When lines are drawn and land violently cleaved apart, new questions are asked. Who belongs where? And how does one articulate this nature of belonging? After India won a hard-fought independence in 1947, this conundrum fell to the Constituent Assembly in August 1949. The Partition had triggered waves of migrations across India’s western and eastern frontiers; many Indians also lived abroad, sometimes in difficult conditions. It was imperative to discuss citizenship and define the notion of an Indian Citizen. All articles related to citizenship “received far more thought and consideration during the last few months than any other article contained in this Constitution,” India’s first Prime Minister Jawaharlal Nehru remarked, standing tall in the circular Central Hall, on August 12. The Constituent Assembly would debate, deliberate and dissent over citizenship and minority rights. In the face of anxiety over migration and a perceived threat from “illegal immigrants,” some saw religious identity as the rightful determinant. But consensus then deemed this was a discriminatory yardstick, and citizenship by religion was put to bed.
The path of citizenship has since wended its way through numerous circuitous routes, but returned to this contentious point of origin. The new Citizenship Amendment Act fast-tracks naturalisation for non-Muslim religious minorities fleeing neighbouring countries. On May 15, the Union government on Wednesday granted citizenship certificates to more than 300 people who applied under the Citizenship (Amendment) Act, marking the first such naturalisation under the new Act. Religion, among other things, will decide who gets to be a citizen in today’s India. The river of time has also carried forth fragments of arbitrary deadlines and cutoff dates, regulated through somewhat opaque tribunals and bureaucrats.
In this first part, The Hindu revisits the paper trail and Constituent Assembly debates that presented an early definition of the idea of belonging in India.
Citizenship before an independent India
Think of the colonial rule in two phases: when India was governed by the East India Company between 1757 and 1858, and when the Crown officially took over, extending its imperial arms from 1858 to 1947. In the first phase, there were no official citizenship laws, noted historian Arun Sinha in the journal Law of Citizenship and Aliens in India. Whatever Acts the British had granted rights to ‘British subjects.’ Did people living in India count as British subjects? It is unclear; there was uncertainty at the time if the definition applied only to European British subjects or to native Indians too.
The first official citizenship law was crafted in the second phase of the colonial rule. The mainland was split two ways: British India covered 54% of the territory and included 70% of the population, whereas the princely states governed by local princes and feudal lords enjoyed a degree of autonomy. The British Nationality and Status of Aliens Act, 1914, was codified to confer rights to ‘national-born British subjects’ and those who obtained naturalisation certificates from colonial officials. People born on the British mainland or to British parents were given a higher status than people born in the British colonies. Put differently, people of Indian descent received a “second-class citizenship,” Mr. Sinha noted.
The post-Partition context
A train loaded to capacity during the India-Pakistan Partition. Issued by the Directorate of Public Relations, East Punjab. Photo Credit: The Hindu Archives | Photo Credit: The Hindu Archives
Independence allowed India to consider and conceptualise the notion of citizenship for the first time. This conversation was complicated by two factors: the flow of migration on India’s eastern and western frontiers, and a looming anxiety over security and identity. Sri Prakasa, India’s High Commissioner in Pakistan, acknowledged the unique position, noting on April 12, 1948, that “Partition is such a novel thing... that we have been unable to adjust ourselves psychologically with the new situation and many people, particularly the minorities have been unable to adjust ourselves psychologically with the new situation and many people...”
The boundary lines of Bengal, Punjab and Assam saw mass migration on both sides. About 10 million people moved across the boundaries in the first year, according to government census figures. This figure crossed 20 million by the 1960s. On the western frontier, between West Pakistan and India, the movement happened in two waves: first came the Hindus and Sikhs who chose India as their home; the second wave comprised largely of Muslims “who had left their homes in the initial months of the Partition — or, often, fled in fear of their lives — to travel to West Pakistan, but found the new nation less than ideal,” scholar Manav Kapur pointed out in a paper. Mr. Nehru’s government had expressed concern about the “exodus” of Hindus from East Bengal and Eastern Pakistan due to reported harassment and fears; urging them to not leave their homes and hearths. If this was not checked immediately, “the two Dominions would be faced with another serious problem which might prove beyond their control,” he said, according to an April 6 report published in The Hindu. Regarding discrimination faced by Muslim refugees in Delhi, Mr. Nehru said they would be administered “fair treatment”: the “Indian State was a secular state”, and the government “would welcome [Muslim] refugees back to Delhi if they returned,” to ensure fair treatment.
The Hindu’s front page on April 8, 1948.
