PREAMBLE and CITIZENSHIP

PREAMBLE: 

The Preamble to a Constitution embodies the fundamental values and the philosophy, on which  the Constitution is based, and the aims and objectives, which the founding fathers ofthe Constitution enjoined the polity to strive to achieve. The importance and utility ofthe Preamble  has been pointed out in several decisions ofthe Supreme Court oflndia. Though, by itself, it is  not enforceable in Court oflaw, the Preamble to a Constitution states the objects which the  Constitution seeks to establish and promote and also aids the legal interpretation of the  Constitution where the language is found to be ambiguous. 

Purpose: • 

 It indicates the source from which the Constitution derives its authority:• 

 It also states the objects which the Constitution seeks to establish and promote. The words- ‘We, the people of India’ adopt enact and give to ourselves this Constitution. It  declares that the sovereignty ofthe people of India and that the Constitution rests on their  authority.sovereign 

means the independent authority of a state. It means that it has the power to legislate on any  subject; and that is not subject to the control of any other state or external power. The term  ‘Sodalist’ was added by the 42nd Amendment in 1976, it means in the achievement of mixed  economy both Public sector and Private sector run together as two wheels of economic  development. The term ‘Secularism’ denotes the relationship between the government and the  people which is determined according to constitution and law. By the 42nd Amendment, the  term ‘Secular’ was also incorporated in the Preamble. Secularism is the basic structure of the  Indian constitution. The Govemment respects all religions. It does not uplift or degrade any  particular religion. There is no such thing as a state religion for India. In S.R. Bommai v. Union  Oflndia ( 1994) the Supreme Court of India held “A state which does not recognize any religion  as the state religion, it treats all religions equallY’. Positively, Indian secularism guarantees  equal freedom to all religion. it stands for the right to freedom of reliöon for all citizens.  Explaining the meaning ofsecu.la.rism as adopted by India, Alexander Owics has written,  “±culazign is a part ofthe baü’ ofthe Indian Constituüon and it means equal freedom and respect  for all religions”. The term ‘democracy’ refers the government as democratically elected, head  of the government (Prime Minister) is elected by the people. In a ‘R+blic’ form of government  the head of the state is an elected person and not a heredity monarch. This word denotes a  govemment where no one holds a public power as proprietary right. As opposed to a monarchy  in which the head of state is appointed on hereditary basis for a lifetime or until he abdicates  from the throne, a democratic repubÅc is an entity in which the head of state is elected, directly  or indirectly, for a fixed tenure. The President of India is elected by an electoral college for a  term of five years. The post of the President of India is not hereditary. Every citizen of India  is eligible to become the President of the country. The leader of the state is elected by the  people 

Scope: 

Unlike the CQmti.t:utiQn Of Australia, Canada or the U.S.A., the of India has an elaborate  Preamble. The purpose of the Preamble is to clarify who has made the , what is its source, what  is ultimate sanction behind it; what is the nature ofthe polity which is sought to be established  by the constitution and what are its goals and objective?.The Preamble does not grant any  power but it gives direction and pu.rpose to the constitution .1t outlines the objective ofthe  whole CQmÄmiQn. The Preamble contains the fimdamental of Constitution. It serves several  important purposes, as for example:

 It contains the enacting clause which brings the Constitution into force. 

 It declares the basic type ofgovernment and polity which is sought to be established in the  country. 

 It declares the great rights and freedom which the people of India intended to secure to its  entire citizen. 

 It throws light on the source ofthe Constitution, viz, the people of India. 

Objectives of the preamble: 

The basic objectives of the preamble is to secure all its citizens social, economic and political  justice; liberty ofthought; equality ofstatus and opportunity, and to promote among them  fratemity so as to secure the dignity ofthe Individual and the unity and integrity of the Nation. 

