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Understanding Concept of Formation of state and Citizenship under Indian Constitution

INTRODUCTION: STATE AND CITIZENSHIP UNDER INDIAN CONSTITUTION

Article 1 (1) of the Indian Constitution provides that- “India, that is Bharat, shall be a Union of States.” Thus, Article 1 describes the name by which our Country shall be called or known. The expression “Union of States” has been taken from the Preamble to the North America (Canada) Act, 1867. The expression indicates that India is a federation. The Preamble to the Constitution of India declares that the Republic of India is creation of the people of India and not of the States. But, the States are also a creation of the people of India and they cannot break away from the Republic.

Although, the Republic of India is described as a union and it cannot be said to be a federation in the strict sense of the term. The Constitution makers had a purpose in choosing the word “Union” in preference to “Federation”. They were of the view that the word “Union” better expresses the fact that the Union of India is not the outcome of an agreement among the old provinces with the result that it  is not open to any State or a group of states to secede or withdraw from the Union or to vary the boundary of the states on their free will.

Article 1 : Name and territory of the Union

  1. India, that is Bharat, shall be a Union of States.
  2. The States and the territories thereof shall be as specified in the First Schedule.
  3. The territory of India shall comprise—
    • the territories of the States;
    • the Union territories specified in the First Schedule; and
    • such other territories as may be acquired.

According to Article 1 of the Indian Constitution, India is declared a Union of States, and the States and territories are specified in the First Schedule. The territory of India which is described in clause(3) falls under three categories— the State territories, the Union territories, the territories which may be acquired by Government of India.

Before the Constitution (Seventh Amendment) Act, 1953, the Union consisted of States which were classified into three main Categories—Parts A, B and C of the First Schedule. In addition to these there were territories specified in Past D of The First Schedule. Thus there were four categories in all. Thus at the time of the commencement of the Constitution (Seventh amendment) Act, 1956, the Union of India consisted of 10 Part A States, 8 Part B States, 9 Part C States and 1 Part D State.

The Constitution (Seventh Amendment) Act, 1956, has abolished the three categories and placed all the States of the Union on the same footing as a result of the reorganization made by the State Reorganization Act, 1956. At present, the territory of India consists of 28 states and 9 Union Territories namely the following—

STATES
Andhra PradeshAssamBihar
GujaratKeralaMadhya Pradesh
Tamil NaduMaharashtraKarnataka
OrissaPunjabRajasthan
Uttar PradeshWest BengalJammu & Kashmir( Now UT)
NagalandHaryanaHimachal Pradesh
ManipurTripuraMeghalaya
SikkimMizoramArunachal Pradesh
GoaChhattisgarhUttarakhand
JharkhandTelangana 
UNION TERRITORIES
Delhi
Andaman & Nikobar Island
Dadara & Nagar Haveli
Daman & Diu
Pondicherry
Chandigarh
lakshadweep.

The Union territories mentioned above are centrally administered areas, to be governed by the President, acting, through an administrator appointed by him. By 69th Amendment Act,  Union Territory of Delhi was converted into National Capital Territory of Delhi, and the 70th Amendment  Act, provides that ‘State’ includes National Capital of Delhi, and Union Territory of Pondicherry. Now both these union territories enjoy the status of a state with legislative assemblies and are governed by the Council of Ministers with a Chief-Minister as its head.

Any territory which may at any time, be acquired by India will be included in the definition of union territories. A territory can be said to have been acquired when the Indian Union acquires sovereignty over such territory. The usual modes of acquisition of territory by a State are cession following a treaty, occupation, subjugation, acquisition and prescription. Thus, foreign territories acquired by India may be admitted into the union or Constitution into new states under Article 2 or may  be merged into an existing State under Article 3(a) or 3(b).

Article 2 : Admission or establishment of new States

Parliament may by law admit into the Union, or establish, new States on such terms and conditions as it thinks fit.

The admission or establishment of a new State will be on such terms and conditions as Parliament may think fit. Such terms and conditions must, however, be consistent with the foundational principles of the basic structure of the Constitution.

