This article has been written by Smaranika Sen from Kolkata Police Law Institute. This article exhaustively deals with citizenship rights in the period of constitutionality.
Citizenship refers to the legal recognition of a person who is a citizen of a country. Every country has certain legal provisions for the persons living there to be identified as legal citizens. In India, there is special legislation dedicated to the rights of citizens. The Constitution of India also states some provisions for a person to be identified as a legal citizen of India. Through this article, we will be understanding the evolution of appearance and codification of citizenship rights in India.
The concept of citizenship began with the commencement of the Indian Constitution in the year 1950. India got its independence in 1947. At that same time, there was a partition of the Indian subcontinent. This partition led to the division of India and formation of a new country called Pakistan. It is believed that the most important cause for the partition of India was religious conflict. During the partition, large numbers of Hindus and Sikhs arrived in India. Later on, some of the Indian Muslims also returned to India who had previously migrated to West Pakistan. This immigration of Indian Muslims caused unrest amongst the countries. Former Prime Minister Jawaharlal Nehru had also acknowledged this problem.
In regard to this problem, the Constituent Assembly, while drafting the Constitution, stated some provisions for the identification of the citizens of India. In India, the population is divided into two classes – citizens and aliens:
- A citizen of a state enjoys all civil, political rights.
- On the other hand, aliens are those who do not enjoy any rights.
Certain rights are only available to the citizens of India. These rights are such that no one could be discriminated against any other citizen on the grounds of religion, race, caste, sex, or birthplace. The citizens also enjoy the opportunity of equality in the matter of public employment. Article 19, Article 29, Article 30 are only enjoyed by the citizens of India. Besides these fundamental rights, the citizens of India also enjoy some other powers like holding offices of the president, vice president, judges of the supreme court, High court, attorney general, governor, advocate general, etc. Another most important right enjoyed by the citizens of India is the right to vote for elections during Lok Sabha and Vidhan Sabha elections. However, rights guaranteed under Article 14 and Article 12 are also available to an alien.
Constitution regarding citizenship
Part II of the Indian Constitution lays down some provisions relating to citizenship in India. The Constitution, however, does not lay down any permanent or comprehensive provisions regarding citizenship.
Provisions regarding citizenship at the commencement of the Indian Constitution
According to Article 5 of the Constitution, at the commencement of this Constitution, every person who had a domicile in India and any person who was born in the territory of India, or whose either of the parents was born in the territory of India, or who had been residing in the territory of India for not less than 5 years immediately before the commencement of the Constitution, will be deemed as a citizen of India.
The term ‘domicile’ is observed to be very important in Article 5. In India, a domicile is denoted as an essential requirement for acquiring the status of Indian citizenship. However, the term domicile had not been defined in the Constitution. Domiciles can be of three kinds – the domicile of origin, domicile by operation of law, and domicile of choice. In the case of (1984), the Supreme Court of India held that Article 5 only recognizes one domicile, that is, domicile of India. In India, a State domicile is not recognized. For example, Pradeep Jain v. Union of India (1984), if a person used to reside in a state permanently and later on move to another state to reside permanently, the domicile of a person will not change, it will remain the same. In this case, it was also stated that as India is not an absolute federal state, it recognises only one citizenship, that is, citizenship of India.
Two essentials are required for the existence of a domicile:
- Residence of a particular kind
- An intention of a particular kind
In the case of Louis De Raedt v. Union of India (1991), the petitioners were foreign nationals. They challenged the order of the central government, that is, expelling them from India as they had failed to acquire citizenship of India. They stated that they had acquired citizenship under Article 5(c) of the Constitution. The court held that the petitioners had not established any intention to permanently reside in India. A residence without an intention to permanently reside is insufficient. The intention might not always be direct, it can be indirect too.
Provisions for citizenship of those persons who have migrated to India from Pakistan
Article 6 of the Constitution lays down these provisions specifically for those persons who have migrated and came to India before July 19, 1948, and who had come on or after July 19, 1948. The Article states that those persons who have migrated to India from Pakistan will be deemed as a citizen of India at the commencement of the Constitution subject to certain conditions. The conditions are:
- Such person’s either of the parents or the grandparents were born in India as defined in the Government of India Act, 1935.
- In such cases where the persons who had migrated to India before 19th July 1948 and had been ordinarily a resident in the territory of India since the day of migration.
- In such cases where the persons had migrated on or after 19th July 1948 and had been registered as a citizen of India by any officer appointed by the government of the Dominion of India.
However, no person will be registered unless he/she has been residing in the territory of India for at least six months.
Provision of citizenship for those migrants who had migrated to Pakistan
Article 7 lays down the provisions for those persons who had migrated to Pakistan after 1st March 1947. The Article states that if a citizen by domicile as per Article 5 or by migration as per Article 6, will no longer be considered as a citizen of India, if the person had migrated to Pakistan after 1st March 1947. However, if any person decides to return to India with an intention of resettlement, then such person can become a citizen of India, by fulfilling all the necessary conditions provided under Article 6.
