CITIZENSHIP IN INDIA: CONSTITUTIONAL PROVISIONS AND RECENT AMENDMENTS

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This article has been written by Shivanii Singh, 2nd year Student studying in South, Calcutta Law College, Calcutta University.

ABSTRACT

The population of India is divided into two parts; Citizens and Aliens. Citizens are those who get full political and civil rights. In the grant of rights, the constitution makes a difference between citizens and aliens. While all rights are available to the citizens, only some rights are available to the aliens. Rights such as Equality before the law, religious freedom are available to both citizens and aliens. However, there are some rights such as freedom of speech and expression, assembly and organisation that are available only to the citizens.

This article explores the constitutional provisions related to citizenship. It also dives into the recent developments surrounding citizenship in India. It also explores the controversies surrounding the Citizenship Amendment Act, The National Register of Citizens with landmark Supreme Court cases.

Keywords: Citizenship, Citizenship Act 1935, Citizenship amendment act,2020, National Register of Citizens, Constitutional provisions

INTRODUCTION

Citizens are those people who enjoy both civil and political rights. They are full members of the state and owe full allegiance and loyalty to it. There are two principles related to citizenship in india :

“jus soli” confers citizenship on the place of birth, and

“jus sanguinis” gives recognition to blood ties.

There is no definition of the term ”citizenship” which is mentioned explicitly in the constitutional provisions. However details of various types of people who are entitled to get citizenship are mentioned in Part III of the Constitution(Articles V to XI). From the time of the Motilal Nehru Committee (1928), India was in favour of the principle of jus soli and claimed the idea of jus sanguinis to be racist thereby rejecting it. According to the Indian Constitution, there are four ways in which Indian citizenship can be acquired, birth, descent, registration and naturalization. A citizen is expected to obey the rules of the state and also pay taxes to the government. However, to be a citizen of the country, one needs to fulfill all the legal requirements stated in the Constitution. After partition of India , people who stayed in India were considered citizens of India and those who went to Pakistan became citizens of it.

CONSTITUTIONAL PROVISIONS

ARTICLE 5 ( CITIZENSHIP BY DOMICILE)

The term ‘Domicile‘ is not explicitly defined in the Indian constitution. A domicile of a person is that country in which he either has or is deemed by law to have his permanent house.

According to article 5 of the Indian Constitution, all those domiciled and born in India were given citizenship. Even if he is bot domiciled in india but one of his parents are born in India, he will be granted citizenship. Thirdly he can also get a citizenship if he has been a resident in the territory of India for not less than five years

PRADEEP JAIN V UNION OF INDIA

In the case of PRADEEP JAIN V UNION OF INDIA, The Hon’ble Supreme court emphasized the idea of single citizenship. It held that article 5 only recognizes one domicile – the DOMICILE OF INDIA and not state domicile. When a person who is a permanent resident of one state goes to another state with the intention of moving there indefinitely , his domicile does not change. India also has a unified legal system applicable throughout the country.

The case, involved the students challenging the malpractice of giving preference to those candidates who had their domicile or permanent residence within that state for MBBS And PG medical courses admission. They held that this was discriminatory in nature and violates Article 15 of the Indian Constitution which prohibits discrimination on the basis of sex, religion, caste, creed and place of birth.

Therefore, the Supreme Court of India ,stated that India has single citizenship and citizens can move freely from one state to another and giving preference to candidates on the basis of domicile is discriminatory.

There is equality before the law and the right to equality Legal protection to every citizens in every part of Indian Territory

ARTICLE 6

(CITIZENSHIP OF MIGRANTS TO INDIA FROM PAKISTAN)

Persons who have moved from Pakistan to India are divided into two distinct groups based on their citizenship status: (i) those who arrived in India before July 19, 1948, and (ii) those who arrived on or after July 19, 1948. Article 6 of the Constitution states that if a person has moved to India from Pakistan, they will be considered a citizen of India as of January 26, 1950, if either their parents or their grandparents were born in India as defined in the Government of India Act, 1935. They must fulfill the following two conditions

in the case where such individual has so moved some time recently the nineteenth day of July, 1948, he has been customarily inhabitant in the region of India since the date of his relocation, or
in the case where such individual has so relocated on or after the nineteenth day of July, 1948, he has been enrolled as a citizen of India by an officer named in that sake by the Government of the Dominion of India on an application made by him in this manner to such officer some time recently the graduation of this Structure in the frame and way endorsed by that Government:.

ARTICLE 7

(CITIZENS OF MIGRAINTS OF PAKISTAN)

This article explores the status of persons who have migrated to Pakistan from India. It classified all those who went to Pakistan into two different categories;

A Citizen by domicile or by migration ceases to be an Indian citizen if he has migrated to Pakistan after MARCH 1, 1947.
But if the said person returns under a permit for resettlement or permanent return issued by or under the authority of any law, he will be considered to be Indian Citizen.