Importance: 

1. The Preamble is a key to open the mind ofthe makers as to the mischiefs, which are to  be remedied; 

2. That it is properly resorted to, where doubts or ambiguities are arise upon the words  ofthe enacting 

3. Even where the words are clear and unambiguous ,it can be used to prevent an obvious  absurdity or to a direct overthrow of the intention expressed in the Preamble ,and it would  be much more so, if they were ambiguous; 

4. There is no reason why, in fundamental law or constitution ofthe government, an equal  attention should not be given to the intention ofthe framers, as stated in the Preamble. 

5. The Preamble can never be resorted to, to enlarge the powers expressly given, nor to  substantively create any power or to imply a power which is otherwise withdrawn from  the Constitution, and 

6. ID Que is to epound the nature, extent and application ofthe powers, actually conferred  by the 

Union and its territories: 

 India, that is Bharat, shall be a Union of States. 

The States and the territories thereofshall be as specified in the First Schedule.  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. 

 Originally the schedule holds four Categories of State and its territories as follows: Part A — includes the nine provinces which were under British India 

Part B — princely states consisted of this category

Part C — centra.lly administered five states 

Part D — Andaman and Nicobar Islands 

In the seventh amendment ofthe Constitution in 1956 the distinction between the Part A and  Part B states was abolished. Subsequently states were reorganized on linguistic basis. As a  result several new states were formed, eg. Haryana, Goa, Nagaland, Mizoram etc. At present  there are 29 Sutes and 7 union territories. 

Article 1 of Indian Constitution describes India as the ‘Union of States’ rather than Federal  State. Infact Federation has nowhere been used in the Constitution. Union ofStates implies  that “Indian federation is not the result of an agreement by the states” and “No state has right  to secede from the federation” The Article 2 says that the Parliamat may by law admit into  the union, or establish new states, on such terms and conditions as it thinks fit. the phrase  “Parliament may by law admit”. 

This expression further means that a new state may be admitted in the Union in the f0110%’ing  means and ways: 

> A Union Territory may be raised to the status offull state 

> A Foreign territory acquired by India maybe made a state of India and admitted into the  union. 

> A territory separated from an existing state can be reorganized into a full-fledged new state. 

A.rticle 2 confers frl.l discretion on the Parliament as to what terms should be imposed on the  new states so admitted to the union. Puliament may bylaw means that whenever a new state is  established, legislation will require to be enacted. Now, we can derive two conclusions here: >  There is no need ofany law by parliament to acquire anew territory There is a need of  legislation by parliament to establish a new state. 

Formation of New State: 

The authors of Indian Constitution, un.like the current generation of Indians, did not believe  that the states, •disnicts and mandals within India are static, unchanøng, and pennanent. They  had the matu.rity to accept that states would evolve and change, and hence made provisions  for creation of new states in Indian Union. Article 3 Of Indian CQnsituiQn addresses the topic  of ‘Formation of new States and alteration of areas, boundaries or names of existing States’. It  says; Parliament may by law 

a. form a new State by separation of territory from any State or by uniting two or more  States or pa.rts of States or by uniting any territory to a part of any State; 

b. increase the area of any State; 

c. diminish the area of any State; 

d. alter the bounda.ries of any State; 

e. alter the name of any State; Provided that no Bill for the purpose shall be introduced  in either House of Parliament except on the recommendadon ofthe President and udess,  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 a.llow and the period so specified or  allowed has expired.

*nadon 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 Il The power conferred on  Parliament by clause (a) includes the power to form a new State or Union territory by uniting  a pa.rt of any State or Union territory to any other State or Union territory. 

Creation of New State: 

The steps for creating a new state are as follows: A bill on a new state has to be recommended  by the President. In India it is usually the Cabinet which requests the President to do that. 3  makes it clear that the Parliament is the sole authority on making a decision on a new state.  President refers the bill to the State Assembly for its views giving it a certain period oftime.  Parliament is not obligated to follow on the views ofState Assembly. If the State Assembly  does not express its opinion within the specified period of üne, the bill could be introduced in  the Parliament after the expiry of the specified period. 

