‘Letter and Spirit’ as a new column will focus on explaining and understanding basic Acts and Articles enshrined in our Constitution. These columns will put into context different aspects of the Acts be it historical, legal, political etc. Today’s column discusses the Constituent Assembly debates around Citizenship.
With the contentious farm laws repealed , the discussions turn to the second most politically and legally resisted legislation of recent times, The Citizenship (Amendment) Act, 2019 . The vignettes of the citizenship question find its retro-reflection in the Constituent Assembly debates which serve as the undeniable autobiography of India’s basic law.
The citizenship question had been one of the most gruelling tasks confronted by the drafting committee as admitted by Dr B.R.Ambedkar, who moved a set of consolidated amendments to the citizenship provisions of the original draft. He said that the task had given the drafting committee “such a headache” and multiple “drafts were prepared” and “destroyed” before arriving at a consensus, which may satisfy “most people, if not all.”
- The citizenship question had been one of the most gruelling tasks confronted by the drafting committee as admitted by Dr. B.R.Ambedkar. These debates around citizenship in the light of The Citizenship (Amendment) Act, 2019 seem even more relevant today.
- Critics of the proposed amendment like Dr. P.S.Deshmukh from the Central Provinces and Berar suggested changes to Article 5 by proposing to qualify the universally honoured “jus soli” principle with a religious appendage. These views were supported by Prof. Shibban Lal Saksena and Jaspat Roy Kapoor of the United Provinces.
- Defenders of Dr.Ambedkar’s proposed amendments like Brajeshwar Prasad, talked about the panic driven migration without certain intention to settle down in Pakistan that happened during the partition. Mahboob Ali Baig went one step ahead by calling the proposition of Dr.Deshmukh as “ ridiculous” as it contemplated giving citizenship rights only to persons who are Hindus and Sikhs. Jawaharlal Nehru also extended his full support to the proposed amendments.
The critics
The prognosis of Dr. Ambedkar that the draft may not satisfy all came true as the secular and liberal provisions of the proposed draft and the official amendments were fiercely contested on the floor of the Constituent Assembly on religious, ethnic and hyper-nationalistic considerations. While Article 5 of the draft constitution (Article 5 of the Constitution of India) was criticised for its lack of exclusive and preferential provisions on religious lines regarding the declaration as to who shall be the citizen of India (as on the date of commencement of the Constitution), Article 5A of the draft (Article 7 of the Constitution of India), was excoriated on the ground that its proviso sought to grant citizenship rights to the migrants of Pakistan who had returned to India under a permit for resettlement granted by Indian authorities.
Dr P.S.Deshmukh from the Central Provinces and Berar proposed changes to Article 5 of the draft by proposing to replace the universally honoured “jus soli” principle by qualifying it with a religious appendage that “every person who is a Hindu or a Sikh by religion and is not a citizen of any other State, wherever he resides shall be entitled to be a citizen of India.” In the process, the additional “domicile requirement” as conceived by Article 5 along with the “jus soli” principle was consigned to oblivion.
As the “jus soli” principle is premised on the automatic grant of citizenship based on the place of birth provided the person is domiciled in India, qualifying it with religious identity, was in fact a proposal to ingrain religion into the bedrock of the Constitution. The concern of Dr. Deshmukh justifying the exclusion of people belonging to other religions, as echoed in his question, “Is it then wise that we should throw open our citizenship so indiscriminately?”, found fraternal support in Thakur Das Bharghava from East Punjab who exclaimed “Hindus and Sikhs have no other home but India”!. These views were also supported by Prof. Shibban Lal Saksena of the United Provinces.
The assertion of Dr.Deshmukh that “by the mere fact that he is a Hindu or a Sikh, he should get Indian citizenship because it is this one circumstance that makes him disliked by others” finds its resonance today in the presumptive base of the 2019 Citizenship Amendment Act that only people belonging to some faiths are victims of persecution and violence and the doors of the country can be legitimately shut to any other instance of persecution and ethnic violence.
Dr.Deshmukh found a steadfast ally in Jaspat Roy Kapoor of the United Provinces who expressed his strong opposition to the grant of citizenship rights to the returnees by stating that “once a person has migrated to Pakistan and transferred his loyalty from India to Pakistan, his migration is complete. He has definitely made up his mind at that time to kick this country and let it go to its own fate, and he went away to the newly created Pakistan, where he would put in his best efforts to make it a free, progressive and prosperous state.”
The defenders
The well-reasoned response to Jaspat Roy Kapoor by Brajeshwar Prasad, a member from Bihar, highlighting the fact of panic driven migration without certain intention to settle down in Pakistan was left unanswered with precision. R.K.Sidhva from C.P. and Berar retorted that mentioning the name of some communities will make other communities feel that they were being ignored.
Jawaharalal Nehru’s response in defence of the draft definition and secularism was unequivocal as he observed that “we have only done something which every country does except a very few misguided and backward countries in the world. Let us not refer to that word in the sense that we have done something very mighty”, indicating how some people consider themselves as being generous while adverting to the idea of a secular state. He did not mince words when he stated that “you cannot have rules for Hindus, for Muslims and for Christians only. It is absurd on the face of it”. Nehru also impressed upon the possibility of the second wave of migration including non-Hindus and non-Sikhs who were part of the first wave influx. Hence, in his view, foreclosing the doors fearing the influx of some may deprive others of exercising their choice.
Brajeshwar Prasad went further in stating that “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, especially 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?”
Mahboob Ali Baig went one step ahead by calling the proposition of Dr.Deshmukh as “ ridiculous” as it contemplated giving citizenship rights only to persons who are Hindus and Sikhs. Mr.Baig sought to dissuade the Constituent Assembly from following in the footsteps of those countries which were being condemned everywhere.
Alladi Krishnaswamy Ayyar too spoke in support of the amendments proposed as well as supported by Dr.Ambedkar. He was clear in his view that “we cannot on any racial or religious or other grounds make a distinction between one kind of persons and another, or one sect of persons and another sect of persons having regard to our commitments and the formulation of our policy on various occasions.”
The denouement
Dr. Ambedkar’s sagacious rejoinder settled the dust of left out concerns and rendered clarity to the intent of the draft as well as the consolidated amendment. He highlighted that the principal thrust of Article 5A was to declare that persons who migrated to Pakistan after 1st of March 1947 (Internal disturbances commenced on this date) shall not be Indian citizens and the proviso provides exception to the general law.
While not bothering to re-answer what had been negated by the deliberative wisdom of the Assembly, he declared that some migrants from Pakistan were allowed to return on the basis of the agreements between both the Governments and on the basis of an ordinance promulgated.
The amendment No. 164 proposed by Dr. Deshmukh modifying Article 5 to make citizenship as a matter of right to Hindus and Sikhs irrespective of the place of residence was rejected. Other amendments proposed by Dr. Deshmukh, Jaspat Roy Kapoor and Shibban Lal Saksena were withdrawn with the leave of the house as they were on the verge of being defeated, whereas the consolidated amendment moved by Dr. Ambedkar was adopted leading to the finalisation of the provisions in the Constitution.
The Constituent Assembly debates on citizenship showed that in the rousing of sentiments of ethnicity and distrust, sagacity had an upper hand, leading to the saner denouement of toleration.
History is known to set examples.
