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Citizenship under the Indian Constitution

What does the term Citizenship mean?

For many, the word ‘Citizenship’ conjures images of a strong national identity determined by birth, ethnicity, history, culture and. In a legal sense, ‘Citizenship’ indicates the political status and relationship shared by an individual and the nation. Generally, the individual is conferred protection by the nation in return for fulfilling certain obligations owed by the individual to the state.

Citizenship is a status granted by becoming a member of the nation through appropriate law. Any person can become a member of the country by satisfying the legal requirements of the respective country. In simple terms, the virtue of being a citizen of the country is called citizenship.

Every state grants some rights and privileges to its citizens, and they are also bound to follow the regulations framed by the government of the respective country.

Nationality Vs Citizenship

‘Nationality’ and ‘Citizenship’ are one of the most misconstrued and misunderstood terms. For a layman, ‘nationality’ works as a substitute for ‘Citizenship’ and vice versa. However, one of the major difference between the two concepts is that nationality can't be changed while citizenship can. To further explain this statement, we should take the following into consideration: The nationality of a person, reveals his/her place of birth, i.e. from where he/she belongs. It defines the belongingness of a person to a particular nation. And on the contrary, Citizenship is granted to an individual by the government of the country, upon completing legal formalities.

The Citizenship law in India

The Citizenship law in India is governed by the Citizenship Act, 1955 and The Constitution of India. India is one of the very few countries whose Citizenship law is incorporated in the Constitution. Due to unavoidable circumstances that arose because of the partition of India and Pakistan and the freedom of Indian state to either join the Union or leave it, the citizenship law had to be incorporated in the Constitution.

How can one acquire Indian citizenship?

To be entitled to acquire Citizenship by Domicile there are 3 conditions which need to be fulfilled:-

  1. He must have been born in the territory of India,
  2. Either of his parents must have been born in the territory of India,
  3. He must have been ordinarily residing in India for not less than five years immediately preceding the commencement of the constitution.

Ways through which a person can acquire Citizenship and become a recognized citizen are:-

  1. Birth (A Person Born in India shall be Citizen),
  2. Descent (A person born outside India shall be a citizen of India by descent),
  3. Naturalization (Citizenship of India by naturalisation can be acquired by a foreigner who is ordinarily resident in India for twelve years),
  4. Registration (Citizenship of India by registration),
  5. Marriage,
  6. Incorporation of the territory.

Status of Dual Citizenship in India

The Indian constitution does not allow its citizens the right to dual citizenship. But there are some powers that are in relation to dual citizenship, similar if not the same. When you become an Indian citizen, you will be obliged to give up your previous passport.

The provision of Overseas Citizenship of India and Person of Indian Origin is often confused with dual citizenship. There is a misconception that our Indian Constitution grants the provision for dual citizenship. However, the terms are explained below:

Non-Resident Indians: Those who still hold Indian passports but work or live in other countries;

Person of Indian Origin (PIO) cardholder: Someone who is a foreign citizen but who at some point of time held an Indian passport or whose parents/grandparents/great-grandparents were born and permanently resided in India or is a spouse of a citizen of India or a PIO and;

Overseas Citizenship of India (OCI) cardholders: Those who have given up their Indian passports but hold certain rights in India except voting rights.

Basic Structure of the Indian Constitution

- According to the Indian Constitution, the Parliament and the state legislatures have the supreme power to make laws within their respective jurisdictions.

- The Constitution vests the power to adjudicate the constitutional validity of all laws enacted in the judiciary.

- Bills passed to amend the Constitution can only be introduced in the Parliament, but this power is not absolute in nature.

- If the Supreme Court finds that any law passed by the Parliament or the state legislature’s, is inconsistent with the Constitution or violates any provision of the Constitution, the court has the power to hold that law to be invalid, void or ultra vires.

- The founding fathers of the Constitution wanted it to be an adaptable document rather than a rigid and unchangeable framework dedicated to governance.

