Polity Notes 09

Citizenship Acquisition and Loss

• Citizenship by Naturalization The process of acquiring citizenship by naturalization is governed by Section 6 of the Citizenship Act, 1955. It is a method for a foreigner, who is not an illegal migrant, to become an Indian citizen after fulfilling certain conditions.

  • Historical Context: The concept of naturalization is rooted in the idea that a state can grant citizenship to individuals who demonstrate a commitment to its laws and culture. Post-independence, India adopted a comprehensive framework in the 1955 Act to regulate this process, balancing the need for inclusivity with national security concerns.
  • Conditions for Naturalization (as per the Act):
    1. Reciprocity: The applicant must not be a subject or citizen of a country where Indian citizens are prevented from becoming citizens by naturalization. This is a principle of international comity.
    2. Renunciation of Previous Citizenship: An applicant must undertake to renounce their existing citizenship upon acceptance of their Indian citizenship application. This reinforces India’s constitutional stance against dual citizenship, as enshrined implicitly in Article 9 of the Constitution.
    3. Residency Requirement: The applicant must have resided in India or been in the service of the Government of India for twelve years in aggregate (in the fourteen years preceding the application) and continuously for the twelve months immediately before applying. This demonstrates a significant and long-term connection to the country.
    4. Good Character: This is a subjective but crucial criterion, assessed by the government based on background checks and police verification. It aims to prevent individuals with criminal records or undesirable backgrounds from acquiring citizenship.
    5. Language Proficiency: The applicant must have an adequate knowledge of a language specified in the Eighth Schedule of the Constitution. This promotes cultural and social integration. The Eighth Schedule currently lists 22 languages.
    6. Intention to Reside: The applicant must intend to reside in India or serve the Indian government, an international organization, or an Indian company post-naturalization.
  • Waiver of Conditions: The government possesses the discretionary power to waive all or any of the above conditions for a person who has rendered “distinguished service to the cause of science, philosophy, art, literature, world peace or human progress.” A notable example is the grant of citizenship to singer Adnan Sami in 2016, where the government likely exercised its discretion, though he also fulfilled the residency requirements.

• Citizenship by Incorporation of Territory This provision, under Section 7 of the Citizenship Act, 1955, addresses situations where new territory becomes part of India.

  • Historical Context: This mode of acquisition has been relevant in post-independence India’s territorial consolidation.
  • Process: When a foreign territory is incorporated into the Union of India, the Government of India, through an official order, specifies which persons residing in that territory shall be citizens of India from a notified date.
  • Example: When Pondicherry (now Puducherry), Karaikal, Mahe, and Yanam were transferred from France to India, the Government of India issued the Citizenship (Pondicherry) Order, 1962, granting Indian citizenship to the residents of these territories. Similarly, upon the incorporation of Sikkim in 1975, its subjects became Indian citizens.

• Loss of Citizenship The Citizenship Act, 1955, outlines three modes through which an Indian citizen may lose their citizenship.

  • By Renunciation (Section 8):
    • Any adult citizen of sound mind can voluntarily renounce their Indian citizenship by making a formal declaration. Upon registration of this declaration, the person ceases to be an Indian citizen.
    • A crucial provision is that if such a declaration is made during a war in which India is engaged, the Central Government can withhold its registration. This is a national security measure to prevent citizens from evading their duties or collaborating with an enemy state during a conflict.
    • When a person renounces citizenship, every minor child of that person also loses their citizenship. However, such a child may, within one year of attaining full age (18 years), make a declaration to resume Indian citizenship.
  • By Termination (Section 9):
    • This is an automatic process based on Article 9 of the Constitution, which states that no person shall be a citizen of India if they have voluntarily acquired the citizenship of any foreign state.
    • If an Indian citizen knowingly and voluntarily acquires the citizenship of another country, their Indian citizenship is automatically terminated. This provision is absolute and does not require any order from the government.
  • By Deprivation (Section 10):
    • This is a compulsory termination of citizenship by an order of the Central Government. It is not an automatic process and is applicable to citizens who acquired citizenship by naturalization or by registration (under Article 5 Clause (c) - registration of persons who migrated from Pakistan).
    • Grounds for Deprivation:
      1. Fraud: Citizenship obtained by means of fraud, false representation, or concealment of any material fact.
      2. Disloyalty: The citizen has shown disloyalty to the Constitution of India by act or speech.
      3. Enemy Communication: The citizen has unlawfully traded or communicated with an enemy during a war.
      4. Imprisonment: Within five years of registration or naturalization, the citizen has been sentenced to imprisonment in any country for a term of two years or more.
      5. Continuous Absence: The citizen has been ordinarily resident out of India for a continuous period of seven years, without registering annually at an Indian consulate or being in the service of the Indian government.

