Indian Constitution: (PART II) CITIZENSHIP

CITIZENSHIP 

Part II of the Indian Constitution, specifically Articles 5 to 11, deals with the provisions related to citizenship. At the time of the Constitution's adoption on January 26, 1950, these articles defined who would be considered a citizen of India. Citizenship under the Indian Constitution is a complex subject, as it has evolved through various amendments and legislations, including the Citizenship Act of 1955, which has been amended several times to address different aspects and challenges related to citizenship.

Articles Under Part II: Citizenship

Article 5 

Article 5 of the Indian Constitution, which pertained to citizenship at the commencement of the Constitution, played a crucial role in defining who would be considered a citizen of India at the time the Constitution took effect on January 26, 1950. This article was specifically designed to provide immediate citizenship to certain groups of people based on their connection and allegiance to the territory that became the Republic of India.

Text of Article 5:

"At the commencement of this Constitution, every person who has his domicile in the territory of India and—

(a) who was born in the territory of India; or

(b) either of whose parents was born in the territory of India; or

(c) who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement, shall be a citizen of India."

Explanation:

Domicile Requirement: Article 5 required a person to have their domicile in the territory of India. Domicile, in a legal sense, refers to the country that a person treats as their permanent home, or lives in and has a substantial connection with.

Birth in India: Any person born in the territory of India was eligible for citizenship.

Parental Birth: Citizenship could also be acquired if either parent of the person was born in the territory of India, recognizing the principle of descent in determining citizenship.

Residency: Individuals who had been ordinarily resident in the territory of India for not less than five years immediately before the commencement of the Constitution were also considered citizens.

This article was essential in the transitional phase of becoming a sovereign republic, providing a clear and inclusive criterion for citizenship at the outset. It aimed to ensure that individuals who had a genuine and substantial connection to India, either through birth, descent, or long-term residency, were granted citizenship at the dawn of independence and the formation of the Indian Republic.

As India's socio-political landscape has evolved, so have its laws on citizenship. However, Article 5 remains a significant historical marker, laying the foundational principles of citizenship as the country emerged from colonial rule to assert its identity as an independent nation.

Article 6

Article 6 of the Indian Constitution deals with the rights of citizenship for certain individuals who migrated to India from Pakistan before the commencement of the Constitution. This was a crucial provision at the time of India's independence in 1947 and the subsequent partition of British India into India and Pakistan, which led to massive population movements across the newly drawn borders. Article 6 provided a framework for granting citizenship to those individuals and their families who had migrated to India from Pakistan, considering the extraordinary circumstances of partition.

Text of Article 6:

Notwithstanding anything in Article 5, a person who has migrated to the territory of India from the territory now included in Pakistan shall be deemed to be a citizen of India at the commencement of this Constitution if—

(a) he or either of his parents or any of his grandparents was born in India as defined in the Government of India Act, 1935 (as originally enacted); and

[(b) in the case where such person has so migrated before the nineteenth day of July, 1948, he has been ordinarily resident in the territory of India since the date of his migration, or

in the case where such person has so migrated on or after the nineteenth day of July, 1948, he has been registered as a citizen of India by an officer appointed in that behalf by the Government of the Dominion of India on an application made by him therefor to such officer before the commencement of this Constitution in the form and manner prescribed by that Government:

Provided that no person shall be so registered unless he has been resident in the territory of India for at least six months immediately preceding the date of his application.]

Explanation:

Migration from Pakistan: Article 6 specifically addresses the status of individuals who migrated to India from the territory of what became Pakistan after partition.

Birth Qualification: To qualify for citizenship under this provision, the individual, or their parent or grandparent, needed to have been born in what was considered India as per the Government of India Act, 1935.

Migration Dates: The article distinguishes between those who migrated before and after July 19, 1948, with different requirements for each group.

Before July 19, 1948: Individuals who migrated before this date needed to have been ordinarily resident in India since their migration to qualify for citizenship.

On or After July 19, 1948: Those who migrated on or after this date were required to be registered as citizens of India, provided they had been resident in India for at least six months immediately preceding their application for registration.

