Research Work: Constitutional Law

Facts
  • Mr. A, came to India in the year 1938
  • Mr. Awent on pilgrimage to Iraq in 1945
  • On return, Mr. A was registered as a foreigner and several times his stay in India was extended.
  • In 1957 Mr. A request to extend the stay period was refused
  • Mr. A contended that he must be regarded as a citizen of India under Article 5 of the Constitution of India.
Issues Raised
  1. Whether as per the fact sheet Mr. A fulfil the conditions of Citizenship as Provided under Article 5 of the Constitution of India?
  2. Whether there are any provisions under which Mr. A can appeal in the Court?
  3. Whether Mr. A as a Foreigner can be contended for Citizenship of India under Article 5 of the Constitution of India?
  4. WhetherCitizenship of India to Mr. A, can be granted under Article 5 of Constitution of India?
Jurisdiction

Mr. A can approach the Hon’ble Supreme Court under “Article 136 of the Indian Constitution 1949.”[1]

Article 136 of Indian Constitution is Special Leave appeal before the Hon’ble Supreme Court of India. Article 136 of the Constitution grants the Supreme Court of India extraordinary jurisdiction. The court may grant special leave to appeal from any declaration, decision, sentence, or order passed or issued by any court or tribunal with in territory of India under this Article. There is no restriction, whereas in other Articles, which state that an appeal could only be made from a decision, decree, and final order. It is possible to appeal from even provisional orders.

Statutes and Provisions Involved In the Present Case.
  1. The Registration of Foreigners Act, 1939
  2. Article 136 of the Constitution of India 1949[2]
  3. Article 5 of  The Constitution of India 1949[3]

As per the given facts the Request for Extension to stay in India of Mr. A was refused and from this it is interpreted that the extension was refused by the Civil Court hence Mr. A can appeal under Article 136 of the Indian Constitution 1949.

Relevant Precedents

In the case at handMr. A Contended that he must be regarded as a citizen of India under Article 5 of the Constitution of India and the issues raised in the case at hand are regarding the Citizenship of Mr. A. Hence following are some Relevant Precedents or Judicial Interpretations subject to Citizenship of India.

  1. D.P Joshi v. State of Madhya Pradesh[4]

In this case, Hon’ble Supreme Court stated that “A Citizenship has a reference to the political status of a person and domicile to his civil rights.”[5]

  1. Whicker v Humes[6]

In this case court stated that, Domicile is a legal principle which is used to determine the applicability of personal law to an individual. Even though an individual does not have a permanent residence, he is given a domicile by law. Domicile by birth and domicile by statute are the two primary types of domicile.

  1. Dr. Pradeep Jain v Union of India[7]

In this case, the Supreme Court of India has stated that Art 5 acknowledges only one domicile in India, which is the Domicile of India. It does not recognise the notion of State domicile. When a permanent resident of one state moves to another state with the intent to stay permanently or indefinitely, his domicile remains the same and he does not obtain a new domicile of choice.

Domicile necessitates the presence of two elements.

I A specific type of residence, including

ii) A specific type of intention.

Domicile is not defined by mere presence in a location. It must be accompanied by a desire to make it a permanent residence, and it must be accompanied by a desire to make it a permanent residence.

“Thus, to establish the presence of domicile, both the factum and animus must be present, as neither domicile nor mere residence is large enough to make an individual an Indian citizen.”[8]

  1. Michael v State of Bombay[9]

In this case, a person born in Goa (Portugese) of Goan Parents came to Bombay in his boyhood, was educated there, had resided there, since then and did his father’s business there. It was held to be an Indian Citizen by Domicile.

  1. Joshi v. Madhya Bharat[10]

In this case, a majority of the Supreme Court held that having a separate State domicile was technically possible, since domicile refers to the legal structure in which an individual is governed. The words “domicile” and “citizenship” are not interchangeable. This is made explicit in Article 5, which states that a person’s domicile is insufficient to confer citizenship.

“When we talk of an individual having a domicile of a specific country, we say that he is regulated by the law of that country in certain matters such as succession, minority, and marriage.”

