MODULE 1

Salient features of the Indian Constitution - State territory - Parliamentary power to cede
Indian Territory (Art. 1 - 4) -Citizenship-Parliament's power to lay down criteria - dual
citizenship.

Asst. Prof Prince S A

Nehru Academy of Law | Constitutional Law 1 | 5s2

Salient features of the Indian Constitution:

Introduction

The Constitution of India is a very dynamic creation of our lawmakers. The Constitution of
India as we all know is a supreme law of the country and every citizen of our country has to
abide by the constitution.

1. The Lengthiest Constitution of the World

The Indian Constitution is one of the lengthiest constitutions in the world and it is also very
detailed. There are 12 schedules and 448 articles in our Constitution. The Indian Constitution
has incorporated various articles by taking inspiration from the various constitutions around
the world. As we all know, India is a very diverse country and it was necessary to draft a long
Constitution incorporating various provisions in order to accommodate various differences.
The parent document for drafting the Indian Constitution was the Government of India Act
1935, and that document itself was very lengthy. The Constitution makers found it necessary
to incorporate various provisions to provide special attention to States like Assam, Mizoram,
and Nagaland. Various provisions were also incorporated to uplift the Scheduled Castes and
Scheduled Tribes.

2. Establishment of a Sovereign, Socialist, Secular, Democratic Republic

The Preamble of our Constitution provides India to be a Sovereign, Socialist, Secular,

Democratic and Republic Country. There are also various other terms in the Preamble which
ensure equality and protect people. The various other terms are Justice, Liberty, Equality, and
Fraternity.

SOVEREIGNTY

The term Sovereignty was incorporated in the Preamble to provide supreme power to the
Government. The term Sovereignty is the backbone of our Indian Constitution that protects the
authority of the people. Sovereignty is an essential factor of every State. The term
“sovereignty” as applied to states implies ‘Supreme, absolute, and uncontrollable power by
which any state is governed, and which resides within itself, whether residing in a single
individual or a number of individuals, or in the whole body of the people’. The Sovereignty in
India is of two types:

Internal Sovereignty- The States have the power to govern themselves and make laws in certain
matters.
External Sovereignty- The Government is the supreme authority and can acquire or cede any
part of the territory for proper reasons.

SECULARISM

It is mandatory to incorporate this term to promote peace between various communities in our
country. Secularism promotes the development and unity of various religions. The term
“Secular” was added by the 42nd amendment in the Preamble. In the case of S.R Bommai v
Union Of India, it was held that “in matters of State, religion has no place” and also said that
secularism is one of the basic features of the Constitution. In the famous case of Indira Nehru
Gandhi vs Shri Raj Narain & Anr, held that the State shall not discriminate against any
citizen on the grounds of religion.

DEMOCRACY

Democracy is an ancient concept that is followed by many south Indian rulers from time
immemorial. Democracy provides people with the power to govern. The representative form
of the Government is suitable for governing our country due to the huge population. In the case
of Mohan Lal Tripathi vs District Magistrate, the meaning of the term “Democracy” was
discussed and according to the case it was held that “Democracy is a concept, a political
philosophy an ideal which is practised by many nations that is culturally advanced and
politically mature via resorting to governance by representatives of the people elected directly
or indirectly”. The main reason for incorporating democracy is to provide freedom to the people
to choose their own representatives and to save them from the tyrant leaders.

SOCIALIST

The system of socialism promotes equality among people and ensures the welfare of people.
The term “Socialist” was incorporated by the 42nd amendment. The term Socialist was
discussed in the case of Samantha v State of Andhra Pradesh, and according to the case,”
the term socialist is used to lessen the inequalities in income and status and to provide equality
of opportunity and facilities”. Many leaders were interested in the concept of socialism,
especially Jawaharlal Nehru was very much interested in this concept as he was inspired by the
Russian Revolution. There were also other famous leaders like Jay Prakash Narayan who
helped in the development of this concept. The concept of Socialism expels capitalism which
is considered a threat to the economy. There were developments in economic policies to
promote the concepts of Socialism.

REPUBLIC

The concept of “Republic” was borrowed from the Constitution of France. The term republic
provides the people power to elect their own representatives. The term republic is the basis of
our constitution as it ensures there would be no hereditary rulers and also ensures that the
election would be happening in our country. The President of India is an elected head of the
State for a fixed tenure.

Democracy Republic
In Democracy the people have the power to In Republic form of Government, the power
themselves belongs to individual citizens
There are 5 types of Republics namely
There are 3 major types of democracy
Constitutional Republic, Parliamentary Republic,
namely Direct democracy, Representative
Presidential Republic, Federal Republic and
Democracy and Constitutional Democracy
Theocratic Republic
In a democratic system of Government all In the Republic form of Government, the laws are
laws are made by the majority made by those who are elected representatives of
(representatives/ people) the people of the land.
A country can have more than 1 type of A country can also have more than 1 type of
democracy Republic
 In the Republic system of Government, the
It is the will of the majority that has the right
Constitution protects the rights so no will of people
to override the existing rights
can over-ride any rights.
Democracy majorly focuses on the general
Republic mainly focuses on the Constitution
will of the people
There are no constraints on the Government There are constraints on the Government in a
in a Democracy Republic (bound by the Constitution)

JUSTICE

The Preamble of the Constitution of India guarantees three types of justice to its citizens like:

o Social Justice- The concept of social justice promotes equal treatment of citizens and
promotes the rule of law. This term ensures that there would be no discrimination
among the citizens on different grounds. The fundamental rights also provided in Part
3 of our Constitution also ensures social justice.
o Economic Justice- The concept of economic justice avoids discrimination between
genders, provides equal opportunity to work, and ensures the equal distribution of
wealth.
o Political Justice- This term provides all citizens to participate in the political
proceedings.

LIBERTY AND FRATERNITY

The term Liberty and Fraternity is provided in the Preamble of the Indian Constitution. The
term liberty and fraternity was used in the French revolution.

3. Parliamentary form of Government

The Bicameral Legislature system is followed in our country. The Unicameral legislature
system is followed in countries like Norway. The law making procedure is easy in the
unicameral legislature but the bicameral legislature is effective as there would be a lot of
discussions and deliberations before making legislation. Articles 74 and Article 75 is concerned
with the Parliamentary system at the centre and Article 163 and Article 164 is concerned with
the Parliamentary system at the states. Article 74 of the Indian Constitution provides that there
should be a Council of Ministers with the Prime Minister and Council of Minister can aid and
advise the President. Article 75 of the Indian Constitution deals with the other provisions
relating to the appointment of Ministers.

Parliamentary v. Presidential System

The Presidential form of Government is followed in countries like the United States of
America. The President is the head of the State in the Presidential System of Government. The
Parliamentary system is preferred over the Presidential system as it ensures the equal
distribution of power and also power is not within the hands of a single person. The drafters of
our constitution did not prefer the presidential system as the executive and legislatures would
become independent of each other. The makers felt that this would be an issue afterwards.
 4. A unique blend of rigidity and flexibility

The Indian Constitution is neither rigid nor flexible, this is also one of the reasons for its length.
The famous example of the rigid constitution is the Constitution of the U.S., and it is known as
a rigid constitution as the amendment process is very difficult. The Indian Constitution is not
very difficult to amend, as the Constitution of The U.S.A. It has gone through 103 amendments
so far but there are certain steps to be satisfied before bringing in the amendment. Thus the
Indian Constitution is a unique blend of rigidity and flexibility.

5. Fundamental Rights

Part III of the Indian Constitution deals with fundamental rights.