STATE OF BIHAR VS KUMAR AMAR SINGH AND ORS AIR 1955 SC 282

In this case ,the wife had voluntarily relocated to KARACHI for medical treatment. She also claimed to have Pakistani domicile. She expressed her desire to stay in INDIA after seizure of her property . However she was denied citizenship he had relocated before the specified period under the clause.

ARTICLE 8

Any Person of Indian Origin residing outside India who, or either of whose parents or grandparents, was born in India could register himself or herself as an Indian citizen with Indian Diplomatic Mission.

ARTICLE 9

Any person acquiring the citizenship of a foreign state voluntarily will cease to be a citizen of INDIA.

ARTICLE 10

According to Article 10, any individual who is recognised as a citizen of India based on the previous provisions would remain a citizen of India, although their citizenship may be subject to any laws passed by Parliament. The case of Ebrahim Vazir Mavat v State of Bombay AIR 1954 SC 229 included the examination of the constitutional validity of the Influx from Pakistan Control Act, 1949. This legislation stipulates that those who have domicile in either India or Pakistan are prohibited from entering the territories of the mentioned nations without obtaining prior authorisation.

ARTICLE 11

The parliament has full power to make laws regulating citizenship in India. The article affirms that the Parliament has broad authority to enact laws on the termination or acquisition of citizenship and any other matters pertaining to citizenship.

CITIZENSHIP ACT ,1955

The citizenship act 1955 deals with the the acquisition and determination of Indian citizenship based on birth, descent,naturalisation and registration. They are

BY BIRTH (SECTION 3)

Each individual born in India on or after 26.01.1950 but some time recently 01.07.1987 is an Indian citizen independent of the nationality of his/her guardians . A individual born in India on or after July 1, 1987 is considered as a citizen of India as it were if either of his/her guardians is a citizen of India at the time of his birth. Further, those born in India on or after December 3, 2004 are considered citizens of India as it were if both of their guardians are citizens of India or one of whose guardians is a citizen of India and the other is not an illicit transient at the time of their birth

BY REGISTRATION ( SECTION 5)

People who are hitched to Indian citizens or are minor children of Indian citizens can gotten to be citizens through registration

BY NATURALISATION ( SECTION 6)

Foreigners can end up as citizens if they have lived in India for a long time.

BY DESCENT ( SECTION 4 )

A person born outside India on or after January 26, 1950 is a citizen of India by descent if his/her father was a citizen of India by birth.A person born outside India on or after December 10, 1992, but before December 3, 2004 if either of his/her parent was a citizen of India by birth

RECENT AMENDMENT

CITIZENSHIP AMENDMENT ACT,2019

The controversial Citizenship Amendment Act, 2019, which was enacted in 2019 and operationalized on 11 March 2024 proposes to permit members of the six communities , that is, Hindus, Sikhs, Jain, Christians, Buddhists and parsis from Pakistan, Afghanistan and Bangladesh as citizens if they continued to live in India if they entered India before December 31, 2014. This act proposes to give Indian citizenship to persecuted minorities of these three nations. It has reduced the requirement for citizenship from 11 years to just 5 years.

Following the notification of the Citizenship Amendment Act, protests erupted in Delhi and other parts of the country. This act faced a severe backlash from the Muslim community. It is alleged that the new set of rules thereby excludes them. It is a concerning issue. However it should be noted that the new act aligns with India’s civilizational ethos. India has always depicted itself as a peace loving nation. Granting citizenship to persecuted minorities only proves the same. It should also be noted that the minorities in the three countries are not safe at all. The condition of Hindus, Buddhists , Sikhs, Jains in Pakistan, Bangladesh and Afghanistan has been reduced to a condition of helplessness with no one voicing for them. An active genocide is happening of ethnic minorities in the three countries. Giving them Indian Citizenship will help them.

However this act is heavily criticized for excluding the Ahmadiyyas and Hazaras in Pakistan and Afghanistan, Rohingyas in Myanmar, and Tamils in Sri Lanka.

Critics argue that it violates Article 14 of the Indian Constitution. which guarantees Right to Equality before Law. CAA’s provisions of granting citizenship on religion is perceived to be discriminatory. Government can engage in meaningful dialogue with various stakeholders to improve the CAA bill.

India has a rich history of religious diversity and pluralism. Critics argue that the CAA undermines this diversity by privileging certain religious groups over others, potentially leading to social and religious polarisation.

INDIAN MUSLIM LEAGUE V UNION OF INDIA

Immediately after the Bill was passed, the Indian Union Muslim League (IUML) filed a petition under Article 32 of the Constitution challenging the constitutionality of the CAA . The Indian Muslim League argues that the CAA violates international law, including the Refugee Convention 1951, the International Covenant on Civil and Political Rights, and the Universal Declaration of Human Rights.

The petitioner argues that by treating Muslims as ‘second class citizens’, the CAA also violates the principle of secularism. In SR Bommai v. Union of India, the Court had held that secularism is a basic feature of the Constitution.

