Article 5
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This article is written by Mariya Paliwala of seventh semester, student at MohanLal Sukhadiya University College of Law, Udaipur, Rajasthan. This article throws light on Constitution of India with special emphasis on Part II i.e. citizenship. 

Introduction 

Normally, citizenship is a matter which is dealt with by the legislature and is not incorporated by the constitutional law of the land. And it is generally unique to have the provisions pertaining to citizenship in the Constitution which, Indian Constitution has. The rationale of our constitution makers behind including the citizenship in the Constitution was that they kept in mind the time (independence leading to partition), place (partition leading to displacement) and circumstances. In simple words it was associated with partition of the British India into 2 parts i.e. India and Pakistan and freedom to Indian states to join any of the two nations and the provisions relating to citizenship in Part II (Article 5, 6, 7, 8, 9, 10 and 11) of the Constitution was the need of the hour. With the lapse of that era, most of the articles in this part became the historical interest. Only Article 11 turned out to be relevant for the future. 

Article 5: Citizenship at the time of commencement of the Constitution

This article elaborates on the citizenship of the people who had a domicile in the territory when the Constitution was commenced in the following circumstances:

  1. A person who is born in India.
  2. A person whose either of the parents is born in India.
  3. A person who is a resident in India for not less than 5 years immediately after the commencement of the Indian Constitution. 

What is Domicile?

Domicile in India is one of the essential requirements for acquiring Indian citizenship. However, the term ‘domicile’ is not defined in the Constitution. In layman’s language, Domicile is a permanent home or a place where a person resides and intends  to live there for an indefinite period. 

How is residence different from Domicile?

Unlike Domicile, residence implies purely physical fact, which means just living in a particular place, whereas for Domicile there are two conditions which need to be fulfilled i.e. 

  1. Residence.
  2. Coupled with an intention to live at the place for an indefinite period. 

Therefore, Domicile includes residence. It is a broader term. 

Kinds of Domicile 

There are basically 2 types of Domicile which are as follows:

Domicile of Origin

This kind of Domicile pertains to the birthplace of any person. Father’s Domicile will be applied as the Domicile of origin to the infant. In the case of a posthumous child, the Domicile of the child will be that of the country in which his father was domiciled at the time of his father’s death. Therefore, this kind of Domicile is received by operation of law at birth.

Domicile of Choice

Every independent person can acquire the Domicile of his choice, wherein he has to fulfil the 2 conditions for the Domicile. The Domicile of choice is acquired by  actually moving to another country accompanied by animus manendi which means a state of mind having formed a fixed intent to make his place of settlement or residence, a permanent home. 

How is Domicile different from citizenship?

In the case of Abdur Rahaman v. State (AIR 1964 Pat 384), it was affirmed that Domicile is different from citizenship. The person may possess nationality or citizenship and different Domicile, or he may have a domicile but no nationality. In simple words, Domicile implies a connection with the territory, not membership of community which is at the root of the notion of citizenship or nationality. 

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Article 6: Right of citizenship of persons who have migrated to India from Pakistan

This Article deals with persons who have migrated from Pakistan to India before the commencement of the Constitution. Such a person, for the purpose of citizenship, are categorised into 2 parts:

  1. People who came to India before 19 July 1948 will be considered a citizen of India provided that:
  • The person or either of his parents or grand-parents was born in India as per the Government of India Act, 1935.
  • The person is residing in India from the date of his migration.

2. People who came on or after 19 July 1948. For being the citizens of India, those immigrants have to fulfil the following conditions:

  • The person or either of his parents or grand-parents was born in India as per the Government of India Act, 1935.
  • A person must make an application for citizenship.
  • A person must be able to prove that he has resided in India for six months. 
  • He must register himself as a citizen of India by an officer who is either appointed Government of India Act 1935 or by the union government under the present Constitution. 

If the above conditions are fulfilled, then a person will be deemed to be a citizen of India. 

Article 7: Citizenship Rights of certain migrants to Pakistan 

Article 6 and 7 deals with the issue of migration of people from one nation to another at the time of Partition into India and Pakistan. The consequences of partition were far-reaching where the people were affected by unprecedented migration. Further, Hindus were migrating from the territory designated as Pakistan to Indian territory and Muslims from the Indian territory to Pakistan. 

Article 6 deals with the migration of people from Pakistan to India. It lays down criteria for deciding who will be a citizen of India. Whereas Article 7 pertains to the migration of people from India to Pakistan and lays down criteria for deciding who will be a citizen of India. 

Moreover, Article 7 has an overriding effect on Article 5 for the fact that even if a person is a citizen of India by virtue of Article 5, he can not be deemed to be a citizen of India, if he has migrated to Pakistan after 1 March 1947. However, an exception is made in favour of a person who has returned to India with a permit of resettlement in India wherein he has to comply with all the conditions laid down under Article 6 of the Constitution. 

