THE Citizenship Amendment Act 2019 amends the Citizenship Act 1955 and makes provisions for granting citizenship to ‘illegal migrants’ belonging to certain religious communities (specified in the Act as Hindus, Sikhs, Buddhists, Jains, Parsis and Christians) from Afghanistan, Bangladesh and Pakistan. The amendment leaves out by implication Muslims (and Jews) as a residual category to claim citizenship by reiterating a misplaced narrative of Partition, without comprehending the inclusionary and yet complex framework of citizenship in the Constitution and the Citizenship Act, 1955.

If one is to make sense of this exclusionary amendment to the Citizenship Act, she only needs to look at the trajectory of construction of Indian citizenship as a legal status, in the Constitution, the Citizenship Act 1955, and in the adjudication of citizenship claims of people who migrated from Pakistan to India in the first few decades after independence. More importantly, one needs to see how the liberal framing of citizenship on the principle of jus soli (birthright citizenship) at the first meeting of the Constituent Assembly in December 1946, gradually spiralled into the more conservative jus sanguinis (citizenship by blood) later, responding first to the demands and complexities of Partition, and then, to the postcolonial enterprise of the Indian nation state.

Historians of legal citizenship in India have indicated¹ that our citizenship regime was deeply influenced by the longue durée of Partition. The shadow of the migrant is ever present in this historical narrative of legal citizenship from the constitutive moment that is in the Constituent Assembly during the drafting of the citizenship clause and later at the Citizenship Act of 1955, to the amendment of the Citizenship Act in 1986 following the Assam Accord to the amendment of the Citizenship Act in 2003 resulting in the insertion of the category of the overseas citizen of India.

The figure of the migrant has been fundamental to these series of amendments exhibiting the shifts in the ideological basis and institutional practices of citizenship in India. Indeed, the Indian Constitution which was drafted in the shadow of the Partition of British India also spoke of citizenship in the language of migration. Subsequently, the Citizenship Act of 1955, the Citizenship Rules of 1956 framed under it, while providing for a larger legal framework of citizenship, nonetheless continued to refer to the migrant while providing for registration of displaced persons, evacuees and returnees from Pakistan on a permanent resettlement visa as citizens of India. Partition thus constructed the ‘authentic citizen’, ‘minority citizen’ and the non-citizen who was sometimes the evacuee, and sometimes the refugee.

 

The controversy generated by the provisions on citizenship in the draft Constitution compelled Nehru to exasperatedly admit that the provisions had received far more thought and consideration than any in the Constitution (CAD IX, 3 September 1949:938). The seven articles that constitute the chapter on ‘Citizenship’ in the Indian Constitution were included neither by design nor as an afterthought, but as an essential and exasperating exercise (a ‘headache’ in the words of B.R. Ambedkar, because this section took two years to be finalized), owing to the intervention of Partition and the necessity to define citizens who would bear certain rights in the new republic.

While members readily accepted draft Article 5A (Article 6² of the Constitution of 1950), in respect of the (mostly Hindu) migrants from Pakistan, often referred in the debates as ‘our refugee brethren’, draft Article 5AA (Article 7³ of the Constitution of 1950), was denounced by several as the ‘obnoxious clause’⁴ as those it was most likely to protect were (impliedly) Muslims. However, the Constituent Assembly after a prolonged debate did settle for a jus soli basis of citizenship as being ‘enlightened, modern and civilized’ as opposed to a racialized jus sanguinis basis of citizenship.⁵

 

The final citizenship articles nonetheless indirectly inscribed the dividing lines of Partition. Ambedkar admitted that the evolving articles on citizenship contained a liberal conception of citizenship as well as an ethnonationalist notion. The uneasy alliance was made possible by providing an inclusive principle for citizenship but provisos that made possible exclusionary ordinances for the control of population movement in the twilight hours of Partition. The permit system introduced in July 1948, was intended for controlling migration in the second phase.

 

Nehru had outlined the logic of the permit system as follows –

‘Our general rule as you will see in regard to these partition consequences, is that we accept practically without demur or enquiry that great wave of migration which came from Pakistan to India. We accept them as citizens up to sometime in July 1948. It is possible, of course, that in the course of that year many wrong persons came over, whom we might not accept as citizens if we examine each one of them; but it is impossible to examine hundreds of thousands of such cases and we accept the whole lot. After July 1948, that is about a year ago, we put in some kind of enquiry …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; but in effect we say that we allow the first year’s migration and obviously that huge migration was as a migration of Hindus and Sikhs from Pakistan. The others hardly come into the picture at all. It is possible that later, because of this permit system, some non-Hindus and non-Sikhs came in.’ (Emphasis mine)

Nehru assured that ‘in the case of all these permits a great deal of care has been taken in the past before issuing them.’ Needless to say, the permit system substantially limited the number of Muslim citizens in India.