• Overseas Citizenship of India (OCI)

  • Genesis: The concept emerged from the recommendations of the High-Level Committee on the Indian Diaspora, chaired by jurist L.M. Singhvi, which submitted its report in 2002. The committee recommended a dual citizenship scheme to strengthen the bond between India and its diaspora.
  • Evolution:
    1. The Citizenship (Amendment) Act, 2003, introduced the provision for Overseas Citizenship of India (OCI) for Persons of Indian Origin (PIOs) of 16 specified countries.
    2. A separate PIO Card scheme, launched in 2002, was already in existence.
    3. The OCI scheme was formally launched in 2005. It offered more benefits than the PIO card, leading to confusion.
    4. The Citizenship (Amendment) Act, 2015, merged the PIO and OCI schemes and created a single, unified scheme known as the “Overseas Citizen of India Cardholder.” All existing PIO cardholders were deemed to be OCI cardholders.
  • Nature of OCI: It is crucial to note that OCI is not dual citizenship. The Indian Constitution (Article 9) does not permit dual citizenship. An OCI cardholder is a citizen of another country holding a special status in India. They do not have political rights, such as the right to vote, hold constitutional posts (like President, Vice-President, Judge), or be elected to Parliament or State Legislatures. They also cannot acquire agricultural or plantation properties.
  • Benefits: OCI cardholders enjoy multiple-entry, multi-purpose, life-long visas to visit India. They are exempted from registration with the Foreigners Regional Registration Office (FRRO) for any length of stay. They are granted parity with Non-Resident Indians (NRIs) in economic, financial, and educational fields, except for the acquisition of agricultural properties.

Fundamental Rights: Introduction and Philosophy

• Conceptual and Historical Roots

  • The demand for constitutionally guaranteed rights was a consistent part of the Indian independence movement. The Nehru Report (1928), drafted by a committee headed by Motilal Nehru, was one of the first formal documents to propose a declaration of rights.
  • The inspiration for including a formal list of justiciable rights was drawn primarily from the Bill of Rights of the Constitution of the USA (1791). Other historical documents like the Magna Carta (1215) in England and the Declaration of the Rights of Man and of the Citizen (1789) in France provided the philosophical foundation for modern human rights.
  • The term “Fundamental” signifies that these rights are paramount and essential for the all-round development (intellectual, moral, and spiritual) of an individual. As legal scholar H.M. Seervai noted in his work “Constitutional Law of India,” these rights form the bedrock of the democratic structure envisioned by the Constitution. They are fundamental to leading a life of dignity and respect.
  • The philosophical quote, “life is a long journey from being Human Being to Being Humane,” reflects the core idea that rights are not just legal entitlements but are essential for realizing one’s humanity. They protect against the “ascribed status” (caste, religion, gender) imposed by society and uphold the “achieved status” of a dignified human being.

• Constitutional Framework (Part III, Articles 12-35)

  • Part III of the Constitution is often described as the ‘Magna Carta’ of India. It contains a comprehensive and elaborate list of rights.
  • Original Classification: Originally, the Constitution provided for seven Fundamental Rights:
    1. Right to Equality (Articles 14–18)
    2. Right to Freedom (Articles 19–22)
    3. Right against Exploitation (Articles 23–24)
    4. Right to Freedom of Religion (Articles 25–28)
    5. Cultural and Educational Rights (Articles 29–30)
    6. Right to Property (Article 31)
    7. Right to Constitutional Remedies (Article 32)
  • Change in Status of Right to Property: The 44th Constitutional Amendment Act, 1978, removed the Right to Property from the list of Fundamental Rights. It was made a legal right under Article 300-A in Part XII of the Constitution. This means the right can now be regulated by an ordinary law of the Parliament and its violation cannot be directly challenged in the Supreme Court under Article 32.