If, in a single country, different laws relating to succession and marriage apply in different places and regions, then each region with its own set of laws may be considered a country for the purposes of domicile.

  1. Central Bank of India v. Ram Narain[11]

“The Supreme Court decided in this case that having the intention to live in a country for the rest of one’s life is a necessary component of having a domicile in that country.”[12]

  1. Louis De Raedt v. Union of India[13]

In this case, a foreigner had lived in India since 1937, and for more than five years prior to the Constitution’s adoption. He claimed Indian citizenship under “Article 5(c) of the Indian Constitution.”[14]“The Supreme Court, however, dismissed his argument. On the truth, the Court held that he did not have his domicile in India for more than five years at the time the Constitution was enacted. It’s not enough to just live anywhere.”[15]

“For the acquisition of a domicile of preference, it must be shown that the person concerned had a certain state of mind, the animus manendi,” the Court added.

If he claims to have obtained a new domicile at a certain point in time, he must demonstrate that he had made the decision to make the country of residence his permanent home and to remain there forever. Residence alone, without this mental state, is inadequate.

  1. Mohamed Reza Debstani v. The State of Bombay[16],

In this case, the appellant filed a suit in the City Civil Court of Bombay on December 14, 1957, seeking a declaration that he was an Indian citizen and an order prohibiting the State of Bombay, the Bombay Police, and the Union of India from taking any action against him since the basis that he was a foreigner and not an Indian citizen. We should also notice that after 1950, he received a duplicate of his registration certificate. “As a result, the appeal is denied and the case is dismissed with costs. The appeal was dismissed.”[17]In this case, issue was regarding the citizenship of the Appellant and the facts are similar to the case at hand even provisions involved in the both cases are similar

From the above cited relevant precedents further can be analysing the judicial interpretations and developments subject to the Citizenship of India under Indian Constitution 1949.

Critical Analysis

After critical study of the above cited provisions, relevant precedents and above raised issues, critical analysis and conclusion of the case at hand in the following

“Citizenship refers to the legal relationship that exists between citizens and the state;”[18] it also refers to the relationship that exists between the country and the people that make up the nation. Citizens are members of the political society they are a part of. They are the individuals that make up the State.

The population is a valuable resource for the country in terms of growth and development. Capacity building is a state-wide initiative. Citizenship gives a person certain rights, such as immunity from the government. Amongst other, the state, the right to vote, and the right to hold certain public offices others in exchange for the completion of those obligations owed to them the person in relation to the state.

Laws available for citizenship of India

Part II of the Indian Constitution, Articles 5 and 11 – (Not so comprehensive)

Citizenship, naturalisation, and aliens are covered in Entry 17, List I of the Seventh Schedule. As a result, Parliament has exclusive authority over citizenship legislation.

  • Amendments to the Citizenship Act of 1955 (Parent Act) (time 2 time)
  • The Citizenship (Amendment) Act of 1957 is a piece of legislation that was passed to amend the Citizenship Act of (65 of 1957)
  • The 1960 Repealing and Amending Act is a piece of legislation that repeals and amends previous laws (58 of 1960)
  • The Delegated Legislation Provisions (Amendment) Act of 1985 is a piece of legislation that amends the Delegated Legislation Provisions Act of 1985. (4 of 1986)
  • The Citizenship (Amendment) Act of 1985 is a piece of legislation that was enacted in 1985 to amend the Citizenship Act of (65 of 1985)
  • The Citizenship (Amendment) Act of 1986 is a statute that amends the Citizenship Act of India (51 of 1986)
  • The Citizenship (Amendment) Act of 1992 is a piece of legislation that was passed to amend the Citizenship Act of (39 of 1992)
Conditions for Citizenship of India under “Article 5 of the Constitution of India”[19]

Each individual who has his or her domicile in the territory of India and:

(a) Was born in the Indian Territory; or

(b) Either of their parents was born in the Indian territory during the commencement of the Indian Constitution; or

(c) Both of their parents were born in the Indian Territory during the commencement of the Indian Constitution.

