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Union and its Territory/Citizenship

Union & its Territory Citizenship

Union and its Territory, Citizenship

Part-1 of the Constitution deals with the union and its territories from Article-1 to 4

Article 1 (1) describes that; “India that is Bharat shall be the Union of States”.

Why Union and not Federation?
•    This was deliberately done by the drafting committee to make it clear that the Union is not the result from an agreement with the states rather it is the union which created the states. The states have no right to secede under the constitution.
•    Though the union is indestructible but the states are destructible in the sense that Parliament can change their name, boundary or create new states.
•    The Constitutional provision in 1949, established a three-tier state system under which the constituent units of the Union had no uniform status. They were recognized under four separate categories: Part A, B, C and D of the first schedule.
•    Part-A states comprised governor’s provinces of British India.
•    Part-B states consisted to nine princely states with legislatures.
•    Part-C states comprised chief commissioner’s provinces of British India and some princely states.
•    Part-D states consisted of the Andaman & Nicobar Island.
•    The Union of India consists of all the states excluding the Union Territories and the Territories of India consists of states as well as union territories.
•    Dhar Commission (1948): During this period (1948-49) the southern states were particular on re-organisation of states on linguistic basis. SK Dhar committee was constituted in 1948 that recommended that the rationale for re-organisation of the states should be on the basis of administrative conveniences rather linguistic factors.
•    JVP Commission (1949): The Dhar committee recommendation was not accepted by all and to reconsider the recommendation JVP committee was constituted with the Prime Minister Jawaharlal Nehru as a member and Vallabbhai Patel and Pattabhi Sitaramayya as other two members.
•    However, JVP Committee also did not favour the linguistic ground. The only exclusion was creation of Andhra Pradesh which had a fair share of geographical area that was dominated by Telugu speaking people from Madras Constituency.
•    It suggested that the security, unity, and economic prosperity of the nation as the criteria of reorganisation.

Formation of new states and alteration of boundaries: The Procedure (Art – 2, 3 and 4):
•    Article 2: says that the Parliament may by law admit into the Union or establish new states on such terms and conditions as it thinks fit.
•    Article 3: empowers Parliament to form new states and can alter the area, boundaries or names of the existing states by a law passed by a simple majority. The bill to the same effect requires prior president’s recommendations.
•    The President before introducing the Bill shall refer it to the State Legislature concerned for its opinion within a specified time limit which can be extended.
•    The Bill may be introduced even if the opinion has not come. The Parliament is not bound to accept or act upon the views of the State Legislature.
•    If the original Bill is intended to be amended it is not necessary to refer the amendments to the State legislature again.
•    Article 4: deals with the supplemental, incidental and consequential provisions as may be deemed necessary. By this Parliament may reduce the total number of members of Legislative Assembly even below the limit prescribed in Art 170 (60 members) as done in Goa and Uttarakhand. But now Uttarakhand has increased its seats.
•    Article 4 also says that the changes made under Art 2 and 3 shall not be deemed to be an amendment of this Constitution for the purpose of Article 368.

The State Reorganisation Commission (SRC) 1953:
•    The recommendation of JVP Committee further accelerated the demand for new states on linguistic basis particularly in Telugu speaking area under the leadership of Potti Sriramalu. The agitation took a violent turn with the death of Potti Sriramalu. The Congress ceded the reorganisation of Telugu speaking area in the State of Andhra Pradesh in 1953.
•    To make an exhaustive study of the problem, the Government of India set-up the State Reorganisation Commission in 1953 headed by Fazal Ali (with members K M Pannikar and H N Kunzru) which submitted its report in 1955 and suggested linguistic reorganisation of the states.
•    This resulted into 7th Amendment to the constitution and passing up of The State Reorganisation Act in 1956 to give effect to the recommendations of the commission.

The recommendations of SRC:
•    It suggested the reorganisation of 29 states of various categories into 16 states and 3 union territories abolishing the categories Part-A, B, C and D.
•    The general control vested in Government of India by Article 371 (Special provision with respect to the States of Maharashtra and Gujarat)) should be abolished.

The Present Structure of the Union: At present India consists of 29 States and 7 Union Territories with Delhi as National Capital Region (NCR).

Citizenship

Part-II of the Constitution from Article 5 to 11 deals with citizenship.

The population of a state is divided into: Citizens, Aliens and Stateless Persons.
•    Citizens: Who are full members of the State and owe allegiance to it. These citizens enjoy full civil and political rights.
•    Aliens: Who are citizens of some other states and are not entitled to all constitutional and other rights.

