How the Constituent Assembly Debated (and Rejected) Citizenship by Religion
P.S. Deshmukh had been famously disappointed with the job the drafting committee had done with the citizenship provision. The year was 1949.
He had thought that Dr. Ambedkar’s definition of citizenship would make “Indian citizenship the cheapest on earth.” His grouse had been with citizenship by birth. If the draft Article was to be accepted, even a child born of a lady while she was transiting through the Bombay port would get citizenship, he argued.
Deshmukh had asked for at least two amendments.
First, just being born in India shouldn’t be sufficient, the child should be born to Indian parents. Next, all Hindus and Sikhs, residing anywhere in the world should be entitled to Indian citizenship.
Shibban Lal Saxena: “You say, ‘being born of Indian parents’. How do you define ‘Indian parents’?”
P.S. Deshmukh: “I think it should refer to all those persons who are resident in India. It would be quite easy to define it…”
Shibban Lal Saxena: “Then give a definition?”
P.S. Deshmukh: “…an Indian is a very easily recognisable person [particularly when combined with domicile] But if [Saxena] thinks that an Indian cannot be recognised and that it is necessary to lay down who is an Indian, what is his colour and complexion and so on, I would leave it to him to suggest a suitable definition…”
Deshmukh had known that the Polish constitution provided citizenship to anyone born to Polish parents. His point had been that if the Poles knew who the Poles were, what was to stop Indians from knowing who Indians are?
So much for parentage, so much for Indianness.
With his proposal to give all Hindus and Sikhs citizenship, Deshmukh had expected the members to throw ‘secularism’ at him. He, for one, had felt the assembly was going too far “in this business of secularity.”
In his speech he had said:
“Does it mean that we must wipe out our own people, that we must wipe them out in order to prove our secularity, that we must wipe out Hindus and Sikhs under the name of secularity, that we must undermine everything that is sacred and dear to the Indians to prove that we are secular? …”
He drew strong support from Das Bhargava, who had also said:
“Hindus and Sikhs have no other home but India… The phrase ‘secular’ should not frighten us in saying what is a fact and reality must be faced…”
Sardar Bhopinder Singh, who spoke for Sikh refugees, and Rohini Kumar Chaudhury who was concerned for Assamese Hindus, had also supported Deshmukh.
Mahboob Ali Baig Sahib Bahadur, however, had spoken strongly against granting citizenship based on religion, and encouraged the assembly to remind itself of the Mahatma’s teachings of oneness in religion.
R.K. Sidva had said that if Hindus and Sikhs were being given citizenship then the scores of Parsis living in Iran must also be considered. At the same time, specifying a particular community for citizenship in the constitution, he had said, “would look like we are ignoring other communities.”
It was at this point that Jawaharlal Nehru is understood to have stood up and said that he was unhappy with “this secular-state business being thrown about”. He had said the assembly shouldn’t be under the impression that “we have done something amazingly generous” and sacrificial by being secular.
He further said, “We have only done something which every country does except a very few misguided and backward countries…”
Alladi Krishnaswami Ayyar had echoed Nehru’s sentiment. In the grant of citizenship, Ayyar said, “We may make a distinction between people who have […] chosen another country as their home and those who want to retain their connection with this country. But we cannot [do so] on any racial or religious […] grounds.”
If Deshmukh thought Dr. Ambedkar was being unnecessarily generous, Brajeshwar Prasad one-upped Babasaheb as well. He said:
“I wish all the people of Pakistan should be invited to come and stay in this country.”
He insisted that Hindus and Muslims were blood-brothers and the mischief of Partition should not be allowed to spread beyond its legal fact. He went on to propose “a common citizenship for […] all Asian(s), and, as preliminary step […], common citizenship between India and Pakistan.”
Earlier in the debate Jaspat Roy Kapoor had dealt a few sharp words at Brajeswar Prasad while suggesting that the economic impact of granting citizenship to Muslims at the commencement of the constitution should be borne in mind. When Brajeshwar Prasad had his turn, he responded:
“I see no reason why a Muslim who is a citizen of this country should be deprived of his citizenship at the commencement of this constitution, (e)specially when we are inviting Hindus who have come to India from Pakistan to become citizens of this country. People who have never been in India but have always lived in the Punjab and on the frontier have come and become citizens of this State; why cannot a Muhammadan of the frontier be so when we have always said that we are one?”
The debate did not see an uncontested view on any particular citizenship-related issue.
Dr. Ambedkar made his closing remarks and said that it is future parliaments who should have their say. The constituent assembly must only enable a transition through the constitution, he felt.
