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 Zorastrian outside India; there are about 12,000 in Iran and those. persons who are in Iran are professing the same faith, as the Parsis are professing in India and I know that article 5-B covers the point which my honourable friend Dr. Deshmukh desires wherein it is laid down that even the grand-fathers and their Grand-fathers if they are born in other countries, if they desire to become citizens of India, can so become. Dr. Deshmukh's amendment causes a wider privilege and right. Although I am not on this amendment if the Drafting Committee is going to consider this, I would like, them to bear in mind that there are other communities and merely to mention the Sikhs and Hindus would not I think be proper. That is only point that I wanted to bring to the notice of the Drafting Committee. There are 12,000 Parsis who are professing the same faith as we here; but their grandfathers are born in Iran and several of them come to Bombay and to other parts of India; they would like sometimes to make India their home. It is a far-fetched point that I am making, but if at all it is going, to be, considered, then my point is this that we need not mention necessarily 'any community'; if we do so it would look as if we are ignoring other communities which do require attention and therefore, I place this view-point before the House, if they at all want to take this amendment into consideration.
Sardar Bhopinder Singh Man had this to say: Sir, in the 'definition of citizenship' which covers fairly extensive ground the view-point of Hindu and Sikh refugees has been met to some extent by the Drafting Committee whom I congratulate on that account. But, as usual, a weak sort of secularism has crept in and an unfair partiality has been shown to those who least deserve it. I was saying that the Hindu and Sikh refugees view-point has been met to some extent, but not wholly. I do not understand why the 19th July 1948 has been prescribed for the purpose of citizenship. These unfortunate refugees could not have foreseen this date; otherwise they would have invited Pakistan knife, earlier so that they might have come here earlier and acquired citizenship rights. It will be very cruel to shut our borders to those who are victimised after the 19th July 1948. They are as much sons of the soil as anyone else. This political mishap was not of their own seeking and now it will be very cruel to place these political impediments in their way and debar them from coming over to Bharat Mata. Our demand is that any person, who because of communal riots in Pakistan has come over to India and stays here at the commencement of this Constitution, should automatically be considered as a citizen of India and should on no account be made to go to a registering authority and plead before him and establish a qualification of six months domicile to claim rights of citizenship. There may be victims of communal frenzy in our neighbouring State hereafter; it is not only a possibility but a great probability in the present circumstances. Any failure of the evacuee property talks may lead to a flare-up against Hindus and Sikhs in Pakistan, and we must have a clause that these people will in no case be debarred from coming over and becoming citizens of this Union.
Criticizing the proposal by Dr. Deshmukh, Mahboob Ali Baig Sahib, said: It is very strange that Dr. Deshmukh should contemplate giving citizenship rights only to persons who are Hindus or Sikhs by religion. He characterised the provision in the article granting citizenship rights as ridiculously cheap. I would say on the other hand that his conception is ridiculous. Therefore let us not follow the example of those countries which we are condemning everywhere, not only here but also in the United Nations and complaining that although Indians have been living in those countries they have not been granted citizenship rights there.
Jawaharlal Nehru, though did not directly talk about the proposal, said thus during the course of his address: "Now all these rules naturally apply to Hindus, Muslims and Sikhs or Christians or anybody else. You cannot have rules for Hindus, for Muslims or for Christians only. It is absurd on the face of it;"
Alladi Krishnaswami Ayyar said: We are plighted to the principles of a secular State. We may make a distinction between people who have voluntarily and deliberately chosen another country as their hove and those who want to retain their connection with this country. But 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 amendment moved by Dr. Deshmuk was taken up first for voting on 12th August 1949 and it was negatived.