CITIZENSHIP AMENDMENT ACT AND ITS
CONSEQUENCES
PART - I
I.
INTRODUCTION:
1.
The recent amendment to the Citizenship Act,
1955[1]
caused a furore in the country or so it seemed. Many felt that the amendment
singled out Muslims and that it only showed the ‘intolerant attitude’ of the
present Government and was the result of its heavy bias against Muslims. In
this article, the writer strives to decode and explain the provisions of the
Citizenship Act, 1955, and the recent amendment that was brought about to the
said Act.
II.
A BRIEF HISTORY:
2.
Before adverting to the amendment to the
Citizenship Act and its consequences, it is necessary to have a basic
understanding of the relevant provisions of the Constitution of India
(hereinafter referred to as the “Constitution”) that deals with
Citizenship and also the provisions of The Citizenship Act, 1955.
3.
Part II of the Constitution which contains
Articles 5 to 11 is titled “Citizenship”.
The said Articles give a brief explanation of citizenship; define who is
a citizen and the rights of a citizen. It is necessary to understand that the
Constitution of India was enacted soon after India got independence. However,
the joy of independence was short lived as the horror of partition followed.
So, when the Constitution was being framed, the framers had the herculean task
of framing rules to detect and recognise who is and who is not a citizen of
India. Due to the partition, all those parts which were once part of India,
became a new country over night and the residents were forced to flee. And it
is a matter of common knowledge that there was huge displacement of people from
their native land. This situation posed a great challenge to the framers of
Constitution.
4.
Thus, besides providing for the general rules to
define citizenship, India faced the challenge of making exceptions and
guidelines to retain the citizenship or grant citizenship to several people who
chose to stay or chose to return to India, after creation of Pakistan.
5.
Therefore, it was provided in the Constitution
that, if any person migrated to India before 19.07.1948, he/she[2]
would be deemed to be a citizen of India. However, a person could be registered
as a citizen of India even if he migrated to India on or after 19.07.1948
provided he resided in India for at least six (6) months immediately before
making an application to the concerned authority seeking to register him as a
citizen of India.
6.
Other than what is mentioned above, the
Constitution has recognised other modes in which a person could become a
citizen of India. The same are provided for in greater detail in the
Citizenship Act, 1955 and will be dealt with at a later stage, to the extent
they are relevant in understanding the latest amendment to the Citizenship Act.
7.
Articles 5 to 11 of the Constitution give a
broad outline of the concept of “Citizenship” and more specifically, Article 11
empowers the Parliament to make laws with respect to acquisition and
termination of citizenship and all other incidental matters thereto. It is
under the power granted in this Article that the Central Government enacted the
Citizenship Act, 1955. Thus, the Citizenship Act provides for all matters
pertaining to citizenship of India.
The same are briefly explained hereinbelow.
III.
WHO IS A CITIZEN OF INDIA?
8.
The Citizenship Act, 1955, read with Articles 5
to 11 of the Constitution, recognises four (4) types through which people can
become citizens of India. They are as follows;
(a)
Citizenship
by birth[3]:
As on the date of commencement of the Constitution of India[4],
any person that was domiciled[5]
in India and born in India, is a citizen by birth. However, it is not to be
confused that citizenship would be granted to only those who were born after
the constitution came into force. It only means that a person is considered as
a “citizen of India” on and from the date of commencement of Constitution if he
was born in India. Further, at the time of a child’s birth in India, one or
both of his parents should be citizens of India and if only one parent is an
Indian, the other parent should not be an illegal migrant[6]
at the time of his birth.
There are
however, exceptions to this rule. Since they are not relevant to the present
topic, they are not dealt with herein.
(b) Citizenship By Descent[7]:
A person although born
outside India can still be a citizen of India under the following
circumstances:
i.
He is born after 26.01.1950 and before
10.12.1992 and his father is a citizen of India at the time of his birth;
ii.
He is born after 10.12.1992 and either his
father or his mother is a citizen of India at the time of his birth.
However,
if the said person’s father has also become a citizen by descent, then the said
person cannot be considered a citizen of India unless his birth is registered
at the Indian consulate within one year from the date of his birth or his
father was a government servant serving under the Indian government at the time
of his birth.