The citizenship clauses were admittedly the most complex for the draftsmen to put down. They had been sent back on two previous occasions. The debates had been heated and had gone on for more than nine hours, over three days. Some members had also suggested that further debate was required.
Dr. Rajendra Prasad had wanted to put the citizenship provision to vote. To decide whether it was ready for the vote, there was yet another vote. There was 59 ayes and 35 nos.
Then this exchange occurred:
Dr. Rajendra Prasad: “Now I will have to put the various amendments to the vote…” (He was not very sure in what order though, there were 130 of them.)
Dr. B.R. Ambedkar: “Let them all be withdrawn”
Deshmukh, however, had not withdrawn his first two amendments. They had been put to vote and rejected.
Dr. Rajendra Prasad put the draft Article moved by Dr. Ambedkar to vote. The motion was adopted.
Article 5 of the Indian constitution did not recognise citizenship by religion.
…
At the end of day on August 12, 1949, the President had adjourned the assembly to meet five days later, at 9 in the morning.
Syamanandan Sahaya had put forth an innocuous request. He had said, “May I suggest, Sir, that on the 18th we may assemble in the afternoon, in view of the fact that some trains come late?”
Indeed, the following Thursday, on August 18, 1949, the Constituent Assembly met at 3 pm.
Aditya Chatterjee is a lawyer practicing in the Supreme Court of India and High Court of Delhi.
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Explained: The Nuts and Bolts of Indian Citizenship
What is citizenship?
The population of a state is divided into two categories: citizens and non-citizens. A citizen of a state enjoys all civil and political rights. A non-citizen, on the other hand, doesn’t enjoy these rights.
Under the Indian constitution, certain fundamental rights are available only to the citizens, namely: Right against discrimination on the grounds of religion, race, caste, sex or place of birth (Article 15); right to equality of opportunity in matter of public employment (Article 16); freedom of speech and expression, assembly, association, movement, residence and profession (Article 19); cultural and educational rights (Article 29 and 30); and right to vote and become members of the union and state legislatures.
Several offices can also be occupied exclusively by citizens: president (Article 58(1)(a), vice-president (Article 66(2)), judges of the Supreme Court (Article 124(3)) and high court (Article 217(2)), governor of a state (Article 157), attorney general (Article 76(1)) and advocate general (Article 165).
Equality before the law or equal protection of the laws within the territory of India (Article 14 ) and protection of life or personal liberty (Article 21) are applicable to non-citizens as well.
What are the constitutional provisions relating to citizenship in India?
The Indian constitution doesn’t prescribe a permanent provision relating to citizenship in India. It simply describes categories of persons who are deemed to be citizens of India on the day the Indian constitution was promulgated on January 26, 1950, and leaves citizenship to be regulated by law made by the parliament.
Article 11 of the constitution confers power on the parliament to make laws regarding citizenship. The Indian Citizenship Act, 1955 was enacted in exercise of this provision.
Who were the persons who were deemed to be citizens of India when the constitution was promulgated?
There are four categories of persons, identified between Articles 5 and 8 of the constitution, who were deemed eligible to become citizens of India when the constitution came into effect.
i) Citizenship by domicile (Article 5): A person who was born in India or either of the person’s parents was born in India or the person must have been an ordinarily resident in the territory of India for not less than five years immediately before the commencement of the constitution. Domicile of a person is in that country in which the person either has or is deemed by law to have his/her permanent house.
ii) Citizenship of migrants to India from Pakistan (Article 6): Persons who have migrated from Pakistan to India have been classified into two categories: i) those who came to India before July 19, 1948, and ii) those who came on or after July 19, 1948.
In the case of persons migrating before July 19, 1948, if the person has been ordinarily residing in India since the date of her migration, and in case of a person migrating on or after July 19, 1948, if he/she has been registered as a citizen of India, after residing for at least six months immediately before the date of applying for registration, by an officer appointed by the government of India, shall be deemed to be a citizen of India.
iii) Citizenship of migrants of Pakistan (Article 7): If a citizen of India has migrated to Pakistan after March 1, 1947, but returned to India on the basis of permit for resettlement in India, the person is entitled to become a citizen of India if he/she registers herself as a citizen of India, after residing for at least six months immediately before the date of applying for registration, by an officer appointed by the government of India.
iv) Citizenship of persons of Indian origin residing outside India (Article 8): Indian nationals (whose parents or any grandparents were born in India as defined in the Government of India Act, 1935) residing abroad shall be conferred Indian citizenship, as if they have been registered by the diplomatic or consular representatives of India in the country where they are residing.