Article 14

Article 14 of the Indian Constitution guarantees the right to equality. Article 14 is applicable
not only to citizens but also to corporations and foreigners. According to this Article, it is the
duty of the state not to deny any person equality before the eyes of the law and to provide them
equal protection of laws within the territory of India. The term “Equal protection of laws” was
discussed in the case of St.Stephen’s college vs. The University of Delhi, according to this case
it was said that the state has to provide equal protection of laws to every citizen and non-citizen
in this territory and no one should be denied such protection. In the case of Chiranjit lal
Chowdri vs Union of India, it was said that “there is no doubt that Article 14 provides one of
the most valuable and important guarantees in the Constitution which should not be allowed to
be whittled down.” The concept of the rule of law is incorporated in this Article. The concept
of rule of law was developed by Dicey. According to Dicey, there are three main aspects of this
rule of law,

o Equality before the law.

o Absence of arbitrary power and discrimination.
o The importance is given to the rights of the individual.
Article 14 allows differentiation in certain situations when there is an intelligible differentia,
that there should be a proper reason for differentiating. The differentia which has been applied
in the classification should have an essential connection with the objective which is sought to
be achieved by the classification. Article 14 does not permit any class legislation. The
classification should be reasonable and the persons in the same situation cannot be treated
differently. For example, the persons who are under 18 years of age are incompetent to vote is
a reasonable differentiation. In a famous case, it was mentioned that the prisoners from India
and prisoners from Europe who are in Indian Jails convicted for the same crime must be treated
in the same manner.

Article 15

Article 15 prohibits discrimination on the grounds of caste, race, religion, sex and place of
birth. According to this article, there should not be any discrimination in:

o Accessing shops, public places, hotels and other public places of entertainment.
o The use of places of public resort-like wells and shops that are maintained wholly or
partly out of State funds or dedicated to the use of the general public.
There are certain exceptions to this Article provided in clauses 15(3) and 15(4). They are:

o The State can make special laws for women and children and those provisions should
be for their betterment;
o This Article will not prevent the state anyway from making special provisions for the
advancement of any socially or educationally backward classes of citizens or for the
Scheduled Castes and Scheduled Tribes.

The Hon’ble Supreme Court, in the case of G.M. Southern Railways v. Rangachari, held that
Article 15(4) of the Indian Constitution to be an exception to Article 15(1) and nothing provided
in the Article15(1) will affect the State from making any special laws for the improvement of
backward classes of citizens. In the case of Dasaratha Rama Rao vs State of Andhra
Pradesh, it was held that Article 15 is a particular application of the general right of equality
provided for in Article 14. The concept of gender equality provided under Article 15 was also
discussed in a case like Vishaka vs the State of Rajasthan.

Article 16

Article 16 of the Indian Constitution guarantees equality of opportunity in matters of public

employment. In the case of J.K v Triloki Nath Khosa, it was held that even though Article 16
provides equality of opportunity, the state can prescribe all the necessary qualifications and
tests that are necessary for providing employment. In the case of M.R.Balaji vs Mysore, the
Court put a 50% limit on reservations in almost all states except Tamil Nadu and Rajasthan.

Article 16(4) is a very important provision that allows the state to make reservations of
appointments for the development of backward classes if they are not adequately represented
by the services of the state. The case of Devadasan v Union of India is a landmark judgment
which discussed the scope of this Article. In this case, the validity of the “carry forward rule”
made by the government that is used to regulate the reservation of employment was discussed.
The Supreme Court held that the carry forward rule is not valid as reservation exceeds over 50
percent because of this carry forward rule and it affects the other classes of society.

Article 17

Article 17 of the Indian Constitution abolishes untouchability and practising it in any form is
forbidden. In Shastri Yagnapurushdasji and Ors. v. Muldas Bhundardas Vaishya and Anr.,
it was held that ‘untouchability is founded by superstition, ignorance, complete
misunderstanding of the true teachings of Hindu religion’. In the famous case of the State of
Karnataka vs Appa Balu Ingale, it was noted that,

o Abolition of Untouchability is the arch of the Constitution to make the preamble

meaningful and to integrate the Dalits in the national main-stream;
o The practice of untouchability is the root cause for social segregation, denial of
opportunities for Dalits in the educational, economic and cultural pursuits;
o All customs, usages, practices directly or indirectly recognizing or encouraging the
practice of untouchability in any form is void, as it is opposed to public policy;
o The new Act “The Protection of civil rights 1955” was brought out and it was said that
the Act is an instrument to enhance the civil, social, cultural, economic and
constitutional rights of the Dalits in addition to the rights provided in the Constitutional
provisions.
Article 18

Article 18 of the Indian Constitution abolishes the titles. According to this Article, no Indian
citizen can accept the titles from any foreign states. The provision was brought out to prevent
discrimination. The awards like Bharat Ratna and Padma Vibhushan awarded by the Indian
Government do not come under the titles so they can be accepted. The aristocratic classes like
Khan Bahadurs created by the British were abolished under this Article.

Article 19

Article 19 of the Indian Constitution guarantees various freedom like:

o Freedom of speech and expression;

o To assemble peaceably and without arms;
o To form associations or unions or co-operative societies;
o To move freely throughout the territory of India;
o To reside and settle in any part of the territory of India;
o To practice any profession, or to carry on any occupation, trade or business.

The freedom of speech under Article 19(1)(a) includes the right to express one’s opinions on
any issue through various ways like pictures and films. It includes the freedom of
communication and the right to provide or publish opinions and this right is subject to
reasonable restrictions being imposed under Article 19(2). In the case of Romesh Thapar vs the
State of Madras, it was held that freedom of expression also includes the freedom of publication
and propagation. In the case of Government of India v. Cricket Association of Bengal, it was
held that freedom of speech and expression also includes the right to acquire information. There
are also certain reasonable restrictions provided for the freedom of speech and expression
guaranteed under Article 19(1). Article 19(2) provides those restrictions. They are,

o The statements made should not be defamatory.

o The statements should not affect the interest of sovereignty and integrity of India.
o The statements should not affect any friendly relations with the foreign states.
o The statements should not affect public offence, decency and morality.
o The statements should not be in relation to the contempt of court.

Article 20

Article 20 provides protection in respect of conviction for offences. According to this Article:

o No person shall be convicted of any offence except for violation of a law in force at the
time of the commission of the Act considered as an offence, should not be subjected to
a penalty which is greater than that which might have been inflicted under the law in
force at the time of the commission of the offence.
o No person shall be prosecuted and punished for the same offence more than
once.(Double jeopardy).
o No person accused of any offence shall be compelled to be a witness against
himself(Self-incrimination).
Article 20(1) provides protection against ex post facto laws or retroactive laws. According to
this provision, no person can be punished for any offence that was not considered as an offence
when it was committed, and no person can be awarded greater punishment. In the case of State
Bank of India vs T.J Paul, an employee working in Bank Of Cochin was served with charge
sheet but the bank was amalgamated with the State Bank of India after a certain time, and it
was held that the person cannot be convicted with the rules of State Bank and only the rules of
Bank of Cochin is applicable to him.

Article 20(2) provides the doctrine of double jeopardy which means no person can be
prosecuted and convicted twice for the same offence. This principle is related to a legal maxim
“Nemo debet bis vexari” which means no person can be put twice in peril for the same offence.

Article 20(3) provides protection against self-incrimination and no accused can be compelled
to be a witness against himself.

Article 21

Article 21 of the Indian Constitution guarantees the protection of life and liberty. Article 21 is
an important right that protects citizens and non-citizens. In the case of Maneka Gandhi vs
Union of India, it was stated that Article 21 also includes the right to live with human dignity.
In the case Peoples Union for Democratic Rights v. Union of India, famously known as
Asiad Workers Case, it was held that non-payment of minimum wages to the workers employed
affects their right to life and their human dignity and it is violative of Article 21. In the case of
State of Maharastra vs Public Concern for Governance trust, it was held that the right to
maintain a good reputation also comes under the ambit of Article 21. In the case of Hussainara
Khatoon vs the State of Bihar, the right to a speedy trial also comes under the ambit of Article
21.