(c) A citizen of India is someone who has lived in Indian Territory.

In the case at hand as per the facts Mr. A, came to India in 1938. He went on pilgrimage to Iraq in 1945. On return, he was registered as a foreigner and several times his stay in India was extended. In 1957 his request to extend the stay period was refused. He contended that he must be regarded as a citizen of India under Article 5 of the Indian Constitution.

“If a person born in India, Parents too and had resided in India , since then it can be  held to be an Indian Citizen by Domicile,”[20] But from the stated facts it is clear that Mr. A is not a Indian Citizen by birth and his parents were not born in the territory of India.  He came to in 1938 then he went to Iraq in 1945 means he had passport of Iraq and also some Iranian government Identities.

On return he was registered himself as a foreigner under the Registration of Foreigners Act, 1939 and as per stated in the case of “For the acquisition of a domicile of choice, it must be shown that the person concerned had a certain state of mind”[21]but Mr.A several times his stay in India was extended hence it can be interpreted that Mr. A could have apply for citizenship in the time period of 1945 – 1957 but he couldn’t have, means does not have any intentions for citizenship of India though he is staying in India more than five years but he was staying in India as a foreigner and he was not interested in the Citizenship of India.

When Mr. A’s request for extension of the stay period was rejected then he contended for Citizenship for escaping from botheration. Also facts are silent on Mr. A as “continuous resident of India” for period of 12 years i.e. 1945-1957 otherwise he can get citizenship of India by naturalisation under the Naturalisation Act of 1926,

After critical analysis of the facts, issue, statutes and provisions Involved and relevant precedent  Mr. A was not born in India neither his parents were born in the territory of India and he registered himself as a foreigner and even after he had chance of applying for citizenship of in1945-1957 he never tried. After refusal of extension of stay period he contended for citizenship of India to avoid botheration.

Hence after analysis, I would like to Conclude the case at hand that,

  • Under Article 136 of the Indian Constitution Mr. A can appeal in the Supreme Court of India.
  • “It is clear that as per the given facts Mr. A is not capable of Citizenship of India because he not fulfilling the given condition under Article 5 of the Constitution of India.”
  • As Mr. A is not fulfilling the Conditions of the Citizenship of India under Article of the Constitution of India, he as a foreigner cannot be granted with citizenship of India.
  • Hence, Mr. A’s contention for that he must be regarded as a citizen of India under Article 5 of the Constitution of India cannot be granted.

[1]https://legislative.gov.in/sites/default/files/COI-updated.pdf

[2]https://indiankanoon.org/doc/427855/

[3]https://indiankanoon.org/doc/1937835/

[4] D.P Joshi v. State of Madhya Pradesh  (1955) 1SCR 1259 (India)

[5]https://www.oxfordhandbooks.com/view/10.1093/law/9780198704898.001.0001/oxfordhb-9780198704898-e-47

[6]Whicker v Humes (1858) 7HL124

[7] Dr. Pradeep Jain v Union of India (1984) AIR SC 12 (India)

[8]https://www.alsi.edu.in/images/conflit-of-law.output.pdf

[9] Michael v State of Bombay (1956)AIR  Bom 729(India)

[10] Joshi v. Madhya Bharat (1955) AIR SC 334 (India)

[11] Central Bank of India v. Ram Narain (1955) AIR SC 6(India)

[12]https://www.alsi.edu.in/images/conflit-of-law.output.pdf

[13] Louis De Raedt v. Union of India (1991) SCR (3) 149 (India)

[14]https://indiankanoon.org/doc/539588/

[15]https://www.alsi.edu.in/images/conflit-of-law.output.pdf

[16]Mohamed Reza Debstani v. The State of Bombay (1966) AIR 1436 (India)

[17]https://blog.ipleaders.in/citizenship-india/

[18]https://ncert.nic.in/textbook/pdf/keps106.pdf

[19]https://legislative.gov.in/sites/default/files/COI_1.pdf

[20] Michael v State of Bombay (1956)AIR  Bom 729(India)

[21]   Louis De Raedt v. Union of India (1991) SCR (3) 149 (India)

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