What are the provisions under the Citizenship Act, 1955?
The Act provides for acquisition of Indian citizenship in the following ways:
i) Citizenship by birth: Anyone born in India on or after January 1, 1950, would be deemed a citizen by birth. This limit was further amended to include those born between January 1, 1950 and July 1, 1987.
By the Citizenship Amendment Act, 2003, persons born after December 3, 2004, would be deemed to be citizens of India if either of the parents is Indian or one of the parents is a citizen of India and the other was not an illegal migrant at the time of the person’s birth.
“Illegal migrant” means a foreigner who has entered India: without a valid passport or travel documents; or with a valid passport or travel documents but remained in the country beyond the permitted period of time.
ii) Citizenship by descent: A person born outside India shall be deemed to be a citizen of India if either of the person’s parents was a citizen of India at the time of his/her birth provided that the birth is registered within one year of its occurrence or commencement of the Act, whichever is later, at the Indian consulate.
iii) Citizenship by registration: A person may be registered as a citizen of India, if the person is married to a citizen of India or has been a resident of India for five years immediately before making an application for registration.
iv) Citizenship by naturalisation: A person is granted a certificate of naturalisation if the person is not an illegal migrant and has resided in India for 12 months before making an application to seek the certificate. Of the 14 years preceding this 12-months duration, the person must have stayed in India for 11 years.
v) Citizenship by incorporation of territory: If any new territory becomes a part of India, the government of India shall specify the persons of the territory to be citizens of India.
If the central government is of the opinion that an applicant is a person who has rendered distinguished service to the cause of science, philosophy, art, literature, world peace or human progress generally, it may waive all or any conditions specified to attain Indian citizenship.
What are the provisions in the Citizenship (Amendment) Act, 2019?
The newly amended law provides for granting of Indian citizenship to Hindus, Sikhs, Jains, Buddhists, Parsis and Christians from Pakistan, Bangladesh and Afghanistan who came to India on or before December 31, 2014.
The law will not be extended to Rohingya Muslims persecuted in Myanmar; Shia and Ahmadiyya Muslims in Pakistan; Hazaras, Tajiks and Uzbeks in Afghanistan; Tamils in Sri Lanka; and atheists in Bangladesh.
Is the Citizenship (Amendment) Act, 2019 unconstitutional?
Prior to 2019, the amendments in the Citizenship Act, 1955 never explicitly restricted grant to citizenship to certain religious communities. The previous governments had a holistic approach – either they never provided for citizenship to illegal migrants or provided citizenship to illegal migrants belonging to all the communities.
Omitting certain religious communities has raised questions about whether the secular credentials of the constitution were being discarded. More so, specific denial of citizenship to Muslims, by the BJP government that has been very vocal about its Islamophobic stances, hints that a larger communal agenda of the BJP and RSS is at play.
Legal experts say that the new citizenship law violates the fundamental right under Article 14 of the Indian constitution that guarantees equal protection of laws, even to the aliens, in the territory of India.
What about citizenship for Indian Muslims?
In the new citizenship law, Muslims from Pakistan, Bangladesh, Myanmar and Afghanistan have been excluded. However, there remains sufficient reason for worry for Indian Muslims who could be stripped of their citizenship by means of the National Register of Citizens (NRC) – as in the case of Assam – following which they would not be granted Indian citizenship under the latest Citizenship Amendment Act as it explicitly excludes members of the Muslim community.
Are there any states exempted from the implementation of the Citizenship (Amendment) Act, 2019?
Parts of north-east under the Inner Line Permit (ILP) regime and those included in the sixth schedule to the Indian Constitution have been exempted from the application of Citizenship (Amendment) Act. The bill states, “Nothing in this section shall apply to tribal areas of Assam, Meghalaya, Mizoram or Tripura as included in the Sixth Schedule to the Constitution and the area covered under ‘The Inter Line’ notified under the Bengal Eastern Frontier Regulation, 1873.”
To enter Arunachal Pradesh, Nagaland (excluding Dimapur) and Mizoram, one requires a special permit ILP. Therefore, Arunachal Pradesh, Nagaland and Mizoram along with parts of Meghalaya, Assam and Tripura have been kept out of the purview of the Citizenship (Amendment) Act.
A brief textbook on the basic tenets of citizenship, with the Citizenship (Amendment) Act having brought who is a citizen and who is not into direct debate.
Aditya Chatterjee, 10/FEB/2020
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