Development of Citizenship Law: Through the Lens of Partition

Authored by Simran Sidhu, a 3rd-year law student at NALSAR University of Law, Hyderabad

Citizenship Amendment Act

Introduction

The partition of India in 1947 resulted in one of the largest movements of people in history. Communities shifted across the border due to fear and violence. In West Punjab and East Bengal, Sikhs and Hindus moved to Indian territory, while Muslims from these areas relocated to West and East Pakistan. Government figures suggest that around 14 million people crossed the borders as a result of the Partition. Neither the Crown nor the Government had anticipated the mass migrations of people. Apart from the violence that ensued, uncertainty also arose around classifying the migrants into citizens of India or Pakistan.

Prior to the announcement of partition in June 1947, there hadn’t been much deliberation in the constituent assembly on the clauses relating to citizenship. Citizenship was discussed under the debates on Fundamental Rights. However, the announcement of Partition triggered a crisis in the assembly, especially over how to define who qualifies as a citizen of India. Nehru himself remarked that no other clauses had been given as much attention and deliberation as the citizenship articles in the Constitution. The citizenship clauses had immediacy and self-limiting quality: they were drafted with a purpose to solve the crisis at that particular time. The mass migrations meant that the assembly had to quickly determine who would be considered a citizen when the constitution came into effect. 

The urgency also shaped the substance of citizenship provision to some extent. Parliament was given very wide powers to make laws on this subject, stemming from the fact that the immediate solutions would not be adequate to future challenges. Article 11 of the Constitution explicitly states that no Section under Part-II of the Constitution derogates the power of Parliament to make laws relating to citizenship. These powers were later used by the Parliament to significantly alter the provisions on the acquisition of citizenship, also causing major controversies and protests in different parts of the country.

Constitutional Provisions on Citizenship

Though scholars like Nirjara Gopal argue that Indian citizenship during the making of the Constitution endorsed the principle of jus soli, some work also supports the view that citizenship endorses the variations of both the jus soli and jus sanguinis. Under the Jus soli, citizenship is conferred depending on the birth within the country’s territory, while under jus sanguinis, citizenship is granted based on parental lineage, regardless of their birthplace. Fear that Muslims who had left for Pakistan might return and claim Indian citizenship on the basis of their birthplace was one of the reasons that led to the dilution of jus soli principles in the constitution. Article 5, which lays out the criteria for citizenship at commencement, reflects this balanced approach. To qualify, a person needed to have a domicile in India, and additionally either born here, born to parents who were, or had lived in India for not less than five years before the Constitution coming into effect.

The Constituent Assembly debates reflect the impact of partition on citizenship provisions. Article 5, which deals with citizenship when the Constitution came into effect, was proposed with different clauses in the Constituent Assembly. Though clauses a and b were consistent across drafts, clause c was one which saw various versions, ranging from religious qualifications for being a citizen, to the element of being a nationalistic. Attempts were made by various assembly members to increase the period of 5 years to a minimum of 12 years under clause c. The compromise that was reached was that domicile of India was required, along with the other requirements, to become a citizen.

Refugee-Returnee Distinction

Article 6 and Article 7 are special provisions created specifically to deal with the mass migrations, which also reflect the political and communal divisions of that time. Article 6 concerns individuals migrating to India from Pakistan, primarily Hindus and Sikhs. In the constituent assembly, they were labelled as ‘refugees’, people who had been kicked out of their homes. There was no question about their loyalty towards India. Therefore, Article 6 saw no opposition and is very straightforward. It simply states that people who migrated to India before July 19^th, 1948, shall be deemed as citizens of India.

On the contrary, Article 7 witnessed rounds of debates around its substance. It deals with the persons who had left India for Pakistan after March 1^st 1947, and subsequently came back.  They were mainly Muslims and were called ‘migrants’ in the constituent assembly. This labelling was a bit deeper than it appears on its surface. ‘Migrant’ meant voluntary movement and political alignment with Pakistan. This led to the framing of Article 7 as an exception to Article 6: a person who had migrated to Pakistan could not automatically be a citizen on returning to India, unless they were issued a resettlement permit by the authorities. Under Article 6, the presumption of loyalty to India was in the favour of refugees, while under 7, the presumption was against the returnees and each individual had to prove their case before the authorities for Indian citizenship.