Article 6 was designed to address the unique and immediate challenges of partition and the need to establish clear criteria for citizenship for those affected by the division of British India. It reflects the efforts of the Indian Constitution to integrate migrants from Pakistan in the wake of partition, recognizing the complex human realities and dislocations caused by this historic event.

Article 7

Article 7 of the Indian Constitution addresses a specific category of migrants related to the partition of British India into India and Pakistan in 1947. This provision is aimed at individuals who migrated to Pakistan after partition but later decided to return to India. It outlines the conditions under which these persons could qualify for Indian citizenship, taking into account the tumultuous period of partition and the mass movements of populations across the newly established borders.

Text of Article 7:

"Notwithstanding anything in Articles 5 and 6, a person who has after the first day of March, 1947, migrated from the territory of India to the territory now included in Pakistan shall not be deemed to be a citizen of India: Provided that nothing in this article shall apply to a person who, after having so migrated to the territory now included in Pakistan, has returned to the territory of India under a permit for resettlement or permanent return issued by or under the authority of any law and every such person shall for the purposes of clause (b) of Article 6 be deemed to have migrated to the territory of India after the nineteenth day of July, 1948."

Explanation:

Migration to Pakistan Post-Partition: Article 7 specifically deals with individuals who moved to Pakistan after the crucial date of March 1, 1947, which is just before the partition. It initially states that such persons would not automatically qualify for Indian citizenship, acknowledging the complexity of migration patterns during and after partition.

Return to India: The key provision under Article 7 is the opportunity it offers to those who had migrated to Pakistan but chose to return to India. It specifies that those who returned with a permit for resettlement or permanent return, issued according to the law, could qualify for Indian citizenship.

Deemed Migration Date: For the purposes of qualifying for citizenship, these returnees are considered to have migrated to India after July 19, 1948. This aligns their status with the requirements outlined in Article 6(b), which pertains to individuals who migrated to India from Pakistan on or after July 19, 1948, and includes the necessity of registration as a citizen of India following a specified residency period.

Article 7 reflects the Indian Constitution's attempt to address the complex human consequences of the partition and provide a pathway for individuals who, having moved to Pakistan, decided to return and resettle in India. It underscores the fluidity and challenges of national identity and belonging in the immediate aftermath of partition, offering a legal mechanism for re-integrating returnees into the fabric of Indian citizenship.

Article 8

Article 8 of the Indian Constitution deals with the rights of citizenship of certain persons of Indian origin residing outside India. This provision was included to ensure that people of Indian origin, who were living abroad at the time of India's independence, could claim Indian citizenship if they wished to do so. It acknowledges the connection between India and its diaspora, offering a pathway for individuals of Indian heritage to affirm their ties to India through citizenship, despite not residing within its territorial boundaries.

Text of Article 8:

"Notwithstanding anything in Article 5, any person who or either of whose parents or any of whose grandparents was born in India as defined in the Government of India Act, 1935 (as originally enacted), and who is ordinarily residing in any country outside India as defined in the Government of India Act, 1935 (as originally enacted), shall be deemed to be a citizen of India if he has been registered as a citizen of India by the diplomatic or consular representative of India in the country where he is for the time being residing on an application made by him therefor to such diplomatic or consular representative, whether before or after the commencement of this Constitution, in the form and manner prescribed by the Government of the Dominion of India or the Government of India."

Explanation:

Eligibility Based on Ancestry: Article 8 allows individuals who, themselves, their parents, or their grandparents were born in India (as per the boundaries defined before independence by the Government of India Act, 1935) and who are ordinarily residing outside India, to be eligible for Indian citizenship.

Registration Process: It specifies that such persons can be deemed citizens of India upon registering themselves as Indian citizens with the diplomatic or consular representatives of India in the country where they currently reside. This registration process is pivotal for claiming citizenship under this article.

Pre and Post-Constitution Commencement: Article 8 uniquely provides for the eligibility of persons to apply for citizenship both before and after the commencement of the Constitution, recognizing the ongoing relationship between India and its diaspora.

