Part 2 of Indian Constitution, Article 5 to 11, Amendments

The Constitution of India establishes the structure of government, distribution of powers, and fundamental principles of governance. The Indian Constitution is divided into 25 Parts, and each Part focuses on a specific subject. These Parts together create a complete constitutional framework. Part II of the Constitution deals exclusively with citizenship. It clarifies who were considered citizens at the commencement of the Constitution and lays down detailed provisions for persons affected by the partition of India. This Part provides the foundation of Indian nationality at the beginning of the Republic.

Part 2 of Indian Constitution

Part II of the Constitution is titled “Citizenship” and includes Articles 5 to 11. It defines who qualified as citizens when the Constitution came into force. It also deals with special situations arising from migration between India and Pakistan during partition. These Articles outline conditions relating to domicile, birth, residence, migration, and voluntary acquisition of foreign citizenship. Part II was not meant to create a permanent nationality code. Instead, it laid down basic principles and gave Parliament the authority to frame detailed citizenship laws in the future.

Article 5 of Part 2 of Indian Constitution

Article 5 of Part 2 of Indian Constitution states that at the commencement of the Constitution, a person would be a citizen of India if he had his domicile in the territory of India and fulfilled certain conditions.

• Article 5 (a): The person born in the territory of India is considered an Indian Citizen.
• Article 5 (b): States a person is considered Indian Citizen if either of the parents were Indian born.
• Article 5 (c): It states the person shall be a citizen who has been ordinarily resident in India for at least five years immediately before the commencement.
• The Draft Constitution of 1948 contained broader references including grandparents and excluded those who permanently settled abroad after 1 April 1947. 
• During debates held in August 1949, proposals such as religion-based citizenship and dual citizenship were discussed but rejected.

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Article 6 of Part 2 of Indian Constitution

Article 6 of Part 2 of Indian Constitution grants citizenship rights to migrants from Pakistan.

• Article 6 (a): States that migrants are to be deemed citizens if they or their parents or grandparents were born in India as defined in the Government of India Act 1935.
• Article 6 (b) (i): If migration occurred before 19 July 1948, ordinary residence in India since migration was required. 
• Article 6 (b) (ii): If migration occurred on or after that date, registration by a government-appointed officer before commencement was necessary. 
• Additionally, at least six months of residence before application was compulsory. 
• Debates clarified that this Article aimed to settle basic principles, not create a full nationality code. It was adopted on 12 August 1949.

Article 7 of Part 2 of Indian Constitution

Article 7 regulates citizenship of persons who migrated to Pakistan.

• Article 7 declares that persons who migrated to Pakistan after 1 March 1947 would not be considered Indian citizens. 
• However, an exception exists for those who returned to India under a valid permit for resettlement or permanent return. 
• Such individuals were treated as having migrated after 19 July 1948 under Article 6 provisions. 
• During debates, concerns were raised about loyalty, evacuee property, and fairness of permits. 
• The Drafting Committee emphasized India’s promise of rehabilitation. The Assembly adopted this Article on 12 August 1949 without amendments.

Article 8 of Part 2 of Indian Constitution

Article 8 of Part 2 of Indian Constitution deals with persons of Indian origin residing abroad.

• Article 8 provides that persons of Indian origin residing outside India could be recognized as citizens if they or their parents or grandparents were born in India as defined in the Government of India Act 1935. 
• Such individuals had to apply for registration with an Indian diplomatic or consular representative in their country of residence. 
• This provision was inserted by the Drafting Committee and debated in August 1949.

Article 9 of Part 2 of Indian Constitution

Article 9 of Part 2 of Indian Constitution bars dual citizenship in certain circumstances. Article 9 states that a person shall not be considered an Indian citizen under Articles 5, 6, or 8 if he voluntarily acquired citizenship of a foreign State.

Article 10 of Part 2 of Indian Constitution

Article 10 of Part 2 of Indian Constitution ensures continuity of citizenship rights. It provides that every person recognized as a citizen under previous Articles would continue as a citizen, subject to any law made by Parliament.

Article 11 of Part 2 of Indian Constitution

Article 11 of Part 2 of Indian Constitution empowers Parliament to regulate citizenship matters.

• Article 11 declares that nothing in the preceding provisions limits Parliament’s power to make laws regarding acquisition and termination of citizenship and related matters. 
• The Drafting Committee clarified that the Constitution was not intended to be a permanent nationality code.

Part 2 of Indian Constitution Amendments

The major amendments carried out related to the Part 2 of Indian Constitution include mostly dealing with the article 11 of the constitution. Few examples include:

1. Citizenship Amendment Act 1986: This amendment introduced the concept of jus sanguinis. It provided that persons born in India between 26 January 1950 and 1 July 1987 were citizens. Those born after 1 July 1987 and before 4 December 2003 could obtain citizenship if at least one parent was born in India.
2. Citizenship Amendment Act 2003: This amendment tightened citizenship rules. For persons born on or after 4 December 2004, one parent must be an Indian citizen and the other must not be an illegal immigrant. This aimed to prevent illegal immigration from Bangladesh.
3. Citizenship Amendment Act 2005: This Act introduced the Overseas Citizen of India status, often described as dual citizenship, though not applicable to persons from Pakistan or Bangladesh. In 2015, the Person of Indian Origin card was merged with the OCI scheme.
4. Citizenship Amendment Act 2019: This amendment added a proviso in Section 2(1)(b) of the Citizenship Act 1955. It excluded Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians from Afghanistan, Bangladesh, or Pakistan who entered India on or before 31 December 2014 from being treated as illegal migrants, subject to specified legal exemptions.

Part 2 of Indian Constitution Case Laws

Courts clarified domicile, migration, and permit requirements under citizenship provisions through landmark decisions.

• Kedar Pandey v. Narain Bikram Sah (1965): The Supreme Court held that domicile of choice requires intention to reside permanently, known as animus manendi. Though born in Nepal, Narain Bikram Sah was considered an Indian citizen because he lived in India before 1949 with permanent settlement intention under Article 5.
• Kulathil Mammu v. State of Kerala (1966): The Supreme Court ruled that persons migrating to Pakistan cannot claim Indian citizenship unless they return under valid resettlement permits as required under Article 7.
• Firoz Meharuddin v. Sub-Divisional Officer (1960): The Bombay High Court emphasized that verbal claims of return are insufficient. A formal legal process is necessary to establish valid citizenship claims.
• State of Madhya Pradesh v. Peer Mohd. (1962): The Court clarified that the burden of proof lies on the applicant to demonstrate lawful return and authorization for citizenship recognition.
• Abdul Sattar v. State of Gujarat (1964): The Court held that mere physical presence in India does not restore citizenship. A proper resettlement permit under Article 7 is mandatory.