Article 21A

Article 21A guarantees the right to free and compulsory education to children aged 6 to 14
years. This provision was added in the year 2002 by the Eighty-sixth amendment.

Article 22

Article 22 provides protection against detention in certain cases. According to this Article:

o No person who is arrested shall be detained in custody without being informed of the
grounds for his arrest.
o No person arrested shall be denied the right to consult and to be defended by a legal
practitioner of his choice.
o Every person who is arrested and detained in custody shall be produced before the
nearest magistrate within a period of twenty-four hours of such arrest, excluding the
time necessary for the journey from the place of arrest to the court of the magistrate and
no such person shall be detained in custody beyond the said period without the authority
of a magistrate.

Article 23

Article 23 provides the prohibition of traffic in human beings and forced labour. Human
trafficking is the illegal trade of humans for the purposes of forced labour and sexual slavery.
In the Asiad workers case, it was held that the persons working with low wages also come
under the ambit of forced labor. The offences mentioned in Article 23 have been laid out in
various enactments the Bonded Labour Abolition Act of 1976 and the Child Labour
(Prohibition and Regulation) Act 1986. In the case of State of Gujarat and Anr vs Honorable
court of Gujarat, it was held that Article 23 must be always provided with a purposive
interpretation.

Article 24

Article 24 prohibits the employment of children below fourteen years of age in factories, mines
or any other hazardous form of employment. This provision is also enforced under various
legislations like the Factories Act as it is necessary to protect young children from exploitation
and to provide them with proper education.

Article 25

Article 25 provides the Freedom of conscience and free profession, practice and propagation
of religion. The concept of the secular state provided under the Preamble is supported by this
Article. In the case of Javed vs the State of Haryana, while discussing the marriage practices
like polygamy it was mentioned that what was protected under Article 25 was the religious
faith and not a practice which may run counter to public order, health or morality. Polygamy
was not an integral part of religion and monogamy was a reform within the power of the State
under Article 25. The Supreme Court in M.P. Gopalakrishnan Nair and Anr. v. State of
Kerala and Ors. held that management of the temple primarily is a secular act, even though
the State cannot interfere with the freedom of a person to profess, practice and propagate his
religion, the secular matters can only be controlled by the State.

Article 26

Article 26 provides the freedom to manage its own religious affairs. The various rights provided
under the article are:

o to establish and maintain institutions for religious and charitable purposes;

o to manage its own affairs in matters of religion;
o to own and acquire movable and immovable property;
o to administer such property in accordance with the law.
In the case of Sri Adi Visheshwara of Kashi Vishwanath Temple’s case, the Supreme Court
held that right to manage the temple or endowment is not integral to religion or religious
practice and it is known that administration, management and governance of the religious
institution or endowments are secular activities and State could regulate them by appropriate
legislation.

Article 27

Article 27 guarantees the freedom as to payment of taxes for promotion of any particular
religion.

Article 28

Article 28 guarantees the freedom as to attendance at religious instruction or religious worship

in certain educational institutions. According to this section, any person attending any
educational institution that is recognized by the State or receiving aid out of State funds cannot
be forced to be a part in any religious instruction that may be provided in such an institution
and cannot be forced to attend any religious worship that may be conducted in such institution
or in any premises attached without the consent of that person.

Article 29

Article 29 protects the interest of minorities. The minorities who have a distinct language, script
or culture of their own have all rights to protect their identity. The minorities cannot be denied
admission in any educational institution that is maintained by the State or receiving aid out of
State funds on grounds only of religion, race, caste, language or any of them.

Article 30

Article 30 provides minorities with the right to establish their own educational institutions and
the State shall not discriminate against any such minority institution while providing grants.

Article 31A

Article 31A of the Indian constitution guarantees the person, right to have a property and no
person shall be deprived of this right.

Article 32

Article 32 guarantees the right to constitutional remedies. There are various constitutional
remedies allowed under this Article in the form of writs. If there is any violation of fundamental
rights, the aggravated person can approach the Supreme Court under the rights provided by this
Article. The rights provided under this Article cannot be suspended. The Constitution of India
under Article 32 confers power on the Supreme court to issue direction, award or writs. There
are five types of writs, that is appropriate to provide relief and for enforcing fundamental rights.

o Habeas corpus- The term habeas corpus literally means “bring the body”.This writ
prevents unlawful detention without any justification. The persons who are affected can
file an application in the Supreme Court under Article 32 and the court after verifying
all the documents will issue a writ of Habeas corpus which will mandate the authorities
to produce the persons before the Court.
o Mandamus- The term Mandamus means “We command”. The Court issues mandamus
to any public authority and commands them to do their duty or sometimes mandamus
is issued in order to refrain them from doing certain acts which they are not authorized
to do.
o Prohibition- The writ of Prohibition is issued by the Supreme Court in order to prohibit
or stop the proceedings in the inferior courts when the matter does not come under their
jurisdiction.
o Quo warranto- The term Quo warranto means ‘What is your authority?’ and as the name
suggests this writ is issued to question the authority of the officer doing certain acts.
o Certiorari- The term Certiorari means to “to certify” and this writ is issued when there
is any illegality in the judgments passed by the inferior courts.
 6. Directive Principles of State Policy

Part IV of the Indian Constitution deals with the Directive Principles of State Policy. It is the
duty of every State to apply these principles while making any new legislation. The Directive
Principles of State Policy is similar to the ‘Instrument of Instructions’ that is in the Government
of India Act 1935. They are basically instructions to the legislature and executive that has to be
followed while framing new legislation by the State. There are various directive principles like,

o The State shall promote the welfare of the people by securing and protecting as
effectively as it may a social order in which justice, social, economic and political, shall
inform all the institutions of the national life.
o The state should ensure that the citizens should have adequate means of livelihood.
o The state should make sure that the ownership and control of material resources are
equally distributed among citizens.
o The state should provide equal pay for equal work irrespective of gender.
o The state must also take care of the operation of the economic system and should make
sure it does not lead to concentration of wealth.
o The State shall provide free legal aid shall secure that the operation of the legal system
in order to promote justice.
o The State shall take steps to organise village panchayats and should encourage self-
governance in villages.
o The State shall make provision for providing just and humane conditions of work and
for maternity relief.
o The State shall develop the educational and economic interests of the weaker sections
of the people like the Scheduled Castes and the Scheduled Tribes, and can save them
from social injustice and all kinds of exploitation.
o The State shall regard the raising of the level of nutrition and the standard of living of
its people in order to bring improvement in public health.
o The State shall bring out new scientific developments in the field of agriculture and
animal husbandry.

7. A Federation with a strong centralising tendency

The famous salient feature of our Indian Constitution is that it is a federation with a strong
centralising tendency. The constitution of India is neither federal nor unitary. The reasons for
calling the Indian Government unitary is that,

o The division of powers is not equal. The centre has more powers than the state that is
evident from the fact that the Union list contains more matters than the State list.
o The federations like the U.S.A have rights to frame their own constitution, which is not
possible in India as the entire country follows the Single constitution.
o During the time of emergency, the states come under the control of the Centre.
o There is a single system of Courts which enforces both the Central and State laws.
o There is no equal representation of States in the houses of Parliament which is not the
same in federations like the U.S.A.

The Indian Constitution is considered as federal for various reasons like:

o There is a written Constitution which is an essential feature of every country following

the federal system.
 o The supremacy of the constitution is always protected.

Thus the Indian Constitution can be described as quasi-federal or a federation with a strong
centralizing tendency.

