We will discuss about the provisions of Article 5 to 11 under Part-II of Indian Constitution i.e., Indian Citizenship.
Citizenship [ Part-II : Article 5 to 11 ]
1) What is the difference between citizens and aliens?
With respect to India, there are 2 types of people in the country:
- Citizen
- Alien
a) Who are Citizens?
- Citizens are the full
members of Indian state and owe allegiance (faithfulness) to it.
- Citizens enjoy all civil and
political rights.
b) Who are Aliens?
- Aliens are not citizens of
India and are citizens of some other country.
- Aliens do
not enjoy all civil and political rights.
Alien can be further of sub-categorized into :
- Friendly alien
- Enemy alien.
i) Who are Friendly aliens?
- Friendly aliens are the citizens
of those countries with which India has cordial relations.
ii) Who are Enemy Aliens?
- Enemy aliens are the
citizens of those countries with which India is at war.
- Enemy aliens enjoy lesser
rights than friendly aliens.
- Enemy
aliens do not enjoy protection under Article 22 i.e.,
protection against arrest and detention.
2) What are the rights which are available to a citizen of India but not
to the aliens?
There are 5 fundamental rights which are available to only citizens of
India but are not available to aliens :
- Article-15: Right against
discrimination
- Article-16: Right to equal
employment opportunities
- Article-19: Right to Freedom
of speech and expression
- Article-29, 30: Cultural and
Educational Rights
Constitution Article No.
|
Article Description
|
Citizen
|
Alien
|
Article 15
|
Right
against discrimination on the grounds of religion, race,
caste, sex or place of birth
|
ü
|
X
|
Article 16
|
Right
to Equality of opportunity in the matter of public employment
|
ü
|
X
|
Article 19
|
Right
to freedom of speech and expression, assembly, association,
movement, residence and profession
|
ü
|
X
|
Article 29,
Article 30
|
Cultural
and Educational rights
|
ü
|
X
|
Right
to vote in elections of Lok Sabha and state legislative
assembly
|
ü
|
X
|
|
Right
to contest for membership of Parliament and state
legislature
|
ü
|
X
|
|
Eligibility
to hold certain public offices like :
|
ü
|
X
|
3) Are Fundamental Duties under Article-51A applicable to Aliens?
11 Fundamental Duties states under Article-51A are applicable to only Indian Citizens and are not applicable to the aliens.
Thus, along with Fundamental Rights granted by Indian constitution to the
citizens of India, there are 11 fundamental duties to be followed by the
citizens as mentioned in Article-51A of the constitution.
4) Who can enact laws for citizenship?
Constitution of India doesn't contain any permanent or elaborate
provisions with respect to Citizenship and has granted Parliament the
responsibility to enact a law for it under Article-11.
5) Provisions of Article-5 to 11 in detail
Constitution only deals with identifying the persons who would become
citizens of India at the commencement of the constitution (i.e 26th Jan, 1950
).
- Constitution does not
provide for the mode of acquisition and termination of citizenship.
- It does not deal with the
problem of acquisition or loss of citizenship after 26th Jan, 1950.
- To deal with this problem,
Parliament has enacted Citizenship Act, 1955 which
has been amended five times so far : 1986, 1992, 2003, 2005 and 2015.
Who would have become the citizens of India at the commencement of
Constitution (i,e since 26th Jan, 1950)?
As per Constitution, there are 4 types of persons who
became citizens of India at the commencement of the constitution (i.e 26th Jan,
1950)
i) Article-5:
Person who had his permanent
house(domicile) in India and fulfilled either of the three
conditions :
- He was born in India, OR
- Either of his parents were
born in India, OR
- He has been ordinarily
resident in India for 5 years immediately before the commencement of the
constitution (i.e 26th Jan, 1950)
ii) Article-6:
Person who migrated from
Pakistan to India and he or either of his parents or any of
his grandparents were born in undivided India and fulfilled either of the two
conditions :
a) Migrated before 19th July, 1948:
Person has been ordinarily resident in India since the date of his
migration.
b) Migrated on or after 19th July, 1948:
Person had been registered as a citizen of India only if he had been
resident in India for atleast 6 months before applying for registration.
