Citizenship of India under Indian Constitution

Part II of the Constitution of India (Articles 5-11) deals with the Citizenship of India. Article 5 speaks about the citizenship of India at the commencement of the Constitution (Nov 26, 1949). Article 11 gave powers to the Parliament of India to regulate the right of citizenship by law. Thus Citizenship Act 1955 was enacted by the Parliament. It is an act to provide for the acquisition and termination of Indian citizenship and the same acts speaks about the citizenship of India after the commencement of the Constitution.

Citizenship of India

The major issues in the Constituent assembly on citizenship For the constitution assembly, to arrive at a final draft for Citizenship was one of the most arduous tasks while framing the constitution. The problem was the partition of India on one hand and India being recreated by uniting the princely states on the other. India’s partition into India and Pakistan caused millions of people across the border.

The Hindus and Sikhs who were born in Pakistan side came to India and Muslims who were born in India migrated to Pakistan. Apart from that, there were people who had left their homeland India and started living abroad and now wanted to come back as the country was a free nation. The assembly created and destroyed many drafts regarding citizenship and even the final draft was amended more than 100 times before it was finally incorporated in the Constitution as Part II.

The problem of citizenship was basically as follows: The people who were born and living in Pakistan and migrated to India were to be provided Indian Citizenship. The people who were born and living in India and migrated to Pakistan were to be excluded and debarred from Indian Citizenship. People who migrated to Pakistan in 1947 but returned back to live in India permanently had to be provided Citizenship. The people who were born in India, but living abroad but came back, had to be provided citizenship.

Article 5: Citizenship at the commencement of the Constitution

At the commencement of this Constitution, every person who has his domicile in the territory of India and- who was born in the territory of India; or either of whose parents was born in the territory of India; or who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement, shall be a citizen of India. Article5 refers to the Citizenship on January 26, 1950.

This article provided that the ordinary resident in the territory of India since or before January 26, 1945 were deemed to be Indian Citizens. But what about the people who came from Pakistan after 1947 partition? This is clarified in Article 6. Article 6: Rights of citizenship of certain persons who have migrated to India from Pakistan

Notwithstanding anything in article 5, a person who has migrated to the territory of India from the territory now included in Pakistan shall be deemed to be a citizen of India at the commencement of this Constitution if- he or either of his parents or any of his grand-parents was born in India as defined in the Government of India Act, 1935 (as originally enacted); and

• in the case where such person has so migrated before the nineteenth day of July, 1948, he has been ordinarily resident in the territory of India since the date of his migration, or
• in the case where such person has so migrated on or after the nineteenth day of July, 1948, he has been registered as a citizen of India by an officer appointed on that behalf by the Government of the Dominion of India on an application made by him therefore to such officer before the commencement of this Constitution in the form and manner prescribed by that Government:

Provided that no person shall be so registered unless he has been resident in the territory of India for at least six months immediately preceding the date of his application. Article 6 deals with those persons who migrated to India from Pakistan. India as defined in the Government of India Act, 1935 means undivided India. These persons were divided into two categories.

Category 1: Those who came before July 19, 1948

Category 2: Those who came after July 19, 1948 Those who came from Pakistan to India before July 19, 1948 would automatically become Indian Citizens.

Those who came after July 19, 1948 would become Indian Citizens provided they had been registered in the form and manner as prescribed by the Government of India.

Article 7: Rights of citizenship of certain migrants to Pakistan

Notwithstanding anything in articles 5 and 6, a person who has after the first day of March, 1947, migrated from the territory of India to the territory now included in Pakistan shall not be deemed to be a citizen of India: Provided that nothing in this article shall apply to a person who, after having so migrated to the territory now included in Pakistan, has returned to the territory of India under a permit for resettlement or permanent return issued by or under the authority of any law and every such person shall for the purposes of clause (b) of article 6 be deemed to have migrated to the territory of India after the nineteenth day of July, 1948.

Article 7 deals with those persons who had migrated to Pakistan but returned to India from Pakistan with the intention to live here permanently. Please note that this article deals with the “permit system”. The permit system was introduced in July 19, 1948. This system provided that a person who is desiring to return back to India with an intention to permanently reside was required to get a separate permit.

Article 8: Rights of citizenship of certain persons of Indian origin residing outside India

Notwithstanding anything in article 5, any person who or either of whose parents or any of whose grandparents was born in India as defined in the Government of India Act, 1935 (as originally enacted), and who is ordinarily residing in any country outside India as so defined shall be deemed to be a citizen of India if he has been registered as a citizen of India by the diplomatic or consular representative of India in the country where he is for the time being residing on an application made by him therefor to such diplomatic or consular representative, whether before or after the commencement of this Constitution, in the form and manner prescribed by the Government of the Dominion of India or the Government of India.

Article 8 deals with those persons who were living abroad. The article provides that any person who was born or his parents /grandparents were born in undivided India but living abroad and wants to return to India would need to be registered as a Citizen of India by the diplomatic or consular representative of India in that country.

Article 9: Persons voluntarily acquiring citizenship of a foreign State not to be citizens

No person shall be a citizen of India by virtue of article 5 or be deemed to be a citizen of India by virtue of article 6 or article 8 if he has voluntarily acquired the citizenship of any foreign State. Under article 9 of the constitution, any person who has voluntarily acquired the citizenship of a foreign country, even if qualified for Indian Citizenship under any of the provisions of the constitution will not be a Citizen of India.

Plenary Power to Parliament: Article 10 & 11

Article 10: Continuance of the rights of citizenship

Every person who is or is deemed to be a citizen of India under any of the foregoing provisions of this Part shall, subject to the provisions of any law that may be made by Parliament, continue to be such a citizen.

Article 11: Parliament to regulate the right of citizenship by law

Nothing in the foregoing provisions of this Part shall derogate from the power of Parliament to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship. The nature of provisions from Articles 5 to 9 shows that the objective of the constituent assembly was not to make a permanent law for citizenship. Ours is a Republic Country and various offices are to be occupied by the persons who are elected by the citizens.

So, keeping this in view, it was necessary for the Constituent Assembly to make some provisions that could precisely determine that who is a Citizen of Independent Indian Dominion and who is not, at the time of the commencement of the constitution. Further, the constituent also gave plenary power to the parliament of India to deal with the question of nationality. Article 10 and more precisely Article 11 give the power to the parliament to make law in this connection as and when it suits the demands of the circumstances.

The power in parliament vested by Article 11 embraced not only acquisition but also the termination or any other matter related to Citizenship. Using the power vested in parliament by Article 11 of the Constitution of India, a comprehensive law “The Citizenship Act, 1955” was passed by the parliament. This act has been amended from time to time to make space for provisions as and when required.

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