Citizenship in India

Even “inborn and inalienable rights”[1] become meaningless if one is stripped of their citizenship of a state. Citizenship is a significant concept that gives an individual the “right to have rights”.[2] This piece will explore this very concept in the Indian context.

Constitutional History: Defining Citizenship

The Constituent Assembly set up an advisory committee to create a simple formula for Indian citizenship.[3] They proposed that the Citizenship clause state that “every person born in the Union or naturalised according to its laws and subject to the jurisdiction thereof shall be a citizen of the Union”.[4] The committee deliberately chose a more “enlightened” and “democratic” notion of citizenship (citizenship based on one’s birth) over a “racial” or “ethnic” one (citizenship based on one’s descent).[5] Several opposed this proposed clause, claiming that “Indian ethnicity” should determine one’s citizenship.[6] The Hindutva perception of Indian citizenship, which ties Indian nationality with Hinduism, was also considered. However, while it received immense public sympathy, it did not receive widespread support from the Constituent Assembly.[7] After Partition, the territorial definition of citizenship had to be revisited due to the transformations brought about by mass migrations across the borders.[8] While the concept of descent-based citizenship was slightly accommodated for after Partition, the Hindutva perception was outright rejected.

The Indian Constitution tackles the concept of citizenship under Part II. The seven articles under this Part took almost two years to finalise.[9] Articles 5, 6 and 8 of the Indian Constitution stipulate the eligibility criteria to be a citizen of the country at the time of the commencement of the Constitution on January 26 1950. Article 5 of the Constitution stipulates that an individual would be a citizen of India if, at the time of the commencement of the Constitution, that individual has a domicile in India, and if that individual was either (a) born in India, or (b) has at least one parent who had been born in India, or (c) had been an ordinary resident of India for at least five years preceding the commencement of the Constitution. Two other distinct categories of citizenship present in these provisions are citizenship by migration (Article 6) and by registration (Article 8). Article 7 was designed to exclude certain persons who had migrated to Pakistan from India after 1 March 1947 from being eligible of Indian citizenship. However, this article provided for the rights of Indian citizenship to those individuals who had migrated to Pakistan from India but had returned to India under “a permit of re-settlement” or “permanent return” as issued by an authorised government official as under Article 6(b). Article 9 stipulated that any person who had voluntarily acquired the citizenship of another country before the commencement of the Indian Constitution would not be considered an Indian citizen. These articles are interesting because, unlike the other provisions of the Constitution of India, they are marked by impermanence.[10] These provisions were made to account for the consequences that were brought about by the infamous partition of India. They lacked the quality of timelessness that is usually associated with Constitutional provisions.[11] A person’s right to continue to remain an Indian citizen was made subject to any future laws made by the Parliament on the subject of citizenship.[12]

Legislating Citizenship

Five years after the commencement of the Indian Constitution, Parliament enacted the Citizenship Act, 1955.[13]  The Act provided five ways in which a person could acquire Indian citizenship. These were: by birth, by descent, by naturalisation and by incorporation of territory.  Section 5 also lays down seven categories of persons who can apply to be registered as a citizen of India. The Act also defines the term “illegal migrant”.

Since the Act was passed, there has been a steady dilution of the citizenship by birth principle, as encompassed under Article 5(a) of the Indian Constitution. This conception of citizenship was slowly and simultaneously infiltrated by the citizenship by descent model and the religion-based citizenship model, both of which were immensely resisted while India was first being imagined. Some significant amendments that prove the aforementioned transition are the 2003, 2005, 2015 and 2019 amendments to the Act and the 2004 amendment to the Citizenship Rules 1956. The 2003 amendment to the Act stipulated that an individual born on or after the commencement of the Amendment Act would not be qualified as an Indian citizen unless (a) both their parents are citizens of India at the time of their birth or (b) if either of their parents are citizens of India at the time of their birth and none of them is an illegal immigrant. The 2005 and the 2015 amendments introduce the concept of an Overseas Citizen of India under the section 7A. This section seeks to extend this citizenship-like status to the diaspora communities specified in the section, including adult citizens of other countries who are children or grandchildren of a person who was either the citizen of India or eligible to be one at the time of the commencement of the Constitution. Rule 8A brought in by the 2004 amendment to the aforementioned Citizenship Rules 1956 makes a special provision for Hindus having Pakistani citizenship. The Rule stipulated that if such individuals had come to India “more than five years ago” to permanently settle down and if they have applied for citizenship, they must be granted the same. To further crystallise the leap towards religion-based citizenship, the Citizenship Amendment Act 2019 was passed. It seeks to exempt six religious communities from Pakistan, Bangladesh or Afghanistan entering India on or before 31 December 2014 from being considered as “illegal migrants” under the Citizenship Act. The aforementioned religious groups are Hindus, Sikhs, Buddhists, Jains, Christians and Parsis. The amendment also seeks to facilitate a path of citizenship for these communities. The recent emphasis on the citizenship by descent principle is a move away from “the imagination of India that informed and inspired the freedom struggle and found embodiment in the Constitution”.[14]