NATIONAL REGISTER OF CITIZENS

The National Register of Citizens is a record which contains the names of genuine indian citizens residing in the country. It is a pro active measure taken by the Indian Government to identify and deport illegal migrants from the country. It is mandated in the foreigners Act of 1946, Citizenship Act of 1955 and the passport entry. The first time a nationwide NRC conducted was in 1951. At present, only Assam has such a National Register of Citizens, mandated and monitored by the Supreme Court in 2014. The nodal agency for the NRC is the Registrar General and Census Commissioner. There has been a nationwide demand of NRC following the implementation of NRC in Assam. The NRC is the need of the hour to deport illegal immigrants. The Ministry of Home Affairs’ affidavit cites a report stating that over 4.5 lakh people migrated from East Pakistan to India without travel documents between 1964 and 1965. The influx of illegal immigrants to India to West Bengal, Assam and Uttar Pradesh is a deep security concern. Most of these migrants serve as vote bank for some political parties.

However there are genuine concerns hovering the citizens .

Potential for discrimination: Critics of the NRC argue that it is discriminatory and can be used to target specific groups, particularly religious minorities. Lack of proper documentation: The possibility of corruption and fraud in the data collection and verification process cannot be ignored
The requirement for specific documents has been difficult for many, for example, marginalized communities like the Tea tribes and Bengali Hindus, leading to potential exclusion during Assam NRC.Over 19 Lakh people have been excluded from NRC in Assam and they face various legal challenges.
Many people from the marginalized and poor section do not have legal and valid documents yet, which can render them stateless.For example, as per UNICEF figures, only 52 percent of births are registered in India. Those exluded must prove that their ancestors were citizens of India before March 24,1971

The government can make amendments in the NRC for addressing genuine concerns of the citizens. It can also involve Judiciary to oversee the NRC process and ensure transparency in the whole process.

SUPREME COURT RULINGS

MD RAHIM ALI @ MD RAHIM ALI VS STATE OF ASSAM AND ORS

Supreme court delivered judgement on July 11,2024 wherein the bench of Justices Vikram Nath and Ahsanuddin Amanullah observed that authorities cannot randomly accuse people of being foreigners and initiate investigation into a person’s nationality without there being some material basis or information to sustain the suspicion. The case involved Md. Rahim Ali. The charges involved was his alleged illegal Bangladeshi immigration post 25 march,1971 which is the cut off date of the CAA in Assam.

Based on the aforementioned observations and reasonings, the Supreme Court bench set aside the Gauhati High Court’s judgment and the Foreigners Tribunal’s order that declared Ali as a foreigner.

ASSAM SANMILITA MAHASANGHA VS UNION OF INDIA

The case is the much-acclaimed illegal migration case of Assam, wherein the Supreme Court issued directions to the Central and the State Governments to rapidly secure the Indo-Bangladeshi border for stalling the illegal migration of Bangladeshis into India.

Owing to large-scale migrations from East Pakistan between 1948 to 1971 and thereafter from Bangladesh, the All Assam Students Union (AASU) made a reference to the Prime Minister of India in 1980, to redress the alarming situation in Assam. Consequently, the Parliament enacted the Illegal Migrants (Determination by Tribunal) Act, 1983, which was applicable only to Assam for expediting the determination and deportation of illegal migrants from the State. However, this enactment was ineffective and led to mass agitations in the State. As a result, the Assam Accord was signed on 15th August 1985 between AASU, All Assam Gana Sangram Parishad (AAGSP) and the Central and the State Governments. As part of the Assam Accord, the Government promised to address the illegal immigration issue and step up security on the Indo-Bangladesh border besides ensuring measures to be taken to preserve and protect the indigenous culture of Assam. In lieu of these promises, AASU and AAGSP agreed to stop their agitation and restore normalcy in the State.

CONCLUSION

Citizenship in India is a very complex and important topic in India. Citizenship is a matter of Union list dealt by the parliament of India and has constitutional status . Since the independence of India , several provisions relating to citizenship in India has been enacted. It is a fundamental part of the nation’s democratic status. The Indian constitution does not allow dual citizenship. Once a citizen becomes a citizen of another country, his Indian citizenship is revoked.

However citizenship in India has also been a subject matter of extensive debate after passing of CAA and the NRC. While they are enacted for ensuring the safety of persecuted minorities, there are genuine concerns about inclusivity and equality which are enshrined in the constitution

REFERENCE

Pradeep Jain V Union of India AIR (1984) 3 SCC 654

Ebrahim Vazir Mavat v State of Bombay , AIR (1954) SCC 229

State of Bihar v Kumar Amar Singh AIR( 1955) SCC 282

Indian Union Muslim League v Union of India AIR(2020) SCC 960

Citizenship Amendment Act, No. 47 of 2019 (India).

National Register of Citizens, 2019 (India).

India Const. art. 5.

India Const. art. 6.

India Const. art. 7

India Const. art. 8

India Const. art. 9