When the Constituent Assembly was deliberating in November 1948 on the scope and content  ofArick 3, there was a proposal by Prof KTShah that the legislation constituting a new State  from any region of a State should originate from the legislature ofthe State concerned. 

If this procedure had been approved, the power to decide the statehood of a region seeking  separation would have been vested with the State legislature dominated by the elite of  developed regions. Opposing the same and using the then demand for an Andhra Province as  an example, Shri K Santhanam stated as under: “I wonder whether ProksorShah fillyrealises  the implicaüons ofhis amendment. Ifhis amendment is adopted, it would mean that no minority  in any State can ask for separation ofterritory… unless it can get a majority in that State  legislature. Take the case ofMadras Province for instance. The Andhra want separaüon. They  bHng up a resolution in the Madras Legislature. It is defeated by a majority. There ends the  matter. The way ofthe Andhra is blæked altogether. They cannot take anyfurtherstep to  consütute an Andhra province. ” 

It is the intent that the will of the people of a region to form a separate State be the sole criterion  for the Centre to initiate the process ofState formation. This is the benchmark for creating a  new State for a region, as amply demonstrated in the deliberations ofthe Constituent Assembly  and as reflected in the cu.rrent phraseology 3 ofthe of India. This interpretation of 3 prevailed  over creation of many new states in modem India thereby nearly doubling the number ofstates  in the last fifty yea.rs. Ifnot for this interpretation, Andhra State would never have formed.  Iflndia had not honored the ‘will ofthe people ofa region to form a separate state’, there wouldn’t  have been states like Mizoram, Nagaland, and Tripura, some of them composed of only two  districts. 

In this case, Babulal Parante v. State ofBombay, the court explains the provisions of Article 3  of Indian CQIEitUiQn: The period within which the State Legislature must express its views  has to be specified by the President; but the President may extend the period so specified. If,  however, the period specified or extended expires and no views ofthe State Leøslature are  received, the second condition laid down in the proviso is fulfilled in spite ofthe fact that the  views of the State Legislature have not been expressed. The intention seems to be to øve an  opportunity to the State Legislature to express its views within the time allowed; ifthe State  Legislature fails to avail itselfofthat opportunity, such failure does not invalidate the  introduction ofthe Bill. Nor is there anything in the proviso to indicate that Parliament must  accept or act upon the views ofthe State Leøslature. Clearly, Indian CQIEütutiQn envisioned  a situation where a state may refuse to provide its view or provide negative views about a 

formation of a new state, and therefore gave 6111 powers to Indian Parliament to go ahead  with its decisions irrespective of opposition from the State Assembly. 

Citizenship: 

A citizen ofa state is a person who enjoys civil and political rights. citizenship carries certain  advantages conferred by the Constitution. Part Il of the Indian Constitution describes classes  ofpersons who would be deemed to be the citizens of India at the commencement of Indian  Constitution, 26^th January, 1950, and leaves the entire law of the citizenship to be regulated  by the law made by parliament. In exercise of its 

power the parliament has enacted the Indian Citizenship Act, 1955. This Act provides for the  acquisition and termination ofcitizenship subsequent to the commencement ofthe Constitution. 

The nature ofprovisions from Article 5 to 9 show that the objective ofthe constituent assembly  was not to make a permanent law for citizenship. Ours is a Republic Country and various  offces are to be occupied by the persons who are elected by the citizens. So, keeping this in  view, it was necessary for the Constituent Assembly to make some provisions which could  precisely determine that who is a Citizen of Independent Indian Dominion and who is not, at  the ofthe commencement ofthe Constitution. 

The following persons under Article 5 to 8 ofthe Constitution oflndia shall become citizens  oflndia at the commencement ofthe Constitution: 

1. Citizenship by domicile (Article 5). 

2. Citizenship ofmigrants from Pakistan (Article 6). 

3. Citizenship of migrants to Pakistan (Article 7). 

4. Citizenship of Indians abroad (Article 8). 

Article 5 deals with this matter. A person is entitled to citizenship by domicile ifhe fu.lfi.ls 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 a person must fulfill any one of the  three conditions laid down in the Article, namely, 

1. He/She was born in India, 

2. Either of his/her parents were born in India, 

3. He/She must have been ordinarily resident in the territory in India for not less  then five years immediately before the commencement ofthe Constitution. 

