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The Constituent Assembly took more than two years to arrive at a final decision with respect to the provisions dealing with citizenship. This was mainly due to some special problems created by the partition of India as well as the presence of a large number of Indians abroad.
Between 1947 and 1949, millions of people had crossed and re-crossed the frontiers that separate India from Pakistan, in order to make final choice of their nationality. On the one hand, Hindus and Sikhs who were born and domiciled in that part of India which became Pakistan and who migrated to India, had to be given the citizenship of new India; on the other, Muslims who left India to become citizens of Pakistan had to be excluded.
There was also the case of persons of Indian origin living abroad, in many countries and for many years, and who might now prefer to reside in India permanently as she had become a free nation. Several drafts were prepared and destroyed by the Drafting Committee in its effort to cover all the cases which it was thought necessary and desirable to cover.
Even so, the final draft that it placed before the Assembly had to face a large number of amendments, as many as 140, thereby indicating how difficult it was to reach a solution of this complicated problem. The provisions as finally passed are covered by Articles 5 to 11 and are embodied in Part II of the Constitution.
Article 5 refers to citizenship not in any general sense but to citizenship on the date of the commencement of the Constitution. It was not the object of this Article to lay down a permanent law of citizenship for the country. That business was left to the Parliament of India.
Accordingly, at the commencement of the Constitution, every person who had his domicile in the territory of India and (a) who was born in India, or (b) either of whose parents was born in India, or (c) who had been ordinarily resident in India for not less than five years immediately preceding the commencement of the Constitution, was to be considered a citizen of India.
Persons of Indian origin who had been residing outside India at the commencement of the Constitution were given the free choice of becoming Indian citizens under the above provisions if they so desired.
The only condition that they had to fulfill in his connection was to get them registered as Indian citizens by the diplomatic or consular representatives of India in the country where they were residing (Art. 8).
Articles 6 and 7 deal with two categories of persons, namely, those who were residents in India but had migrated to Pakistan and those who were residents in Pakistan but had migrated to India.
Those who migrated from Pakistan to India were divided into two categories: (a) those that came before July 19, 1948, and (b) those that came after that date.
According to Article 6 those who came before July 19, would automatically become citizens on the commencement of the Constitution, and those who came after July 19 would become such provided they had been registered in the form and manner prescribed for this purpose by the Government of India.
These two articles thus provided for all cases of mass migration from Pakistan to India without making any distinction between one community and another, although the partition of the country itself was based upon such a distinction.
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.
Such a provision had to be made because the Government of 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. Under this system, every person who desired to return to India and permanently reside in India was required to get a separate permit.
It is clear from the nature of these provisions that their object was not to place before the Constituent Assembly anything like a code of nationality laws. In fact, there is hardly any constitution in which an attempt has been made to embody a detailed nationality law.
But since India’s Constitution is of a republican character and provision is made throughout the Constitution for election to various offices under the State by and from among the citizens, it was thought essential to have some provisions which precisely determined who was an Indian citizen at the commencement of the Constitution.
Otherwise, there could have arisen difficulties in connection with the holding of particular offices and even with the starting of representative institutions in the country under the republican Constitution.
This is why Parliament has been given plenary power to deal with the question of nationality and enact any law in this connection that it deems suited to the conditions of the country.
Such Parliamentary power embraces not only the question of acquisition of citizenship but also its termination as well as any other matter relating to citizenship (Art. 11).
Also under Article 9 of the Constitution, any person who voluntarily acquires the citizenship of any foreign State, even if qualified for Indian citizenship under any provision of the Constitution, may not be a citizen of India.