• Features of Fundamental Rights

  1. Differential Availability: Some rights, like Article 15 (prohibition of discrimination on certain grounds), Article 16 (equality of opportunity in public employment), and Article 19 (six freedoms), are available only to citizens. Others, like Article 14 (equality before law) and Article 21 (protection of life and personal liberty), are available to all persons (citizens, foreigners, and legal persons like corporations).
  2. Not Absolute but Qualified: Fundamental Rights are not absolute. The state can impose reasonable restrictions on them in the interest of public order, sovereignty and integrity of India, security of the state, etc. The reasonableness of these restrictions is subject to judicial review. The Supreme Court in Chintaman Rao vs. The State of Madhya Pradesh (1950) held that a restriction is reasonable only if it strikes a proper balance between the rights of the individual and social control.
  3. Enforceable against the State: Most FRs are a limitation on the power of the State (defined under Article 12). However, some rights, such as Article 15(2) (access to public places), Article 17 (abolition of untouchability), and Article 23 (prohibition of human trafficking and forced labour), are also available against the actions of private individuals.
  4. Negative and Positive Character: Some rights are negatively worded, placing prohibitions on the state (e.g., Article 14: “The State shall not deny…”). Others are positive in nature, conferring certain privileges on individuals (e.g., Article 25: “…all persons are equally entitled to freedom of conscience…”).
  5. Justiciable: They are enforceable by the courts. In case of a violation, a person can directly approach the Supreme Court (under Article 32) or a High Court (under Article 226) for their enforcement.
  6. Amendable but not Inviolable: The Parliament can amend the Fundamental Rights through a constitutional amendment act, but not in a way that alters the ‘basic structure’ of the Constitution. This principle was laid down by the Supreme Court in the landmark case of Kesavananda Bharati v. State of Kerala (1973).
  7. Suspension during Emergency: FRs can be suspended during the operation of a National Emergency (Article 352). However, the rights guaranteed by Articles 20 (protection in respect of conviction for offences) and 21 (protection of life and personal liberty) can never be suspended. The six rights under Article 19 can be suspended only when the emergency is declared on the grounds of war or external aggression, not on the ground of armed rebellion.

• Article 12: Definition of ‘The State’

  • Article 12 provides a wide definition of ‘The State’ for the purpose of Part III. This is to ensure that the actions of a broad range of public and quasi-public bodies can be challenged for violating Fundamental Rights.
  • The ‘State’ includes:
    1. Union Government: The Government (Executive) and Parliament (Legislature) of India.
    2. State Governments: The Government (Executive) and Legislatures of the states.
    3. Local Authorities: Municipalities, Panchayats, District Boards, Improvement Trusts, etc.
    4. Other Authorities: This is the most debated component. The Supreme Court has, through various judgments, expanded its scope. In Ajay Hasia v. Khalid Mujib (1981), the court laid down a test to determine if a body is an ‘instrumentality or agency’ of the state. The criteria include financial control by the state, functional control, and whether it performs a public function. Consequently, statutory and non-statutory bodies like Life Insurance Corporation (LIC), Oil and Natural Gas Corporation (ONGC), and Steel Authority of India Ltd. (SAIL) are considered ‘State’ under Article 12.
  • Judiciary’s Position: The status of the judiciary under Article 12 is complex. When performing its judicial functions, it is not considered ‘State’. However, when performing non-judicial or administrative functions (like making rules for its staff), it may fall within the definition. This was discussed in Naresh Shridhar Mirajkar v. State of Maharashtra (1966).
  • Private Sector and Article 12: With the rise of Liberalization, Privatization, and Globalization (LPG) since 1991, many functions traditionally performed by the state are now handled by private entities. A debate is ongoing whether private bodies performing public functions (e.g., a private company operating a major port or supplying electricity) should be considered ‘State’ for the enforcement of Fundamental Rights. While the judiciary has been cautious, the Supreme Court in Zee Telefilms Ltd. v. Union of India (2005) held that the BCCI, despite its significant public functions, was not ‘State’. However, the jurisprudence is still evolving on this front.