Domicile in India is considered an essential requirement for acquiring the status of Indian  Citizenship. But the term ‘domicile’ is not defined in Constitution. Ordinarily, it means  permanent home, or place where a person resides with the intention of remaining there for an  indefinite period. Two elements are necessa.ry for the existence of domicile 

1) A resistance ofa particular kind and 

2) An intention ofparticular kind. 

Domicile is of two kinds: domicile oforigin and domicile ofchoice. Every person is bom with  domicile or origin. It is domicile received by him at his birth. The domicile or 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 oflaw. It clinges 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 (a)  actual residence in particular place and (b) intention to remain there permanently or for an  indefinite period. 

In Pradeep Jain v. Union ofIndia, it is clear on a reading of the Constitution that it recoglizes  only one domicile namely, domicilein India. Article 5 of the Constitution is clear and explicit  on this point and it refers only to one domicile, namely, “domicile in the territory of India.”  Moreover, it must be remembered that India is not a federal state in the traditional sense of that  term. It is not a compact of sovereign states which have come together to form a federation by  ceding a part oftheir sovereignty to the federal states. It has undoubtedly certain federal  features but it is still not a federal state and it has only one citizenship, namely, the citizenship  of India. It has also one single unified legal system which extends throughout the country. It  is not possible to say that a distinct and separate system of law prevails in each State forming  pa.rt ofthe Union of India. The legal system which prevails through-out the territory of India  is one single indivisible system with a single unified justicing system having the Supreme  Court of India at the apex of the hierarchy, which lays down the law for the entire country. 

The concept of ‘domicile’ has no relevance to the applicability of municipal laws, whether  made by the Union of India or by the States. It would not, therefore, in our opinion be right to  say that a citizen of India is domiciled in one state or another forming part ofthe Union of  India. The domicile which he has is only one domicile, namely, domicile in the territory of  India. When a person who is permanently resident in one State goes to another State with  intention to reside there permanently or indefinitely, his domicile does not undergo any  change: he does not acquire a new domicile of choice. His domicile remains the same, namely,  Indian domicile. 

Citizenship of Migrants from Pakistan: 

Article 6 provides citizenship rights to migrants from Pakistan before commencement of  Constitution. A person who migrated from Pakistan to India before 19 July 1948 shall be  considered a citizen of India, provided either of the person’s parents or any of his grandparents  were born in India as stated in the Govemment of India act, 1935 and has been residing since  the date of migration. For person/s migrated after 19 July 1948, the person should be registered  as a citizen of India by an offcer from the Government of India, but for registration the  subjected person has to be a resident of India for at least six months, at the date of his  application. 

Citizenship of Migrants to Pakistan: 

Article 7 makes special provisions regarding the citizenship of persons who migrated to  Pakistan after 1 ^st March, 1947 but returned to India subsequently. Such person/s becomes  entitled to citizenship of India, provided they ft.lfill the conditions stated for migrants from  Pakistan stated in Article 6. It is necessary that in such cases to the visits of the migrants must  not be for short/limited periods or be of a temporary nature or on purposes of business or  otherwise. It has to be noted that such cases are subjected to this Article, as they were before  the commencement ofthe Constitution cases pertaining to the period thereafter are to be  governed by the Citizenship Act, 1955. 

Migration into the territory oflndia which conferred the status ofcitizenship under and  migration from India which disqualify a person from claiming citizenship under Aniclel must  be complete before the date of the commencement of the Constitution. If therefore intention to 

settle permanently in the country in which a person has moved is a necessary component of  migration, such intention must have been formed before the commencement of the  Constitution, and many persons who were compelled to move from their homes on account of  a sense of insecurity resulting from riots and civil commotion still hoping that they would be  going back to the abodes of their ancestors when the situation returned to normal, may not be  deemed to have migrated at all. This, in my judgment, would introduce an element of  uncertainty in the determination ofcitizenship and involve great hardship to the migrants. 

