Q. "State has the powers to determine citizenship, however such powers also must operate in constitutional limitations". Examine. (15 marks 250 Words)
Question
Q. "State has the powers to determine citizenship, however such powers also must operate in constitutional limitations". Examine. (15 marks 250 Words)
Model Answer
Q. "State has the powers to determine citizenship, however such powers also must operate in constitutional limitations". Examine. (15 marks 250 Words)
Paper
GS II
Subject
Constitution
Syllabus as Per Notification
Indian Constitution – Significant provisions and basic structure
Topic
Citizenship
Approach:
Introduction
Introduce with the concept of citizenship and establish that the State's sovereign power to regulate it is subject to constitutional and legal limitations.
Body
Explain the need for State's Sovereign Powers to Determine Citizenship
Constitutional Authority, Sovereignty in International Law and National Security & Public Interest.
What are Constitutional Limitations on State Power
Article 14, Article 21, Judicial Review & Basic Structure, Citizenship as a Legal Status Beyond Documents, Constitutional Morality & Human Rights, International Obligations on Citizenship and UN Convention on the Reduction of Statelessness (1961).
Way forward:
Suggest Way Forward such as Ensuring Fair, Transparent and Uniform Procedures, Establishing a Robust and Inclusive Documentation Framework, Proposed Dual Passport–Aadhaar policy to avoid Legal Paradox and Prevent Statelessness and Protect Human Dignity.
Conclusion
Conclude by emphasizing the need to balance the State's sovereign power over citizenship with constitutional safeguards.
Context
The Ministry of External Affairs (MEA) has recently reiterated that a passport is only a travel document under the Passports Act, 1967 and not valid proof of citizenship.
Introduction
According to the International Law Commission and reaffirmed by the International Court of Justice (Nottebohm Case, 1955), citizenship (nationality) defines the legal bond between an individual and the State, forming the basis of political rights and national identity. In the Indian context, while Articles 5–11 of the Constitution confer Parliament with sovereign authority to regulate citizenship, this power is not absolute. It is subjected to Fundamental Rights and judicial review and constitutional morality ensuring that the State's authority is exercised within a framework of rights and rule of law.
Body
State's Sovereign Powers to Determine Citizenship
Constitutional Authority
Articles 5–8 not only addressed the complexities of Partition but also conferred sovereign powers on the Indian State to determine the initial citizenry.
By deciding who would be included (domiciled residents, migrants from Pakistan under certain conditions, persons of Indian origin) and who would be excluded (those migrating to Pakistan without lawful return), these provisions gave the State’s authority to regulate citizenship.
Article 11 empowers Parliament to make laws relating to acquisition, termination and all other matters concerning citizenship.
Accordingly, Parliament enacted the Citizenship Act, 1955, providing for citizenship by:
Birth
Descent
Registration
Naturalisation
Incorporation of territory
Sovereignty in International Law
Determining who belongs to the political community is an essential attribute of State sovereignty.
Every sovereign State has the authority to regulate:
Entry and immigration
Naturalisation
Renunciation and deprivation of citizenship
This enables the State to preserve territorial integrity, demographic stability and national security.
National Security & Public Interest
The State may exercise its power to cancel citizenship obtained by fraud or terminate it in cases of disloyalty, safeguarding sovereignty and public order (Provided by The Citizenship Act, 1955)
The power to regulate citizenship is thus intrinsically linked to the State's duty to protect its national security interests.
Constitutional Limitations on State Power
Article 14 – Equality Before Law
Any classification in citizenship law must be reasonable and non-arbitrary and must satisfy the test of "reasonable classification."
The CAA and Article 14 Challenge: The Citizenship Amendment Act, 2019, which provides an expedited citizenship pathway for non-Muslim immigrants (Hindu, Sikh, Buddhist, Jain, Parsi, Christian) from Afghanistan, Bangladesh, and Pakistan who entered India on or before December 31, 2014, while explicitly excluding Muslims, has been challenged as violating Article 14.
Article 21 – Due Process and Procedural Fairness
Article 21 guarantees fair procedure to all persons, including non-citizens.
National Register of Citizens (NRC) – Assam: Excluded around 19 lakh persons. It Violates Article 21 by reversing the burden of proof, individuals must prove citizenship, not the State prove exclusion.
Special Intensive Revision (SIR) by Election Commission of India: Challenged as an "indirect NRC", an extra-constitutional process without parliamentary sanction.
Judicial Review & Basic Structure
Courts act as guardians of constitutional limits, ensuring legality, fairness, and proportionality in citizenship matters.
Sarbananda Sonowal v. Union of India (2005): The Supreme Court struck down the Illegal Migrants (Determination by Tribunals) Act, 1983, as it placed an unreasonable burden on the State and was deemed "manifestly arbitrary." This judgment paved the way for the NRC exercise in Assam.
In Re: Section 6A of the Citizenship Act, 1955 (2024): The Court upheld the constitutional validity of Section 6A, which established the March 25, 1971 cut-off for citizenship in Assam, recognizing it as a "political solution to the problem" of immigration.
Constitutional Morality & Human Rights
Citizenship determination must uphold human dignity, constitutional morality, and avoid arbitrary exclusion or statelessness.
The CAA–NRC debate and experiences in Myanmar, Israel, and Sri Lanka highlight the need for citizenship policies to remain consistent with equality, secularism, and human dignity.
International Obligations on Citizenship
United Nations Declaration of Human Rights (UDHR) – Article 15 States that “Everyone has the right to a nationality. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.”
For example, Disenfranchisement through NRC or selective pathways under CAA could be seen as inconsistent with this principle.
Way Forward:
Ensuring Fair, Transparent and Uniform Procedures
Citizenship determination should follow due process, with clear statutory guidelines.
Example: NRC in Assam was conducted under Supreme Court supervision and Foreigners Tribunals provide appeal mechanisms.
Establishing a Robust and Inclusive Documentation Framework
Developing a transparent, technology-enabled civil registration and documentation system while accommodating vulnerable groups
Example: Estonia’s Digital ID System – Issues a national digital identity card that serves as a legally recognized proof of citizenship and residence, integrated with e-governance services.
Proposed Dual Passport–Aadhaar policy to avoid Legal Paradox on Citizenship
Conclusive Proof of Citizenship: Amend the law so that a valid Indian Passport, together with Aadhaar issued to citizens, is recognized as conclusive legal proof of Indian citizenship, unless cancelled or revoked by competent authorities.
Citizen-Specific Aadhaar: Since Aadhaar is currently issued based on residency rather than citizenship, create a distinct Aadhaar card exclusively for Indian citizens.
Separate Aadhaar for Non-Citizen Residents: Issue a visually distinguishable Aadhaar (with a coloured stripe or different design) to lawful non-citizen residents such as long-term visa holders, ensuring they can access eligible services without creating confusion over citizenship.
Preventing Statelessness and Protect Human Dignity
Citizenship policies should avoid rendering individuals stateless.
Example: India is not a signatory to the 1961 UN Convention on Statelessness, but Article 21 protections extend to refugees (Khudiram Chakma case, 1994).
Conclusion
Citizenship in India reflects a constant negotiation between State sovereignty and constitutional discipline. The State must safeguard national security, regulate migration, and preserve political integrity, yet it cannot act beyond the principles of equality, dignity, and judicial oversight. The absence of a single citizenship document, the reliance on statutory criteria, and the scrutiny of courts ensure that citizenship remains a matter of law and rights, not executive discretion. Thus, India’s citizenship framework needs a dual commitment of asserting sovereign authority while upholding Constitutionalism.