 

In the final draft, the Constituent Assembly made a distinction between five categories of people in the citizenship provisions. First, persons domiciled in India and born in India, i.e. persons who formed the bulk of the population of India at the time of independence. The period of domicile was five years (minimum). Subsequently, case laws⁶ interpreted that mere domicile was not enough and that the person has to fulfil one of the other conditions in the article. Second, persons who are domiciled in India, i.e. persons not born in India but who have resided in India e.g. subjects of Portuguese or French Settlements in India. Third, persons who were residents in India but who migrated to Pakistan. Fourth, persons resident in Pakistan and who migrated to India. Fifth, persons who or whose parents were born in India but were residing outside India and those who migrated to Pakistan, but who returned to India after going to Pakistan.

 

Authenticity of citizenship nevertheless became a lottery of one’s domicile during Partition on the evidentiary logic of identification of intent. The citizenship regime following Partition thus unwittingly created hierarchies in citizenship. The minority citizen became a hybrid subject who had to display his intention to ‘stay’ and who was by law required to be identified by documents. The evacuee property legislation and refugee rehabilitation measures often pitted ‘evacuee’ rights against ‘refugee’ rights making it impossible for the refugee subject to seek protection under both.

At the same time, communal riots and tensions across the border, followed by mass migration of refugees made the government on both sides encounter the problem of dealing with ‘stranded refugees’, resulting in the reframing of citizen and non-citizen categories. The basis of citizenship based on the principle in English law of jus soli, or birth within the realm, gradually gave way to jus sanguinis.

The change in status happened over time, with what Niraja Gopal Jayal describes as a ‘relatively concise specification’ making way for a ‘comprehensive and increasingly detailed account of Indian citizenship.’ This paperwork citizenship or documentary citizenship (to borrow from Kamal Sadiq), in turn prodded the state to create more classifications and exceptions, allowances and exclusions with each amendment to the citizenship law over the decades, drawing more and more from the legacy of Partition’s religious divide. The most recent citizenship Amendment Act 2019, drawing from this logic, contemplates preferential citizenship by granting citizenship only to non-Muslim immigrants and thus marking a complete shift towards an ethno-national conception of citizenship as opposed to a civic-national one. As a corollary to this, the soon to be instituted pan Indian NRC project contemplates statelessness for disfavoured groups, that is Muslim citizens and the impossibility of their inclusion under the CAA 2019.

 

While partition and the consequent state formation determined the issue of ‘legal belonging’ which was articulated in the language of the Constitution, the judicial determination of citizenship became complex, because Part II of the Constitution containing provisions that would determine ‘citizenship’ did not however define the same. The courts consequently had to determine the many meanings of ‘migration’ and ‘domicile’ to comprehend the complexities of legal belonging and an assortment of methods from probing the evidentiary value of official documents to prodding the litigant’s ‘intention’ to stay, were used to adjudicate and establish legal belonging. The politics of religious identity also became an important ingredient in the framing of the political state even if it had so far distanced itself from formations of the constitutional state. Since the 2000s, there has been a discernible shift in that when the judiciary started speaking the language of the political state with confidence.

The process of ascribing an identity of Indian citizen to the non-citizen Other or the migrant depended on the evidentiary logic of identification of intent, the animus manendi, although courts were careful to observe that both factum and animus were essential to determine citizenship status. Citizenship related cases in the High Courts and the Supreme Court in the early years reveal that these were invariably tied to the fact of Partition, when a refugee subject or a migrant subject found himself on the wrong side of the border at the time of Partition or seemingly betrayed loyalty by crossing the border. Courts were called upon to examine if the litigant intended to migrate and then changed his mind, and if so, did he intend to stay here now, if he applied for documents (like Passport) after migrating, and what that would be indicative of.

 

The evidentiary value of official documents was often scrutinized by the courts to determine citizenship. These included, not only passports, but over time ration cards and voter cards as well. Individuals often acquired Pakistani passports to return to India. The approach taken by courts in the initial years was a guarded one where the evidentiary value of a document was not in itself the sole factor. The courts often sought to find out the intention of the individuals who acquired a pass-port and what going from one place to another implied and if it were the same as ‘migration’.