Persons of origin residing outside India: 

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 and who is ordinarily residing in any country  outside India shall be deemed to be a citizen of India if he has 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 ofthe Constitution. 

Indian Citizenship Act, 1955: 

The Citizenship Act, 1955 that came into force with effect from 30th December 1955 deals  matters relating to the acquisition, detennination and terminaöon oflndian cidzenship. It  provides for the acquisition oflndian citizenship by birth, by descent, by registration and by  naturalization. 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 Original Act provides as follows: 

 a person bom in India after 26 January 1950 would, subject to certain exceptions be a  citizen oflndia by Birth 

 anyone bom outside India after 26 Janua.ry 1950, subject to certain requirements, would  be a citizen of India if his/her father was an Indian citizen at the time ofhis/her birth 

 under certain conditions, certain category ofpersons could acquire Indian citizenship by  registration in prescribed manner foreigners could acquire Indian citizenship on  application for naturalization on certain conditions 

 ifany territory became pa.rt ofIndia, the Govemment ofIndia could by order specify the  persons who would become citizens of India as a result thereof citizenship could be lost  by termination, renunciation or deprivation on certain grounds 

 a citizen of commonwealth country would have the status of commonwealth citizen of  India. Government could make suitable provisions on the basis of reciprocity. 

Acquisition of Indian citizenship: 

Indian ci&enship can be acquired by birth, descent, registration and natura.lization. The  conditions and procedure for acquisition of Indian citizenship as per the provision ofthe  Citizenship Act, 1955 are given below:

By Birth (Section 3) 

1. A person born in India on or after 26th January 1950butbefore 1st July, 1987 birth  irrespective ofthe nationality of his parents. 

2. A person born in India on or after 1st July,1987butbefore3rdDecember,  2004isconsideredcitizen of India by birth if either of his parents is a citizen of India at  the time of his birth. 

3. A person born in India on or after 3rd December,  2004isconsideredcitizenofIndiabybirth ifboth the parents are citizens oflndia or one ofthe  parents is a citizen of India and the other is not an i.llegal migrant at the time ofhis birth. 

An ‘illegal migrant’ as defined in section 2(1)(b) ofthe Act is a foreigner who entered India. 1. Without a valid passport or other prescribed travel documents. 

2. With a valid passport or other prescribed navel documens but remains in lndia beyond the permitted period of time. 

By Descent: (Section 4) 

1. A person born outside India on or after 26th January 1950 but before 10th December  1992 is a citizen of India by descent, if his father was a citizen of India by birth at the  time of his birth. In case the father was a citizen of India by descent only, that person  shall not be a citizen of India, unless his birth is registered at an Indian Consulate within  one year from the date ofbirth or with the permission of the Central Government, after  the expiry ofthe said period. 

2. A person born outside India on or after 10th December 1992 but before 3rd December,  2004, is considered as a citizen of India ifeither ofhis parents was a citizen oflndia by  birth at the time ofhis birth. In case either ofthe parents was a citizen of India by descent, that person shall not be a citizen oflndia, unles his birth is registered at an Indian  Consulate within one year from the date ofbirth or with the permission ofthe Central  Government, after the expiry of the said period. 

3. A person born outside India on or after 3rd December, 2004 shall not be a citizen of  India, urdess the pareno declare that the minor does not hold passport ofanother 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. 

By Registration: (Section 5(1)) 

Indian Citizenship by registration can be acquired (not illegal migant) by: — 

1. Persons of Indian origin who are ordinarily resident in India for SEVEN YEARS  before ma.king application under section 5(1)(a) (årmaghmat the period oftwelve months  immediately before making application and for YEARS in the aggregate in the EIGHT  YEARS preceding the twelve months). 

2. Persons of Indian origin who are ordinarily resident in any country or place outside  undivided India under section 5(1)(b).