Article 3 : Formation of new States and alteration of areas, boundaries or names of existing States

Parliament may by law—

  • form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State;
  • increase the area of any State;
  • diminish the area of any State;
  • alter the boundaries of any State;
  • alter the name of any State:

Provided that no Bill for the purpose shall be introduced in either House of Parliament except on the recommendation of the President and unless, where the proposal contained in the Bill affects the area, boundaries or name of any of the States, the Bill has been referred by the President to the Legislature of that State for expressing its views thereon within such period as may be specified in the reference or within such further period as the President may allow and the period so specified or allowed has expired.

Explanation I : In this article, in clauses (a) to (e), “State’’ includes a Union territory, but in the proviso, “State’’ does not include a Union territory.

Explanation II : The power conferred on Parliament by clause (a) includes the power to form a new State or Union territory by uniting a part of any State or Union territory to any other State or Union territory.

The scope of Article 3 is different from that of the preceding provisions as Article 2 relates to admission or establishment of new States which are not part of the Union whereas Article 3 provides for the formation of or changes in the existing States including Union Territories.

Article 4: Laws made under articles 2 and 3 to provide for the amendment of the First and the Fourth Schedules and supplemental, incidental and consequential matters

  1. Any law referred to in article 2 or article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions (including provisions as to representation in Parliament and in the Legislature or Legislatures of the State or States affected by such law) as Parliament may deem necessary.
  2. No such law as aforesaid shall be deemed to be an amendment of this Constitution for the purposes of article 368.

This article directs the Parliament, in case it makes a law under Article 2 or Article 3, to include therein necessary provisions for amendment of the First and Fourth Schedules of the Constitution. The First Schedule specifies the States which are the members of the Union and their respective territories. The Fourth Schedule specifies the number of seats to which each State is entitled to in the Council of States (i.e. the upper house of the Parliament, Rajya Sabha)

CITIZENSHIP UNDER INDIAN CONSTITUTION

Part II of the Indian Constitution defines several categories of Indian citizens at the commencement of the Constitution. A citizen of a given State is a person who enjoys full membership of the political community or the State. Citizens are different from aliens or mere residents who do not have all the rights which go to make full membership of a State. A citizen actually enjoys full civil and political rights. Citizenship carries with it certain advantages conferred by the Indian Constitution. Citizenship inheres only in natural persons and not in juristic persons like corporations or societies etc. There is single citizenship for the whole of India i.e. Indian citizenship under Constitution . In many federal constitutions, there are dual citizenship—a state citizenship and a federal citizenship. Under dual citizenship the citizen of one federating state is virtually an alien in another such state. There being only single citizenship, the rights, privileges and obligations are the same for all citizens throughout India.

Indian Constitution ensures certain fundamental rights which are available to Indian citizens only. Aliens cannot enjoy these rights. Such fundamental rights as exclusively enjoyable by the Indian citizens are enumerated under Articles 15, 16, 18(2), 19 and 29. Also, citizens alone have the right to hold certain high offices such as those of President of India [Article 58 (1)(a)], Vice-President [Article. 66(3)(a)], Governor of the State [Article 157], Judge of the Supreme Court [Article 124(3)], High Court Judge [Article 217(2)], Attorney General of India [Article 76(1)] and Advocate General [Article 165].

The Constitution lays down sets of provisions relating to citizenship—one set which tells us who are, or who may be deemed to be, Indian citizens at the commencement of the Constitution, the other set tells us that Parliament may make any provision with respect to acquisition and termination of citizenship and all other matters relating to citizenship. The Constitution thus, as it stands, does not contain the exhaustive law on the subject and that is why a separate enactment (i.e. The Indian Citizenship Act, 1955) has been passed. Citizenship is to be determined as per the Citizenship Act, 1955 and the Constitutional provisions.

Citizenship at the commencement of the Constitution

Article 5 to 8 describes 4 classes of people who were deemed to be citizens of India at the time of the commencement of the constitution-

  1. Persons domiciled in India
  2. Persons who migrated from Pakistan
  3. Persons who migrated to Pakistan
  4. Persons living abroad i.e., in foreign countries other than Pakistan

Citizenship by domicile (Article 5)

A person is entitled to citizenship under Indian constitution by domicile if he fulfils two conditions laid down by Article 5. First, he must, at the commencement of the Constitution, have his domicile in the territory of India. Secondly, such person must fulfil any one of the three conditions laid down in the Article, namely,

  • he was born in India,
  • either of his parents was born in India,
  • he must have been ordinarily resident in the territory of India for not less than 5 years immediately before the commencement of the Constitution.