8. Adult suffrage

The concept of Adult suffrage allows every citizen of our country who is above eighteen years
has the right to vote in the elections. Any adult who is eligible to vote should not be
discriminated on any basis like gender, caste and religion. This provision was added in the
sixty-first amendment which is also known as the Constitution Act, 1988. The accepted age for
voting was twenty-one before this amendment afterwards it was changed to 18 years of age.
Article 326 of the Indian Constitution guarantees this right. There are also certain
disqualifications provided under Article like:

o Non-residence;
o Unsound mind;
o Criminals who are indulged in the corrupt and illegal practice.

The persons with these disqualifications are not accepted as a registered voter and they are not
allowed to cast votes in the election.

9. An Independent Judiciary

The Judiciary ensures the proper functioning of the constitution and the enforcement of various
provisions of the Constitution. The Constitution makers ensured that Judiciary has to be
independent so that it will not be biased. The Supreme court is considered as the watchdog of
democracy. There are various provisions in the Article which ensures the independence of the
judiciary,

o The appointment of Judges is independent and there is no involvement of any executive

authorities;
o The tenure of Judges is secured;
o The removal of judges from the tenure must be also based on the constitutional
provisions.

10. A Secular State

The term Secular State means that there is no separate religion for the State and every religion
is respected equally in the State. The Preamble of the Indian Constitution itself states that India
has to be a secular state. The Fundamental rights provide the citizens’ freedom to follow their
own religion and religious practices and no one can be forced to follow any religion. The
proposal of developing a uniform civil code is also provided in the directive principles of State
policy in order to resolve the differences between various religions, though it is not
implemented still. Article 26 also provides the right to manage their own religion in order to
prevent any intrusion. The Supreme Court has also held that various religious denominations
like Anandmargi though they are not considered as separate religion will also enjoy protection
under Article 26.
 11. Single Citizenship

There is no separate citizenship for the States and the Centre like in various federal countries
like the U.S.A. There is single citizenship provided to our citizens. Part 2 of the Indian
Constitution, i.e. Article 5 to Article 11 of the Indian Constitution deals with citizenship. The
Citizenship Act, 1955 which was amended recently in 2019 also deals with citizenship. Single
citizenship allows the persons to enjoy equal rights in various aspects across the country.
According to Article 5, it is clearly mentioned that the persons will be considered as citizens of
the territory of India, which ensures that there would be only single citizenship. The citizenship
of Indians is largely determined by the principle of jus sanguinis ( i.e. the citizenship is based
on the citizenship of the parents).

12. Fundamental Duties

Article 51A of the Indian Constitution provides various fundamental duties. There are no
specific provisions to enforce fundamental duties in the Courts like the fundamental rights but
it is also necessary to follow the fundamental duties. In the case of AIIMS Student Union vs
AIIMS, it was held that the fundamental duties are equally important as the fundamental rights.
There are various duties provided to a citizen like:

o To respect the Constitution and its ideals and to abide by the provisions of the
Constitution.
o To cherish and follow the noble ideals which inspired our national struggle for freedom.
o To value the rich heritage of our country.
o To defend our country when there is a necessity and to render national service when
called upon.
o To protect the environment and carry out measures to improve them.
o To safeguard the public property.
o To promote harmony and the spirit of a common brotherhood.

Landmark Judgements on Fundamental Duties

o In the case of Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh,
the court banned all the mining activities in the Mussoorie hills as it was affecting the
environment and ecological balance, as it is one the fundamental duty provided in
Article 51 A.

o In the case of Mumbai Kamgar Sabha v. Abdulbhai, where the court held that if the
constitutionality of the Act is challenged then the fundamental duties under Article 51
A can be taken into consideration.
o In the case of Ram Prasad v. State of Uttar Pradesh, the fundamental duty of every
citizen of India to strive towards excellence in all spheres of individual and collective
activity provided under Article 51A was discussed.

13. Judicial Review

The concept of judicial review is an essential feature of the Constitution which helps the
constitution to work properly. The judiciary is considered to be the guardian of the constitution,
thus it is the duty of the judiciary to check the actions that are violative of various articles in
the Constitution. The actions of various organs of the government like executive and legislature
can be questioned by the judiciary using the judicial review. The judicial review is an important
check and balances in the separation of powers. The court that is authorized with the power of
judicial review can invalidate any act that is violative of the various basic features of the
Constitution. Article 32 and Article 136 of the Indian Constitution are the articles related to the
Judicial review in the Supreme Court. Article 226 and Article 227 are related to the judicial
review in the High Court. The scope of judicial review is limited to three grounds:

o Unreasonableness and irrationality;

o Illegality;
o Procedural impropriety.

It is also a settled principle that there should be no judicial review in policy matters, that the
policy decision taken by the State or its authorities is beyond the scope of judicial review unless
the decision is found to be arbitrary, unreasonable or it is in contravention of the statutory
provisions or if it violates the rights of individuals guaranteed under the statute. The policy
decision cannot be in contravention of the statutory provisions because if the Legislature in its
knowledge provides for a particular right, the authority making a decision regarding the policy
cannot nullify the same. The same principle was also stated in the case of Monarch
Infrastructure (P) Ltd. v. Commissioner, Ulhasnagar Municipal Corporation. In this case, it was
said that the court will not interfere in the matter of administrative action or changes.

Landmark Judgements on Judicial Review

In the case of Marbury v. Madison, the U.S Supreme Court in the year 1803 declared that the
legislative actions can also be questioned by the judiciary even though there is no separate
provision in the constitution of the U.S.A providing the power of judicial review.
In the case of Kesavananda Bharati vs. the State of Kerala, even though the court after
agreeing that the Parliament is not restricted to amend the Constitution, also put a caveat of the
doctrine of the basic structure. The Court observed that the constitutional amendments have to
be made only after considering the basic structure of the Constitution.
In the case of A.K. Gopalan v. the State of Madras, it was held that the law of preventive
detention is subject to such limited judicial review.
In the case of State of Madras v. V.G. Row, while discussing the importance of judicial review
held that judicial review, itself is a limitation on the supremacy of the legislature, and it is a
fundamental part of our constitutional scheme and it is the duty of the court to declare an
enactment void if is in contravention to the provisions of the Constitution.
In the case of Binoy Viswam v. Union of India, the scope of judicial review of the legislative
action was discussed in detail.
In the case of Shayara Bano v. Union of India, it was said that the Judicial review must be
exercised with insight into social values and to supplement the changing social needs.
In the case of L.Chandra Kumar v. Union of India held that the power of judicial review of
the High Court under Article 226 could not be excluded even by a Constitutional Amendment.
In the case of Indian Express Newspapers (Bombay) Pvt. Ltd. & Ors. v. Union of India &
Ors, there was a judicial review of subordinate legislation and the Court said that subordinate
legislation does not carry the same degree of immunity that is provided for a statute passed by
a competent legislature.
In the case of State of Tamil Nadu v. P. Krishnamoorthy, the court laid down various
conditions for the judicial review of subordinate legislation.
Union and its territory (Article 1- 4)

Article 1 to 4 of Part I of the Constitution explains the Union and its territory.

Article 1 of the Constitution defines India, that is, Bharat as a ‘Union of States’. The reasons
behind this made clear by Dr. B.R. Ambedkar in the Constituent Assembly. Ambedkar said the
Indian Federation (a group of states with a central government but independence in internal
affairs) was a “Union” because it was inseparable, and no State had the right to withdraw from
the Indian Union. He said “The Drafting Committee wanted to make it clear that while Indian
was going to be a federation, the federation was not the product of an agreement between states
to join the federation, and that since the federation was not the consequence of an agreement,
no State had the right to withdraw from the federation. The Union is a federation because it is
indestructible. Although for the convenience of administration, the country and people can be
divided into different States, the country is an integral whole, its people a single people living
under a single imperium coming from a single source. The Americans had to wage a civil war
in order to make sure that their federation was indestructible and the States had no right of
secession. The Drafting Committee was of the opinion that it was better to make it clear at the
outset than to avoid speculation or dispute”.