In Badruzzaman v State (1951), the petitioner, a resident of Rae Bareli, left his family and went to Pakistan in 1948 and reentered India on a temporary permit in 1949 to get married and ‘fetch his family’. His wife refused to accompany him to Pakistan and consequently he sought extension of his permit. The court records indicate that his further attempts to extend his stay and get himself registered as a citizen of India was unsuccessful and he was arrested in 1949.

The accused stated in the trial court that he did not wish to return to Pakistan, and that he came to India on a temporary permit only because a permanent permit was not available. The court explored whether his act of going to Pakistan after the cutoff date amounted to migration within the meaning of Article 7. The court noted that the expression ‘migration’ embraces in its scope two concepts namely, ‘going from one place to another’ and ‘the intention to make the destination a place of abode or residence in future.’ In addition to this the court observed that ‘it has the notion of transference of allegiance from the country of departure to the country of adoption.’

The court concludes –

‘Viewed in the background of the great exodus of the Muslim population from Indian territory to Pakistan and of the Hindu population from Pakistan to India and the historical events which led to the partition of the country and the establishment of the two dominions on 15-8-1947 – matters which are of common knowledge and of which judicial notice can be taken without specific proof – the facts proved would undoubtedly indicate that when the applicant left India in May 1948, he did so in order to settle down in Pakistan and to adopt it as his home country.’

 

Incidentally, documents produced by the petitioner in support his submission that he ardently desired to return to his father and that his efforts to obtain permission for coming to India were repeatedly unsuccessful, were ignored by the court which claimed that much importance cannot be attached to these letters ‘for all that they indicate is an anxiety, which was natural enough in the circumstances of the case, to see the members of his family.’

In Izhar Ahmad Khan v. Union of India⁷ (1962) the court dealt with several questions namely, the rights to citizenship, issues of Partition related citizenship, value of passports in determining citizenship and the question of domicile versus citizenship. In this case a batch of three petitions came before the Supreme Court on the question whether passport was a conclusive proof of voluntarily acquiring citizenship of a country. The court ruled that the act of obtaining a passport is conclusive proof of voluntarily acquiring citizenship of a country and hence an automatic ground of termination of Indian citizenship under Section 9(2) of the Citizenship Act, 1955, which dealt with the termination of citizenship.⁸

 

Needless to state, citizenship claims on either side of the border, in the early years were entwined with religion and property. Hence, the claims of ‘returning’ Muslim migrants were adjudicated on a different pedestal than the claims of the Hindu ‘refugees’. This is well documented in the early years of citizenship claims as well as in the adjudication of evacuee property, which was later christened as ‘enemy property’. Judicial archives of the early years of citizenship claims by Muslims who migrated from Pakistan to India demonstrate that an enormous affective burden lay on the claimants to establish loyalty, belonging and allegiance.

 

Footnotes:

1. Anupama Roy and Niraja Gopal Jayal’s works are invaluable to historicize the legal citizenship regime in India. See Anupama Roy, Mapping Citizenship in India. Oxford University Press, 2010 and Niraja Gopal Jayal, Citizenship and its Discontents: An Indian History. Harvard University Press, 2013. See also O. Shani, ‘The Limits of Inclusion’, in How India Became Democratic: Citizenship and the Making of the Universal Franchise. Cambridge University Press, Cambridge, 2017, pp. 208-247. doi:10.1017/9781107705722.007

2. Rights of citizenship of certain persons who have migrated to India from Pakistan Notwithstanding anything in Article 5, a person who has migrated to the territory of India from the territory now included in Pakistan shall be deemed to be a citizen of India at the commencement of this Constitution if (a) he or either of his parents or any of his grandparents was born in India as defined in the Government of India Act, 1935 (as originally enacted); and (b) (i) in the case where such person has so migrated before the nineteenth day of July, 1948 , he has been ordinarily resident in the territory of India since the date of his migration, or (ii) in the case where such person has so migrated on or after the nineteenth day of July, 1948, he has been registered as a citizen of India by an officer appointed in that behalf by the Government of the Dominion of India on an application made by him therefor to such officer before the commencement of this Constitution in the form and manner prescribed by that Government: Provided that no person shall be so registered unless he has been resident in the territory of India or at least six months immediately preceding the date of his application.

3. Rights of citizenship of certain migrants to Pakistan Notwithstanding anything in Articles 5 and 6, a person who has after the first day of March, 1947, migrated from the territory of India to the territory now included in Pakistan shall not be deemed to be a citizen of India: Provided that nothing in this article shall apply to a person who, after having so migrated to the territory now included in Pakistan, has returned to the territory of India under a permit for resettlement or permanent return issued by or under the authority of any law and every such person shall for the purposes of clause (b) of Article 6 be deemed to have migrated to the territory of India after the nineteenth day of July, 1948.