(c) Citizenship by registration[8]:
A person may be registered as a citizen of India even though he is
not born in India, if he falls under any of the following categories while
making an application seeking citizenship of India, provided he is not an
illegal migrant:
i.
A person who is of Indian origin[9]
and is ordinarily resident in India for seven (7) years before making such
application for registration;
ii.
A person of Indian origin who is ordinarily
resident in any country or place outside undivided India;
iii.
A person (major) who is married to an Indian
citizen and is ordinarily resident in India for seven (7) years before making
such application;
iv.
Minor children of persons who are citizens of
India;
v.
A person (major) whose parents are registered as
citizens of India under Sl. No. (i) mentioned hereinabove;
vi.
A person (major) or either of his parents who
were earlier citizens of independent India and is ordinarily resident in India
for twelve months immediately before making such an application;
vii.
A person (major) who is registered as an
Overseas Citizen of India for five (5) years and who is ordinarily resident in
India for twelve (12) months immediately before making such an application.
Thus, to be registered as a citizen under this
category, the person applying should have some connection to India, either
through blood or through matrimony.
(d) Citizenship by naturalisation[10]:
A person who is not an illegal migrant can be registered as a
citizen of India under this category, provided he complies with the following
conditions:
i.
That the country to which the said person
belongs to, permits Indian Citizens to be registered as its citizens through
naturalisation. (Thus, if any country prevents Indian citizens from becoming
the citizens of that country by naturalisation, then a citizen of such country
cannot apply for citizenship of India or his application will not be allowed
and he will not be registered as a citizen of India through naturalisation);
ii.
That the said person undertakes to renounce the
citizenship of the country that he is holding, if he is granted citizenship of
India[11];
iii.
That prior to making such application, he has
resided in India or has been in the service of Government in India or both, for
a period of fourteen years and the total duration of his residence in India/his
service in the government comes up to not less than eleven (11) years. After
the completion of the said period of fourteen years, he should have resided in
India continuously for a period of (12) months immediately before making such
an application; (Thus, a non citizen of India, should have resided in India for
not less than twelve (11+1) years immediately before making such an application)
iv.
The said
person should be of good character;
v.
The said person should have adequate knowledge
of any one of the native languages of India;
vi.
The said person should intend to reside in India
or serve under any government in India or work under an international
organisation of which India is a member or under a society, company or body of
persons established in India.
However, the Central Government has the power and
discretion to relax the aforementioned time periods while granting citizenship
to persons through naturalisation.
Thus, to be registered as a citizen under this
classification, it is not necessary for the person to have any Indian
connection. Thus a person of any country may become the citizen of India, if he
wishes, provided he complies with the above conditions.
9.
What is relevant to note here is that, the
pre-condition for any person to apply for citizenship is that he should not be
an Illegal Migrant.
10.
The recent amendment that was brought about
affects the last category explained hereinabove, i.e., citizenship by
naturalisation. The said aspect will be dealt with at a later stage.
To be continued…
Vaishnavi
[1]
Citizenship Act, 1955 was amended on 12.12.2019 and came into effect on and
from 10.01.2020
[2]
Henceforth, in this article, mention of masculine gender includes feminine
gender, unless specifically stated otherwise. Thus, if the words “he” or “his”
or “him” are referred to, it shall mean and include “she”, “hers” or “her” as
the context may require. Drawing an analogy from Section 13 of the General
Clauses Act, 1897
[3]
Section 3 of the Citizenship Act, 1955
[4]
26.01.1950
[5]
The
country that a person treats as their permanent home, or lives in and has a
substantial connection with.
[6]
A person that has entered India without a valid passport/other valid travel
documents; or has entered India with valid travel documents but has stayed
beyond the permitted time. (Section 2(1)(b) of the Citizenship Act, 1955)
[7]
Section 4 of the Citizenship Act, 1955
[8]
Section 5 of the Citizenship Act, 1955
[9]
For instance, a child that is born outside India is considered a person of
Indian origin, if one or both his parents or any of his grandparents are
citizens of India.
[10]
Section 6 read with Schedule III of the Citizenship Act, 1955
[11]
India does not recognise dual citizenship
Informative, nicely written.
ReplyDeleteThank you :)
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