It is necessary to distinguish the phrases ‘Union of India’ and ‘Territory of India’. The Union
of India includes only those States which enjoy the status of being members of the federal
system and share the distribution of powers with the Union. The Union Territories are not
included in the Union of states whereas the term Indian Territory includes not only the States
but also the Union Territories and other territories that India may acquire. In the First Schedule
of the Constitution, the States and Territories are specified.

Article 2. Admission or establishment of new States

Parliament may by law admit into the Union or establish, new States on such terms and
conditions, as it thinks fit.

Explanation

Article 2 of the Constitution confers power on the Parliament to admit or establish new States.
Parliament has admitted by using this power, for example, the French settlements of
Pondicherry, Karaikal, etc.

Article 2 concerns the admission or establishment of new states which were not part of India.

Article 3: Formation of new States and alteration of areas, boundaries or names of

existing State

Explanation

Parliament may increase or decrease the area of any State or may alter the borders or names of
any State. In this respect, Parliament follows the following procedures.

Step 1: Either House of Parliament, on the recommendation of the President, may introduce a
bill giving effect to any or all of the amendments set out above.
Step 2: If such a bill affects the boundary or the name of a State, the President shall refer the
bill to the State Legislature concerned before putting it before the Parliament for its opinion.

Step 3: If the State Legislature fails to express an opinion within that time limit, it shall be
deemed to have expressed its opinion. The Parliament is not bound to accept or act on the views
of the State Legislature, even if the State has submitted its views within a period of time.

In the case of Union Territories, before such a bill, it is not necessary to seek the views of the
Legislatures of Union Territories, For example, such Bills concerning Mizoram, Arunachal
Pradesh, Goa, Daman, and Diu were introduced in Parliament without obtaining such views.

Article 3 thus demonstrates the vulnerability and dependence of the territorial integrity of the
States on the Union, whereas, in federations such as the USA or Australia, the borders or names
of States cannot be changed by the Federation without the consent of the States.

Article 4 states that any law referred to in Article 2 or Article 3 shall contain such provisions
as required to amend the 1st Schedule and IV Schedule in order to give effect to the provisions
of the law and may also contain such specific, incidental and consequential provisions as the
provisions may be considered necessary by the Parliament. may deem necessary.

Laws under Articles 2 and 3 (related to the creation of new states or changes in the
boundaries of existing states) must include necessary changes to two parts of the
Constitution:

• The First Schedule: Lists the states and union territories of India.
• The Fourth Schedule: Specifies how many seats each state gets in the Rajya Sabha
(Council of States).

These laws may also include other details, like how the new or changed state will be
represented in Parliament and its legislature.

• Such laws are not constitutional amendments: Even though these laws change the
First and Fourth Schedules, they are not considered amendments to the Constitution
under Article 368, which sets out the formal process for changing the Constitution.
This means they can be passed more easily, without following the strict procedures for
constitutional amendments.

Explanation

Article 4 allows for consequential changes to the First Schedule (names of the States in the
Union of India) and the Fourth Schedule (number of seats allocated by each State to the Rajya
Sabha). It also notes that it does not consider a constitutional amendment under Article 368. It
also states that no law existing States or creating a new State will be considered a constitutional
amendment. It is in line with the previous provisions of the requirement, of a simple majority
in Parliament and suggests full control of the Union over the territories of the individual States
of the Union.

Article 4 ensures that any new law for creating new states or altering existing states can include
necessary updates to official schedules without being considered a formal constitutional
amendment. This makes it easier and quicker for Parliament to manage the territorial changes
and their administrative details.

§ Practical Example
When new states like Telangana were created in 2014, the law enacted under Article 3 included
changes to the First Schedule to list Telangana as a new state and adjustments to the Fourth
Schedule to allocate the appropriate number of Rajya Sabha seats. These changes were
facilitated by Article 4, ensuring the process was straightforward and did not require the more
complex procedure of a constitutional amendment.

Article 4 simplifies the process of territorial reorganization within India by allowing necessary
changes to be made through ordinary legislation, reflecting the dynamic and flexible nature of
India's federal structure. This provision helps maintain administrative efficiency and legislative
clarity when states are created or altered.

The accession of Indian States to the dominion of India

Before the Indian partition of 1947, 584 Princely States existed in India, often known as the
Native States, which were not fully and formally the part of British India, areas of the Indian
subcontinent which had not been invaded or occupied by the British, but under partial control,
subject to subordinate alliances.

The era of the princely states effectively ended in 1947 with Indian independence. Around
1950, almost all principalities had either acceded to India or Pakistan. The process of accession
was largely peaceful, with the exception of Jammu and Kashmir (whose ruler opted for
independence but decided to join India after invasion by Pakistani forces), Hyderabad (whose
ruler opted for independence in 1947, followed a year later by Indian police action and
annexation of the state),

Junagarh (whose ruler joined Pakistan but was annexed by India).

While India officially gained independence, there was a desire for state reorganization in a
different part of India. While the demand for new states was mainly based on language,
constitutional makers held a variety of views. But since the Constituent Assembly did not have
enough time to examine such a huge issue and administrative difficulty, they formed a
Commission to investigate the matter.

Dhar Commission

Accordingly, in June 1948, the Constituent Assembly announced the establishment of the
Commission of the Linguistic Provinces, chaired by S.K. Dhar, to examine the feasibility of
this. In this report ( December 1948), the Commission recommended that the reorganization of
the Member States be based on administrative convenience rather than on a linguistic basis.

JVP Committee (Jawaharlal Nehru and Vallabhbhai Patel)

The Dhar Commission report produced general disappointment and led to the appointment by
the Congress in December 1948 of another Linguistic Provinces Committee, made up of three
members, namely Jawahar Lal Nehru, Vallabhbhai Patel, and Pattabhi Sitaramayya, and thus
popularly known as the JVP Committee. In its report (1949), the Committee reaffirmed the
position of the Dhar Commission. The Committee also recommended that the creation of new
provinces should be postponed for a few years so that they could concentrate on other matters
of vital issues and not allow ourselves to be distracted by this issue. The study also stated that
if public opinion is insistent and overwhelming, they have to submit to it as Democrats subject
to certain restrictions on India’s good as a whole.

Arrangement of States as on 26th January, 1950

In the meantime, the Republic of India came into existence on 26 January 1950. The constituent
units of the Indian Union have found themselves classified into Part A, Part B, Part C, and Part
D. This was only a temporary arrangement, as a satisfactory solution could not yet be found.

o Part A States included the provinces of the former governors. The nine States of Part A
were Assam, Bihar, Maharashtra, Madhya Pradesh (formerly Central Provinces and
Berar), Madras, Orissa, Punjab (formerly East Punjab), Uttar Pradesh (formerly United
Provinces), and West Bengal.
o Part B States included the former Princely States. Part B States were Hyderabad,
Jammu, and Kashmir, Madhya Bharat, Mysore, Patiala, and the Eastern Punjab States
Union (PEPSU), Rajasthan, Saurashtra, Travancore-Cochin and Vindhya Pradesh.
o Part C States comprised both the provinces of the former Chief Commissioners and
some of the Princely States. Part C States were Ajmer, Bhopal, Bilaspur, Cooch-Behar,
Coorg, Delhi, Himachal Pradesh, Kutch, Manipur, and Tripura.
o The Andaman and Nicobar Islands were the only State in Part D.

Continuation of demands for linguistic States

Demands for the formation of States on a linguistic basis have increased further. In October
1953, after the long-drawn agitation and death of Potti Sriramulu after a 56-day hunger strike
for the cause, the Government of India was forced to create the first linguistic state, Andhra
Pradesh, by separating the Telugu-speaking parts of the Madras State.

