Introduction to citizenship
Citizenship is a legal status that is granted to the people by a nation-state empowering them to certain rights, privileges, participation in politics and responsibilities within the demarcated boundaries of the country. However, the definition of citizenship transcends mere legal status. It defines one’s connection to a shared community, history, and culture that shapes an individuals’ participation in the social, political and economic activities of the country. Various privileges such as the right to vote, the right to hold public office, and the right to protection under the law are provided to the individuals of the particular state.
Citizenship criteria vary globally and are largely a result of its history. India’s case was shaped by the experience of partition. The splitting of the country and millions dying loomed heavily on the minds of the members of the Constituent Assembly. Unlike many other nations that emphasise flexibility in citizenship laws, India focuses on ancestry and requires a stronger commitment through renunciation (except under CAA).
The history of citizenship in India
The historical background of the Citizenship Act in India is rooted in the country’s independence from British rule and the subsequent partition followed in the year 1947. Before independence, there was no concept of Indian citizenship under British colonial rule. The British Nationality Act of 1914 governed the status of individuals in British India, and it was repealed in 1948. The act determined who could be considered as a British subject within the British Empire, including India. Under this act, individuals born within British India, as well as those born outside India but with a British subject father, were considered British Nationals. However, after the introduction of the Indian Independence Act, the British nationality laws were repealed along with the 1914 Act.
Upon independence, India began formulating its laws regarding citizenship. The newly formed Constituent Assembly limited the scope of the constitution’s citizenship provisions to address the immediate need to determine the citizenship of migrants due to the partition. This was a crucial step given the large-scale population movements across the new borders separating India and Pakistan, leading to the displacement of millions of people.
The partition allowed people to choose the country they wanted to reside in and acquire citizenship accordingly. The Constituent Assembly recognised the need to define citizenship to regulate these migrations and provide a legal framework for determining citizenship status.
In 1955, the Parliament enacted the Citizenship Act, which laid down specific provisions regarding citizenship requirements and eligibility criteria. This act established the legal foundation for citizenship in India, defining who is considered a citizen of the country and outlining the processes for acquiring, renouncing, and determining citizenship status rather than regulating citizenship by the British colonial laws and administrative practices as it was before the Act.
Types of Citizenship in India
The Indian Constitution recognizes the following types of citizenship:
- Citizenship by birth: This is the citizenship that is acquired by a person who is born in India.
- Citizenship by descendant: This is the citizenship that is acquired by a person who is born outside India to Indian parents.
- Someone who has been ordinarily resident in the territory of India for not less than five years becomes a citizen.
Acquisition of Citizenship
There are three ways to acquire citizenship in India:
- By birth: Any person who is born in India is automatically a citizen of India.
- By descent: Any person who is born outside India to Indian parents is automatically a citizen of India.
- By naturalisation: A foreign national can acquire citizenship in India by the process of naturalisation. The process of naturalisation involves applying for Indian citizenship and meeting certain requirements, such as residing in India for a certain period i.e. 12 years, and taking an oath of allegiance to the Constitution of India.
- By Registration: The Central Government may, on an application, register as a citizen of India any person (not being an illegal migrant) if he belongs to any of the following categories, namely:
- Indian origin resident in India for 7 years.
- Indian origin resident outside undivided India.
- Married to an Indian citizen and resident for 7 years.
- Minor child of an Indian citizen.
Rights of citizenship of certain persons who have migrated to India from Pakistan
The rights of citizenship of certain persons who have migrated to India from Pakistan are defined in Article 6 of the Constitution of India. This article states that a person who migrated to India from Pakistan before or after the partition would be deemed to be a citizen of India at the commencement of the Constitution if:
- He or either of his parents or any of his grandparents was born in India as defined in the Government of India Act, 1935 (as originally enacted); and
- He had been ordinarily resident in India since the date of his migration, or he had been registered as a citizen of India by an officer appointed by the Government of India before the commencement of the Constitution, provided that he had been resident in India for at least six months before applying for registration.
Rights of citizenship of certain migrants to Pakistan
The rights of citizenship of certain migrants to Pakistan are governed by Article 7 of the Constitution of India. It states that a person who migrated to Pakistan after March 1, 1947, would not be considered a citizen of India unless he or she returned to India with a permit for resettlement or permanent return. This article was meant to deal with the situation of people who moved to Pakistan during or after the partition of India in 1947, but later wanted to come back to India.
However, this article was modified by the Citizenship Amendment Act 2019 (CAA), which was passed in December 2019. The CAA grants Indian citizenship to persecuted religious minorities from Afghanistan, Bangladesh, and Pakistan, who belong to Hindu, Sikh, Buddhist, Jain, Parsi or Christian faiths and who entered India on or before December 31, 2014. The CAA also reduces the residency requirement for naturalisation of these migrants from 11 years to five years.