Meaning of the word “migration” used in Article 6 and 7

In the case of Kulathil Mammu v. the State of Kerala, the meaning of the word “migration” was negotiated wherein the Supreme court of India was divided in its opinion. The majority of the judges construed that the term migrated used in Article 6 and 7 with reference to the context, purpose and prevailing political conditions at the time of making Constitution. In simple words, they interpret the term as nothing but voluntarily going from India to Pakistan permanently or temporarily. Whereas minorities view was that there must be an element of some permanence in the intention of a person migrating to settle in Pakistan. Since the majority view was broader, it was accepted. 

The state of Bihar v. Kumar Amar Singh (AIR 1955 SC 1614: (1966) 3SCR 706

Statement of Facts: In this case, a lady went to Karachi on July 1948, leaving her husband in India. She contended that she went to Pakistan for medical purposes, which was found baseless. After obtaining a temporary permit wherein it was stated that she was domiciled in Pakistan and was the Pakistan national, she again returned to India in December 1948. On the expiry of that temporary permit, she went back to Pakistan in April 1949. She made an effort to get the permit to settle in India permanently, but her efforts failed. 

Judgement: It was held that there could be no doubt that the lady must be held to have migrated from the territory of India after 1 March 1947, although her husband has stayed in India. Migration in this Article refers to one before 26 January 1950, i.e. between 1 March 1947 and 26 January 1950. 

Article 8: Citizenship right of persons of Indian origin who are residing outside India

Article 8 begins with a non-obstante clause, i.e. “notwithstanding anything in Article 5”. This Article confers the Indian citizenship on a person who on the face of it had no domicile in India if certain conditions are fulfilled.

This Article deals with persons who are or whose parents or grandparents were born in India, but they are residing abroad. Such a person will be considered to be a citizen of India provided that they have registered as citizens of India by the consular representative or diplomatic representative of India where they are residing. Moreover, registration may be made only on an application by the citizen. 

The differentiating line between Article 8 and Article 5 and 6 is that the former deals with the citizenship not only at the date of the commencement of the Constitution but also for the future whereas the latter pertains to only the citizenship at the time of the commencement of the Constitution.

Article 9: Persons waiving their citizenship by acquiring the citizenship of some other nation

This Article elaborates on the fact that a person who has voluntarily acquired the citizenship of some other foreign state, shall cease to be a citizen of India. It deals only with the voluntary acquisition of citizenship of a foreign nation before the Constitution came into force. Instances of voluntary acquisition of foreign citizenship after the commencement must be dealt with by the Government of India under Citizenship Act 1955. 

Further, the question as to whether a person has lost the citizenship of this country and has acquired the citizenship of foreign country has to be examined by the central government, and it is only after the central government has decided this question that the state government may deal with that person as a foreigner. Further, it can be that a passport from a foreign government is obtained by the citizen and the case falls under the impugned rule, the conclusion may follow that he has acquired the citizenship of the foreign country but that conclusion can be drawn only by the appropriate authority who is authorised under the Act to inquire into the question. Therefore, there is no doubt that in all cases where an action is proposed a person who is residing in this country by the reason that they have acquired citizenship of foreign states and have lost in consequence the citizenship of this country. However, it is very important for this question to be considered by the central government. Further, the foreign state is defined under Article 367 (3) of the Constitution.

Article 10: When does the right of citizenship continue

Article 10 confers upon the Parliament to enact laws or any provision with respect to the acquisition and termination of citizenship. In exercise of that power, it may take away the rights of citizenship, which has accrued to a person under the provisions of the above Article. Further, the right to citizenship under the above articles can only be destroyed by a directly expressed legislation or enactment of parliament made by the purpose, and it can not be taken indirectly. 

Article 11: Parliament is to enact law pertaining to the right of citizenship

Under entry 17, List VII, Schedule 7 Parliament has the power to enact laws pertaining to citizenship, naturalisation and aliens. The main object behind this Article is that notwithstanding the fact that certain rules relating to citizenship are contained in Part II, Parliament shall have unfettered power to make any provisions relating to acquisition, termination etc. of citizenship. In exercise of its power, parliament has enacted legislation in 1955, the Citizenship Act. This Acts elaborates on the provisions pertaining to the acquisition and termination of citizenship. Further, several changes were made in the Citizenship Act, 1955 with the changing time in the year 2003 and 2005 with a motive to introduce the concept of overseas citizenship of India, especially with a view to facilitating the dealing of the Indian diaspora with India. 

Conclusion

Therefore, in India aliens do not enjoy all the fundamental rights secured for the citizens  of the country which include Article 15, 16, 18(2), 19 and 29 are declared the fundamental right which only belongs to the citizens and not aliens. Again citizens alone have the right to hold certain high offices such as those of President (Article 58), Vice-President (Article 66), Governor of the state (Article 157), Judges of the High Court (Article 217) and Supreme Court (Article 124), Attorney General (Article 76), and the Advocate General (Article 165). Also, the right to vote is only given to the citizens of India. 


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