Domicile is of two kindsdomicile of origin and domicile of choice. Every person is born with a domicile of origin. It is domicile received by him at his birth. The domicile of origin of every person is the country in which at the time of his birth his father was domiciled. Thus the domicile of origin is a concept of law. It clings to a man till he abandons it and acquires a new domicile. Every independent person can acquire a domicile of choice by a combination of-

  • actual residence in a particular place, and
  • intention to remain there permanently or for an indefinite period.

Citizenship of persons who migrated to India from Pakistan before the commencement of the Constitution (Art. 6)

Persons who have migrated from Pakistan to India have been classified into two categories for the purposes of citizenship—

  • those who migrated to India before July 19, 1948, and
  • those who migrated on or after July 19, 1948.

{NOTE – 19/07/1948 is the date when permit system was introduced for going from India to Pakistan and for coming from Pakistan to India.}

According to Article 6

  1. The persons of the first category i.e. persons who migrated from Pakistan to India before July 19, 1948 shall be deemed to be a citizen of India at the commencement of the Constitution, that is on 26th January, 1950, if-
    • he or either of his parents or any of his grand-parents was born in India as defined in the Government of India Act, 1935 and
    • he should have resided in India since the date of his migration.
  2. As regarding the persons of second category i.e. persons who migrated from Pakistan to India on or after July 19, 1948, following conditions must be fulfilled to enable him to acquire Indian citizenship and to be deemed as a citizen of India at the commencement of the Constitution i.e. on 26th January, 1950-
    • he or either of his parents or any of his grand-parents was born in India as defined in the Government of India Act, 1935 and
    • he should have resided in India, after migration for at least six months.
    • he must have submitted an application for registration as a citizen wherein he must prove that he resided in India for at least six months preceding submission of such application.
    • he has been registered as citizen of India by an officer appointed by the Government of India for that purpose.

Citizenship of migrants of Pakistan (Article 7)

 Article 7 provides that anyone who has, after 1st March, 1947 migrated from India to Pakistan, cannot be a citizen of India. But, Article 7 also makes a special provision regarding the citizenship rights of persons who migrated to Pakistan after March 1, 1947 but returned to India subsequently. Such a person becomes entitled to Citizenship of India, provided they fulfil the conditions stated for Migrants from Pakistan stated in Article 6. An immigrant to Pakistan after 1st March, 1947, who has returned to India under a proper legal permit for resettlement or permanent return to India— such a person should fulfil all other conditions necessary for immigrants from Pakistan after July 19, 1948.

Citizenship under Indian Constitution of persons of Indian origin residing outside India (Article 8)

Article 8 provides that any person who or either of whose parents or grandparents was born in India as defined in Government of India Act 1955 but who is ordinarily residing in any country outside India, shall be deemed to be a citizen of India if he has been registered as an Indian Citizen by the diplomatic or consular representative of India in that country on an application made by him/her in the prescribed form to such diplomatic or consular representative, whether before or after the commencement of the Constitution.

A person residing outside India if he satisfies the following two conditions—

  • he or either of his parents or any of his grand-parents must have been born in undivided India and
  • he must have been registered as a citizen of India by the Diplomatic or Consular representative of India in the country where he is for the time being residing on an application made to such representative in prescribed form and manner.

Article 9

It provides that if a person voluntarily acquires the citizenship of any foreign State, he shall not remain a citizen of India under Article 5, 6 and 8. Article 9 does not disable Parliament from conferring Indian citizenship on a person who has voluntarily acquired the citizenship of any foreign state. The Citizenship Act was amended in 2003 and again in 2005 to introduce the concept of overseas citizenship for citizens of other countries.

Continuance of the rights of citizenship (Article 10)

 Article 10 reads every person who is or is deemed to be a citizen of India under any of the foregoing provisions of Article 5-10 shall continue to be a citizen of India, subject to the provisions of any law that may be made by Parliament. In the other words, the right of citizenship cannot be taken away from a person except through express parliamentary legislation.

Parliament is empowered under Article 11 to make any provision with respect to acquisition and termination of citizenship. In exercise of that power it may take away the right of citizenship which has accrued to a person under the foregoing provisions. But until that is done, a person who is or is deemed to be a citizen of India shall continue to be a citizen of India.