- Registration was done by a
government official appointed for the purpose.
Note : On 19th July, 1948 a permit system was introduced
for migration.
iii) Article-7:
Person who migrated from
India to Pakistan after 1st March, 1947 but,
later returned back to India for resettlement.
He should fulfill following condition to become a citizen of India :
- The person had to be
resident in India for atleast 6 months before applying for citizenship
registration.
iv) Article-8:
A person who himself or either of his parents or either of his grandparents
were born in undivided India but, person
is ordinarily residing outside India shall become citizen of
India if:
- He is registered as a
citizen of India by the diplomatic or consular representative of India in
the country in which the person is residing,
- Registration can be done
before or after the commencement of the constitution.
Article-8 covers overseas Indians (Person born in
India but residing outside India) who would like to acquire Indian
citizenship.
Other constitutional provisions for citizenship are :
a) Article-9:
If a person voluntarily acquires citizenship of some other foreign
country, he shall be deprived (forfeit) of the right of Indian citizenship.
Acquires Before commencement of Constitution : Dealt by Constitution
Acquires on or After commencement of Constitution : Dealt by Citizenship
Act, 1955 enacted by the Parliament.
b) Article-10:
Every person who is or deemed(considered) to be a citizen of India as in
Article 5 to 10, shall continue to be a citizen of India until subjected to the
provisions of any law enacted by the Parliament.
c) Article-11:
The powers to make any law on the matters of acquiring or terminating
the citizenship of a person and other matters of citizenship are vested in the
Parliament as provided by the constitution.
6) What is Citizenship Act of 1955?
Citizenship Act of 1955 was enacted by the Parliament of India to deal with the provisions related to acquisition or termination of Indian citizenship and other matters of citizenship after the commencement of the constitution.
As per the Citizenship Act of 1955, there are 5 ways to acquire citizenship of India :
- Birth,
- Descent,
- Registration
- Naturalisation
- Incorporation of Territory
As per the Citizenship Act of 1955, there are 3 ways to terminate the citizenship:
- Renunciation
- Termination
- Deprivation
7) What are the 5 Ways to acquire citizenship of India?
The 5 ways to acquire Indian citizenship are:
a) By Birth :
A person can be citizen of India by birth only if :
i) Person is born in India on or after 26th Jan, 1950 and before 1st July, 1987.
OR
ii) Person is born in India on or after 1st July, 1987 but before 3rd Dec, 2004 is considered citizen of India :
- if either of his parents is
a citizen of India at the time of his birth.
OR
iii) Person born in India after 3rd Dec, 2004 are considered citizen of India if :
- Both of his parents are
citizens of India OR
- One of his grandparents is a
citizen of India and other is not an illegal migrant at the time of their
birth.
Note : The children of foreign diplomats posted in India
and enemy aliens cannot acquire Indian citizenship by Birth.
b) By Descent :
Person born outside India can become citizen of India by descent if :
i ) If Born on or after 26th Jan, 1950 but before 10th Dec, 1992 can become citizen of India by descent if:
- Person's Father was a
citizen of India at the time of his birth. (Note : Not Mother)
ii) If Born on or after 10th Dec, 1992 but before 3rd Dec,
2004 can become citizen of India by descent if:
- Either of his parents is a
citizen of India at the time of his birth.
iii) If Born on or after 3rd Dec, 2004 can
become citizen of India by descent if:
- His birth is registered at
Indian consulate within 1 year of the date of birth.
OR
- His birth is registered with
the Indian consulate by the permission of Central government at the expiry
of the said period.
Note : At the time of registration of birth with the Indian consulate,
parents of the child have to take an undertaking that child does not hold the
passport of another country.
c) By Registration :
People who can be registered as citizen of India by the Central government should not be illegal migrant and belong to one of the following categories:
i) A person of Indian origin who is ordinarily resident in India for 7 years before making an application for registration.
ii) A person of Indian origin who is ordinarily resident in any country or place outside India.
iii) A person who is married to a citizen of India and is ordinarily resident in India for 7 years before making an application for registration.
iv) Minor children of persons who are citizens of India.
v) A person (of full age and capacity) whose parents are registered as citizens of India.
vi) A person (of full age and capacity), who himself or either of his parents, was earlier citizen of independent India and are has been residing in India for 1 year immediately before making an application for registration.
vii) A person (of full age and capacity), who is registered as
an Overseas citizen of India for 5 years and has been residing in
India for 1 year immediately before making an application for registration.
