When Constituent Assembly Defeated A Move To Define Citizenship On Religious Lines 16/12/19, 11:43 AM

When Constituent Assembly

Defeated A Move To Define
Citizenship On Religious Lines
Ashok Kini 15 Dec 2019 9:53 PM

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.

Also Read - 'Brazen Attack On Fundamental Rights': Congress Leader

Jairam Ramesh Moves SC Challenging Citizenship Amendment Act

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.

Also Read - Jammu And Kashmir: Dubious Call Of Integration

The discussion with respect to drafting of Article 5 of the Constitution

took place in Constituent Assembly on 10-12 August 2019. The Article 5,
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When Constituent Assembly Defeated A Move To Define Citizenship On Religious Lines 16/12/19, 11:43 AM

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

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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

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When Constituent Assembly Defeated A Move To Define Citizenship On Religious Lines 16/12/19, 11:43 AM

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
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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

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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.

The full debate can be read here: 10 August 1949, 11 August 1949, 12
August 1949

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