Citizenship and Fundamental Rights

It is surprising to note that neither the Indian Constitution nor the Citizenship Act, 1955 defined the word “citizen” succinctly. However, Part III of the Constitution makes a distinction between the fundamental rights available to a “person” and those guaranteed to a “citizen”, and Part IV-A of the Constitution defines the fundamental duties of every Indian citizen.[15] By enumerating the rights and duties afforded to a citizen of this country, these two aforementioned Parts of the Indian Constitution help in understanding the importance of being an Indian citizen, as opposed to a person living in India.  The Constitution affords six fundamental rights to the citizens of the country. They are: right to equality[16], right to freedom[17], freedom from exploitation[18], freedom of religion[19], educational and cultural rights[20] and right to constitutional remedies[21]. The Constitution has been amended to add the fundamental duties of citizens in order to strike a balance between a citizen’s civic freedoms with their civic obligations.[22] Some of the fundamental duties include the duty to abide by the Constitution of India[23], the duty to safeguard public property[24] and the duty to uphold and protect the sovereignty, integrity and unity of India[25].

[1] Origins of Totalitarianism, Hannah Arendt.

[2] Origins of Totalitarianism, Hannah Arendt.

[3] South-Asian Histories of Citizenship, 1946-1970, Joya Chatterjee.

[4] South-Asian Histories of Citizenship, 1946-1970, Joya Chatterjee.

[5] South-Asian Histories of Citizenship, 1946-1970, Joya Chatterjee.

[6] South-Asian Histories of Citizenship, 1946-1970, Joya Chatterjee.

[7] Civil Society, Public Sphere and Citizenship, “Citizenship and the Indian Constitution”, Valerian Rodrigues.

[8] South-Asian Histories of Citizenship, 1946-1970, Joya Chatterjee.

[9] Citizenship and its Discontents, Niraja Gopal Jayal.

[10] Oxford Handbook of the Indian Constitution, “Citizenship”, Niraja Gopal Jayal.

[11] Oxford Handbook of the Indian Constitution, “Citizenship”, Niraja Gopal Jayal.

[12] Articles 10 and 11 of the Indian Constitution.

[13] The Citizenship Act, 1955.

[14] Faith-based Citizenship, Niraja Gopal Jayal, https://www.theindiaforum.in/sites/default/files/pdf/2019/11/01/faith-based-citizenship.pdf

[15] Civil Society, Public Sphere and Citizenship, “Citizenship and the Indian Constitution”, Valerian Rodrigues.

[16] Articles 14-18 of the Indian Constitution.

[17] Articles 19-22 of the Indian Constitution.

[18] Articles 23-24 of the Indian Constitution.

[19] Articles 25-28 of the Indian Constitution.

[20] Articles 29-30 of the Indian Constitution.

[21] Article 32 of the Indian Constitution

[22] My Fundamental Duties under the Constitution of India, Justice Kurian Joseph, https://www.thehindu.com/migration_catalog/article14463342.ece/BINARY/Expanding%20the%20idea%20of%20India

[23] Article 51A (a) of the Indian Constitution.

[24] Article 51A (i) of the Indian Constitution.

[25] Article 51A (c) of the Indian Constitution.