- Hence, the Parliament was invested with the power to amend the Constitution through Article 368 of the Constitution. It gives the impression that the Parliament's amending powers are absolute in nature.

- But the Supreme Court has acted as a conscious and continuous break to the legislative enthusiasm of the Parliament ever since independence was attained.

- With the intention of preserving the philosophy and the original ideals of the Constitution as envisioned by the constituent assembly, the Apex Court held that Parliament could not distort, damage or alter the basic features under the pretext of amending the Constitution.

- The Supreme Court has laid down the basic structure doctrine. According to the doctrine, the Parliament cannot destroy or alter the basic structure of the doctrine.

- The phrase basic structure itself is not described anywhere in the Constitution.

- The Supreme Court recognised the concept of the basic structure for the very first time in the landmark judgement of the Kesavananda Bharati case in 1973.

- The concept of the doctrine developed gradually with the interference of the judiciary from time to time to protect the basic rights of the people and the ideals and the philosophy of the Constitution.

- Ever since the Supreme Court has been the interpreter of all amendments made by Parliament to the Constitution

The inception of the Doctrine of Basic structure

  • The unspoken tiff between the Judiciary and the Legislature took a different shape after the decision in the IC Golakh Nath case.
  • The Constitution (24th Amendment) was passed to nullify the IC Golakh Nath Case.
  • 4 clauses were added in the Article to blanket the fact that the Parliament holds an omnibus constituent power.
  • The Constitution (25th Amendment) introduced a new provision, Article 31C, in the Constitution under which law giving effect to the Directive Principles of the State Policy enumerated under Part IV of the Constitution were deemed automatically valid despite any inconsistency with the fundamental rights granted under the Constitution.
  • Fundamental Rights are more ascertained rights given to all individuals and the Directive Principles are mere measures to be followed by the states. Hence, the Directive Principles cannot be inconsistent or in violation of the basic fundamental rights of an individual.
 

Keshavananda Bharati case

The Keshavananda Bharati case challenged certain amendments of the Constitution. Some of the points put forward were: -

  • No distinction between Constituent power and Legislative Power
  • IC Golaknath was correctly decided, and wrongly nullified.
  • ‘We the people’ have given only limited rights to the Parliament
  • Article 368 - not a charter to sign death wish
  • Parliament not an official liquidator of the Constitution
  • Parliament only a creature of the Constitution not it's master
 

What can be defined as the basic structure?

From time to time the basic structure is enhanced with some new content and clarification, and hence the Supreme Court is yet to define the exact basic structure of the Constitution. It has laid down a vague list of topics through various judgements. Below is a list of some topics that can be covered under the basic structure doctrine, this list is only illustrative and not nearly exhaustive:

  • The supremacy of the Indian Constitution
  • Democratic View
  • The rule of law
  • Sovereignty, liberty and republic nature of Indian polity
  • Judicial review
  • Harmony and Balance between fundamental rights and directive principles
  • Separation of power
  • Federal character
  • Dignity of Individual
  • Parliamentary system
  • Rule of equality
  • Unity and integrity of the nation
  • Free and fair elections
  • Powers of SC under Article 32,136,142,147
  • Power of HC under Article 226 and 227
  • Limited power of parliament to amend the Constitution
  • Welfare state
  • Freedom of an individual
  • Free and fair elections
A comparative study of the Indian, UK and the US Constitution
A constitution is a set of rules that govern a country. Some countries have a formal written constitution in which the structure of government is well defined, and the respective powers of the country and the states are written in one single document, and some have unwritten constitutions which mean there is no formal written constitution. Their constitutional rules are originated and based on a number of sources.
 
For example; Britain sources its constitution from several important statutes, or laws, as well as principles decided in legal cases and conventions. New Zealand and Israel are two other countries that do not have formal written constitutions.
 
Listed below are some comparisons in the study of Indian, UK and the US constitution.
 