Article 8 reflects the inclusivity of the Indian Constitution in acknowledging the bond between India and people of Indian origin living abroad. It provides a legal framework for members of the Indian diaspora to maintain or re-establish their citizenship status, thereby strengthening the cultural and historical ties between India and its global community. This provision is particularly significant given the extensive migration of Indians across the world for various reasons, including for work, education, and colonial history, before and after India's independence.

Article 9

Article 9 of the Indian Constitution deals with the automatic cessation of Indian citizenship for individuals who voluntarily acquire the citizenship of another country. This provision reflects the principle that, at its inception and until certain amendments and provisions were introduced, the Indian legal framework did not recognize dual or multiple citizenships. The primary intention behind this article was to ensure a clear and unambiguous allegiance to India from its citizens, considering the geopolitical context and national identity formation during the early years of the Republic of India.

Text of Article 9:

"No person shall be a citizen of India by virtue of Article 5, or be deemed to be a citizen of India by virtue of Article 6 or Article 8, if he has voluntarily acquired the citizenship of any foreign State."

Explanation:

Voluntary Acquisition of Foreign Citizenship: Article 9 explicitly states that any person who voluntarily acquires the citizenship of another country cannot simultaneously be a citizen of India. This means that if an Indian citizen decides to become a citizen of another country through naturalization or any other voluntary process, they automatically lose their Indian citizenship.

Applicability: This provision applies to individuals covered under Articles 5, 6, and 8 of the Constitution. Article 5 pertains to citizenship at the commencement of the Constitution based on domicile and birth within India. Article 6 covers persons who migrated to India from Pakistan, and Article 8 addresses persons of Indian origin residing outside India who wish to claim Indian citizenship.

Clear Demarcation of Allegiance: By enforcing the principle that Indian citizens cannot hold dual citizenship, Article 9 aimed to create a clear demarcation of legal and national allegiance. This was particularly important in the context of the post-independence era, where national identity and sovereignty were paramount.

The provision outlined in Article 9 remains significant in contemporary times, although the Citizenship Act of 1955 and its subsequent amendments have introduced more nuanced regulations regarding citizenship, including provisions for Overseas Citizenship of India (OCI), which allows people of Indian origin to enjoy certain rights and privileges without being full citizens of India. However, the OCI is not equivalent to full Indian citizenship and does not confer political rights.

Article 10

Article 10 of the Indian Constitution deals with the continuation of the rights of citizenship. It essentially serves as a safeguard, ensuring that the citizenship rights of individuals, as determined by the provisions of the Constitution or any law made by the Parliament, remain intact unless altered by legislation. This article reinforces the principle that citizenship status, once conferred, is to be protected and maintained under the legal framework established by the Constitution and subsequent parliamentary enactments.

Text of Article 10:

"Every person who is or is deemed to be a citizen of India under any of the foregoing provisions of this Part shall, subject to the provisions of any law that may be made by Parliament, continue to be such citizen."

Explanation:

Continuation of Citizenship: Article 10 ensures that anyone recognized as a citizen of India, whether by virtue of the Constitution’s provisions (Articles 5 to 9) or by laws made by the Parliament, continues to hold their citizenship status. This continuity is crucial for maintaining the stability and integrity of an individual's legal and national identity.

Subject to Parliamentary Legislation: The article also highlights that this continuity of citizenship is subject to any future laws that the Parliament might enact. This means that while the Constitution provides a foundational framework for citizenship, the Parliament has the authority to modify, expand, or introduce new laws regarding citizenship, which could affect the status of individuals as citizens of India.

Legal Framework for Citizenship: Article 10, by referencing the authority of Parliament to regulate citizenship laws, implicitly acknowledges that the legal framework surrounding citizenship can evolve. This allows for flexibility in India’s citizenship policies, enabling them to be adapted over time in response to changing social, economic, and political contexts.

In sum, Article 10 acts as a bridge between the constitutional provisions regarding citizenship and the dynamic legislative process, ensuring that citizenship, once granted, remains secure, yet allowing for legislative evolution to meet the needs of a changing nation. It underscores the balance between constitutional permanence and legislative adaptability in the governance of citizenship.

