INTRODUCTION TO INDIAN CITIZENSHIP
The provisions relating to citizenship in India is provided under article 5 to 11 by the Indian constitution. Though the constitution does not define the term ‘citizen’, it contains laws regarding acquisition or loss and other matters regarding citizenship. The idea of citizenship first came up at the time of the launching of the Indian constitution. Further Article 11 in the Indian constitution entitles the parliament to make and amend laws on citizenship. Later through this utilization of power, the Citizenship Act, 1955 was enacted. This article discusses how Indian citizenship laws have evolved.
DURING THE TIME OF COMMENCEMENT OF THE INDIAN CONSTITUTION
During the time of India’s Independence, there was also a partition of the Indian subcontinent which presented a challenge to the Indian state regarding the concept of citizenship. That’s when after the making of the Indian constitution, it did give an answer to this problem presented and thus laws were made regarding who can or cannot become a citizen of India.
As per Article 5 in the Constitution, every person having domicile within the territory of India and any person who had been born within the Indian territory or either of the individual’s parents was born in the territory of India or if one has been ordinarily residing in the country for not less than five years prior to the commencement of the Constitution, can become a citizen of the country.
Article 6 mentions the privileges of citizenship of definite people who have come to the Indian territory from Pakistan. They can become citizens of India given that-
- The person or any one of his parents or his grandparents were born in India as specified by the Government of India Act, 1935.
- The person has migrated on or prior to the date mentioned, that is, 19th July 1948 and has been ordinarily a resident of India since the day of migration.
- The person has migrated on or after 19th July 1948 and was enrolled as a citizen of India by a government-appointed officer of the Dominion of the country prior to the commencement of the constitution.
Provisions relating to the right of citizenship of migrants to Pakistan is laid down in Article 7 of the constitution. This Article states that an individual who is a citizen according to Article 5 or Article 6, shall not be a citizen of India, supposing that the person has migrated to Pakistan after 1st March 1947. But, suppose a person has come back to India intending to settle again, then such persons shall be considered to be a citizen of India.
The expression ‘migrated’ had been expounded by the High Court of Kerala in Kulathi Mammu v. The State of Kerala. It was held that the meaning of ‘migrated’ is moving from one place to other intending to settle either temporarily or permanently.
Article 8 states that any individual or either of his parents or grandparents who had been born within the territory of India as specified by the Government of India Act, 1935, and who has ordinarily been a resident in any other country except India is deemed to be a citizen of India given that the person had been registered as an Indian citizen by the consular or diplomatic official of India in the country, where the person for the time being had been living through an application made by such person to the competent authority.
Article 9 lays down that if a person chooses to acquire citizenship of any other nation, then the person will be refused to be considered a citizen of India under Articles 5, 6, or 8.
Further Article 10 states that an individual who is a citizen of India under the above-stated provisions will continue to be a citizen of India unless the parliament makes any law that stripes their citizenship.
AFTER THE COMMENCEMENT OF THE INDIAN CONSTITUTION
Article 11 of the constitution has conferred powers to the parliament regarding the enactment of laws on citizenship. Therefore, after the commencement of the constitution, the parliament constituted the Citizenship Act, 1955, which provides for the acquisition and termination of citizenship, which was revised six times, the latest one being the Citizenship Amendment Act, 2019.
The Citizenship Act, of 1955 prescribes five conditions for obtaining citizenship. These are:
- Citizenship by birth: If an individual is born within the territory of India or any one of the parents or both parents is a citizen of India, then the person can have Indian citizenship.
- Citizenship by descent: An individual residing outside the territory of India can acquire citizenship if their father was a citizen of India during the time of the person’s birth, or either of their parents was an Indian citizen.
- Citizenship by registration: A person can acquire citizenship by application to the central government, provided that he fulfils certain conditions.
- Citizenship by naturalization: A person can acquire citizenship under the regulation of the statute.
- Citizenship by incorporation of territory: A person can become a citizen of India if a new territory becomes part of the country.
While the above act directed the government to have a National Register for citizens, the recent amendment has eased the process of acquiring citizenship for the persecuted minorities from three countries.
THE RECENT AMENDMENT
The government has made some amendments to this act, which is called the Citizenship (Amendment) Act, 2019. This act provides citizenship to communities belonging to Buddhist, Parsi, Jain, Sikh, Hindu or Christian from Afghanistan, Bangladesh or Pakistan given that they have arrived in India on or before 31st December 2014. The Act of 1955 had mandated a person to live in India for 11 years to apply for citizenship. The 2019 Act has now decreased this period to five years for Hindus, Christians, Jains, Sikhs, Buddhists, Jains and Parsis belonging to the three nations mentioned above.
THE DEBATE OVER THE RECENT AMENDMENT
The CAA has been controversial since its implementation and the citizens have been protesting against the implementation of this bill. The preamble of the Indian constitution states that India is a Secular Nation, which means that the state does not promote or degrade and particular religion. But the amendment opposing the principle of secularism grants citizenship to people based on religion. The Muslims are excluded from this law meaning the secular system of the state is threatened. Further Article 14 and Article 15 of the Indian Constitution provides for equality before the law and banning of discrimination based on religion, respectively. The amendment violates these articles by providing privilege to only certain communities based on religion. Kerala was the first state to challenge this law before the Supreme Court of India. The debate over constitutionalism of the recent amendment act continues. There are several petitions filed before the Supreme Court which are still pending.
CONCERNS REGARDING THE IMPLEMENTATION OF THE CITIZENSHIP (AMENDMENT) ACT, 2019
The Citizenship Act, 1955 had mandated the National Register of Citizens. Along with this, the centre had planned to prepare the National Population Register (NPR), which includes a list of people living in India. NPR aims to identify people who fails to provide evidence of their citizenship. Considering that many people in India live with poverty and other lack of resources, they might not be able to confirm their identity through records. This can affect the status of their citizenship. Many states have also expressed their concerns about NRC being implemented.
The government seeks to make it easier to provide citizenship to the persecuted minorities coming from the three neighbouring countries. The law does not apply to any other foreign country except Pakistan, Afghanistan and Bangladesh. During a debate in Rajya Sabha about the bill, the government said that the need for the bill wouldn’t have been aroused if the partition wouldn’t have taken place based on religion. Adding further, the government said that the bill doesn’t snatch the citizenship of any individual.
The laws enacted for citizenship during the time of commencement of the constitution and the Citizenship Act, Of 1955 did not grant citizenship to individuals based on religion until the recent amendment, that is, the Citizenship (Amendment Act), 2019. Though this act provides some relief to the persecuted minority of other nations, it does not seem reasonable to grant citizenship based on religion. The previous laws regarding citizenship had a more holistic approach, where citizenship was either provided or denied to illegal immigrants without taking into account any specific community.
Author(s) Name: Ektaa Chatterjee (Ramaiah College of Law, Bangalore)