MAULANA ABUL KALAM AZAD UNIVERSITY OF
TECHNOLAGY, WEST BENGAL
JLD ENGINEERING & MANAGEMENT
COLLEAGE , BARUIPUR
COLLEGE NAME : JLD ENGINEERING & MANAGEMENT
COLLEAGE .
NAME :RAKESH SAHA, UNIVERSITY ROLL NO: 34701322046
YEAR : 3rd , SEMESTER: 5th , DEPARTMENT: CIVIL ENGINEER
SUBJECT -: CONSTITUTION OF INDIA, CE (MC) 501
CA – 02
Citizenship of India
Indian Constitution
Government Policies & Interventions
In the run-up to the publication of the final National
Register of Citizens (NRC) in Assam, the Supreme
Court, in August, 2019 rejected a plea to include those
born in India between after March 24, 1971 and before
July 1, 1987 in NRC unless they had ancestral links to
India.
In any other Indian state, they would have been
citizens by birth, but the law is different for
Assam.
In this context, citizenship has become the most
talked about topic in the country.
National Register of Citizens (NRC)
The National Register of Citizens, 1951 is a register
prepared after the conduct of the Census of
1951 in respect of each village, showing the houses
or holdings in a serial order and indicating against
each house or holding the number and names of
persons staying therein.
The NRC was published only once in 1951.
The NRC of 1951 and the Electoral Roll of 1971 (up
to midnight of 24 March 1971) are together
called Legacy Data.
Persons and their descendants whose names
appeared in these documents are certified as
Indian citizens.
How is Citizenship Defined?
Citizenship signifies the relationship between
individual and state.
Like any other modern state, India has two kinds
of people—citizens and aliens. Citizens are full
members of the Indian State and owe allegiance to
it. They enjoy all civil and political rights.
Citizenship is an idea of exclusion as it excludes
non-citizens.
There are two well-known principles for the grant
of citizenship:
o While ‘jus soli’ confers citizenship on the
basis of place of birth, ‘jus sanguinis’ gives
recognition to blood ties.
o From the time of the Motilal Nehru
Committee (1928), the Indian leadership was
in favour of the enlightened concept of jus soli.
o The racial idea of jus sanguinis was also
rejected by the Constituent Assembly as it
was against the Indian ethos.
Constitutional Provisions
Citizenship is listed in the Union List under the
Constitution and thus is under the exclusive
jurisdiction of Parliament.
The Constitution does not define the term
‘citizen’ but details of various categories of persons
who are entitled to citizenship are given in Part 2
(Articles 5 to 11).
Unlike other provisions of the Constitution, which
came into being on January 26, 1950, these
articles were enforced on November 26,
1949 itself, when the Constitution was adopted.
Article 5: It provided for citizenship on
commencement of the Constitution.
o All those domiciled and born in India were
given citizenship.
o Even those who were domiciled but not born in
India, but either of whose parents was born
in India, were considered citizens.
o Anyone who had been an ordinary resident
for more than five years, too, was entitled to
apply for citizenship.
Article 6: It provided rights of citizenship of certain
persons who have migrated to India from
Pakistan.
o Since Independence was preceded by
Partition and migration, Article 6 laid down that
anyone who migrated to India before July 19,
1949, would automatically become an Indian
citizen if either of his parents or grandparents
was born in India.
o But those who entered India after this date
needed to register themselves.
Article 7: Provided Rights of citizenship of certain
migrants to Pakistan.
o Those who had migrated to Pakistan after
March 1, 1947 but subsequently returned on
resettlement permits were included within the
citizenship net.
o The law was more sympathetic to those who
migrated from Pakistan and called them
refugees than to those who, in a state of
confusion, were stranded in Pakistan or went
there but decided to return soon.
Article 8: Provided Rights of citizenship of
certain persons of Indian origin residing outside
India.
o 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: Provided that if any person voluntarily
acquired the citizenship of a foreign State will no
longer be a citizen of India.
Article10: It says that 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 citizen.
Article 11: It empowers Parliament to make any
provision with respect to the acquisition and
termination of citizenship and all matters relating to
it.
Acts and Amendments
The Citizenship Act, 1955 provides for
the acquisition and determination of Indian
citizenship.
Acquisition and Determination of Indian Citizenship
There are four ways in which Indian citizenship
can be acquired: birth, descent, registration and
naturalisation. The provisions are listed under
the Citizenship Act, 1955.
By Birth:
o Every person born in India on or after
26.01.1950 but before 01.07.1987 is an Indian
citizen irrespective of the nationality of his/her
parents.
o Every person born in India between
01.07.1987 and 02.12.2004 is a citizen of India
given either of his/her parents is a citizen of
the country at the time of his/her birth.
o Every person born in India on or after
3.12.2004 is a citizen of the country given both
his/her parents are Indians or at least one
parent is a citizen and the other is not an illegal
migrant at the time of birth.
By Registration: Citizenship can also be acquired
by registration. Some of the mandatory rules are:
o A person of Indian origin who has been a
resident of India for 7 years before applying
for registration.
o A person of Indian origin who is a resident of
any country outside undivided India.
o A person who is married to an Indian
citizen and is ordinarily resident for 7
years before applying for registration.
o Minor children of persons who are citizens of
India.
By Descent:
o 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.
o 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.
o If a person born outside India or or after
December 3, 2004 has to acquire citizenship,
his/her parents have to declare that the minor
does not hold a passport of another country
and his/her birth is registered at an Indian
consulate within one year of birth.