India UK US

Written Constitution

(Lengthiest in the world)

Unwritten Constitution

(based on conventions and political traditions)

 

Written Constitution

(shortest constitutions amongst major world powers)

 

The process of amendment:

Amending the Constitution is a combination of rigid and flexible process. It Can be amended by a Simple Majority, Special Majority or ratification by more than half of the states.

(Basic structure cannot be amended)

 

The process of amendment:

Constitution amending procedure is flexible can be amended or repealed by a Simple Majority.

(Since no distinction is made between constitutional law and ordinary law. Both are treated alike)

The process of amendment:

The process is very rigid

(2/3rd of the States should pass a resolution to this effect. Congress will call the convention. In the convention, it has to be ratified by 3/4th of the States)

Center  + State:

The interdependence of Centre and state govt. Neither of them is independent of the other. The Central government interferes with the functions of state governments. The head of state is the president while the actual head of the government is the prime minister. 

Unitary:

The British constitution has a unitary character as opposed to a federal one. All powers of the government are vested in the British Parliament, which is a sovereign body.

 

Federal:

Dual Federation (USA) – both the Centre and state are completely independent. They are complete governments.

the Federal Government and States have their Constitutions and do not interfere in each other’s functions

 

Government:

India has adopted a Parliamentary form of government.

Both President and Governor exercise the power of ordinance making under the constitution, thus performing legislative functions.

 

Government:

Britain has a parliamentary form of government. The real functionaries are Ministers, who belong to the majority party in the Parliament and remain in office as long as they retain its confidence. (The UK is the self-governing country, but the head of the state is monarch)

 

Government:

America has adopted a Presidential form of government. The President is both the head of the state as well as its chief executive.

 

Term:

the Indian President and Prime Minister holds the office for 5 years

(can be extended)

 

Term:

The British prime minister holds the office for 4 years(can be extended)

Term:

The term of the American President is 4 years (fixed-term)

Separation of Powers:

Parliament is entrusted to make the law; Executive is entrusted with the duty of implementation of the law, Judiciary to implement the law.

 

Separation of Powers:

The Lord Chancellor is the head of the judiciary, Chairman of the House of Commons (Legislature), a member of the executive and often a member of the cabinet. The House of Commons ultimately controls the Legislative. The judiciary is independent, but the judges of the superior courts can be removed on an address from both Houses of Parliament.

 

Separation of Powers:

Art. I vest legislative power in the Congress; Art. II vests executive power in the President and Art. III vests judicial power in the Supreme Court.

Citizenship:

India has one constitution and concept of single citizenship for every citizen of the country.

Citizenship:

The UK constitution has not been codified in one document. General constitutional principles run through the law. Central statutes have been recognised as holding "constitutional" value.

Citizenship:

America has adopted the doctrine of the dual ship in respect of its Constitution and citizenship. It has two Constitutions, one, for America as a whole and another for each State.

The sovereignty of power:

The Parliament can modify the major portion of the Constitution through its constituent power.

The Supreme Court can declare the parliamentary laws as unconstitutional through its power of judicial review.

The sovereignty of power:

The British Parliament is the only the legislative body in the country with unfettered power of legislation. It can make, amend or repeal any law. The courts have no power to question the validity of the laws passed by the British Parliament. The British Parliament may amend the constitution on its authority, like an ordinary law of the land.

 

The sovereignty of power:

The principle of judicial supremacy lies with the American Supreme Court.

Can the Indian Constitution be Amended?
Under the Constitution, India declares itself as a ‘Sovereign, Socialist, Secular, Democratic, Republic’ country. The Constitution of India was passed by the constituent assembly on 26 November 1949, and it came into effect on 26th January 1950.

No Written Constitution is complete without providing amending provisions; in some respects, the amending provision is the most important part of the Constitution. The term ‘amendment’ derives from the Latin word ‘amendere.’ The term ‘amend’ generally means to make right, to make a correction or to rectify. In common parlance ‘amendment’ conveys the sense of a slight change.