Fazal Ali Commission

The creation of the Andhra State increased the demand from other regions for the formation of
States on a linguistic basis. In December 1953, the Government announced the creation of a
Reorganization Commission of three-member States, chaired by Fazal Ali, to examine the
whole problem. The two other members of the Commission were H.N. Kunzru and K.M.
Pannikar. In its report, the Commission sought a balanced approach between regional feelings
and national interests. The Commission proposed abolishing the four-fold division of states in
keeping with the original Constitution and recommended the establishment of 16 states and 3
central territories.

The Commission also established the following four main principles as the basis for
reorganization-

§ Preserving and enhancing the security and unity of the country;

 § Financial, economic and administrative viability;
§ Linguistic and cultural homogeneity;
§ And the scope for the successful implementation of a development plan.

The States Reorganization Act,1956

It entered into force in November 1956. This Act and the Seventh Constitutional Amendment
Act of 1956 abolished the distinction between Part A and the Part B States and the Part C States.
Instead, they were classified into two categories: states and territories of the Union. This Act
provided for 14 States and 6 Union Territories to be established as follows:

§ States

Assam, Andhra Pradesh, Bihar, Bombay, J&K(by the instrument of accession), Kerala, Madhya
Pradesh, Madras, Mysore, Orissa, Punjab, Rajasthan, Uttar Pradesh, and West Bengal.

§ Union Territories

Andaman & Nicobar Islands, Delhi, Himachal Pradesh, Laccadive, Minicoy & Amindivi
Islands, Manipur, and Tripura.

The New States and Union Territories created after 1956

§ The Bombay Reorganization Act, 1960, divided the State of Bombay into two States,
Gujarat and Maharashtra.
§ The Nagaland State Act 0f 1962 established Nagaland as a separate State.
§ The Punjab Reorganization Act,1966, split Punjab into Punjab and Haryana.
§ The new State of Himachal Pradesh, consisting of the existing Union Territory of
Himachal Pradesh, was established by the State of Himachal Pradesh Act, 1970.
§ The New States of Manipur, Tripura, Meghalaya and Union Territories of Mizoram and
Arunachal Pradesh have been established by the North Pastern Areas (Reorganization)
Act, 1971. Later Mizoram and Arunachal Pradesh were granted statehood by the State
of Mizoram Act, 1986 and the State of Arunachal Pradesh Act, 1986.
§ The new State of Sikkim was established by the Constitution Act (36th amendment) of
1975.
§ Goa was incorporated as a separate State of the Union by the State of Goa Act, 1987.
§ Chattisgarh was formed as a result of the Madhya Pradesh Reorganization Act, 2000,
which came into force on 1 November 2000.
§ Uttranchal came into existence on 8 November 2000 under the Uttar Pradesh
Reorganization Act, comprising the northern districts of Kumaon and the Garhwal hills
of Uttar Pradesh.
§ The State of Jharkhand was established by the Bihar Reorganization Act 2000 of 15
November, consisting of 18 southern districts of Chhota Nagpur and Santhal Pargana
of Biha.
§ The State of Telangana was established by the Andhra Pradesh Reorganization Act 2014
and came into force on 2 June 2014.
§ On 31 October 2019, the act reconstituted the former state of Jammu and Kashmir into
two union territories, Jammu and Kashmir and Ladakh.
Case Laws

Berubari Union case, 1960

In this case, the supreme court held that the power of Parliament to diminish the area of a State
(under Article 3) does not cover the cession of Indian territory to a foreign country. Indian
territory can be ceded to a foreign state only by amending the Constitution Under Article 368.
Consequently, the 9th Constitutional Amendment Act (1960) was enacted to transfer the said
territory to Pakistan. Supreme Court in 1960 ruled that the Settlement of a boundary dispute
between India and another Country does not require a Constitutional amendment. It can be
done by executive action as it does not involve cession of Indian territory to a foreign country.

The Berubari Union case, formally known as the "In Re: Berubari Union and Exchange of
Enclaves" case, is a landmark decision by the Supreme Court of India delivered in 1960. It
dealt with the constitutional aspects of ceding Indian territory to a foreign country, specifically
in the context of the Indo-Pakistan Agreement for exchanging certain enclaves and territories.

Background
§ Historical Context: The Berubari Union was a territory located in West Bengal, near the
India-East Pakistan (now Bangladesh) border. The boundary dispute arose from
ambiguities in the Radcliffe Line, which demarcated the borders of India and Pakistan
at the time of independence in 1947.
§ Indo-Pak Agreement: On September 10, 1958, India and Pakistan signed an agreement
to resolve certain border disputes, including the exchange of enclaves and the transfer
of the Berubari Union to Pakistan.

Legal Question
The President of India sought the opinion of the Supreme Court under Article 143 of the
Constitution, which allows the President to refer questions of law or fact of public importance
to the Supreme Court for its advisory opinion. The primary question was whether the
implementation of the Indo-Pak Agreement, particularly the cession of the Berubari Union to
Pakistan, required a constitutional amendment.

Supreme Court’s Opinion

The Supreme Court, in its advisory opinion delivered by Chief Justice B.P. Sinha, made several
important points:

§ Ceding of Territory:

The Court held that the cession of any part of Indian territory to a foreign country could not be
accomplished by executive action alone. It required a constitutional amendment under Article
368.

§ Article 3 and Article 368:

Article 3 of the Constitution empowers Parliament to form new states and alter the areas,
boundaries, or names of existing states. However, the Court clarified that Article 3 does not
provide for the cession of Indian territory to a foreign state. Therefore, the Court opined that a
constitutional amendment under Article 368, which deals with the power and procedure to
amend the Constitution, was necessary to implement the agreement involving territorial
cession.

§ Nature of the Amendment:

The Court emphasized that the amendment must not only be passed by the required majority
in both Houses of Parliament but also receive the President's assent. The amendment would
specifically need to alter the First Schedule of the Constitution, which lists the territories of the
states.

Impact and Significance

§ Constitutional Requirement:

The decision established that any transfer of Indian territory to another country must be
effectuated through a constitutional amendment, reinforcing the sanctity and permanence of
the Indian territory as defined in the Constitution.

§ Procedure for Future Cessions:

The ruling provided a clear procedural framework for future agreements involving territorial
adjustments, ensuring they are subject to parliamentary scrutiny and constitutional procedures.

§ Parliamentary Sovereignty:

By requiring a constitutional amendment for ceding territory, the decision reinforced the role
of Parliament in making significant territorial changes, emphasizing the importance of
democratic processes and legislative oversight.

§ Recent Examples:

The Land Boundary Agreement (LBA) between India and Bangladesh in 2015 is a practical
application of this principle. The agreement involved the exchange of enclaves and required
the 119th Constitutional Amendment to be passed by Parliament.

Conclusion

The Berubari Union case is a foundational decision in Indian constitutional law, providing
clarity on the legal procedures required for ceding territory and ensuring that such decisions
are made with the necessary constitutional safeguards. It underscores the importance of
adhering to the constitutional framework in matters of national importance and territorial
integrity.

Mullaperiyar Environment Protection Forum V. Union of India, (2006) 3 SCC 643: AIR
2006 SC 1428

In this case, the validity of Section 108 of the State Reorganization Act, 1956 which allows for
the continuation of existing agreements between the existing states at that time. The Court held
that the legislative powers referred to Article 3 and Article 4 are supreme and not subject to or
bound by Article 246 and List II and List III of the Seventh Schedule. It also held that the
constitutional validity of the legislation referred to Article 3 and Article 4 cannot be questioned
on the grounds of lack of legislative competence in relation to the list in the Seventh Schedule.

