Political Philosophy
Nothing in the Foregoing Provisions: The Part of the Constitution That Hands Away Its Own Subject
30 September 2026 · 16 min read
A good deal of the Constitution is addressed to citizens rather than to persons. Article 15(1) forbids the State to discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Article 16(1) guarantees equality of opportunity to all citizens in matters relating to employment or appointment to any office under the State. Article 19(1) opens with the words "All citizens shall have the right". Article 29(2) provides that no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them. Article 18(2) prohibits a citizen of India from accepting a title from a foreign State. Outside Part III, Article 326 confines the franchise to a person "who is a citizen of India", Article 84(a) makes citizenship a qualification for a seat in Parliament, and Article 58(1)(a) makes it the first qualification for election as President.
Each of those provisions is a rule about what follows from a status. None of them says what the status is or who decides whether a given person holds it. That question belongs to Part II, which runs to seven articles and ends by giving its subject away.
A Part that operates for one instant
Article 5 is the primary provision, and it is drafted as a snapshot. "At the commencement of this Constitution, every person who has his domicile in the territory of India and— (a) who was born in the territory of India; or (b) either of whose parents was born in the territory of India; or (c) who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement, shall be a citizen of India." The operative words are the first five. Article 5 does not describe a class that anyone can join; it identifies the persons who were citizens on one day.
Articles 6 and 7 are fixed to the same instant, and to a single historical event. Article 6 deems a person who migrated to India from the territory then included in Pakistan to be a citizen at the commencement, on conditions that distinguish between migration before and on or after 19 July 1948, the later class requiring registration by an officer appointed by the Government of the Dominion of India on an application made before the commencement. Article 7 provides, notwithstanding Articles 5 and 6, that a person who after 1 March 1947 migrated from India to the territory then included in Pakistan shall not be deemed to be a citizen, with a proviso for those who returned under a permit for resettlement or permanent return.
Article 8 is the one provision in Part II with continuing operation, and it says so expressly. A person who, or either of whose parents or any of whose grand-parents, was born in India as defined in the Government of India Act, 1935 as originally enacted, and who is ordinarily residing in any country outside India as so defined, is deemed to be a citizen if registered as such by the diplomatic or consular representative of India in the country where he is for the time being residing, on an application made "whether before or after the commencement of this Constitution". Article 9 is a disqualification rather than a grant, and it is worth reading closely for what it omits: no person shall be a citizen "by virtue of article 5, or be deemed to be a citizen of India by virtue of article 6 or article 8, if he has voluntarily acquired the citizenship of any foreign State". Article 7 is not in that list, because Article 7 confers nothing.
So Part II answers the question of who is a citizen as at 26 January 1950, and answers it for one further class on a continuing basis. It says nothing at all about a person born in India in 1960, or in 2026. And the one concept on which Article 5 turns is not defined anywhere in the document. Domicile appears in only four places in the whole document. In Article 5. In the definition of "an Anglo-Indian" in Article 366(2), which requires that the person be "domiciled within the territory of India". And twice in Article 371J, inserted by the Constitution (Ninety-eighth Amendment) Act, 2012, on reservation in education and in State posts for persons who belong to the Hyderabad-Karnataka region "by birth or by domicile". It carries the whole weight of Article 5's first limb, and the Constitution leaves its content to the general law.
The status is defeasible by ordinary legislation
Article 10 is one sentence, and it is the sentence that decides the character of the entire Part. "Every person who is or is deemed to be a citizen of India under any of the foregoing provisions of this Part shall, subject to the provisions of any law that may be made by Parliament, continue to be such citizen."
Read against the rest of the Constitution, that is an unusual formula. A status conferred by the Constitution itself — by Article 5, on the day the Constitution came into force — continues only so far as Parliament does not legislate otherwise. The clause does not reserve the acquisition of citizenship to Parliament while protecting those who already hold it. It subjects the continuance of the constitutional status to ordinary law.
The comparison that matters is Article 13(2), three articles later: "The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void." Part III is expressly protected against legislation. Part II expressly invites it. The rights that attach to being a citizen cannot be abridged by law; being a citizen can be ended by law.
Article 11 then removes any residual argument to the contrary. "Nothing in the foregoing provisions of this Part shall derogate from the power of Parliament to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship."
Two features of that drafting repay attention.
First, it is a non-derogation clause, not a grant of power. The grant is elsewhere: Entry 17 of the Union List reads "Citizenship, naturalisation and aliens", and Article 246(1) gives Parliament exclusive power over it. Article 11's work is to foreclose the inference that Part II, having settled the question, has settled it against Parliament. Without Article 11 there would at least have been an argument that Articles 5 to 9, being constitutional provisions on citizenship, exhausted the field and that a statute inconsistent with them was void. Article 11 is the Constitution declining to make that argument available.