The object of the amending clause in a Constitution is to ensure that the Constitution is preserved. A State cannot be static. A Constitution should be dynamic and adaptable in nature to keep up with the changing needs of society. A change in society will require a change in the Constitution. Article 368 of the Indian Constitution lists down the procedure of Amendment.

The amending provision in the written Constitution assumes great importance because it gives a chance to the successive generation to grow it as per their needs. The amending process is an opportunity to express state-related concerns without derogating from the basic fundamental constitutional principles. The constitution was framed nearly 70 years ago, the framers then, could not possibly anticipate the current Indian political and socio-economic condition. An amendment is made with a view to overcoming the difficulties which may arise in future in the working of the Constitution.

There are two types of amending procedures; Rigid: difficult to amend the constitution (e.g. US, Canada) and Flexible: easy to amend with passing normal legislation.

The Indian Constitution is both rigid as well as flexible, i.e. it is difficult to amend but under necessary conditions practically flexible. The formal method of an amendment is described in Part- XX of the Constitution, which consists of Article 368 only.

An amendment may be introduced by way of a Bill in either House of Parliament, and when the Bill is passed in each House by a simple majority or a special majority or by a majority of not less than two thirds of the total members of that house present and voting, it shall be then presented to the President who shall give his assent to the Bill. The Constitution shall then stand amended in accordance with the terms of the Bill.

The amendment shall also be ratified by the Legislature of not less than one half of the States by resolutions before the Bill is presented to the President for assent.

However, it is crucial to take into consideration that the Parliament is a part of the Constitution, no doubt Parliament can amend the Constitution, but that does not mean that Parliament could so amend provisions of the constitution so as to change its own constituent power beyond any recognition.

From Keshavananda Bharathi case to I.R.Coelho case, the Supreme Court repeatedly stressed on the point that the Parliament has no power to bring an amendment to the basic structure of the Constitution. The basic structure includes but is not limited to the concept of supremacy of the Constitution, republican and democratic form of government, secular character of the Constitution, separation of powers between the legislature, executive and the judiciary etc. Thereby it imposes implied limitations upon the power of Parliament.

List of some amendments:
  1. Empowered the state to make the advancement of socially and economically backward classes. – In 1951
  2. Included a new subject in the Union list, i.e. taxes on the sale and purchase of goods in the course of inter-state trade and commerce and restricted the state’s power in this regard. – In 1956
  3. Incorporation of Dadra, Nagar and Haveli as a Union Territory, consequent to acquisition from Portugal – 1961 
  4. Enabled the High court’s to issue writs to any person or authority even outside its territory’s jurisdiction if the cause of action arises within its territorial limits – 1963 
  5. The Act extends reservation of seats for the Scheduled Castes and the Scheduled Tribes in Parliament and the State Assemblies and the representation of Anglo-Indians by a nomination for a further period of 10 years – 1980
  6. It confers Statehood on Goa and forms a new Union Territory of Daman and Diu. Goa thus became the 25th State of the Indian Republic – 1987
  7. To ensure direct election to all seats in Panchayats; to reserve seats for SCs and STs in proportion to their population, and for reservation of not less than one-third of the seats in Panchayats for women – 1992 
  8. It deals with an alternative scheme for sharing taxes between the Union and the States – 2001 
  9. Provides Right to Education until the age of fourteen and early childhood care until the age of six – 2002 
  10. Provided for 27 per cent reservation for other backward classes in government as well as private higher educational institutions – 2006
  11. The amendment provides for the formation of a National Judicial Appointments Commission – 2014 
  12. Reorganization of Jammu Kashmir; The Union Territory of Jammu and Kashmir with a legislature, and the Union Territory of Ladakh without a legislature.  The Union Territory of Ladakh will comprise Kargil and Leh districts, and the Union Territory of Jammu and Kashmir will comprise the remaining territories of the existing state of Jammu and Kashmir –2019 

Overview of the Indian Constitution

The Constitution is the supreme law of the land. It protects individual freedom and its fundamental principles govern India.