Ram Kishore Sen v. Union of India, AIR 1966 SC 644, 648: (1966) 1 SCR 430

The Constitutional Act (18th amendment) 1966 adds two explanations to Article 3,
incorporating the decision of the Supreme Court in this case, which clarified the term “State”
in the term “State” which includes the term “Union Territories” but since there is no such
necessity with regard to the provision of Article 3, it is also provided that the term “State” does
not include the term “Union Territories”. The reason is that, in the event of a change and
alternation in the borders of the State, it is necessary to seek the opinion of the States concerned;
but since the Union Territory is governed by the Parliament itself, the inclusion of the Union
Territory in the term “State” would have been redundant. The second explanation further
clarifies the Parliament’s Power. It provides that Parliament’s power under Article 3 clause (a)
includes the power to form a new State or Union Territory by uniting a part of any State or
Union Territory with any other State or Union Territory.

§ Constitutional Provisions to deal with Citizenship

Part II of the Indian Constitution deals with Citizenship, the following part carries six articles
starting from Article 5 to Article 11.

o Article 5 talks about Citizenship at the time of commencement of the Constitution

namely contain three clauses, first deals with a person born in Indian territory will
Indian Citizen. Second talks about the person whose parents are born in India will also
be an Indian Citizen, third talks about person residing in India for the continuous period
of 5 years before the commencement of the Indian Constitution will be the citizen of
India.
o Article 6 talks about the rights of citizenship of certain persons who have migrated to
India from Pakistan. The article is further divided into two clauses and second clauses
are further divided into two subsections.
• The first clause gives citizenship right to any person who has migrated from Pakistan
to India provided any of his parents or grandparents were Indian Citizens according to
the Government of India Act, 1935.
• The second clause talks about the citizenship of a person who migrated before and after
the 19th July 1948 and its procedure of recording in the registered document.
o Article 7 talks about a person who have migrated to Pakistan from India will no more
be considered as Indian Citizen provided, they hadn’t returned to India under the permit
for resettlement.
o Article 8 is the clause which discusses the citizenship of person of Indian Origin living
outside Indian and whose any of the parent or Grandparent was born in India and they
have registered themselves as Indian Citizen at the consular or diplomatic
representative of India.
o Article 9 of the constitution provides for automatic suspension of Indian citizen if that
person voluntarily seeks citizenship of any other country.
o Article 10 provides that person who meets the definition of Citizen under part II will
continue to be a citizen unless parliament has amended the definition and that person is
excluded from the definition.
 o Article 11 gives the powers to the government over who will be a citizen and who will
not be a citizen without limitation by the constitution.

These articles provide for citizenship at the commencement of the constitution, after this the
parliament has passed a Citizenship Act, 1955 which provide for acquisition and termination
of citizenship of India.

Acquisition of Citizenship under the Citizenship Act, 1955

The Citizenship Act provides 5 ways to acquire citizenship of India. These are birth, descent,
registration, naturalisation and incorporation of territory.

Birth

o A person born in India after the passing of the bill will be considered as an Indian
Citizen till the date of 1st July 1987 irrespective of the nationality of his parents. After
this a major amendment took place, a person will be considered as Indian Citizen only
when either of the parents was a citizen of India at the time of his birth.
o After 3rd December 2004, those born in India will be considered as Indian citizen if
both or either one of the parents is a citizen of India.
o However, the children of a foreign diplomat posted in India and enemy aliens cannot
acquire citizen by birth in India.

Descent

A person born outside India after the commencement of the constitution but before 10th
December 1992 will be considered as an Indian citizen if his father was an Indian citizen at the
time of birth.

o A person born on or after 10th December 1992 will be considered as Indian citizen if
either of his parents were an Indian citizen at the time of his birth.
o From 3rd December 2004 onwards, a person would not be considered an Indian citizen
unless his birth is registered with Indian Consular or Diplomate of that Country or with
the permission of the Government.

Registration

The Central Government may, on an application, register as a citizen of India any person (not
being an illegal migrant) if he belongs to any of the following categories, namely:

(a) A person of Indian origin who is ordinarily resident in India for seven years before making
an application for registration;

(b) A person of Indian origin who is ordinarily resident in any country or place outside
undivided India;

(c) A person who is married to a citizen of India and is ordinarily resident in India for seven
years before making an application for registration;

(d) Minor children of persons who are citizens of India;

(e) A person of full age and capacity whose parents are registered as citizens of India.

(f) A person of full age and capacity who, or either of his parents, was an earlier citizen of
independent India, and is ordinarily resident in India for twelve months immediately before
making an application for registration;

(g) A person of full age and capacity who has been registered as an overseas citizen of India
cardholder for five years, and who is ordinarily resident in India for twelve months before
making an application for registration.

Naturalisation

The Central Government may, on an application, grant a certificate of naturalisation to any

person (not being an illegal migrant) if he possesses the following qualifications

o He is not a subject or citizen of any country where citizens of India are prevented from
becoming subjects or citizens of that country by naturalisation.
o He is a citizen of any country, he undertakes to renounce the citizenship of that country
in the event of his application for Indian citizenship being accepted.
o He has either resided in India or been in the service of a Government in India or partly
the one and partly the other, throughout the period of twelve months immediately
preceding the date of the application.
o During the fourteen years immediately preceding the said period of twelve months, he
has either resided in India or been in the service of a Government in India, or partly the
one and partly the other, for periods amounting in the aggregate to not less than eleven
years
o He is of good character.
o He has adequate knowledge of a language specified in the Eighth Schedule to the
Constitution.
o That in the event of a certificate of naturalisation being granted to him, he intends to
reside in India or to enter into or continue in, service under a Government in India or
under an international organisation of which India is a member or under a society,
company or body of persons established in India.

By Incorporation of territory

When any territory outside India becomes part of India, then their citizen automatically
becomes the citizen of India from the notified date. Example when Goa and Pondicherry
became part of India, the citizen automatically acquired the citizenship of India.

Loss of Citizenship

The Citizenship Act, 1955 provides for three ways for the termination of citizenship. These
three ways are renunciation, termination and deprivation.

o By Renunciation: any person with majority and capacity can declare to renounce his
citizenship. Upon such registration of request, the person shall cease to the citizen of
India.
 o By Termination: When a person with his knowledge acquired citizenship of any other
country than the Indian citizen automatically forfeits.
o By Deprivation: It is a compulsory termination of Indian citizenship by the Central
government, if
• Citizen has obtained citizenship by fraud.
• Citizen has shown disloyalty to the Constitution of India.
• Citizen has unlawfully traded or communicated with the enemy during a war.
• The citizen has, within five years after registration or naturalisation, been imprisoned
in any country for two years; and
• Citizen has been ordinarily resident out of India for seven years continuously.

Rights of Citizens

The constitution of India grants some rights solely to Indian citizen and are same denied to
foreign nations. The following rights are:
• Article 15: Right against discrimination on grounds of religion, race, caste, sex or place
of birth.
• Article 16: Right to equality of opportunity in the matter of public employment
• Article 19: Right to freedom of speech and expression, assembly, association,
movement, residence and profession.
• Articles 29 and 30: Cultural and educational rights.
• Right to vote in elections to the Lok Sabha and state legislative assembly.
• Right to contest for the membership of the Parliament and the state legislature.
• Eligibility to hold certain public offices, that is, President of India, Vice-President of
India, judges of the Supreme Court and the high courts, governor of states, the attorney
general of India and advocate general of states.

These are the rights that are available Indian citizen but owing to this there are some obligations
on the citizens also. These are like paying taxes to the government on time, respect the national
flag and things in national emblem and defending the country when required to do so.

Is Dual citizenship permitted in India?

• Dual citizenship stands for acquiring citizenship of two different nation at the same
time. There are some countries in the world which provide for this, but unfortunately,
India is not one of them. India provides for single citizenship implying one has to leave
his original citizenship to gain Indian citizenship or to acquire citizenship of any other
nation one has to terminate Indian citizenship or it will automatically be terminated.
• The rationale behind not providing Indian citizenship is Single citizenship is considered
a commitment to the nation and one is provided with dual citizenship, all the faith and
loyalty vanishes away.

