Citizenship and the State

Citizenship is traditionally understood as a vertical relationship between the individual and the state. Originally, it was linked with certain liberal and republican ideals rather than territorial or status issues. Today, it predominantly concerns territory, status, and exclusion.

Judiciary's Role in Citizenship Cases

In Assam, many individuals were denied citizenship despite having multiple documents to prove their status. The judiciary has taken a restrictive approach in several key cases:

• In Shabbir Hussain (1951), the court refused to recognize Hussain as a Pakistani national despite his permit.
• In Abdul Khader (1960), the SC did not treat Khader as a foreigner even though he had a Pakistani passport.
• In Izhar Ahmad Khan (1962), possession of a Pakistani passport was deemed conclusive proof of Pakistani citizenship.
• By 2008, the SC further restricted citizenship proofs, ruling in Razia Bergum that an Indian passport was insufficient for proving citizenship.

Constitutional Provisions and Amendments

Dr. B. R. Ambedkar noted the complexity of drafting citizenship provisions in the Constitution. Initially, after the enactment of the Constitution, citizenship was considered a settled issue. However, the Citizenship Amendment Act, 2019 (CAA) reignited debates on this subject.

Legislative Changes

• Article 5 provided citizenship to everyone born in India at the time of the Constitution's commencement.
• Article 11 allowed Parliament to regulate citizenship, leading to the Citizenship Act of 1955 and subsequent amendments in 1986, 2003, and 2019.
• The 1986 amendment introduced the condition that at least one parent must be an Indian citizen for the child to claim citizenship.
• The 2003 amendment further required that both parents be citizens or one be a citizen while the other is not an illegal migrant.

Proving Citizenship

The legal framework for proving citizenship includes oral or documentary evidence as per Section 2(1)(e) of the Bharatiya Sakshya Adhiniyam, 2023. The notion of "proved" is subjective to the judge's belief.

Presumptions and Proof

• Section 2(1)(h) allows the court to presume a fact is proved unless disproved.
• Section 2(1)(l) dictates the court shall presume a fact as proved until disproved.
• Despite governmental verification processes, there is no presumption of citizenship for passport and voter ID holders.
• Section 78 presumes documents are genuine if certified by a government officer.

Challenges and Recommendations

The issue of citizenship proof remains contentious, especially with the exclusion of documents like Aadhaar and voter ID during the Special Intensive Revision (SIR). The burden of proof should logically fall on those questioning the citizenship of individuals already possessing government-issued documents.

There is a call for presumption of citizenship for anyone born in India and recognition of voter ID and passports as conclusive proof of citizenship.

The writer is the Vice-Chancellor of Chanakya National Law University, Patna, and these views are personal.