CITIZENSHIP of India
The provisions of citizenship are covered by Articles 5 to 11 of Indian Constitution and are embodied in Part II of the Constitution. Article 5 refers to citizenship not in any general sense but to citizenship on the date of the commencement of the Constitution. It was not the object of this Article to lay down a permanent law of citizenship for the country. That business was left to the Parliament of India. Accordingly, at the commencement of the Constitution, every person who had his domicile in the territory of India and
(a) who was born in India, or
(b) either of whose parents was born in India, or
(c) who had been ordinarily resident in India for not less than five years immediately preceding the commencement of the Constitution, was to be considered a citizen of India.
Persons of Indian origin who had been residing outside India at the commencement of the Constitution were given the free choice of becoming Indian citizens under the above provisions if they so desired. The only condition that they had to fulfill in his connection was to get themselves registered as Indian citizens by the diplomatic or consular representatives of India in the country where they were residing (Art. 8).
Articles 6 and 7 deal with two categories of persons, namely, those who were residents in India but had migrated to Pakistan and those who were residents in Pakistan but had migrated to India. Those who migrated from Pakistan to India were divided into two categories:
(a) those who came before July 19, 1948 and
(b) those who came after that date.
According to article 6 those who came before July 19, would automatically become citizens on the commencement of the Constitution, and those who came after July 19 would become such provided they had been registered in the form and manner prescribed for this purpose by the Government of India. These two articles thus provided for all cases of mass migration from Pakistan to India without making any distinction between one community and another, although the partition of the country itself was based upon such as a distinctio
Article 7 provides for those who had migrated to Pakistan but who had returned to India from Pakistan with the intention of permanently residing in India. Such a provision had to be made because the Government of India, in dealing with persons who left India for Pakistan and who subsequently returned from Pakistan to India, allowed them to come and settle permanently under what is called a “permit system'”. This permit system was introduced from July 19, 1948.
The Citizenship Act, 1955
A comprehensive law dealing with citizens was passed by Parliament in 1955 in accordance with the powers vested in it by Article 11 of the Constitution. The provisions of the Act may be broadly divided into three parts, acquisition of citizenship, termination of citizenship and supplemental provisions.
WHY WAS THE ISSUE OF INDIAN CITIZENSHIP NOT PERMANENTLY SETTLED BY THE CONSTITUTION?
There is hardly any constitution in which an attempt has been made to embody a detailed nationality law. But since India’s Constitution is of a republican character and provision is made throughout the Constitution for election to various offices under the State by and from among the citizens, it was thought essential to have some provisions which precisely determined who was an Indian citizen at the commencement of the Constitution. Otherwise, there could have arisen difficulties in connection with the holding of particular offices and even with the starting of representative institutions in the country under the republican Constitution. This is why Parliament has been given plenary power to deal with the question of nationality and enact any law in this connection that it deems suited to the conditions of the country. Such Parliamentary power embraces not only the question of acquisition of citizenship but also its termination as well as any other matter relating to citizenship (Art. 11) Also under Article 9 of the Constitution, and person who voluntarily acquires the citizenship of any foreign State, even if qualified for Indian citizenship under any provision of the Constitution, may not be a citizen of India.
Acquisition of Citizenship
The Act provides five modes of acquiring the citizenship of India. These are:
(1) By Birth: Every person born in India on or after January 26, 1950, shall be a citizen of India by birth. There are two exceptions, to this rule, namely, children born to foreign diplomatic personnel in India and those of enemy aliens whose birth occurs in a place then under occupation by the enemy.
(2) By Descent : A person born outside India on or after January 26, 1950, shall be citizen of India by descent if his father or mother is a citizen of India at the time of his birth. Children of those who are citizens of India by descent, as also children of non-citizens who are in service under a government in India, may also take advantage of this provision and become Indian citizens by descent, if they so desire, through registration.
(3) By Registration : Any person who is not
already an Indian citizen by virtue of the provisions of the Constitution or those of this Act can acquire citizenship by registration if that person belongs to any one of the following five categories :
(a) Persons of Indian origin who are ordinarily resident in India and who have been so resident for at least six months immediately before making an application for registration.
(b) Persons of Indian origin who are ordinarily resident in any country or place outside undivided India;
(c) Women who are, or have been, married to citizens of India;
(d) Minor children of persons who are citizens of India; and
(e) Persons of full age and capacity who are citizen of the Common wealth countries or the Republic of Ireland.
