Constitution & Citizens

By Kishore Kulkarni

 

“Citizenship is a status bestowed on those who are full members of a community. All who possess this status are equal with respect to the rights and duties with which the state is endowed.”

-T.H. Marshall

 

The population of state of divided into two classes 1) Citizens and 2) aliens. While citizens enjoy full civil and political rights, aliens do not enjoy all of them. It is important to note that every person who can be called as citizen under part II is not necessarily an ideal citizen. Citizen are the members of political community to which they belong. They are people who compose the community and who have established or submitted themselves to the dominion of a government for the promotion of general welfare and protection of their individual as well as their collective rights.

Despite being limited to a formulation of the principles for people affected by Partition, the articles on citizenship in the Constitution witnessed heated exchanges in the Constituent Assembly. The central question was whether the basis of Indian citizenship should be an individual’s birth on the soil of the country—jus soli citizenship—or an individual’s descent, or the citizenship of their parents—jus sanguinis citizenship. The Assembly settled on the first as a form of ‘enlightened, modern, civilized’ and democratic citizenship, as opposed to the second, which it said was ‘an idea of racial citizenship’. This was a progressive decision, in keeping with the inclusive character of the movement for freedom. The Citizenship Act of 1955 incorporated both these conceptions, providing for citizenship by birth as well as by descent.[1]

Under our Constitution although certain rights, known as fundamental rights, the nature of such rights are that they are immune from legislative interference except according to procedure established by law, are conferred on a person on the basis of his status as a citizen. A clear distinction has been made between ‘persons’ & ‘citizen’ under Part III. Citizenship is the status of being citizen, a relation of allegiance and protection between the individuals and the government. However, a distinction ought to be drawn between citizenship and Nationality. Nationality is the status or quality of belonging to some nation or state. The concept of nationality is related to the territory of the state, irrespective the rights enjoyed by a person under the municipal law of the state. The present-day word Citizen is derived from French word ‘citoyen’ The Indian context, the constitution does not use the term nationality. Every person who become Indian citizen would also be regarded and Indian national.

Prior to the commencement of the constitution, persons residing in the territory of India were British subjects. The citizenship of India came into existence for the first time under the constitution when India became republic. Part II of Indian constitution and citizenship act deals only with natural citizens. It is an evident that the word citizen includes only natural persons and not juristic person. The constitution does not however define what is citizenship, it merely declares which persons shall be citizens of India by virtue of articles 5-8. Neither Constitution nor Citizenship act defines ‘citizen.’

It is thus clear that neither the provisions of the Constitution, Part II, nor of the Citizenship Act aforesaid, either confer the right of citizenship on, or recognise as citizen, any person other than a natural person. State Trading Corp. of India Ltd v. CTO (1963 AIR 1811)

The constitution recognises only one type of citizenship viz Citizenship of India as a whole and not a double citizenship. Indian citizenship act does not accept concept of dual citizenship. Citizen includes only natural person and not juristic person like corporations. The word ‘Citizen’ in article 19 has the same meaning as in part II of constitution.

As we understood that citizenship and nationality are two different concepts similarity citizenship and domicile, too, are very distinct concepts. Generally, domicile is meant to be permanent home, means a person has fixed as habitation for himself and his family. In Wharton's Law Lexicon, "By the term 'domicile', in its ordinary acceptation, is meant the place where a person lives or has his home. In this sense the place where a person has his actual residence, inhabitancy, or commorancy, is sometimes called his domicile."

According to Dicey, domicile of any person is, in general, the place or country which is his permanent home but in some cases the place or country which is to be determined by rule of law. Two elements are necessary for the existence of domicile 1) a residence of a kind and 2) an intention of kind. A person having no domicile in India at the commencement of constitution cannot be said to have become the citizen of India. Nationality represents a man’s political status by virtue of which he owns allegiance to some country whereas Domicile indicates civil status and it provides the law by which his personal rights and obligations are determined.

It is no surprise that the Court, whenever it has had the occasion to deal with the issue of citizenship with respect to Article 5 has, often, been concerned with the interpretation of the word 'domicile' and its application to specific cases of persons claiming to be Indian citizens.[2]Article 5 of Indian Constitution makes it clear that it only refers to only one kind of domicile namely ‘domicile in territory of India’ In other words citizen of India is also domicile of India.

Article 6 and 7 are exceptions to article 5, Article 6 extends the rights of citizenship to persons who do not satisfy the test of Article 5. This article has special reference to the word ‘migration’ or ‘migrated.’

Justice Mahajan in Central Bank v. Ram Narain [(1955) 1 SCR 697], in the context of partition of India, regarding migration opined that

“Minds of people are affected by this partition and who were living in those parts were completely unhinged and unbalanced and there was hardly any occasion to form intentions to requisite for acquiring domicile in one place or another.. They (people) went backward and forward; families were sent from one place to another for the sake of safety. .. They overnight became refugees, living in camps.

Two elements are necessary to constitute migration 1) Mental desire 2) and physical departure.  Mere expression of desire to go to another country cannot be termed as migration unless, a person physically goes to that country (state of Assam vs Abdul Safar 1978).

In Shanno Devi’s Case (AIR 1961 SC 68) the court held that by migration is coming to India with the intention to reside here permanently. Even if a person had temporarily migrated to another place but subsequently forms the intention of residing there permanently, he is said to have migrated to that place.

The core difference between article 5&6 is that under Article 5, a person is not a citizen unless he has possessed the qualifications laid down however, under article 6, the qualifications must have existed at the date of commencement of constitution.

In Abdul Sattar v. State of Gujrat (AIR 1965 SC 810) In deciding the question as to whether the appellant was an Indian citizen within the meaning of Art. 5, the onus of proof will have to be placed on the accused to show that he was domiciled in the territory of India on January 26, 1950 and that he satisfied one of the three conditions prescribed by clause (a), (b) and (c) of the Article 5. It was held in Lal babu Hussein V. ERO (AIR 1995 SC 1189) that if a person has acquired citizenship in India and a question arises whether he/she has lost the citizenship by acquisition of citizenship of another country, that question has to be resolved by the authority prescribed under the act. The question whether a person is a foreigner is a question of fact which would require careful scrutiny.

In Govt of AP v. Md. Syed (AIR 1962 SC 778) the Supreme Court held that the mere proof of the fact that a person has obtained a passport from a foreign county is not sufficient to sustain an order for deportation.

Though the legal relevance of citizenship is confined to each individual country on its territorial basis, We, as Human beings, for greater good and harmony, should collectively remember these great words by a great man.   

 

“I am a citizen of the world, and my nationality is goodwill”

-Socrates

[1] Jayal, N. G. (2019). Reconfiguring citizenship in contemporary India. South Asia Journal of South Asian Studies, 42(1), 33–50.

[2] Indian constitution, Samar Aditya Pal, Volume 1, Pg:245