By Naturalisation:
o A person can acquire citizenship by
naturalisation if he/she is ordinarily resident
of India for 12 years (throughout 12 months
preceding the date of application and 11 years
in the aggregate) and fulfils all qualifications
in the third schedule of the Citizenship Act.
The Act does not provide for dual citizenship or
dual nationality. It only allows citizenship for a
person listed under the provisions above ie: by
birth, descent, registration or naturalisation.
The act has been amended four times — in 1986,
2003, 2005, and 2015.
Through these amendments Parliament has
narrowed down the wider and universal principles
of citizenship based on the fact of birth.
Moreover, the Foreigners Act places a heavy
burden on the individual to prove that he/she is not
a foreigner.
1986 amendment: Unlike the constitutional
provision and the original Citizenship Act that gave
citizenship on the principle of jus soli to everyone
born in India, the 1986 amendment to Section
3 was less inclusive.
o The amendment has added the condition that
those who were born in India on or after
January 26, 1950 but before July 1, 1987, shall
be Indian citizen.
o Those born after July 1, 1987 and before
December 4, 2003, in addition to one’s own
birth in India, can get citizenship only if either
of his parents was an Indian citizen at the time
of birth.
2003 amendment: The amendment made the
above condition more stringent, keeping in
view infiltration from Bangladesh.
o Now the law requires that for those born on or
after December 4, 2004, in addition to the fact
of their own birth, both parents should be
Indian citizens or one parent must be Indian
citizen and other should not be an illegal
migrant.
With these restrictive amendments, India has
almost moved towards the narrow principle of jus
sanguinis or blood relationship.
This lays down that an illegal migrant cannot
claim citizenship by naturalisation or
registration even if he has been a resident of India
for seven years.
Citizenship (Amendment) Bill 2019: The
amendment proposes to permit members of six
communities — Hindus, Sikhs, Buddhists,
Jains, Parsis and Christians from Pakistan,
Bangladesh and Afghanistan — to continue to live
in India if they entered India before December 31,
2014.
o It also reduces the requirement for citizenship
from 11 years to just 5 years.
o Two notifications also exempted these
migrants from the Passport Act and Foreigners
Act.
o A large number of organisations in Assam
protested against this Bill as it may grant
citizenship to Bangladeshi Hindu illegal
migrants.
o The justification given for the bill is that Hindus
and Buddhists are minorities in Bangladesh,
and fled to India to avoid religious persecution,
but Muslims are a majority in Bangladesh and
so the same cannot be said about them.
Different Scenario in Assam
Assam witnessed large-scale illegal migration
from erstwhile East Pakistan and, after 1971,
from present-day Bangladesh.
This led to the six-year-long Assam movement
from 1979 to 1985, for deporting illegal migrants.
The All Assam Students' Union (AASU) led the
movement that demanded the updating of the
NRC and the deportation of all illegal migrants who
had entered Assam after 1951.
The Assam Movement against illegal immigration
eventually led to the historic Assam Accord of
1985, signed by the Movement leaders and the
Rajiv Gandhi government.
It set March 25, 1971, as the cut-off date for the
deportation of illegal migrants.
Since the cut-off date prescribed under articles 5
and 6 of the Constitution was July 19, 1949 - to give
force to the new date, an amendment was made to
the Citizenship Act, 1955, and a new section (6A)
was introduced.
Section 6A
The section was made applicable only to Assam.
It laid down that all persons of Indian origin who
entered Assam before January 1, 1966 and have
been ordinary residents will be deemed Indian
citizens.
Those who came after 1 January, 1966 but before
March 25, 1971, and have been ordinary residents,
will get citizenship at the expiry of 10 years from
their detection as a foreigner.
During this interim period, they will not have
the right to vote but can get an Indian passport.
In Assam Sanmilita Mahasangha (2014) where the
constitutionality of the 1986 amendment was
challenged (the Mahasangha argues that the cutoff
year for Assam should be 1951 instead of 1971),
the court referred the matter to the Constitution
Bench.
o To examine whether Section 6A is
constitutional and valid though it prescribes a
different cutoff date for Assam (1971) from the
one prescribed in the Constitution for the rest
of the country (1949).
A five-judge Bench of the Supreme Court is yet to
examine the constitutionality of Section
6A under which the current NRC has been
prepared.
Identification of foreigners as needed by Section 6A
was to be done under the Illegal Migrants
(Determination by Tribunal) Act, (IMDT Act),
1983, which was applicable only in Assam while
the Foreigners Act, 1946 was applicable in the
rest of the country.
o The provisions of the IMDT Act made it difficult
to deport illegal immigrants.
o On the petition of Sarbananda Sonowal (now
the Chief Minister of Assam), the Act was held
unconstitutional and struck down by the
Supreme Court in 2005.
o This was eventually replaced with the
Foreigners (Tribunals for Assam) Order, 2006,
which again was struck down in 2007.
o In the IMDT case, the court considered
classification based on geographical
considerations to be a violation of the right to
equality under Article 14.
Conclusion
Giving concession of six years for residence based
only on religion is against the tenets of secularism.
This should be dropped to stand the test of ‘basic
structure doctrine’.
India, as a country which follows the ideology
of ‘Vasudhaiva Kutumbakam’, should not be
hasty in taking decisions that can disenfranchise
her citizens – contradicting its centuries-followed
values.
The need of the hour is that the Union Government
should clearly chart out the course of action
regarding the fate of excluded people from final
NRC of Assam and political parties should refrain
from colouring the entire NRC process through
electoral prospects that may snowball into
communal violence.
An overly legal approach will only produce more
tension, insecurity and anxiety.