Termination of Citizenship
There are three ways to terminate Indian citizenship:
- By renunciation: An Indian citizen can renounce their citizenship by applying to the government and meeting certain requirements.
- By deprivation: The government can revoke citizenship if they have committed certain offenses, such as treason or espionage.
- By termination of treaty: If India terminates a treaty of citizenship, any Indian citizen who acquired their citizenship through that treaty will lose their Indian citizenship.
Regulation of Right to Citizenship by Parliament
The regulation of the right to citizenship by Parliament is a constitutional provision that empowers the Parliament to make laws regarding the acquisition and termination of citizenship and all other matters relating to citizenship. Article 11 of the Indian Constitution is the provision that gives powers to the Parliament of India to regulate the right of citizenship by law.
This provision resulted in the enactment of the Citizenship Act of 1955, which lays down the criteria for becoming an Indian citizen by birth, descent, registration, naturalisation, or incorporation of territory. The Act has been amended several times to address various issues such as illegal migration, refugees, dual citizenship, and overseas citizenship.
One of the most recent and controversial amendments was the Citizenship Amendment Act of 2019, which grants citizenship to certain religious minorities from Afghanistan, Bangladesh, and Pakistan who entered India before 2015. The Act has been criticised for violating the secular principle of the Constitution and discriminating against Muslims.
Rights and duties of citizens
Indian citizens have several rights and duties. The fundamental rights of citizens are enshrined in Part III of the Constitution of India. These rights include the right to equality, the right to freedom, the right against exploitation, the right to freedom of religion, cultural and educational rights, and the right to constitutional remedies.
In addition to fundamental rights, Indian citizens also have several other rights, such as the right to vote, the right to hold public office, and the right to protection under the law. Indian citizens also have several duties, such as the duty to pay taxes and the duty to obey the law.
The challenges and opportunities facing citizenship in India in the 21st century
With India emerging as the largest diaspora population globally, numbering 18 million as of 2020, migration to Western countries by predominantly young students and professionals presents a significant challenge to Indian citizenship.
India has introduced schemes such as the Overseas Citizenship of India (OCI) and the Person of Indian Origin (PIO) cards to address the challenge of migration to Western countries by Indian professionals and students. These schemes aim to provide a pathway for people of Indian origin living abroad to reconnect with their homeland and contribute to its economy. The OCI and PIO cards offer certain rights and privileges to eligible individuals, allowing them to maintain ties with India. However, it’s important to note that these schemes do not confer dual citizenship and come with limitations. India must strike a balance between attracting talented individuals and safeguarding its national identity while enhancing its economy.
Case studies of how the Indian Constitution has been applied to protect the rights of citizens.
The judiciary safeguards citizens’ rights by applying the Basic Structure principle of the Constitution and enforcing laws. Through judicial review, it can invalidate laws or executive actions violating the Constitution, particularly fundamental rights. While resolving disputes with justice, equity, and good conscience, the judiciary plays a vital role.
There are many cases where Constitutional principles have been applied to protect the rights of citizens and their citizenship from various forms of discrimination, injustice, and oppression. Here are some examples of such cases:
- Maneka Gandhi v. Union of India (1978): This case challenged the validity of Section 10(3) of the Passport Act, 1967, which empowered the government to impound or revoke any passport without giving any reason. The Supreme Court held that Section 10(3) violated Article 21 of the Constitution, which guarantees the right to life and personal liberty. The Court also held that Article 21 includes the right to travel abroad and that any restriction on this right must be reasonable and fair.
- State of West Bengal v. Anwar Ali Sarkar (1952): This case challenged the constitutionality of the West Bengal Special Courts Act, 1950, which empowered the state government to set up special courts for certain offenses and to select the cases to be tried by them. The Supreme Court struck down the Act as violative of Article 14 of the Constitution, which guarantees equality before the law and equal protection of the laws. The Court held that the Act created an unreasonable classification between offenders and violated the principle of natural justice.
- Indira Gandhi v. Raj Narain (1975): This case challenged the validity of the 39th amendment to the Constitution, which placed the election disputes of the Prime Minister and the Speaker beyond judicial scrutiny. The Supreme Court declared the amendment as unconstitutional and null and void. The Court held that the amendment violated the basic structure of the Constitution by affecting the free and fair elections, which are essential for democracy.
Thus, for an Indian citizen, the Judiciary and Legislative bodies keep a checks and balances on each other to protect your Fundamental Rights.