The Constitution is not created by the Parliament but by a constituent assembly and adopted by its people. Therefore, it is based on constitutional supremacy rather than parliamentary supremacy, and the Parliament cannot override it, although they have the power to amend it.

It all began when the constituent assembly set up a Drafting Committee on 29th August 1947 to frame the Indian Constitution. The Chairman of the Committee was Dr B.R. Ambedkar along with six other members. They were majorly inspired by the British Constitution.

However, there was a lot of frameworks that are taken from other countries too, like the idea of the preamble taken from the United States.

The constitution of India was adopted on the 26th of November, in the year 1949. However, it came to effect on the 26th of January, 1950. Hence, 26th January is celebrated as the Republic day of India. After the adoption of the constitution, the Union of India became the contemporary and modern Republic of India.

The Indian Constitution is the world's lengthiest written constitution. It had 395 articles, 22 parts and 8 schedules at the time of commencement. Now, after the amendments, it has 448 articles in 25 parts and 12 schedules. As of March 2019, there are a total of 103 amendments that have been made in the Indian constitution so far.

 

Part I

Article 1 – 4

Laws under which the States can be divided or merged with a simple Parliamentary Majority.

Part II

Article 5 – 11

Provision and laws for determining who shall be a citizen of India.

Part III

Article 12 – 35

Fundamental rights are captured in this part. The  Golden Triangle of rights: - Equality before the law, Right to freedom of speech and protection of life and liberty is the most import section of this part.

Part IV

Article 36 – 51

Directive Principles of State Policy, i.e. they largely promote the general welfare of the people, but they cannot be enforced.

Part IV-A

Article 51 A

Lists down the duties to be followed by the people of India even though they are not enforceable in nature.

Part V

Article 52 – 151

-    Article 52 to 62: Powers of the resident and the Executive;

-    Article 63 to 71: Powers of the Vice President;

-    Articles 79 to 122: Details of the Parliament;

-    Articles 124 to 147: Details of the Union Judiciary;

-    Articles 148 to 151: The role and duties of the Comptroller and Auditor General of India.

Part VI

Article 152 – 237

It lays down the duties, functions of a CM, his Ministers, the Governor, State The legislature, High courts and the Advocate General of the State.

Part VII

Article 238

This part deals with States but was repealed by the Constitution (Seventh Amendment) Act, 1956.

Part VIII

Article 239 to 241

Procedures of administration and provisions in Union Territories and special character of Delhi. Article 242 was repealed.

Part IX

Article 243 - 243 O

The Constitution of  Panchayats and Gram Sabha, their working duration, qualifications, responsibilities and powers.

Part IX-A

Article 243P - 243 ZG

The Constitution of Municipalities their working duration, qualifications, responsibilities and powers.

Part X

Article 244 - 244A

The procedures of administration for Scheduled and Tribal areas.

Part XI

Article 245 – 263

The distribution of  legislative powers between the Centre and the States. 

Part XII

Article 264 - 300A

The distribution of revenue between Union and States, the appointment of the Finance Commission, public accounts and etc.

Part XIII

Article 301 – 307

Deals with freedom of Trade, Commerce and Intercourse throughout India. It also mentions the power of the Parliament and state to impose restrictions on the same.

Part XIV

Article 308 - 323

Provisions of the Union Public Service Commission and the State Public Service Commission.

Part XIV-A

Article 323A - 323B

Deals with administrative tribunals. It was introduced to hear disputes and complaints regarding the Union, States or Local Government employees.

Part XV

Article 324 - 329A

Deals with the conduct of Elections and the Election Commission. 

Part XVI

Article 330 – 342

Certain provisions for Scheduled Castes, Scheduled Tribes and Anglo-Indian representation.

Part XVII

Article 343 – 351

The Official Language of the Union shall be Hindi in Devnagri script. 

Part XVIII

Article 352 – 360

The procedure and effects of procurement of Emergency.