Article 11

Article 11 of the Indian Constitution grants the Parliament the power to regulate the right of citizenship by enacting laws. This provision ensures that the legislative body has the flexibility and authority to adapt the country's citizenship laws in response to changing circumstances, needs, and policy directions. It allows the Parliament to enact laws that can expand, restrict, or otherwise modify the criteria for acquiring or losing citizenship, beyond the foundational principles laid out in the Constitution.

Text of Article 11:

"Nothing in the foregoing provisions of this Part shall derogate from the power of Parliament to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship."

Explanation:

Parliamentary Authority: Article 11 explicitly states that the Constitution’s provisions on citizenship (Articles 5 to 10) do not limit Parliament's power to legislate on citizenship issues. This means that while the Constitution provides the basic framework for who is considered a citizen of India at its commencement, the detailed rules governing the acquisition, deprivation, and termination of citizenship are left to the discretion of Parliament.

Legislative Flexibility: This article underscores the principle of parliamentary sovereignty in the domain of citizenship law. It recognizes that societal changes, international dynamics, and national interests may necessitate updates or revisions to citizenship policy, which are best addressed through the legislative process.

Evolution of Citizenship Laws: Over the years, Parliament has exercised its power under Article 11 to enact and amend citizenship laws, most notably through the Citizenship Act of 1955 and its subsequent amendments. These laws have addressed various issues, including the naturalization process for foreigners, the registration of certain persons as citizens, the renunciation and termination of citizenship, and the status of overseas citizens of India.

Article 11 thus provides the constitutional basis for Parliament to create comprehensive and adaptive legislation on citizenship, ensuring that India’s citizenship laws can evolve in line with the country’s changing demographic, legal, and policy landscapes.

Citizenship Act, 1955

The Citizenship Act, 1955, is a law enacted by the Parliament of India to provide for the acquisition and determination of Indian citizenship. Following the authority granted by Article 11 of the Indian Constitution, this Act outlines the legal framework for matters related to citizenship in India. Since its enactment, the Citizenship Act has been amended several times to address emerging needs and challenges related to citizenship.

Key Provisions of the Citizenship Act, 1955:

Acquisition of Citizenship: The Act specifies five primary ways through which Indian citizenship can be acquired:

By Birth: Any person born in India on or after 26 January 1950 but before 1 July 1987 is a citizen of India by birth. The rules for individuals born after these dates have been amended to include various conditions related to the citizenship status of their parents.

By Descent: Children born outside India can acquire citizenship through descent if either of their parents is a citizen of India at the time of their birth, subject to certain conditions.

By Registration: Persons of Indian origin residing in India or certain categories of persons residing outside India can acquire citizenship by registering themselves as citizens of India under conditions prescribed by the Ministry of Home Affairs.

By Naturalization: Foreign nationals can apply for Indian citizenship through naturalization if they meet certain qualifications, including a specified period of residence in India.

By Incorporation of Territory: If any foreign territory becomes a part of India, the Government of India can specify the persons from that territory who shall become Indian citizens.

Loss of Citizenship: The Act also outlines three ways in which Indian citizenship can be terminated:

By Renunciation: Any citizen of India of full age and capacity can renounce their citizenship.

By Termination: Indian citizenship automatically terminates when a person voluntarily acquires the citizenship of another country.

By Deprivation: The Government of India can deprive a person of their citizenship under certain conditions, such as obtaining citizenship by fraud, disloyalty to the Constitution, or other specified grounds.

Amendments:

The Citizenship Act, 1955, has been amended several times to address specific issues and adapt to changing circumstances. Notable amendments include those made in 1986, 1992, 2003, 2005, and 2019, which have introduced changes to the rules governing the acquisition of citizenship by birth, the status of overseas citizens of India (OCI), and the process for granting citizenship to certain undocumented migrants from neighboring countries under specific conditions.

ALSO READ: Citizenship Amendment Act (CAA), 2019

Significance:

The Citizenship Act, 1955, serves as the foundational legal document that defines and regulates the criteria for being recognized as a citizen of India. It reflects the country's approach to citizenship, balancing between inclusive principles and the need to regulate migration and national security concerns. The Act and its amendments demonstrate India's evolving policy landscape in response to demographic shifts, international migrations, and political considerations.