(4) By Naturalisation : Any person who does not come under any of the categories mentioned above can acquire Indian citizenship by naturalisation if his application for the same has been accepted by the Government of India and certificate is granted to him to that effect. An applicant for a naturalisation certificate has to satisfy the following conditions:
(a) He is not a citizen of a country which prohibits Indians becoming citizens of that country by naturalisation;
(b) He has renounced the citizenship of the country to which he belonged;
(c) He has either resided in India or has been in the service of a government in India, normally, for one year immediately prior to the date of application;
(d) During the seven years proceeding the above mentioned one year, he has resided in India or been in the service of a government in India for a period amounting in the aggregate to not less than four years;
(e) He is of good character;
(f) He has an adequate knowledge of a language specified in the Constitution;
(g) If granted a certificate, he intends to reside in India or enter into, or continue in serviceunder a government in India.
The Act provides, however, for a conspicuous exemption under which any or all of the above conditions may be waived in favour of a person who has rendered distinguished service to the cause of science, philosophy, art, literature, world peace or human progress generally. Every person to whom a certificate of naturalisation is granted has to take an oath of allegiance solemnly affirming that he will bear true faith and allegiance to the Constitution of India as by law established, and that he will faithfully observe the laws of India and fulfill his duties as a citizen of India.
(5) By Incorporation of Territory : If any territory becomes part of India, the Government of India, by order, may specify the persons who shall be citizen of India by reason of their connection with that territory.
Termination of Citizenship
The Act envisages three situations under
which a citizen of India may lose his Indian
nationality. These are:
- By Renunciation: If any citizen of India who is also a national of another country renounces his Indian citizenship through a declaration in the prescribed manner, he ceases to be an Indian citizen of registration of such declaration. When a male person ceases to be a citizen of India, every minor child of his also ceases to be a citizen of India. However, such a child may within one year after attaining full age, becomes Indian citizen by making a declaration of his intention to resume Indian citizenship.
- By Termination: Any person who acquired Indian citizenship by naturalisation, registration or otherwise,, of he or she voluntarily acquired the citizenship of another country at any time between January 26, 1950, the date of commencement of the Constitution, and December 30, 1955, the date of commencement of this Act, shall have ceased to be a citizen of India from the date of such acquisition.
- By Deprivation: The Central Government is empowered to deprive a citizen of his citizenship by issuing an order under 10 of the Act. But, this power of the Government may not be used in case of every citizen; it applies only to those who acquired Indian citizenship by naturalisation or by virtue only of clause (c) of Article 5 of the Constitution or by registration. The possible grounds of such deprivation are : obtaining of a citizenship certificate by means of fraud, false representation, concealment of any material fact; disloyalty of disaffection towards the Constitution shown by act or speech; assisting an enemy with whom India is at war; sentence to imprisonment in any country for a term of not less than two years within the first five years after the acquisition of Indian citizenship and continuous residence outside Indian for a period of seven years without expressing in a prescribed manner his intention to retain his Indian citizenship. The Act also provides for reasonable safeguards in order to see that a proper procedure is followed in every case of deprivation of citizenship.
The most important aspect of the constitutional provisions dealing with citizenship is that it has established a unified or single system of citizenship law for the whole country. A citizen of India is accepted legally as a citizen in every part of the territory of India with almost all the benefits and privileges that attend such a status. This is in striking contrast to the system of double citizenship that prevails in some federal states. Before the inauguration of the Constitution, there were two broad divisions among Indian citizens, British Indian subjects and state subjects. Since there were over 500 Indian States, the State subjects themselves were further subdivided into as many groups of citizens as there were states. Thus, the term Indian citizenship had little precise legal significance except that the Indian people as a whole came under the overall jurisdictions of the British Government that ruled India. The abolition of such distinctions makes the essential unity of the nation a reality. A single citizenship for the entire country removes much of the artificial State barriers that prevailed in pre Independence days and facilities the freedom of trade and commerce throughout the territory of India.
There is, however one barrier still that hinders that full realisation of the ideal of a single citizenship established under the Constitution. This is the existence of what are known as “domiciliary rule” in the different states in India. The term “domicile” is difficult to define. According to the rules prevailing today, in the different States in India, domicile requirements vary from three to fifteen years’ continuous residence within the State in addition to other conditions. Thus, the status of domicile is given only to a permanent resident of the State. On the basis of such a distinction, there exist practices in different States which amount to gross discrimination as between citizen and citizen. The also engender provincialism and parochialism which tend to disrupt the unity to the nation. Domiciliary rules which govern eligibility to public services in most of the State illustrate this point. Such rules are applied in some State not only to determine eligibility for appointment to public services but also to regulate admission to higher educational institutions, the awards of contracts and rights in respect of fisheries, ferries, toll-bridges, forests and excise shops. The conditions to be satisfied for acquiring a domicile in some of the states are of such an extremely rigorous nature that it is almost impossible for any person to satisfy them.