Second, the phrase "and all other matters relating to citizenship" is as wide as the subject admits. Having named acquisition and termination — the two ends of the status — the article adds a residual clause covering everything in between. Part II is not merely silent about who becomes a citizen after 1950; it affirmatively directs the reader to a statute that did not yet exist.
Part II is also not among the matters the proviso to Article 368(2) entrenches. That proviso requires ratification by the Legislatures of not less than one-half of the States for an amendment affecting Articles 54, 55, 73, 162, 241 or 279A, Chapter IV of Part V, Chapter V of Part VI, Chapter I of Part XI, any of the Lists in the Seventh Schedule, the representation of States in Parliament, or Article 368 itself. Citizenship is not on the list — which in practice is beside the point, because Article 11 means that changing the law of citizenship never requires Article 368 at all.
What Parliament made of it
The power was exercised in 1955. The Citizenship Act, 1955 (57 of 1955) describes itself in its long title as "An Act to provide for the acquisition and determination of Indian citizenship." The second of those two nouns is one Part II never uses.
The Act supplies what Part II omits: citizenship by birth (section 3), by descent (section 4), by registration (section 5), by naturalisation (section 6), by incorporation of territory (section 7), and renunciation (section 8), for which Part II makes no provision at all. To that extent the Act is filling a gap, which is what Article 11 anticipated.
Section 10 does something else. It reaches back into Part II and grades the constitutional routes to citizenship by how securely they hold. "A citizen of India who is such by naturalisation or by virtue only of clause (c) of article 5 of the Constitution or by registration otherwise than under clause (b)(ii) of article 6 of the Constitution or clause (a) of sub-section (1) of section 5 of this Act, shall cease to be a citizen of India, if he is deprived of that citizenship by an order of the Central Government under this section."
Set out as a list, that clause says: every naturalised citizen is liable to deprivation, and so is a citizen under Article 5(c). A citizen under Article 5(a) or 5(b) — born in India, or with a parent born in India — is not. A person registered under Article 6(b)(ii) cannot be; a person registered under Article 8 can be. A person of Indian origin registered under section 5(1)(a) of the Act cannot be; a person registered under any other clause of section 5 can be.
Nothing in Part II suggests such a hierarchy. Articles 5, 6 and 8 all end with the same words — that the person shall be, or shall be deemed to be, a citizen of India — and none of them distinguishes the resulting status. The hierarchy is statutory, and section 10 does not create two classes of citizen so much as reveal that the Constitution had left it open to Parliament to do so.
The grounds in section 10(2) are, in outline, fraud or concealment in obtaining registration or naturalisation, disloyalty or disaffection towards the Constitution shown by act or speech, unlawful trading or communication with an enemy in wartime, a sentence of not less than two years' imprisonment in any country within five years of registration or naturalisation, and seven years' continuous ordinary residence outside India during which the person was neither at any time a student abroad nor in the service of a Government in India or of an international organisation of which India is a member, and did not register annually at an Indian consulate an intention to retain citizenship. Section 10(3) adds a condition: the Central Government shall not deprive a person of citizenship under the section unless satisfied that it is "not conducive to the public good" that the person should continue to be a citizen of India. Section 10(4) requires written notice of the ground and, on the grounds other than the residence ground, informs the person of a right to have the case referred to a Committee of Inquiry; section 10(5) provides for that Committee, chaired by a person who has held judicial office for at least ten years; section 10(6) provides that the Central Government "shall ordinarily be guided by" the Committee's report.
Section 9 works differently again. Sub-section (1) terminates citizenship by operation of law on the voluntary acquisition of the citizenship of another country, with a wartime proviso. Sub-section (2) is about who decides: "If any question arises as to whether, when or how any [citizen of India] has acquired the citizenship of another country, it shall be determined by such authority, in such manner, and having regard to such rules of evidence, as may be prescribed in this behalf." The forum, the procedure, and the rules of evidence are all left to subordinate legislation. The bracketed words are a substitution: until the Citizenship (Amendment) Act, 2003 (6 of 2004) replaced them with effect from 3 December 2004, the sub-section read "any person", and the determination it authorised was not confined to persons already established to be citizens.
Section 13 provides that the Central Government "may, in such cases as it thinks fit, certify that a person with respect to whose citizenship of India a doubt exists, is a citizen of India", and makes the certificate conclusive evidence of citizenship on its date unless obtained by fraud, false representation or concealment of a material fact. The power to resolve a doubt exists; whether to exercise it in a given case is a matter of the Government's own selection.
