CAB: Against the Constitution

The Citizenship (Amendment) Bill has been introduced and is being debated in Parliament. Among other things, the Bill states that those who cross the border to India from Afghanistan, Bangladesh and Pakistan and belong to ‘minority communities’ in those countries, namely Hindus, Sikhs, Buddhists, Jains, Parsis and Christians, would not be treated as illegal immigrants even if they have entered the country without valid documents. The bill does not extend the same benefit to Muslim immigrants.

The justification given is that migrants from the communities included in the bill face discrimination and religious persecution in those three countries. This justification and distinction between Muslim and non-Muslim migrants is important as an ostensible defence against the charge of violation of Article 14 of the Indian Constitution, which talks about equality and applies to everyone within Indian territory, not just citizens. It can be argued that the justification of religious persecution creates a distinction amongst migrants, which should pass the test of both ‘intelligible’ differentiation and ‘reasonable’ classification.

The socio-political justification, not mentioned in the bill, is the narrative that Hindus, and other related religions, have no place other than India to go to, and hence it is justified to offer them a way to come back to their homeland. Of course, this is not true of Christians, or even Parsis. Hence, the exclusion of Muslims specifically is problematic.

Even if this bill is legally justified, does it conform to the values espoused by the framers of the Constitution? Citizenship conceptually means recognition given to a person acknowledging their membership of a community as well as the rights and duties accruing to them due to this membership. In the Constituent Assembly Debates (CAD), two concepts of citizenship were discussed, one based on birth, i.e., ‘jus soli’, and one based on race, i.e., ’jus sanguinis’. The original constitutional provisions, from Article 5-11 reflect this approach, with a particular focus on place of birth and domicile. This position was expanded by the Citizenship Act 1955 and its subsequent amendments in 1987 and 2003, which allowed for citizenship based on race as well as through registration.

Even during the CAD, the concern about India being a refuge for migrants of Hindu origin was brought up. PC Deshmukh moved an amendment stating, “Every person who is a Hindu or a Sikh and is not a citizen of any other State shall be entitled to be a citizen of India.” This was further reflected in the discussions around Articles 6 and 7 of the Constitution. Article 6 provided citizenship for those who had migrated to India after Partition, predominantly Hindus and Sikhs. Article 7 referred to those who had gone to Pakistan at that time but wanted to come back to India, predominantly Muslims.

As per the draft article proposed by B R Ambedkar, those who migrated from India to Pakistan after March 1, 1947 lost the rights to be citizens of India. An exception was made for persons who returned to India with a permit for resettlement or permanent return issued by government authorities. This clause was termed “obnoxious” by Jaspat Roy Kapoor, “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…”

One of the main issues that some members had with the clause was that the property of those who had gone to Pakistan, had been given over to refugees coming from Pakistan. Now, if those original owners were to come back and be accepted as Indian citizens, it raised the possibility of Hindu and Sikh refugees being deprived of the property.

Interestingly, Thakur Das Bhargava, while supporting the contentions made by Kapoor stated that “If any nationalist Mussalman who is afraid of the Muslims of East Pakistan or West Pakistan comes to India, he certainly should be welcomed. It is our duty to see that he is protected. We will treat him as our brother and a bona fide national of India,” which shows that the possibility of recognizing persecuted Muslims as citizens of India was discussed.

The concerns were dealt with by Jawaharlal Nehru, who dismissed all talk of appeasement of Muslims, “This government will not go a hair's breadth to the right or to the left from what they consider to be the right way of dealing with the situation, justice to the individual or the group.” These concerns were also rejected by Alladi Krishnaswami Ayyar, “We are plighted to the principles of a secular State. We cannot on any racial or religious or other grounds make a distinction between one kind of persons and another, having regard to our commitments and the formulation of our policy on various occasions.”

With reference to the economic concerns raised by Kapoor, a response was given by Brajeshwar Prasad, “We are not a nation of shopkeepers; we cannot dethrone God and worship Mammon. Whatever the economic consequences may be, we want to stand on certain principles. It is only by a strict adherence to certain moral principles that nations progress…I see no reason why a Muslim who is a citizen of this country should be deprived of his citizenship at the commencement of this Constitution, especially when we are inviting Hindus who have come to India from Pakistan to become citizens of this country.”

The Constitution, as the document signifying the culmination of the debates, reflects definite positions on specific issues. We can see that distinctions based on religion, for the question of citizenship, were discussed and rejected in the Constituent Assembly. The ‘jus soli’ principle initially adopted has been diluted over the years, with ethnicity being given equal, if not more prominence than birth, for citizenship. However, the current bill is the first instance where the question of being ‘Indian’ or belonging to the ‘Indian’ race is being exclusively defined as being non-Muslim. This is where the amendment goes against the spirit of the Constitution and against the conception of ‘India’ as imagined by the learned men and women who framed it.

(The writer is Program Manager-Nyaaya, an initiative of the Vidhi Centre for Legal Policy)