4. Shri Jaspat Roy Kapoor (Punjab): ‘Why is it, Sir, that I consider it obnoxious? It says that those persons who migrated from India to Pakistan if, after 19th July 1948 they came back to India after obtaining a valid permit from our Embassy or High Commissioner, it should be open to them to get themselves registered as citizens of this country. It is a serious matter of principle. 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. We have no grudge against them...’

5. Alladi Krishnaswamy Ayyar, for instance while responding to the anxieties of some of the members of the Assembly about the said ‘obnoxious clause’ affirmed that – ‘There is no use dealing with this in the abstract. If a person has deliberately and intentionally chosen to be the citizen of another country, after the question had arisen, after Pakistan had been declared territory independent from India, then there is no point in conceding citizenship right to such a person. But this proviso takes note of this important fact that the Government of India have permitted a certain number of people to come and settle down here after being satisfied that they want to take their abode here and in no other country, and that they look upon this country as their own. Having given that assurance, it would be the grossest injustice on the part of the Government of India now to say that they are not entitled to the rights of citizenship of India. The proviso safeguards the dignity, the honour and the plighted word of the Government of India by saying that such a person will be entitled to the benefits of citizenship.’ (CAD, Vol. 9)

6. Abdul Sattar v State of Gujarat, AIR 1965 SC 810.

7. Court records indicate that Izhar Ahmad Khan, the first petitioner, a resident of Bhopal, claimed to be a citizen of India. On 20th August 1952, he was forcibly taken into custody by police, forced to board a train which took him to Pakistan where he was left at the border of India and Pakistan. He was asked to go to Pakistan despite his protests. At around the same time, his brother approached the High Court under Art. 226 of the Constitution for the issue of a writ in the nature of Habeas Corpus. The High Court pronounced a judgment in favour of the petitioner that he was born in India and was a citizen of India. The judge however, observed that the petitioner was in Pakistan in May and June 1952, therefore had contravened the provisions of S.3 of the Influx from Pakistan (Central) Act, he was liable to be removed physically from India under S.7 of the said Act. Having gone to Pakistan much against his will, Izhar Ahmad Khan tried to return to India, but he failed. Finally, he had to sign an application form in order to secure a passport to come to India. On returning, he applied for permission to stay in India permanently and his visa for stay in India was accordingly extended from time to time pending the final decision of his application. In the meantime, after the passage of the Citizenship Act in 1955, he applied for registration as a citizen. His application was rejected, and he was directed to leave India within seven days. Izhar Ahmad Khan filed a writ petition before the Supreme Court against this order. The second petitioner, Syed Hassan, also a resident of Bhopal, in 1951 went with his family to Karachi for some years after receiving news that his elder brother was critically ill. After returning, he applied to the government for permission to settle down in India permanently and pending the said application, he was granted long term visas. In 1959, however, he was served an order directing him to leave India. The third petitioner, Habib Hidayatullah, sailed from Bombay to Basra in Iraq in April 1950 in connection with his business, after which he accompanied his brother to Karachi in May 1963 for his treatment. On arrival at Karachi, the Pakistan authorities took away his Indian travel documents. Hidayatullah tried to obtain the assistance of Indian High Commission for returning to India but failed. Finally, he applied for and obtained a Pakistani passport with a view to return to India on a visa.

8. In fact, the judiciary over the years has consistently been cynical about the evidentiary value of passports, ration cards, voter identity and other forms of documentary evidence to establish citizenship. See Motimiya, Rahim Miya and Ors. v. The State of Maharashtra (2003) for example where Justice Deshpande, writing from the bench is dismissive of passports as proof of citizenship – ‘I do not find that the passport can be considered as conclusive proof of the plaintiffs being resident of citizenship. It may be that the passports are genuine, they are not false, bogus or fabricated, but the passports are issued on the basis of information supplied by the plaintiffs. Issuance of passports does not conclusively prove that the person, to whom the passport is issued, is the citizen of India and particularly when the plaintiffs filed suit for a particular declaration and injunction it was obligatory upon them to prove that they were born in India; that their parents were of Indian origin or had rights which were necessary to confer their citizenship of this country.’ It is noteworthy here that the parent law of citizenship, i.e. the 1955 Act prescribes only how citizenship is acquired but it neither defines a citizen nor links citizenship of the natural born ones to the possession of a document. It is only when citizenship is acquired by means of registration, naturalization or by descent, that it requires some recognition and registration.