3. Persons who are married to a citizen of India and who are ordinarily resident in India  for SEVEN YEARS (as mentioned at (a) above) before making application under section  5(1)(c). 

4. Minor children whose both parents are Indian citizens under section 

5. Persons of frll age whose both parents are registered as citizens of India under section  5(1)(a) or section 6(1) can acquire Indian citizenship under section 5(1)(e). 

6. Persons offu.ll age who or either of the parents were earlier citizen of Independent  India and residing in India for ONE YEAR immediately before making application under  section 5(1)(f). 

7. Persons of Rill age and capacity who has been registered as an OVERSEAS CITIZEN  OF INDIA (OCI) for five years and residing in India for ONE YEAR before making  application under section 

By Registration (Section 5(4)): 

Any minor child can be reøstered as a citizen of India under Section 5(4), ifthe Central  Government is satisfied that there are ?special circumstances? jusüfying such registration.  Each case would be considered on merits. 

By Naturalization (Section 6): 

Citizenship of India by nawralization 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 ofapplication and for ELEVEN YEARS in the in the  FOURTEEN YEARS preceding the twelve months) and other qualifications as specified in  Third Schedule to the Act. 

Loss of Citizenship of India: 

The Citizenship Act, 1955, prescribes three ways oflosing citizenship whether acquired under  the Act or prior to it under the Constitution, viz, renunciation, termination and deprivation: 

1. By Renunciation 

Any citizen of India of full age and capacity can make a declaration renouncing his Indian  citizenship. Upon the registration of that declaration, that person ceases to be a citizen of India.  However, if such a declaration is made during a war in which India is engaged, its registration  shall be withheld by the Central Government. Further, when a person renounces his Indian  citizenship, every minor child ofthat person also loses Indian citizenship. However, when such  a child attains the age of eighteen, he may resume Indian citizenship. 

2. By Termination 

When an Indian citizen voluntarily (consciously, knowingly and without duress, undue  influence or compulsion) acquires the citizenship of another country, his Indian citizenship  automatically terminates. This proyision, however, does not apply during a war in which India  is engaged. 

3. By Deprivation

It is a compulsory termination of Indian citizenship by the Central govemment, if: a. the citizen has obtained the citizenship by fraud 

b. the citizen has shown disloyalty to the Constitution of India 

c. the citizen has unlawfully traded or communicated with the enemy during a war; 

d. the citizen has, within five years after reøstration or naturalization, been imprisoned  in any country for two years; and 

e. the citizen has been ordinarily resident out of India for seven years continuously. Plenary power of the Parliament: 

Continuance ofthe rights of citizenship: Every person who is or is deemed to be a citizen of  India under any ofthe foregoing provisions ofthis Part shall, subject to the provisions of any  law that may be made by Parliament, continue to be such citizen (Ardc.le 10) 

Article 11: Parliament to regulate the right of citizenship by law. 

Nothing in the foregoing provisions of this Part shall derogate from the power of Parliament  to make any provision with respect to the acquisition and termination of citizenship and all  other matters relating to citizenship. The nature ofprovisions from Article 5 to 9 show that the  objective ofthe constituent assembly was not to make a permanent law for citizenship. Ours is  a Republic County and various offces are to be occupied by the persons who are elected by the  citizens. So, keeping this in view, it was necessary for the Constituent Assembly to make some  provisions which could precisely determine that who is a Citizen of Independent Indian  Dominion and who is not, at the ofthe commencement ofthe Constitution. Further, the  constituent also gave plenary power to the parliament of India to deal with the question  ofnationality. 

10 and more precisely A.rticle 11 give the power to the parliament to make law in this  connection as and when it suits to the demands of the circumstances. The power in parliament  vested by Article 11 embraced not only acquisition but also the termination or any other matter  related to Citizenship. Using the power vested in parliament by Article 11 of the Constitution  of India, a comprehensive law “The Citizenship Act, 1955” was passed by the parliament. This  act has been amended from to time to make space for provisions as and when required.