Section 14 is the clause that completes the structure. "(1) The prescribed authority or the Central Government may, in its discretion, grant or refuse an application under [sections 5, 6 and 7A] and shall not be required to assign any reasons for such grant or refusal. (2) Subject to the provisions of section 15 the decision of the prescribed authority or the Central Government on any such application as aforesaid shall be final and shall not be called in question in any court." The bracketed figures were substituted for "sections 5 and 6" by the same 2003 Act, extending the clause to the Overseas Citizen of India Cardholder registration introduced by section 7A. Section 14 governs applications for registration, naturalisation and an OCI card; it is not a general finality clause covering every question of citizenship under the Act.
Section 14A belongs to the same machinery. Inserted by the 2003 Act with effect from 3 December 2004, it provides that "the Central Government may compulsorily register every citizen of India and issue national identity card to him", and that the Central Government "may maintain a National Register of Indian Citizens and for that purpose establish a National Registration Authority". Sub-section (3) designates the Registrar General, India, appointed under the Registration of Births and Deaths Act, 1969, to act as that Authority and to function as the Registrar General of Citizen Registration. Sub-section (5) provides that the procedure to be followed in compulsory registration "shall be such as may be prescribed". The register, the authority and the procedure by which citizenship is recorded are therefore all creatures of a statute and of rules made under it, which is the position Article 11 left open.
Section 15 is the reservation. It permits a person aggrieved by an order made under the Act by the prescribed authority or any officer or authority other than the Central Government to apply to the Central Government for revision within thirty days, and provides that "the decision of the Central Government shall be final". Section 15A, inserted by the same 2003 Act with effect from 3 December 2004, allows a person aggrieved by an order of the Central Government to apply to the Central Government for a review, and provides that "the decision of the Central Government on such review shall be final". The remedy for an executive decision is an application to the same executive, twice, and the statute calls the outcome final on both occasions.
Where that leaves the chain
Put the two halves together and the sequence reads as follows. A set of rights in Part III, together with the franchise and eligibility for the highest offices, is reserved to citizens. Whether a person is a citizen is, for everyone not covered by the 1950 snapshot, a question under the Citizenship Act. Under that Act an application for registration or naturalisation may be refused in the authority's discretion without reasons and the refusal is declared final; a question about the acquisition of a foreign citizenship goes to whatever authority the rules prescribe, on whatever rules of evidence they prescribe; deprivation is by order of the Central Government on its own satisfaction, tempered by the Committee of Inquiry that section 10(5) provides for and whose report section 10(6) requires the Government only to be ordinarily guided by; and the two remedies the Act provides both lie to the Central Government, each declared final in turn.
Two qualifications are necessary, and both are textual rather than a matter of authority.
Section 14(2) is an ouster clause in an ordinary statute. Article 226(1) confers on every High Court the power to issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, "for the enforcement of any of the rights conferred by Part III and for any other purpose", and does so "notwithstanding anything in article 32". Article 32(1) guarantees the right to move the Supreme Court "by appropriate proceedings" for the enforcement of the rights conferred by Part III. Neither jurisdiction is conferred by the Citizenship Act, and a provision of that Act cannot subtract from it. On its own terms section 14(2) closes the ordinary civil forum. It does not reach the constitutional one, and a clause of an ordinary Act could not.
And a law made under Article 11 remains a law for the purposes of Article 13(2). The power over "all other matters relating to citizenship" is plenary as to subject and bounded as to manner: it does not authorise a citizenship law that violates Article 14, and the fact that section 10(1) distinguishes between classes of citizen by reference to the clause under which each came in is a distinction that has to answer for itself like any other statutory classification. Article 11 settles who may legislate. It does not settle what may be enacted.
The choice that was available
It is not a criticism of Part II that it does not define citizenship for all time. No constitution can. Who is a citizen in 2050 depends on facts — births, marriages, migrations, the acquisition of other nationalities — that a document written in 1949 cannot enumerate, and a continuing rule about such facts is what a statute is for. The drafters of Part II had an immediate and specific problem in front of them, and Articles 6, 7 and 8 read as the settlement of one displacement rather than as a general theory of membership.
But the alternative to leaving everything to Parliament was not to leave nothing. A constitution can entrench the criteria of membership and leave their administration to statute. It can fix the principle — birth in the territory, descent, a stated period of residence — and let ordinary law supply the forms, the authorities and the proofs. Part II did close to the opposite. It fixed the criteria precisely, for one day, and left the criteria for every other day, along with the forms, the authorities and the proofs, to a Parliament that had yet to legislate.
The consequence is a document in which the rights of a citizen are placed beyond the reach of ordinary legislation while the question whether a person is a citizen is placed squarely within it. Article 10 and Article 13(2) are three articles apart and point in opposite directions. Between them stands Article 11, which does not confer the power it protects and does not limit the power it protects, and which is drafted in the form the Constitution uses when it has decided not to decide something: nothing in the foregoing provisions shall derogate.
Authored by Eshan Kumar Gupta, Advocate, Hon'ble Allahabad High Court, Lucknow Bench.