat representatives are the authority who represents India and look upon the problems and regulations of Indian citizens. Also, if a person who stays outside the country and his either of his parents or grandparents are born in India then he is eligible to acquire Indian citizenship.
Article 9 of the Constitution of India
The constitution of India prohibits dual citizenship and a person deemed to be a citizen by virtue of Articles 5, 6 and 8 of the Indian constitution ceases to be a citizen under the three conditions if voluntarily acquires citizenship of a foreign country.
- Loss by renunciation- If a person willingly renounces his citizenship, then he ceases to be a citizen of India
- Loss by the termination – If voluntarily acquires the citizenship of any foreign country.
- Loss by deprivation – The country can deprive a person to be a citizen if they violate the rules.
Article 9 strictly prohibits a person to acquire dual citizenship and follows the concept of single citizenship. There is now a rising demand by people to amend the article.
In the case of State of U.P. v. Rehmatullah,[8] it was declared that the Central Government was authorized to act against people who have acquired foreign citizenship and have lost the citizenship of India but were still residing in the country.
Article 10 of the Constitution of India
The article deals with the provision of the continuance of holding citizenship in India for people who have acquired citizenship of India, the article determines that a person who acquires citizenship then till what length they will continue to be a citizen of India. A person who is a citizen of India under any of the provisions in part II of the constitution will continue to hold the right of being a citizen subject to the laws made by the parliament. The article is an example of unitary bias. The person who acquires citizenship by virtue of article 5,6,7,8 of the Indian constitution continues to be the citizen of India subject or in concern to the fact that if any laws are made by Parliament, then can affect the rights of a citizen.
Article 11 of the Constitution of India
The article provides that none of the provisions of the above articles can abstain the Parliament to make rules, regulations, and laws governing the rights and condition of citizenship by passing laws. The parliament is given the power to regulate citizenship in India, it can also make laws related to acquiring and termination of citizenship, for example, the Parliament passed the Citizenship act 1955 to regulate the right of the citizen, then passed the citizenship act amendment act 2019. It is entitled to frame and amend modify laws governing the right of citizens from time to time for instance it passed the Citizenship Amendment Act 2003, to introduce the concept of overseas for people living outside India.
Conclusion
Citizenship in a country is governed in India by birth, by descent, by registration, by naturalization, and by territorial incorporation. Citizenship is granted based on certain terms conditions and provisions under the Articles of the Indian constitution. The law grants power to parliament to amend the policy and regulate the conduct of citizenship with the need in the society. The latest law enacted was passed was the Citizenship Amendment Act 2019 which received wide criticism by many people in the country as well people living outside India. The country witnessed mass protests from a large section of society. The Act so passed is criticized on the ground of it being violative of Article 14 of the Indian constitution as concerning the fact that the law so passed is made for a specific group of people which undermines the rule of equality. There is a pressing need to reform the Act and many students, teachers and migrants, people from the different religious groups have raised the inequality in the system but the framers of the Act provide a positive side towards growth and development of law as well as the country, which will be beneficiary and help eliminate illegal immigrants from the country and link legality a proper system for an evaluation in the nation.
References:
[1] Indian nationality law – Wikipedia
[2] AIR 1996 SC 1436
[3] A.I.R. 1963 S.C. 1811
[4] 8-003a (indiancitizenshiponline.nic.in)
[5] AIR 1614, 1996 SCR (3) 706
[6] AIR 1955 SC 282
[7] Citizenship in India: A detailed study with reference to Indian Constitution (ipleaders.in)
[8] AIR 1971 SC 1382, 1971 CriLJ 1103, (1971) 2 SCC 113, 1971 Supp SCR 494
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