February 25, 2013

Indian Citizenship And Fundamental Rights In Norway

- Avni Gupta, [ ]

Avni Gupta

"Today there are many cases involving both citizens of India and NRIs that project violation of fundamental rights. This is due to the fact that the perspective on citizenship differs across the globe. A good example to support this would be the Norway–India child custody case"

A citizen of a nation is one who has sworn loyalty to the nation and enjoys the freedom to exercise basic rights given by the constitution of that nation. Despite the federal structure, the founding fathers of our constitution have adopted the concept of single citizenship. Unlike USA, there is no separate citizenship allotted by the Union and by the states. Part III of the Constitution of India deals with Fundamental Rights which are important for the all- round development of an individual and add meaning to democracy. Certain rights apply to all nationalities while the others are privileges of citizens alone.

A person can acquire citizenship of India by birth, descent, registration or naturalization. A person is considered a citizen of India by birth if either his/ her parents are the citizens of India or at least one of them is an Indian citizen and the other is not an illegal migrant at the time of his/her birth. This law is applicable to children born after the Commencement of the Citizenship Act 2003.

"Talking about citizens, fundamental rights are necessary for every citizen. Rights are those claims of an individual which are recognised by society and enforced by the State. These rights are basic and essential in the life of an individual."

A person is not considered an Indian citizen if s/he is born outside India unless either of his/her parents is a citizen of India at the time of his/her birth. This is called citizenship by descent. If in the above situation, the parent is also a citizen by descent, then for the child to be considered a citizen of India, his/her birth needs to be registered at an Indian consulate within a year of occurrence. S/he will also be considered a citizen if either of his/her parents, at the time of his/her birth, were in service to the Government of India. Citizenship of India by naturalization can be acquired by a foreigner who has resided in India for twelve years. The applicant must have lived a total of 12 years in India in a period of 14 years, and must have lived in India for 12 months uninterrupted prior to applying for citizenship.

Citizenship of India by registration can be acquired by (i) persons of Indian origin, who were, or either of whose parents was, born in undivided India and who are ordinarily resident in India for five years; (ii) persons of Indian origin who are ordinarily residents in any country or place outside undivided India; (iii) persons who are or have been married to a citizen of India and who are ordinarily resident in India for five years; (iv) minor children whose both parents are Indian citizens. Talking about citizens, fundamental rights are necessary for every citizen and are those rights which are claims of an individuals recognised by society and enforced by the State. These rights are basic and essential in the life of an individual. They enable citizens to lead a free and happy life and generate a feeling of security among minorities. They are justiciable, i.e., if violated by anyone, the individual can approach the High Court or Supreme Court. The six basic Fundamental Rights are:

(i) Right to Equality – this ensures equality before law without discrimination on grounds of religion, race, caste, sex. Equal opportunity in matters of employment, abolition of untouchability and titles;

(ii) Right to Freedom – it includes freedom of speech and expression, to form association, movement, residence, and right to practice any profession;

(iii) Right to Freedom of Religion – this right guarantees every citizen the freedom to profess, practice and propagate any religion without interference;

(iv) Right against Exploitation – it prohibits all forms of forced labour, child labour and human trafficking;

(v) Cultural and Educational Rights - it gives right to citizens to preserve their culture, language or script, and right of minorities to establish and administer educational institutions of their choice; and,

(vi) Right to Constitutional Remedies - it empowers the citizens to move a court of law in case of any denial of the fundamental rights. From the above mentioned rights, certain rights like Right to Freedom and Right to Freedom of Religion apply to all nationalities.

But fundamental rights such as freedom of speech and expression, right to participate in political activities or right to settle in any part of the country are enjoyed only by citizens of India. Even NRI, PIO and OCI do not have the right to hold office in Parliament or voting rights, although the right to vote is a matter of dispute.

To clear my view point, the below is the Norway case study which is based on cultural differences and rigid laws.

The facts of the case are as follows: Last May, an Indian couple, Anurup and Saagarika Bhattacharya, living in Norway were accused of ill treating their children, three year old Abhigyan and one-year-old Aishwarya, by means of force feeding (feeding by hands) and sleeping on the same bed as the kids. This accusation was based on the observation of teachers in school. The children showed erratic and distant behaviour, they were aloof and withdrawn, and thus, the Norway child welfare service, also called Barnevarne, took away the children and placed them under foster care.

The Indian government intervened with SM Krishna and Brinda Karat playing important roles. Their relatives and grandparents even approached the Indian President for help. The Indian Embassy reiterated the concerns of the Government of India to the Norwegian Ministry of Foreign Affairs that the children were being deprived of the benefits of being brought up in their own religious, cultural and linguistic atmosphere. Hence, they should return to India so that they could be brought up in familiar surroundings under the loving care of their extended family. The case was finally settled in April 2012, with the children returning to India with their uncle Aruna Bharsh.

The facts and judgement of this case raised a lot of questions like were the parents warned before hand or was there any notice given to them. Also what about their 3-year-old son Abhigyan, why weren’t matters like feeding by hand of concern when he was younger?

This case is a case of cultural differences, and thus, according to me, the laws should not have been this rigid. And at the end of it all, it was the children who suffered by living without their parents and situations like these generally have a long term psychological effect. I agree that the Bhattacharya family should have acquainted themselves with the rules of Norway, but ultimately they were new to the laws and drastic measures such as separating the children should not have been taken.


Disclaimer–The views expressed in this article are the personal views.

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