•    Aliens are of two types: Friendly Aliens and Enemy Aliens.
•    Friendly Aliens: They have the right to life and personal liberty (Art 21) but not the freedoms enumerated in Art 19.
•    Enemy Aliens: Are those people whose country is at war with India and also the Indian Citizens who voluntarily reside in or trade with such a State. Such Aliens suffer special disabilities. They are not even entitled to the benefits of Art 22.
•    Following are the rights and advantages not enjoyed by the aliens but certainly enjoyed by the citizens:
•    Articles 15, 16, 19, 29 and 30 are denied to aliens.
•    Some higher offices like President, Vice-President, Judges of SC and HCs, Attorney General, Governor of State, Advocate General etc. are not entitled for the aliens.
•    Right of suffrage for election to Lok Sabha and Legislative Assembly and right to become a Member of Parliament and of the Legislature of a State are confined only to Citizens.
•    Stateless Persons: They are not the citizens of any country rather their citizenship is not recognised by any state. They have only those rights which aliens have. This category is very small and may not exist in some countries. For example, in Sri Lanka a number of Tamilians are treated as stateless persons.
•    Nature of Citizenship: Single Citizenship and no separate citizenship for states, thereby, at the commencement of the Constitution every person domiciled in the territory of India, born in the territory of India, or who has been a resident of India for not less than 5 years immediately preceding the commencement of the Constitution (26th Jan 1950) is a citizen of India.

•    The framers of the Constitution did not lay down a comprehensive law relating to citizenship in India. They simply described the classes of persons who would be deemed to be the citizens of India at the commencement of the Constitution on 26th January 1950 (Article 5) and left the entire issues to be dealt by law(s) made by the Parliament.

•    Article 5: citizenship at the commencement of the constitution – At the commencement of this Constitution every person who has his domicile in the territory of India and :
•    Who was born in the territory of India; or
•    Either of whose parents was born in the territory of India; or
•    Who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement, shall be a citizen of India.

•    Articles 6 and 7 deal with two categories of persons, those who were residing in India but had migrated to Pakistan and those who were residing in Pakistan but had migrated to India. Those who migrated from Pakistan to India were divided into two categories:
•    Who came before July 19, 1948 and
•    Who came after July 19, 1948.
•    As pre Article 6 those who came before 19th July 1948, would automatically become citizens on the commencement of the Constitution and those who came after July 19th would need to be registered in the form and manner prescribed for this purpose by the Government of India.
•    Article 7 provides for those who had migrated to Pakistan but who had returned to India from Pakistan with the intention of permanently residing in India.
•    In dealing with persons who left India for Pakistan and who subsequently returned from Pakistan to India, allowed them to come and settle permanently under what is called a ‘permit system’. This permit system was introduced from July 19, 1948.
•    Article 8 provides citizenship to Indians who are in abroad.
•    Article 9 deals with the Persons voluntarily acquiring citizenship of a foreign State not to be Indian citizens.
    Article 10: Continuance of the rights of citizenship as per the law made by the Parliament.
•    Article 11 expressly confers power on the Parliament to make laws to provide for such matters regarding citizenship. Consequently, Parliament enacted the Citizenship Act of 1955 which was later modified several times (1986, 1992, 2003, 2015 etc.).
•    The Act provides for the acquisition and termination of citizenship ‘subsequent’ to the commencement of the Constitution.
•    However, provisions made in the Citizenship Act of 1955 must be read together with Part II of the Constitution in order to get a comprehensive picture.

An illegal Migrant as defined in section 2 (1) (b) of the Act is a foreigner who entered in India:

·         Without a valid passport or other prescribed travel documents

·         With a valid passport or other prescribed travel documents but remains in India beyond the permitted period of time.

ACQUISITION OF INDIAN CITIZENSHIP
The Citizenship Act of 1955 provides for the acquisition of Indian Citizenship after the commencement of the Constitution in five ways, i.e. Birth, Descent, Registration, Naturalisation and incorporation of territory.

By Birth: (Jus Soli):
•    A person born in India on or after 26th January 1950 but before 1st July 1987 is citizen of India by Birth irrespective of the nationality of his parents.
•    A person born in India on or after 1st July, 1987 but before 3rd December, 2004 is considered Indian Citizens by birth if either of his parents is a citizen of India at the time of his birth.
•    A person born in India on or after 3rd December, 2004 is a citizen of India by birth if
•    Both the parents are citizens of India or
•    One of the parents is a citizen of India and the other is not an illegal migrant at the time of his birth.

