When Constituent Assembly Defeated A Move To Define Citizenship On Religious Lines

The Parliament has passed Citizenship Amendment Bill and it has already become a law when the President of India gave his assent. Even before the Bill got the assent, the Indian Union Muslim League (IUML) moved the Supreme Court challenging it. Later, Trinamool Congress MP Mahua Moitra and many others, including law students, have approached the Apex Court challenging the Act, alleging that the same violates the principles of secularism, which have been held to be part of the basic structure of the Constitution. Basically, the Amendment Act liberalizes the grant of citizenship for non-Muslim migrants from Pakistan, Bangladesh and Afghanistan who had entered India before December 31, 2014. The contention of the critics is that the exclusion of Muslims from the Act amounts to religion based discrimination, and thus violates Article 14 of the Constitution of India. Apparently, the Constituent Assembly, which drafted the Constitution of India, had rejected a move to define citizenship on religious lines. This article intends to examine the views expressed by the members of Constituent Assembly in that regard. The discussion with respect to drafting of Article 5 of the Constitution took place in Constituent Assembly on 10-12 August 1949. The Article 5, as we see today, was introduced by Dr. BR Ambedkar himself. Article 5 of the Constitution of India, as it reads now, provides that, at the date of commencement of this Constitution, every person who has his domicile in the territory in 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 the date of such commencement, shall be a citizen of India.. Dr. Panjabrao Shamrao Deshmukh (who later became Minister of Agriculture in the first cabinet of Jawaharlal Nehru in 1952) moved an amendment to this draft which read as follows:5. (i) Every person residing in India— (a) who is born of Indian parents; or (b) who is naturalized under the law of naturalization; and (ii) 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 his address, he reasoned his proposal thus: "Here we are an entire nation with a history of thousands of years and we are going to discard it, in spite of the fact that neither the Hindu nor the Sikh has any other place in the wide world to go to. 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. But we are a secular State and do not want to recognise the fact that every Hindu or Sikh in any part of the world should have a home of his own. If the Muslims want an exclusive place for themselves called Pakistan, why should not Hindus and Sikhs have India as their home? We are not debarring others from getting citizenship here. We merely say that we have no other country to look to for acquiring citizenship rights and therefore we the Hindus and the Sikhs, so long as we follow the respective religions, should have the right of citizenship in India and should be entitled to retain such citizenship so long as we acquire no other. I do not think this claim is in any way non-secular or sectarian, or communal. If anybody says so, he is, to say the least, mistaken. I think my description (amendment) covers every possible case. The only thing we are agitated about is that our people, thinking that Pakistan would be a happy country, went there and came 'back, Why should we recognise them by means of this or that provision in the Constitution ? Because, nothing of the sort is necessary. So long as they are resident in India when the Constitution is promulgated and they are born of Indian parents, they should be entitled to citizenship rights without any fresh registration or evidence. That is what is contemplated in my definition. I hope the House will accept it." Endorsing this amendment, Prof. Shibban Lal Saksena said: We should not be ashamed in saying that every person who is a Hindu or a Sikh by religion and is not a citizen of another State shall be entitled to citizenship of India. That will cover every class whom we want to cover and will be comprehensive. The phrase 'Secular' should not frighten us in saving what is a fact and reality must be faced. I therefore think that Dr. Deshmukh has given a very good suggestion. R. K. Sidhwa, another member, said: Then my honourable Friend, Dr. Deshmukh, has suggested an amendment to this very article wherein he wants that the Sikhs and Hindus wherever they are born and whenever they desire shall be entitled to become citizens of India. When he has mentioned names of communities, I would like to point out to you, Sir, and the Members in this House, that there are nearly 16,000 Parsis who are professing the faith of...

When Constituent Assembly Defeated A Move To Define Citizenship On Religious Lines

Ashok Kini

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