Prelims Pointers

• Citizenship Acquisition by Naturalization (Conditions):
  • Not a citizen of a country that bars Indians from becoming citizens.
  • Renounces prior citizenship.
  • Resided in India for 12 months continuously before application, and for 11 out of the 14 years prior.
  • Good character.
  • Adequate knowledge of an 8th Schedule language.
  • Government can waive conditions for persons with distinguished service in science, philosophy, art, literature, world peace, or human progress.
• Citizenship by Incorporation:
  • Occurs when a foreign territory becomes part of India.
  • Example: Citizenship (Pondicherry) Order, 1962.
• Modes of Loss of Citizenship:
  1. Renunciation: Voluntary act by an adult citizen.
  2. Termination: Automatic loss on voluntarily acquiring foreign citizenship.
  3. Deprivation: Compulsory termination by the Central Government on grounds like fraud, disloyalty to the Constitution, or continuous residence outside India for 7 years.
• Overseas Citizenship of India (OCI):
  • Recommended by the L.M. Singhvi Committee (2002).
  • Introduced by Citizenship (Amendment) Act, 2003.
  • Merged with the PIO card scheme in 2015.
  • OCI is not dual citizenship.
  • Benefits: Lifelong visa, parity with NRIs in economic/financial/educational matters.
  • Restrictions: No right to vote, hold constitutional posts, or buy agricultural land.
• Fundamental Rights (FRs):
  • Contained in Part III of the Constitution (Articles 12-35).
  • Inspired by the Constitution of the USA (Bill of Rights).
  • Part III is described as the ‘Magna Carta’ of India.
  • Originally seven FRs; Right to Property (Article 31) was removed as an FR.
  • 44th Amendment Act, 1978 made the Right to Property a legal right under Article 300-A.
  • FRs are not absolute but qualified.
  • They are justiciable (enforceable in courts).
  • Can be suspended during a National Emergency, except for Articles 20 and 21.
  • Rights under Article 19 are suspended only in case of emergency due to ‘war’ or ‘external aggression’.
• Article 12 (Definition of State):
  • Includes Government and Parliament of India.
  • Includes Government and Legislatures of States.
  • Includes all local authorities (Panchayats, Municipalities).
  • Includes ‘other authorities’ like LIC, ONGC, SAIL.
  • The definition is for the purpose of Part III (Fundamental Rights).

Mains Insights

1. The Evolving Concept of Citizenship:

   • Cause-Effect: The transition from the principle of jus soli (citizenship by birth) being dominant to a greater emphasis on jus sanguinis (citizenship by descent), particularly after the 1987 and 2003 amendments, reflects the state’s response to concerns over illegal immigration. This has led to a more complex and, some argue, less inclusive citizenship regime.
   • Debate: The Citizenship Amendment Act (CAA), 2019, which grants eligibility for citizenship to specific religious communities from three neighboring countries, has triggered a major debate. Proponents argue it is a humanitarian gesture for persecuted minorities, while critics contend that by introducing a religious criterion, it violates the secular principles of the Constitution and Article 14 (Right to Equality). This highlights the tension between national security, humanitarian concerns, and constitutional values.

2. Fundamental Rights: Cornerstone of Democracy vs. Instrument of State Control:

   • Balancing Act: The “reasonable restrictions” clause on Fundamental Rights creates a perpetual tension between individual liberty and state authority. While necessary for maintaining public order and national security, this clause can also be misused by the state to curb dissent and limit freedoms. The judiciary’s role in interpreting what constitutes a ‘reasonable’ restriction is therefore critical.
   • Judicial Interpretation as an Engine of Expansion: The true scope of FRs has been defined more by judicial interpretation than by the text alone. The expansion of Article 21 (Right to Life and Personal Liberty) is a prime example. From a mere protection against arbitrary executive action in the A.K. Gopalan case (1950), it has evolved to include the Right to a dignified life, Right to privacy (K.S. Puttaswamy, 2017), Right to a clean environment, and Right to education. This demonstrates the dynamic and living nature of the Constitution.

3. The Expanding State and its Implications for Rights:

   • Privatization and Accountability Gap: As the state increasingly adopts Public-Private Partnership (PPP) models and outsources core services (health, education, infrastructure), a governance and accountability gap emerges. Fundamental Rights are primarily enforceable against the ‘State’ under Article 12. If a private entity performing a public function violates a citizen’s rights, the legal remedy becomes unclear.
   • Historiographical Viewpoint: The framers of the Constitution envisioned the state as the primary provider of services and the primary potential threat to individual liberty. In the 21st-century globalized economy, powerful non-state actors can pose a significant threat to rights. The debate on expanding the definition of ‘State’ under Article 12 to include certain private bodies is a crucial constitutional challenge for modern India. A failure to adapt could render many Fundamental Rights ineffective against new centers of power.