By Descent: (Jus Sanguine):
•    A person born outside India on or after Jan 26, 1950, is a citizen of India by descent if his/her either of the parents is a citizen of India at the time of that person’s birth, i.e. law of blood.
•    A person born outside India on or after 3rd December, 2004 shall not be an Indian citizen unless the parents declare that the minor does not hold passport of another country and his birth is registered at an Indian consulate within one year of the date of birth or with the permission of the Central Government, after the expiry of the said period.
•    Children of those who are citizens of India by descent, as also children of non-citizens who are in service under a government in India, may also take advantage of this provision and become Indian citizens by descent, if they so desire, through registration.

By Registration:
•    Under the Act, any person who is not an illegal migrant and any person who is not already a citizen of India can make an application to the Central Government to register as a citizen of India, if the applicant fulfils certain criteria:
•    Being a person of India origin and ordinarily resident in India for 7 (seven) years before making application under section 5 (1) (a). Being a PIO resident elsewhere.
•    Persons who are married to an Indian Citizen and are ordinarily resident in India for 7 (seven) years before making application under section 5(1) (c).
•    Minor children whose parents are Indian citizens under section 5(1) (d).
•    Persons of full age whose parents are registered as citizens of India (as PIO) under section 5 (1) (a) or section 6 (1) can acquire Indian citizenship under section 5 (1) (a).
•    Person of full age and capacity who or either of his parents were earlier citizens of Independent India and are residing ordinarily in India for twelve months before making the application.

By Naturalization:
•    By naturalization citizenship can be acquired by a foreigner (not illegal migrant) who is ordinarily resident in India for Twelve Years (throughout the period of twelve months immediately preceding the date of application and for Eleven Years in the aggregate in the Fourteen Years preceding the twelve months) and other qualifications as specified in Third Schedule to the Act.

By Incorporation of Territory:
•    If any territory becomes part of India, the Government of India shall specify the person of that territory to be the citizen of India.
•    Every person to whom a certificate of naturalization is granted has to take an oath of allegiance solemnly affirming that he will bear true faith and allegiance to the Constitution of India as established by the law, and that he will faithfully observe the laws of India and fulfill his duties as a citizen of India.

 

Difference between a citizen by birth and a naturalized citizen:

·         The only difference between a citizen by birth and a naturalized citizen is that the former can never be deprived of his citizenship while the latter can be. The Constitution makes no distinction between the two classes of citizens with regard to qualification or eligibility to contest an election to the state legislature or Parliament.

·         The Constitution does not bar naturalized citizens from being a candidate at an election (of otherwise qualified). They are eligible for all offices under the Constitution, e.g., President, Vice-President, Prime Minister, Governor, etc. For example, Sonia Gandhi who is a naturalized citizen of India is eligible to be the Prime Minister of India.

·         But in the U.S.A, the Constitution permits naturalized citizens to become members of the Senate. They may hold any minister level post, e.g., Secretary of State, Attorney General etc. but not that of President of the U.S.A Only a U.S.A citizen by birth can be the President.

TERMINATION OF CITIZENSHIP

The Act envisages three situations under which a citizen of India may lose his Indian nationality:
By Renunciation: Any citizen of India who is a national of another country renounces his Indian citizenship through a declaration in the prescribed manner.
When a male person is ceases to be a citizen of India, every minor child of his also ceases to be a citizen of India. However, such a child may resume their citizenship within one year after attaining full age, by making declaration.
By Termination: Indian Citizenship acquired by naturalization, registration or otherwise and if he or she voluntarily acquired the citizenship of another country at any time shall cease to be a citizen of India from the date of such acquisition.
By Deprivation: The Central Government is empowered to deprive a citizen of his citizenship by issuing an order under section 10 of the Act. If the person:
•    Acquires the citizenship by fraud, false representation, concealment of any material fact;
•    Shows disloyalty or disaffection towards the constitution by his act or speech;
•    Assisting an enemy with whom India is at war;
•    Sentence to imprisonment in any country for a term of not less than two years within the first five years after the acquisition of Indian citizenship and
•    Continuous residence outside India for a period of seven years without expressing in a prescribed manner his intention to retain his Indian citizenship.

DUAL CITIZENSHIP

•    Article 9 of Indian Constitution says that citizenship means full citizenship. The Constitution does not recognize divided allegiance. Section 10 of the Citizenship Act says that a person cannot be allegiance to two country’s constitution at the same time. Hence, the Indian Courts’ have consistently ruled against dual citizenship.
•    The reason for denial of Dual Citizenship is that, citizenship entails certain duties like serving in the army, if the need be.
•    Based on the recommendations of High Level Committee headed by Dr. L. M. Singhvi, the Government of India accepted the issuance of dual citizenship which would facilitate Indian settled abroad to make their contributions in the progress of India.