The term ‘migrated’ has been interpreted in the case of Kulathi Mammu v. State of Kerala (1962). The court held that the term migrated referred to any voluntary going from India to Pakistan. In a wider sense, it means moving from one country to another country permanently or temporarily. In regard to this, a question arose in the minds of the people, that whether a short or temporary visit to Pakistan would amount to migration. It was stated that citizenship rights will not come to an end if there was a temporary visit for business or any other purpose.
Provisions for the rights of citizenship of those persons who have Indian origin but are residing outside India
Article 8 lays down these provisions. The Article states that any person whose either of the parents or any of the grandparents was born in India, as defined in the Government of India Act, 1935, and ordinarily residing outside India will be deemed to be a citizen of India. The person will only be a citizen of India if such person had been registered as a citizen of India by the diplomatic or consular representatives of India in the country, where he had been residing for the time being through an application made by such person to the competent authority.
Provisions for citizenship for those persons who have voluntarily acquired citizenship of the foreign state
Article 9 lays down such provisions. The Article states that if any person had voluntarily acquired citizenship of any foreign state, then such person will no longer be determined a citizen of India under Article 5, Article 6, or Article 8.
Provisions regarding the continuance of the rights of citizenship
Article 10 states that any person who was previously deemed to be a citizen of India will continue to be a citizen of India under any provisions mentioned under Part II of the Constitution. However, a citizenship right can only be taken from any person, if the Parliament had expressly made any laws. In the case of Ebrahim Wazir Mavat v. State of Bombay (1954), the constitutional validity of the Influx from Pakistan (Control) Repealing Act, 1952 was involved. According to this Act, no person domiciled in India or Pakistan shall enter India from Pakistan without permission, and if any person does so without permission then it will be treated as a punishable offence under Section 7. In this regard, the Supreme Court held that Section 7 was ultra vires. The right to citizenship under Part II of the Constitution can be only taken away if any law has been made expressly by the parliament of India.
Parliament can regulate laws regarding the right of citizenship
According to Article 11, the Parliament has the power to make any provisions regarding the acquisition, termination, and any other matters regarding citizenship. Any provisions under Part II of the Constitution, will not derogate the Parliament from making any such laws.
The right of citizenship of a company or corporation or association
A corporation or a company or an association is considered a legal person under Indian law. The question which arises is whether any company or corporation or association can be deemed as a citizen of India. To answer this, let us first analyze the provisions of the constitution regarding the acquisition of citizenship.
Citizenship under Part II of the Constitution recognizes only natural persons and not any juristic persons like corporations or companies, etc. In the case of State Trading Corporation of India v. Commercial Tax Officer (1963), the Supreme Court held that a company or corporation is not a citizen of India, and therefore it cannot claim any of the fundamental rights guaranteed by the constitution.
However, in the Bank nationalization case (1970), the court held that even though the rights of the company may be impaired, the rights of a shareholder of the same company cannot be impaired. The fundamental rights of the shareholders are similar just like any other citizen, and therefore their fundamental rights cannot be denied. This judgment was taken as a precedent and later applied to other cases. In another case of Godhra Electric Co. Ltd. v. State of Gujarat (1974), the court held that though a company was not a citizen under Article 19, shareholders of a company had the right to carry on business through the agency of the company.
Evolution of citizenship rights under legislation made by the Parliament
Under Article 11 of the Constitution, the Parliament has been given the right to form laws regarding citizenship. The Parliament had passed The Citizenship Act, 1955 for the acquisition and termination of citizenship after the commencement of the constitution. The Act provides for the acquisition of Indian citizenship in five different ways. The five ways are:
- Citizenship by birth: It refers to the citizenship which is acquired by an individual when they are born in India if either of the individual’s parents is a citizen of India, or both the parents are citizens of India.
- Citizenship by descent: Under this type of acquiring citizenship, a person living outside India can also get Indian citizenship, if the father of such individual was an Indian citizen at the time of day individual’s birth, or if either of such individual’s parents was a citizen of India at the time of the birth of the individual.
- Citizenship by registration: A person may acquire Indian citizenship through an application given to a competent authority to register himself as an Indian citizen. However, it is subjected to certain conditions.
- Citizenship by naturalization: Under this process of citizenship, any person may acquire citizenship by legal means.
- Citizenship by incorporation of territory: Through this process of citizenship, if any new territory becomes a part of India, then the Government of India will denote every single person living in that territory as a citizen of India.
This Act had gone through several amendments, the latest was made in the year 2019. The main purpose of the Citizenship (Amendment) Act 2019 is to grant citizenship of India to illegal immigrants who belong to Hindus, Sikhs, Jains, Parsis, Christians, Buddhists from Afghanistan, Pakistan, and Bangladesh and had entered India illegally on or before 31st December 2014. However, this amendment was exempted from the northeast states.
Citizenship is one of the crucial rights that every person of a country should possess. It has been observed that citizenship rights give huge gains to the economy of a country. The right of citizenship also ensures certainty for both the immigrants and employers, enhances the strength of the country, and promotes a sense of equality among the citizens. Citizenship also plays a huge role among the students. With the passing of each year, globalisation has increased all over the world. Many students want to go abroad for further studies or acquire degrees from foreign universities. Many laws regarding education differ for the natives and the outsiders. Therefore, it is important to have effective citizenship. It is similar also for those people who want to do jobs outside India.
- Dr. JN Pandey, Constitutional Law of India.
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