The framing of Article 7 also led to judicial pronouncements discussing the concepts of domicile and migration. Did migrating to Pakistan mean acquiring a Pakistani domicile? Domicile requires two elements: animus manedi and physical presence. Animus Manedi means the intention to reside in the place permanently. In the context of Partition, issues arose about whether the people migrating to Pakistan had the intention to do so or were forced to migrate as a result of communal violence.

In Central Bank of India v. Ram Narain, the accused was put on trial for the offence committed in Pakistan. The issue was whether he was a Pakistani or an Indian national at the time of the commission of the offence, because if he was a citizen of Pakistan, the Indian courts could not prosecute him. It was under this case that the court went into detail to discuss the elements of domicile and held that both the animus manedi and factum are required to establish the domicile claim. However, when analysing future cases on the same topic, the recurring theme was the relationship between domicile and migration. Courts took a departure from Ram Narain, as the position now was that for a person to be covered under Article 6 or 7, as they held that migration under Articles 6 and 7 required only physical movement, with no need to establish a motive or intent to reside.

After the Citizenship Act came into force, the conundrum around Article 7 got more complex. People wanting to return to India were asked by the Indian High Commission in Pakistan to obtain Pakistani passports. Meanwhile, the citizenship rules notified under the Citizenship Act considered the acquisition of a passport as sufficient proof of citizenship of that particular country. The same view was later propounded by the different High Courts, and the Apex Court in Izhar Ahmad Khan v Union of India, wherein it held that Rule 3 was not ultra vires of fundamental rights and that obtaining a foreign passport creates an irrebuttable presumption to the acquisition of foreign citizenship. The citizenship of petitioners in the Izhar Ahmad case was revoked on the grounds that they had acquired Pakistani passports. While dealing with the petitioner’s challenge to the constitutionality of Rule 3, the court held the Rule to be valid.

Apart from the political disharmony, the framing of Article 7 was also influenced by economic considerations. Citizenship is not merely a legal status; it also confers a bundle of rights on a citizen, with the right to Property being one of those rights. Constituent Assembly feared that if the returnees were granted citizenship, they would make claims to their property. This would have had two major consequences: Firstly, many properties abandoned by the people who had moved to Pakistan were allotted to the minorities who had moved to India (primarily Hindus and Sikhs). Allowing the returnees to reclaim their properties would have resulted in conflict with the new owners, destabilising already fragile relations. Secondly, some of the assembly members feared that the areas dominated by the ‘Muslim returnees’ would create instability inside India.

While the constitutional provisions governing citizenship appear formally religion-neutral/ secular, the assembly debates surrounding them had a communal tone. This created a dualism in the citizenship laws: in text, the laws were framed in secular terms; in reality, they were largely sectarian, indicating that the social relationship of belonging to a specific community was linked to the legal relationship between the individual and the state.

Apart from the population migrating as a result of partition, the assembly also had to consider the other category of people whose status was unclear, i.e., Indians residing abroad. During World War II, Indians serving in the British Indian Army were stationed in various countries, including the UK, China, and Israel. The question which arose was whether these individuals were to be considered as foreign nationals or Indian citizens. Provisions were introduced allowing them to register with the Indian consulars abroad. Still, the requirements for registration saw increasing strictness as assembly members were fearful that Pakistani nationals residing abroad could obtain Indian citizenship through this provision.

The controversies around the citizenship provisions continue to echo in recent debates on citizenship. The Citizenship (Amendment) Act, 2019, and the National Register of Citizens reflect the same anxieties surrounding migration and demographic change, as seen in Article 7 of the Constituent Assembly. While the CAA provides a path to citizenship for specific religious communities from neighbouring Muslim-majority countries, the NRC attempts to identify individuals who cannot prove their citizenship through documentary evidence. Together, these proposals have brought the debates around the basis of Indian citizenship back into the limelight. The controversies surrounding these proposals raise the same thematic and doctrinal questions that emerged during Partition regarding who qualifies as a citizen.

Conclusion

The development of citizenship law showcases that the partition still haunts the legislation on the subject. While the laws formed in the late 1940s were a result of the formation of new states with a mass exodus. The categories of ‘refugees’ and ‘returnees’ were used to mark the people as loyal or disloyal to the country. Although these differences are not explicitly marked as religious ones in Articles 6 and 7, the debates surrounding them reflected the communal tensions that existed at that time.

The situation has been the same in the legislative amendments brought in to address the movement to Assam, or claims of religious minorities in neighbouring states, wherein citizenship laws often favour certain communities over others, with the difference being that statutory language shifting from secular to selectively religious with amendments over time.