·         NRI (Non Resident Indian) is a citizen of India who holds an Indian passport and has temporarily emigrated to another country for six months or more for work, study, medical treatment, residence or any other purposes.

·         PIO (Person of Indian Origin) is a citizen of any other country but whose any of ancestors were an Indian national (at least four generations away) and who is presently holding another country’s citizenship/nationality i.e. s/he is holding foreign passport.

·         OCI (Overseas Citizenship of India) is provided to a foreign national, who was eligible to become a citizen of India on 26 Jan 1950 or was a citizen of India on or at any time after 26 Jan 1950 or belonged to a territory that became part of India after 15 Aug 1947.

A.    Overseas Citizenship of India (OCI) is commonly known as ‘Dual Citizenship’.
•    Their Grand Children (be it minor or not) are also eligible for registration as an Overseas Citizen of India.
•    However, if the applicant had ever been a citizen of Pakistan or Bangladesh s/he will not be eligible for OCI.
•    Persons registered as OCI have not been given any voting rights, election to Lok Sabha, Rajya Sabha, Legislative Assembly/Council, holding constitutional posts such as President, Vice President, Judge of Supreme Court/High Court etc.

Following benefits will be given to an OCI:
•    Multi-purpose, multiple entries, lifelong visa for visiting India.
•    Exemption from registration with local police authority for any length of stay in India.
•    Parity with NRIs in respect of economic, financial and education fields except in matters relating to the acquisition of agricultural/plantation properties.

B.    Person of Indian Origin (PIO) is issued a PIO Card (other than Bangladeshi and Pakistani Nationals) after verification of his/her origin or ancestry.

Following benefits will be given to a PIO Card Holder:
•    It entitles a PIO to enter India without a visa.
•    Spouse of a PIO can also be issued a PIO card though the spouse might not be a PIO. This latter category includes foreign spouses of Indian nationals, regardless of ethnic origin, as long as they were not born in, or ever nationals of Bangladesh and Pakistan.
•    PIO Cards exempt holders from many restrictions that apply to foreign nationals, such as visa and work permit requirements, along with certain other economic limitations.
•    PIOs can acquire non-agricultural and plantation property in India; can admit children to all educational institutes in India under NRI quota and can apply for various housing schemes of LIC, state governments and other government agencies.
•    They are also exempted from registration at Foreigners Registration office at District Headquarters if stay in India does not exceed 180 days.
•    At present the validity of PIO Card is 15 Years from the date of issue subject to the validity of the passport of the applicant.

C.    Non Resident Indian (NRI) is an economic concept refers only to the tax status. The rates of income tax are different for persons who are resident of India and for NRIs.
•    For the purposes of the Income-tax Act, “residence in India” requires stay in India of at least 182 days in a calendar year or 365 days spread out over four consecutive years.
•    According to the act, any Indian citizen who does not meet the criteria as a “resident of India” is a non-resident of India and is treated as NRI for paying income tax.

OCI and PIO Card Merged

 Indian Prime Minister while inaugurating the 9th Pravasi Bharatiya Divas on January 2011 announced to merge the OCI Card and PIO Card to facilitate visa free travel to India, rights of residency and participation in business and education activities in the country.

Citizenship Amendment Bill, 2016:
•    The Bill makes illegal migrants who are Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, eligible for Indian Citizenship.
•    Under 1955 Act, citizenship by naturalization was required to have resided in India during the last 12 months and for 11 of the previous 14 years. The new Act relaxes this 11 years requirement to six years for persons belonging to the above mentioned religion and country.
•    The new amendment introduced the concept of an Overseas Citizen of India Cardholder (OCC) that essentially replaces and merges together OCIs and PIOs.

Pursuant to section 7A of the Amendment Act, a person shall be eligible to register as an OCC if any of the following conditions are satisfied:
•    A Person of full age and capacity, who is a citizen of another country, but:
•    Was an Indian Citizen at the time or any time after the commencement of the constitution or belong to a territory that became part of India after Independence.
•    A child or a grand-child or a great grand-child of a citizen of another country and
•    A minor child whose both or one parent is an Indian citizen.
•    Spouse of an Indian Citizen or an OCC, the spouse being of foreign origin and marriage should be registered and subsisted for a continuous period of not less than 2 (two) years immediately preceding the presentation of the application and prior security clearance.
•    Citizens of Pakistan or Bangladesh (and other countries that may be notified by the Central Government) are not permitted to register as OCCs and the restrictions applying to those nationals have been extended to cover such person’s parents, grandparents or great grandparents under the Amendment Act.

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