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LEGAL CHAT
Parliament and citizenship
N.C.S. RAGHAVAN
ARVIND RAGHAVAN
There is no specific definition in the Constitution of India about individuals who are to be treated as foreign citizens. However, it is clear that if an individual is not a citizen of India in any one of the ways mentioned in Articles 5, 6, 7 and 8 of the Constitution, such an individual will be treated as a foreign citizen.
Once an individual becomes a citizen of India by virtue of the aforesaid articles, such an individual shall continue to be citizen of India unless otherwise provided by any law that may be made by Parliament (Article 10).
Absolute right
Notwithstanding the aforesaid articles specifically dealing with citizenship rights of an individual, Parliament has absolute right and authority to make specific provisions with respect to the acquisition or termination of citizenship of any individual and on all other matters relating to citizenship. This omnibus article provides absolute powers to Parliament to frame appropriate laws and regulations dealing with citizenship in any manner whatsoever.
The Foreign Exchange Management Act deals with the provisions relating to Residents, Non-Residents, Non-Resident Indians (NRI), Persons of Indian Origin (POI) and their rights and obligations relating to acquisition of property including immovable property.
They will be discussed after the discussion of fundamental rights and duties of any person under the Constitution of India.
Fundamental rights
All matters relating to fundamental rights of a person are covered in Articles 12 to 35 of Part III of the Constitution.
The fundamental duties of a person are covered in Article 51A of Part IV-A of the Constitution.
Article 12 defines the term “State” in relation to the fundamental rights to include the Government and the President of India, the Government and Legislature of each of the States, all local and other authorities within the territory of India or under the control of the Government of India. The fundamental rights are available to a person in all the aforesaid territories covered in the definition of the “State”.
Article 13 protects the aforesaid fundamental rights of a person effectively in the following manner:
It clearly states that all laws in force at the time of the commencement of the Constitution of India, 1950, which are inconsistent with the provisions of this Part-III dealing with fundamental rights of a person are to be treated as void. It is also specifically provided that the “State” (including all the territories mentioned above) shall not make any law which takes away or abridges the fundamental rights conferred under this part and to the extent of any contravention the laws so made shall become void.
The laws in the above context shall mean and include any ordinance, order, by-laws, rule, regulation, notification, custom or usage having the force of law in the territory of India.
However, by Article 368, Parliament has been given power and authority to amend the Constitution itself including the provisions of this part dealing with fundamental rights and it is specifically provided that there is no limitation to such powers and authority of the Parliament to amend the Constitution as mentioned above.
Subject to the aforesaid provisions, it is useful to list the fundamental rights of a person:
Article 14 – Equality before law: Every person will be entitled to equal protection under the laws within the territory of India and such protection cannot be denied to any person.
Article 15 – Prohibition of discrimination on grounds of religion, caste, sex or place of birth in the following manner: The State shall not discriminate against any citizen on grounds of religion, caste, sex or place of birth or any of them, or similarly, no person on the above grounds shall be denied access to shops, public restaurants, hotels and places of public entertainment or to the use of wells, tanks, bathing ghats, roads and place of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
However, it has been provided in Sub-clause (3) and (4) that the State has powers to provide special provisions for the benefit of women and children or for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes.
The other fundamental rights will be highlighted in the subsequent issues with a detailed discussion on each one of the rights.
(N.C.S. Raghavan is a chartered accountant and Arvind Raghavan, an advocate)
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