A Hindu editorial dated July 21, 1948, titled “Refugees and Resettlement” captured the magnitude of the problem assailing the Indian Government. The “one-way traffic” from West Pakistan threatened the resettlement efforts of more than five million refugees. The limited land could not accommodate the surplus bodies. The property of those who were unable to return to India before Independence was labelled ‘evacuee property,’ and the Custodian of Evacuee Property took charge of it. It was proposed that non-Muslim refugees (about 3-3.5 million) who followed agriculture and other related occupations would be placed “without much difficulty” on land in East Punjab. But a large-scale migration of Muslims, who had been employed on this land in the pre-partition era, would “greatly impede this programme.” The reasoning was that they might take possession of some of the property and thereby reduce the share of refugees or displaced persons who might otherwise take possession of it.
Mr. Nehru reportedly suggested that an officer be designated to exclusively address the concern of Muslim migrants whose property had been taken over by the Government; a proposition which was rejected by the Relief and Rehabilitation Ministry, according to a letter from Mr. Nehru to Mohanlal Saxena, dated May 19, 1949.
The Hindu’s editorial dated July 21, 1948.
The second concern crept in through the cracks of national security. A ‘numbers game’ determined the boundary lines. The sudden influx or existence of minority populations gave way to fears, old and new. By June 1948, there were fears of returned ‘Muslim Leaguers’ organising campaigns against the Indian Government, according to a letter from a government official. As Muslims returned to regions like the United Provinces, Delhi and Rajputana, anxious whispers grew louder about the emergence of a “miniature Pakistan” within the Indian territory, Mr. Kapur added. Estimates show almost 45 million Muslims remained in India after partition.
Sudden action was taken to implement the permit system through the colonial instrument of ordinances in June 1948. From July 9, 1948, any migrants from West Pakistan would require a permit to cross the border. The permits were divided into three ranks: permits for temporary visits, those for resettlement or permanent returns and “permanent permits,” to be issued by the High Commissioner at Karachi. Only government officers and businessmen who travelled frequently on duty or business were entitled to receive permanent permits. As of August 1949, the government had issued 2,000-3,000 of permanent permits, Mr. Nehru told the Constituent Assembly. ”
The Indian citizen could fall under two categories. In Mapping Citizenship in India, Anupama Roy notes these categories:
- Those who were ‘found’ to be residing in India at the time of independence and automatically ‘became’ Indian citizens;
- Those who, unlike the earlier category, moved across borders, a category which again had different patterns of movement:
- those who migrated from Pakistan to India after Partition and before 19 July 1948;
- those who migrated from Pakistan to India after 19 July 1948 but before the commencement of the Constitution and registered themselves as citizens of India before the concerned authority;
- [sic] those who went to Pakistan after March 1, 1947, and returned to India under a permit for resettlement or permanent return issued by the competent authority.
For Muslim refugees who wished to resettle into the Indian Dominion, different provisions of the permit system were laid out. A February 21, 1949 report noted that the number of Muslim refugees coming to India for permanent resettlement was eight per day; but those on temporary permits were “not allowed to settle down in India.” Pakistan would, in September, that year plan to introduce a similar permit system for travellers in from the Indian union, in both East and West Pakistan.
A report in The Hindu recorded the permit system’s introduction in Pakistan.
The communique itself is an interesting display of the contradiction. The Hindu in a July 14 report quoted how the return of Muslims evidenced “the excellent treatment the minorities receive in India”; their arrival a “source of gratification,” adding that “the Government of India would, therefore, be most reluctant to take any measures which may choke this natural flow.”
“There are other problems, however, which compel the Government of India to give the matter serious consideration. They have nearly six million refugees who have come out of Pakistan to provide for and migration still continues. The settlement of these refugees is the first charge on the resources of the Government of India, but the large scale of one-way traffic of Muslims returning to India has reached a stage when it is beginning to interfere with the rehabilitation plans for refugees,” it noted.
The government tried to approach the Pakistani officials for reactions but “no replies were received,” reports noted. The gaining momentum of return and ramping up settlement plans for minorities compelled the government to take measures. “The Government of India regret that they have to impose this restriction. It will be removed as soon as conditions settle down,” the government ordinance issued in June 1948 read.
July 19, 1948 became the cutoff date for citizenship, and would later be enshrined in Article 6 of India’s Constitution.
Report in The Hindu dated July 15, 1948.
The Constituent Assembly Dilemma
It was August 1949 when the citizenship question loomed large over the Constituent Assembly. Articles 5 and 6, prepared by the Dr. B. R. Ambedkar-led Drafting Committee, were taken up for discussion, morphing into an inflamed debate which would go on for three days. A report in The Hindu noted the impossible task that lay before the Assembly. The partition had made victims of people in some way or the other, and it was impossible to draft anything, however meticulous, that met “completely the very difficult and complicated situation that had arisen from partition.”
The immediate challenge was to find an anchor: should citizenship be determined by virtue of one’s birth on the nation’s soil (jus soli) or through descent or birth (jus sanguinis)? The Assembly was torn between the two. One camp was in favour of granting citizenship to anyone born on Indian soil. The jus soli principle reflected the ethos of an“enlightened, modern, civilised” and democratic form of citizenship, according to Sardar Vallabhbhai Patel; citizenship based on descent endorsed “an ideal of racial citizenship,” commented Krishnaswami Ayyar.