In connection with provisions relating to citizenship in the Constitution of India, the framers of Indian Constitution did not actually intended to frame comprehensive rules regarding citizenship. Constitution has simply described the persons who would be deemed to be citizens of India at the date of the commencement of the Constitution. Parliament has been empowered to make laws relating to citizenship. In exercise of this power the Parliament has enacted the Citizenship Act, 1955. This Act contains elaborate provisions relating to Citizenship.

Citizenship Under The Citizenship Act, 1955

The Citizenship Act, 1955 that came into force with effect from 30th December, 1955 deals with matters relating to the acquisition, determination and termination of Indian citizenship. The act has been amended by the Citizenship (Amendment) Act 1986, the Citizenship (Amendment) Act 1992, the Citizenship (Amendment) Act 2003, and the Citizenship (Amendment) Act, 2005.

The Act provides for five ways for acquiring Indian citizenship as follows

  1. By birth.
  2. By descent.
  3. By registration.
  4. By naturalisation, and
  5. By incorporation of territory into India.
  1. By Birth— A person born in India on or after the 26th January, 1950, is a citizen of India by birth, when—
    • His father possesses diplomatic immunity and is not an Indian citizen; or
    • His father is an enemy alien and he is born at a place under enemy occupation.
  2. By Descent— A person born outside India on or after January 26th, 1950, is a citizen of India by descent if at the time of his birth his father was an Indian citizen. But if the father of such a person was a citizen of India by descent only, the person becomes an Indian citizen only when his birth has been registered at an Indian consulate within one year of his birth or the commencement of Citizenship Act, whichever is later, or unless his father is, at the time of his birth, in service under the Government of India.
  3. By Registration— Subject to certain restrictions and conditions, the appropriate authority may register the following person, who is already a citizen of India by virtue of any other provision of the Citizenship Act, as a citizen of India on an application made by such person and after taking an oath of allegiance:
    • a person of Indian origin ordinarily resident in India and must have been ordinarily resident in India for at least 6 months immediately preceding the application for registration;
    • persons of Indian origin who are ordinarily resident outside undivided India;
    • women married to Indian citizens;
    • minor children of Indian citizens;
    • persons of full age and capacity who are citizens of a Commonwealth country.
  4. By Naturalization— A person of full age and capacity who is a citizen of a non-Commonwealth country may become a citizen by naturalization, after taking an oath of allegiance, if the Central Government is satisfied that he fulfils the conditions laid down in the Act. As per Section 6 of the Citizenship Act, 1955 the qualifications for naturalization are as follows-
    • He is not a subject or citizen of a country where Indian citizens are prevented from becoming citizens by naturalization.
    • He renounces his citizenship of the other country.
    • He has resided and/or has been in service of the Government for 12 months immediately preceding the date of application.
    • During 7 years prior to the aforesaid 12 months, he has resided and/or has been in Government service for not less than four years;
    • He is of good character ;
    • He has an adequate knowledge of language recognized by the Constitution of India ;
    • After naturalization he intends to reside in India or enter into service with Government of India, international organization, or a society or company established in India.
  5. By incorporation of territory in India— If a territory becomes a part of India, the Central Government may notify the persons who shall be citizens of India by reason of their connection with that territory.

Termination or deprivation of Citizenship

Citizenship Act, 1955 provides for three ways for terminating Indian Citizenship as following—

  1. Renunciation of Citizenship—If a person renounces Indian citizenship by words or conduct, he ceases to be a citizen of India.
  2. Termination of Citizenship—Termination is an act of law. It takes place as soon as a citizen of India voluntarily acquires the citizenship of another country whereby he shall cease to be a citizen of India.
  3. Deprivation of Citizenship—Deprivation is a compulsory termination of the citizenship of India by an order of the Government of India.

A citizenship of India by a naturalization, registration, domicile and residence may be deprived of his citizenship by an order of the Central Government after making due inquiry in matter of any one of the following grounds-

  1. Obtaining citizenship by fraud or misrepresentation.
  2. Showing and on proving of disloyalty towards the Indian Constitution.
  3. Communication with India’s enemy during war.
  4. Imprisonment for longer than 2 years within 5 years of registration on naturalization.
  5. Residing outside India for longer than 7 years at a time.

The citizenship under Indian constitution cannot be claimed as a matter of fundamental right. There is no such fundamental right.

Also Read: Introduction to Indian Constitution

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