3. Further provisions governing the acquisition and termination of Federal citizenship may be made by Federal law.
Explanation .—In this Constitution, unless the context otherwise requires, “Federal law” includes any existing Indian law as in force within the territories subject to the jurisdiction of the Federation.
[Note: The provisions regarding citizenship will doubtless rouse keen controversy. The present draft is merely meant as a basis for discussion. Cf. Article 3 of the Constitution of the Irish Free State, 1922, which runs—
Every person, without distinction of sex, domiciled in the area of the jurisdiction of the Irish Free State at the time of the coming into operation of this Constitution, who was born in Ireland or either of whose parents was born in Ireland, or who has been ordinarily resident in the area of the jurisdiction of the Irish Free State for not less than seven years, is a citizen of the Irish Free State and shall, within the limits of the jurisdiction of the Irish Free State, enjoy the privileges and be subject to the obligations of such citizenship:
Provided that any such person being a citizen of another State may elect not to accept the citizenship hereby conferred; and the conditions governing the future acquisition and termination of citizenship in the Irish Free State shall be determined by law.
Clause 1 is on the lines of the above provision; except that a period of five years has been substituted for seven years in accordance with s. 3(1) (c) of the Indian Naturalisation Act, VII of 1926.
The clause has had to be drafted with due regard to the probability that the Federation will not initially exercise jurisdiction over the whole of India.
A person born in India and domiciled in Bombay, who happens to be resident in London at the commencement of the new Constitution, will be a citizen of the Federation under this clause; but not one domiciled in Sind or Baluchistan, if the Federation does not initially exercise jurisdiction there. It is, however, open to any person to acquire a new domicile by taking up his fixed habitation in another area before the Constitution comes into operation.
Under the Indian Succession Act, 1925, every person has a “domicile of origin”, which prevails until he acquires a new domicile. Briefly, his domicile of origin in the country in which at the time of his birth his father was domiciled, and he can acquire a new domicile by taking up his fixed habitation in another country. There is also a provision in the Act enabling any person to acquire a domicile in British India by making and depositing in some office in British India appointed in this behalf by the Provincial Government, a declaration in writing of his desire to acquire such domicile; provided that he has been resident in British India for one year preceding the date of the declaration. Generally speaking, wife’s domicile during her marriage follows the domicile of her husband. If any person who is at present domiciled, say, in Hyderabad, wishes to acquire a domicile, say, in Delhi, before the coming into operation of this Constitution, he can do so either by taking up his fixed habitation in Delhi or by following the procedure prescribed in the above provision of the Indian Succession Act, so that at the date of commencement of the Constitution he will become domiciled “in the territories subject to the jurisdiction of the Federation.”
Clauses 2 and 3 follow the provisions suggested by the ad hoc committee; clause 2 is not necessary, if we are content to leave the matter to Federal law under clause 3. In this connection, there is much to be said in favour of the view of the Calcutta Weekly Notes:
It is not possible to define exhaustively the conditions of nationality, whether by birth or naturalization, by the Constitution. If certain conditions are laid down by the Constitution, difficulties may arise regarding the interpretation of future legislation which may appear to be contrary to or to depart in any way from them. For example, the draft of the nationality clause placed before the Constituent Assembly lays down that any person born in the Union would be a citizen of the Union. But what about a woman citizen of the Union marrying an alien national or about an alien woman marrying a Union national? Would the Union Legislature have power to legislate in the first case that the woman would lose her Union nationality or in the second case that she would acquire Union nationality (such being the law of most of the countries)? These are intriguing questions, but all these things have to be pondered before a rigid clause is inserted in the Constitution itself. It would, in our opinion, therefore, be better to specify who would be citizens of the Indian Union at the date when the Constitution comes into force as in the Constitution of the Irish Free State and leave the law regarding nationality to be provided for by legislation by the Indian Union in accordance with the accepted principles of Private International Law. (Calcutta Weekly Notes, Vol. LI, No. 27, May 26, 1947).
The same journal in two subsequent issues (Vol. LI, Nos. 28 and 29, June 2, and June 9, 1947) has drawn attention to a host of other questions arising out of clause 2 and on the whole it may be better altogether to omit that clause, leaving the matter at large to be regulated by Federal law under clause 3.]