The other camp resisted. P.S. Deshmukh from Maharashtra said Dr. Ambedkar’s definition would make “Indian citizenship the cheapest on Earth.” “If this were to be approved, even a child born to a woman while she was passing through the Bombay port would be granted citizenship,” he said. Mr. Deshmukh insisted that the child must be born to Indian parents, and also called for all Hindus and Sikhs to receive Indian citizenship. Haryana representative Das Bhargava supported Mr. Deshmukh: “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,” he said.
The argument didn’t sit well with the secularist India that Mr. Nehru and other leaders wanted to build. Secularism was not “an extraordinary act of generosity,” he said. Supporting this stance, Mr. Ayyar also added: “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.”
The Partition and subsequent permit systems introduced another category of people who crossed borders immediately after the Partition. The Assembly subsequently debated the rights and citizenships of “returning minorities,” the people who moved back from Pakistan to India after Independence. Dr. Ambedkar, speaking in the Assembly, outlined two categories: those who have come before and after July 19, 1948. “In the case of those who have come before July 19, 1948 citizenship is automatic. No conditions, no procedure,” he said. As for those who came after the cut-off date, “certain procedural conditions are laid down and when those conditions are satisfied, they also will become entitled to citizenship under the article we now proposed.” Article 5-A also stated that any person from Pakistan must present a certificate.
The dilemma hid an implicit question: Can a Muslim be an Indian citizen?
The proposed rationale behind continuing with the cut-off dates revealed the anxiety over national security and fears that returning Muslims would prove to be disloyal. Jaspat Roy Kapoor from the United Provinces pointed out that if Muslims were to return and be conferred citizenship, they would have a fair claim over the property, now under government’s control, left behind. “...property worth crores of rupees will be going out of your hands,” he said.
The cut-off date felt arbitrary and discriminatory to many, with members noting that the system would discriminate against migrants fleeing riots and civil disturbances in Pakistan. Bhupinder Singh Mann of East Punjab suggested, unsuccessfully, the formation of Constitution as a more fair deadline.
A rebuttal came from Mahboob Ali Baig Sahib, an MP from Madras, who asked “What would you do if one of your men becomes a traitor, a Communist and tries to overthrow the Government?” To Mr. Baig Sahib, “to say those people coming to India might become traitors and therefore they should not be allowed to come back, that is no reason at all.” He added: “[A Muslim] is an Indian and comes down here, not voluntarily, but under very tragic circumstances. He comes over to India because he could not live there on account of civil disturbances or for fear of civil disturbances.” Brajeshwar Prasad from Bihar agreed that people fled to Pakistan “in panic.”“
I see no reason why a Muslim who is a citizen of this country should be deprived of his citizenship...(e)specially when we are inviting Hindus who have come to India from Pakistan to become citizens of this country,” he said.
The lawmakers eventually voted, on August 12, in favour of the draft moved by Dr. Ambedkar. The jus soli principle was adopted; the idea of citizenship based on religion was rejected; the cut-off date remained July 19, 1948. Mr. Nehru in the Assembly said the rules “naturally applied to all communities...You cannot have separate rules for Hindus, Muslims or Christians. That would be absurd and fantastic.” Yet, “in effect”, he noted that the system favoured Hindus and Sikhs.
As Mr. Kapur noted, India’s debates on ‘returnees’ marked “a significant moment in which citizenship first started to take religious overtones.” This is also when Muslims were construed as a minority.
The Assembly crafted the idea of citizenship in the immediate context, and noted the rules were nothing “like a code of national law.” President Rajendra Prasad thought it best to dwell over the “limited question of laying down the qualifications for citizenship on the day the Constitution comes into force”, and all remaining matters “be left over to be dealt with by the Parliament in due course.”
--------------
References:
- Visaria, P.M. (1969) ‘Migration between India and Pakistan, 1951–61’, Demography, 6(3), pp. 323–334. doi:10.2307/2060400.
- A. N. Sinha, 1958. “Law of Citizenship and Aliens in India,” India Quarterly: A Journal of International Affairs, , vol. 14(3), pages 253-269, July.
- Kapur, M. (2021). India’s Citizenship (Amendment) Act. The Statelessness & Citizenship Review, 3(1), 208–35. Retrieved from https://statelessnessandcitizenshipreview.com/index.php/journal/article/view/265
- Jayal, N.G. (2022) ‘Reinventing the republic: Faith and citizenship in India’, Studies in Indian Politics, 10(1) pp. 14-30, doi: 10.1177/23210230221082799.
- Selected Works of Jawaharlal Nehru, vol 11 (May–June 1949) (‘Nehru Selected Works’);
- The Hindu Archives