**All persons belonging to this category must an oath of allegiance (faithfulness) before they are registered as citizens of India.
NOTE :
Who is ordinarily resident of India ?
- Person who has resided in
India for atleast full 12 months before making an application for
registration and,
- Person has resided in India
during 8 years immediately preceding the said 12 months duration for a
period of atleast 6 years.
Person of Indian Origin (PIO) :
A person is said to be Person of Indian Origin if :
- He himself or either of his
parents, was born in undivided India or in such other
territory which became part of India after 15th August, 1947.
d) By Naturalization :
A certificate of naturalization can be accorded to any person by the Central Government if he is not an illegal migrant and possess following qualifications :
i) He is of good character.
ii) He has an adequate knowledge of a language specified in the 8th Schedule of the Constitution.
iii) He is not a citizen of any country where Indian citizens are prevented from becoming citizens by Naturalization.
iv) Takes an undertaking to renounce his citizenship of the other country if his application for Indian citizenship is accepted.
v) He has resided in India or has been in the service of a government in India (or partly both), for a period of 12 months applying for the naturalization certificate.
vi) During 14 years immediately preceding the said 12 months, he should have resided in India or been in the service of a government in India (or partly both), for period amounting in the aggregate to atleast 11 years.
vii) If certificate of naturalization is granted to him,:
- he intends to reside in
India or
- to enter into, or continue
in, service :
i) under a Government
in India or
ii) under an
international organization of which India is a member or
iii) under a society,
company or body of persons established in India.
Note :
i) Every person granted certification of naturalization must take an oath of allegiance to the Constitution of India
ii) Government of India can waive all or any of the above conditions for naturalization, if a person has rendered distinguished service in science, art, literature, philosophy, world peace or human progress.
iii) In India, both citizen by Birth and Naturalization is eligible for the office of President but in USA only citizen by birth are eligible for the post and citizens by Naturalization are not eligible for the post of President.
e) By Incorporation of Territory :
If any foreign territory becomes part of Indian territory, then Government of India specifies the citizens of those foreign territory as the citizen of India.
- Such person becomes citizen
of India from the date notified by the Government of India.
Example : Pondicherry
Government of India issued Citizenship (Pondicherry) Order, 1962 when
Pondicherry (French colony) became part of India.
8) What are the 3 Ways to Loose Citizenship of India?
3 ways to loose Indian citizenship are:
a) Renunciation :
i) If a person voluntarily gives up citizenship of India then upon registering the declaration of renunciation, the person ceases to be a citizen of India.
ii) Minor child of the person who has renounced Indian citizenship looses his citizenship. However, when child turns 18, he may resume his Indian citizenship.
iii) If renunciation is made during a war in which India is engaged, Central government may withheld the registration.
b) Termination :
i) If a person voluntarily acquires citizenship of some other country then his citizenship is automatically terminated.
ii) This provision does not apply during war in which India is engaged.
c) Deprivation :
i) Compulsory termination by the Central government.
ii) Done under following cases :
- Citizen has acquired Indian
citizenship by fraud,
- Citizen has been disloyal to
the Constitution of India,
- Citizen has unlawfully
communicated or traded with the enemy during a war,
- Citizen with 5 years of
registration or naturalization, has been imprisoned in any county for 2
years,
- Citizen has been ordinarily
resident out of India for 7 years continuously.
11) Single Citizenship
i) Indian constitution provides for Single citizenship i.e Indian
citizenship.
ii) There is no separate State citizenship.
iii) States having dual citizenship : USA, Switzerland.
States having single citizenship : India, Canada
iv) All citizens enjoy same political and civil rights all over the
country without any discrimination, irrespective of the state in which they are
born or reside.
v) It helps to instigate feeling fraternity and unity among the citizens
of India and help to build an integrated nation.
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