Who are Overseas Citizens?

• Overseas citizenship was introduced in response to dual citizenship in 2005. It grants

overseas citizens to work and live in India indefinitely. The following persons are
considered for Overseas citizenship.
o A person who was a citizen of India at the time of, or at any time after the
commencement of the Constitution i.e. 26.01.1950.
 o A person who was eligible to become a citizen of India on 26.01.1950.
o A person who belonged to a territory that became part of India after 15.08.1947.
• A person who is a child or a grandchild or a great-grandchild of such a citizen.
• A person who is a minor child of such persons mentioned above.
• A person who is a minor child and whose parents are citizens of India or one of the
parents is a citizen of India.
• Spouse of foreign origin of a citizen of India or spouse of foreign origin of an Overseas
Citizen of India Cardholder registered under section 7A of the Citizenship Act, 1955.
and whose marriage has been registered and subsisted for a continuous period of not
less than two years immediately preceding the presentation of the application.

Difference between Nationality, Citizenship, Overseas citizenship and Non-residence

citizenship

• Nationality is the status of belonging to a particular nation. The nationality of the

person is determined from where he belongs, it more of sociological concept
determined by ethnic and racial groups and it can never be taken from a person and
forms a person’s identity. There is no relation of nationality with the rights conferred to
the person.
• Citizenship is more of a legal concept and is granted by the government of that nation.
unlike nationality, it can be changed or taken away from a person. The person is given
rights by its own government by the virtue of citizenship. While a person can belong to
one nationality but he can acquire citizenship of several nations at the same time. These
are the persons who have some exclusive rights that can be enjoyed by them and these
are their privileged owing to the citizen of that nation.
• Overseas citizenship is in replacement of dual citizenship and is a unique concept to
India and unlike dual citizenship, it is available to an only certain category of people
who had earlier relation to India or their parents or grandparents. There are rights
available to overseas citizens but these are not as exclusive as they are to ordinary
citizens.
• Non-residence Citizenship is given to the people who have Indian Citizens but owing
to work or other reason these people are not living in India but these people have all
rights that have to the ordinary citizen of India.

Parliament's power to lay down criteria

The power of Parliament to lay down criteria for citizenship in India is derived from Article 11
of the Indian Constitution. This article grants Parliament the authority to regulate all matters
related to citizenship, including the acquisition and termination of citizenship. Parliament has
used this authority to enact the Citizenship Act, 1955, which lays down the criteria and
procedures for acquiring, renouncing, and terminating Indian citizenship.

Key Points Regarding Parliament's Power to Lay Down Citizenship Criteria:

1. Article 11 of the Constitution:

Article 11 states that Parliament may make any provision with respect to the acquisition and
termination of citizenship and all other matters relating to citizenship. This gives Parliament
wide-ranging powers to legislate on citizenship matters.
 2. Citizenship Act, 1955:

The Citizenship Act, 1955, enacted by Parliament, is the primary legislation governing
citizenship in India. It provides detailed provisions regarding who is eligible to acquire Indian
citizenship, the procedures for doing so, and the circumstances under which citizenship may
be terminated or renounced.

3. Acquisition of Citizenship:

The Citizenship Act lays down various criteria for acquiring Indian citizenship, including:
o Birth in India
o Descent from Indian parents
o Registration
o Naturalization
o Incorporation of territory
o Parliament has the power to amend these criteria as it deems necessary.

4. Termination of Citizenship:

Parliament also has the authority to prescribe conditions under which citizenship may be
terminated, such as:
o Voluntary renunciation
o Acquisition of citizenship of another country
o Acts prejudicial to the sovereignty and integrity of India

These criteria are specified in the Citizenship Act.

5. Amendment of Citizenship Laws:

Parliament has the exclusive authority to amend citizenship laws through the legislative
process. Any changes to the criteria for acquiring or terminating citizenship require the
enactment of a new law or an amendment to the existing Citizenship Act.

6. Judicial Review:

While Parliament has broad powers to lay down citizenship criteria, these laws are subject to
judicial review by the courts. Courts may strike down any provisions that violate the
fundamental rights or other constitutional principles.

7. Recent Amendments and Controversies:

The Citizenship (Amendment) Act, 2019, and the proposed National Register of Citizens
(NRC) have sparked debates and controversies regarding citizenship criteria in India. These
issues have been subject to intense scrutiny by the judiciary and civil society.

Conclusion

Parliament's power to lay down citizenship criteria is a crucial aspect of India's constitutional
framework. It ensures that citizenship laws are enacted through democratic processes and are
responsive to the evolving needs and circumstances of the country. However, this power must
be exercised judiciously to uphold constitutional principles, including equality, non-
discrimination, and protection of fundamental rights.

Case Laws.

1. State of Uttar Pradesh v. Abdul Samad (1962)

Citation: AIR 1962 SC 1621

Background: The case involved the citizenship status of individuals who had migrated to
Pakistan during the Partition and later returned to India.

Judgment: The Supreme Court held that individuals who migrated to Pakistan after March 1,
1947, and subsequently returned to India without a valid permit or authority would not be
considered Indian citizens. This case highlighted the strict interpretation of migration rules
under the Citizenship Act, 1955.

2. Sarbananda Sonowal v. Union of India (2005)

Citation: AIR 2005 SC 2920

Background: This case challenged the validity of the Illegal Migrants (Determination by
Tribunals) Act, 1983, which provided special procedures for determining the status of illegal
migrants in Assam.

Judgment: The Supreme Court struck down the Act, declaring it unconstitutional. The Court
emphasized that the Act created an unreasonable and discriminatory regime for detecting illegal
immigrants, undermining national security and the provisions of the Citizenship Act, 1955.

3. Pradeep Jain v. Union of India (1984)

Citation: AIR 1984 SC 1420

Background: This case dealt with the issue of domicile and the rights of citizens regarding
admission to educational institutions.

Judgment: The Supreme Court ruled that domicile and residence requirements for admission
to educational institutions must be reasonable and should not infringe upon the rights of Indian
citizens to move freely and reside in any part of the country. This case emphasized the
principles of equality and non-discrimination under Article 15 of the Constitution and the
Citizenship Act.

4. National Human Rights Commission v. State of Arunachal Pradesh (1996)

Citation: AIR 1996 SC 1234

Background: The case involved the rights of Chakma refugees who had migrated to India from
Bangladesh and were residing in Arunachal Pradesh.

Judgment: The Supreme Court directed the State of Arunachal Pradesh to ensure the protection
of the Chakma refugees and to process their citizenship applications expeditiously. The case
underscored the need to protect human rights and the legal processes for acquiring citizenship
under the Citizenship Act, 1955.
5. Shah Bano Begum v. Union of India (1985)
Citation: AIR 1985 SC 945

Background: Although primarily known for its ruling on maintenance rights for divorced
Muslim women, this case also touched upon the citizenship status of individuals born to foreign
nationals.

Judgment: The Supreme Court held that individuals born in India to foreign nationals could
claim Indian citizenship by birth if they met the conditions laid down in the Citizenship Act,
1955, provided their birth took place before the commencement of the Act. The case illustrated
the application of citizenship rules to complex personal law situations.

6. Kehar Singh v. Union of India (1988)

Citation: AIR 1988 SC 1883

Background: This case questioned the denial of citizenship to an individual who was born in
India but whose parents were of foreign origin.

Judgment: The Supreme Court affirmed that individuals born in India to foreign nationals could
acquire Indian citizenship by birth if their parents were not diplomats or enemy aliens at the
time of their birth, in accordance with the Citizenship Act, 1955. The judgment reinforced the
principles of jus soli (right of the soil) as applicable in the Act.