Part XIX

Article 361 – 367

Miscellaneous provisions such as the protection of the President and other Legislators. 

Part XX

Article 368

Provides the power to the Parliament to amend the Constitution and procedure thereof.

Part XXI            

Article 369 – 392

Temporary power to the Parliament to make laws with respect to certain matters in the state list and concurrent list. Article 370 is repealed.

Part XXII

Article 393 – 395

Short title and the commencement of the Constitution.

All you need to know: Drafting a Legal Notice
Nowadays, we enter into various litigation for some or the other issue. Some prefer to file litigation while others opt to serve a notice to the opponent by showing their intention to file a suit in the appropriate jurisdiction. A legal notice is a written document sent to a person or entity to inform about the grievances and ask them for a remedy, rejection of which will result in legal action against them. The legal notice is the initial step to a legal proceeding. It can be sent against the person or a company by any person whose legal rights have been infringed or have suffered some legal damage. 
 
Validity: A legal notice is always specific to civil suits. A notice cannot be issued for a criminal suit, as criminal activity is always taken against the offender. It is necessary to serve notice before filing the lawsuit. The primary intention is to give a chance to the party for settlement of dispute without approaching the court. It is easier to compensate for the losses incurred by the aggrieved person.
 
Importance of legal notice: The situation arises when one gets confused to initiate a legal proceeding to resolve the matter. Following are the various pointers proving the importance of legal notice:

  1. It contains the clear intention of the sender to file a lawsuit to resolve the issue with other parties.
  2. A sender can describe his grievance with the help of an Advocate.
  3. Serving legal notice allows the receiver to resolve issues out of the court.
  4. It acts as a reminder for receiver about the acts that have intentionally or unintentionally done creating a problem for a sender.
 
Contents: Legal Notice must include the following things:

  1. Name, description and residential address of the sender
  2. Name and address of the person against whom the sender has grievances
  3. Material fact, Summary of the fact/ Cause of Action
  4. Summary of relief claimed
  5. Reasonable time to reply the notice by a receiver 
  6. Signature of Lawyer and Client is a must.
 
Procedure to file Legal Notice: It is essential to draft notice meticulously. We are not aware of the legal importance and meaning of the common words which we use casually.
 
  1. Draft the notice (It is always advisable to avail the services of a lawyer to avoid the mistakes.)
  2. The notice should be drafted under a letterhead of an Advocate
  3. Prefer colour print of the notice consisting logo of the Advocate
  4. Keep two copies of the notice, one with sender and one to the receiver
  5. Notice to be sent through Registered AD post
  6. Copy of receipt of post office and notice should be kept with the sender.
  7. It should be noted that while writing a legal notice, one should be extremely careful about every word used in the notice since it cannot be denied in the court of law. Once the legal notice is dispatched, no changes can be made, or one cannot make a contradictory statement from the content stated in the legal notice.
 
Reply to the Notice: It is not mandatory to reply to the notice, but it is advisable to do so as no reply can add advantage to the opposite side of the further court proceeding starts. The consequences of not replying notice is not an offence under the law, but if replied, there are chances to put an end to the litigation at the start. The reply must be given in the stipulated time mentioned in the notice by the sender. There is no relevance of a legal notice as soon as the court proceeding starts. In case if the receiver does not appear despite serving summons, then the court shall pass an ex-parte order (order in the absence of the other party not appearing).
 
Checklist to reply to the notice:

  1. Read the contents of legal notice, or the content mentioned in the agreement between the parties.
  2. It is necessary to check the limitation period to reply to the notice
  3. Check the contractual obligation of the claimant
  4. If the content mentioned in the notice is not relevant, then one can counter-threat through a claim or damages against the sender.

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Tenant Eviction Notice

Starting from 5000

Leave and Licence Agreement

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Drafting Memorandum Of Understanding

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Preparing Affidavit

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Anticipatory Bail

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Cheque Bounce Notice

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Marriage Registration

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Trademark Registration

Starting from 6500