UPHOLDING OF CITIZENSHIP PROVISION

Citizenship constitutes the indispensable basic principle of a democratic polity. It includes the Individual’s full political membership in a state and the official reorganization by the state of his integration into the political system. Citizenship is also looked like a relationship between the individual and the state under which the individual pleasures his loyalty to the state and the state offers protection to the individual. This kind of relationship is regulated by National law and recognized by International law. During the colonial rule in the history of India, there was no provision related to Indian Citizenship until 26 November 1949, when the constituent assembly adopted the constitution and at once brought into force Articles 5-9 relating to citizenship under Part II of the Indian Constitution.

Soon after the partition of India because of massive migrations created huge problems for citizenship determination. Article 5 to 11 gave the constituent drafting committee the maximum headache and took a large number of draughts and more than two years to be finalized. The earlier constitution only laid down the law regarding who would be a citizen of the nation at the time of commencement of the constitution. There were no such provisions related to the acquisition and termination of citizenship.

Application of Article 5-8 conferred citizenship on every person who is covered under one of the following categories-

  • Domiciled in India as well as born in India.

  • Domiciled, not born in India but either of the parents was born in India

  • Domiciled, not born in India but are ordinarily resident for more than 5 years.

  • Resided in India but migrated to Pakistan after 1 March 1947 and later returned.

  • Resided in Pakistan but who migrated to India before 19 July 1948 and had decided in India for more than 6 months.

  • Resided outside of India but either of his or her parents for grandparents was born in India.

Migrant from Pakistan- Article 6 of Indian Constitution provides for citizenship right of migrants from Pakistan before the commencement of the constitution and make a distinction among such migrants -

  1. Those who migrated to India before July 1948,

  2. Those who came after the date.

In the case of Shanoo Devi vs Mangal Sain, the Apex Court held that word migrated in Article 6 was used in a narrow sense to mean “coming from one place to another with the intention of residing permanently in the latter place”. Later in Kulathil vs the State of Kerala, Apex Court overruled its earlier judgment and held that word “migration” was used in a wider sense to mean “coming from one place to another” only.

Migrants to Pakistan- Article 7 is a special provision regarding citizenship rights of a person who migrated to Pakistan but returned to India subsequently. Such a person can become entitled to be a citizen of India only after the fulfillment of requirements for migrants from Pakistan provided under Article 6 of the Indian Constitution.

Person of Indian origin residing outside India incorporated under Article 8. An Indian citizen has been residing in foreign countries or has been migrated for the purpose of an appointment or job or otherwise. Our far-sighted founding father has made provisions to protect the citizenship right of such persons in India under Article 8. The provision states that any person or either of his parents or grandparents was born in India as defined in the Government of India Act, 1935 and ordinarily residing in any country outside India shall be deemed to be the citizen of India provided that he has been registered as Indian cities in by a diplomatic or consular representative of India.

Article 9 titled as voluntarily acquisition of citizenship of another country. If an individual acquires citizenship of any country, he shall forfeit the right of citizenship of India. Supreme Court in the case of Kulathil Mammu vs the State of Kerala, raises that question, whether a person has lost the citizenship of India on acquiring the citizenship of another country, has to be determined by the government of India and only after it has decided the matter can be referred to state government deal with him as an alien. In case of proceeding arises before the court of law, the court shall also have to await the determination of the issue by the government of India.

Article 10 provides that every person who is or is deemed to be a citizen of India under any of the provisions in articles 5 to 10 shall continue to be a citizen of India, subject to provision of any law that may be made by parliament. In the State of Maharashtra vs Prabhakar, Supreme Court got a chance to interpret the term “every person” used under Article 5 and 10 and held that it covers the person who may be in jail under trial or maybe undergoing imprisonment.

The Citizenship Act, 1955 passed by parliament providing acquisition and termination of

citizenship. Later the Act was amended in 1986, making the acquisition of Indian citizenship more stringent. The detailed provision regarding acquisition (by birth, descent, registration, naturalization or through the incorporation of the territory) of Indian citizenship and termination (by way of renunciation, voluntarily acquisition of citizenship of another country, or through compulsory deprivation by the government of India on certain grounds) of citizenship was

added.

Major Amendments

Although the act has been subjected to amendments from time to time, the drastic change took place in 2003 and 2005, under which provisions have been made inter alia for maintenance of a National Register of Indian citizen and for overseas citizenship of India for certain categories of individual of Indian origin settled in other country and enjoying their citizenship. Citizenship Amendment Act, 2019.

Soon after the Citizenship Amendment Act (CAA) was passed by the parliament, which provided that refugees from these 6 communities will be given citizenship of India after staying in India for 5 years (earlier this limit was of 11 years), a protest broke out across India, a few of them violent, against the CAA 2019 actual implementation on grounds of infringing Fundamental Rights. The act focused to amend and change the definition of the word “ illegal immigrant“; for Hindu, Sikh, Parsi, Buddhist, and Christian immigrants from Pakistan, Afghanistan, and Bangladesh who have lived in India without any proper documentation. They are now entitled to become citizenship of India within 6 years (earlier time limit was 12 years).

The important thing to remember regarding citizenship provision is that it aims at building an integrated Indian nation as well as a fraternity. Constitution Framers had decided to provide single citizenship for India, all irrespective of their state, unlike the U.S.A. which helps in generating the feeling of nationalism and oneness among all citizens.

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