Understanding the Constitutional Provisions on Citizenship in the Current Context

A furious debate is on in the country over the Citizenship (Amendment) Act, 2019. Protests erupted in parts of the country and, unfortunately, some of them turned violent. Lives were lost and public and private property damaged. But there have also been many voices in favour of the amendment. Framers of the Constitution, in which the issue of citizenship has been discussed in Part II, must never have imagined that the subject would one day lead to such a grave situation, and that too more than seventy years after Partition, an event which had, in the first place, triggered the need for a law on citizenship.

This Part, titled ‘Citizenship’ (comprising Articles 5-11), defines a citizen of India and deals with matters of domicile and migration as well, given the context in which it was framed. Article 5 says: “At the commencement of this Constitution, every person who has his domicile in the territory of 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 such commencement, shall be a citizen of India.”

Article 6 proceeds to offer flexibility. “Notwithstanding anything in Article 5, a person who had 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…” — after which it provides two options. One, he or either of his parents or any of his grandparents was born in India as defined in the Government of India Act, 1935. Two, in case where such a person has migrated before July 19, 1948, and has been a resident in the territory of India since the date of his migration.

But then comes Article 7, which lays down that any person who has migrated to Pakistan from India after March 1, 1947, shall not be considered an Indian citizen. However, the provision would not apply to persons who, having migrated to Pakistan, return to India under a permit for resettlement or permanent return issued by a competent authority. In other words, such an individual would get an Indian citizenship. The migration here refers to the period between March 1, 1947 and January 26, 1950. To set any possible confusion to rest, Article 9 says that no person shall be a citizen of India by virtue of Article 5 or deemed to be a citizen of India by virtue of Articles 6 and 8, “if he has voluntarily acquired the citizenship of any foreign state”.

However, it is Article 11, the last in Part II of the Constitution that clears the ground for Parliament to enact laws to give or withdraw Indian citizenship to individuals. It reads: “Nothing in the foregoing provisions of this Part shall derogate from the power of Parliament to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship.” According to the Shorter Constitution of India by Durga Das Basu, “The Constitution does not intend to lay down a permanent or comprehensive law relating to citizenship of India”. Using this provision, Parliament enacted the Citizenship Act of 1955.

The Citizenship Act has been amended on previous occasions too, and the 2019 amendment is only the latest in the series. It was amended to provide a specific set of persons the citizenship of India, and once to make it gender-neutral. The most significant amendments have come to Section 6 of the Act, which deals with citizenship by naturalisation. Section 6A was introduced pursuant to the Assam Accord of 1985. In 2004, Section 7A was brought in on the issue of registration of Overseas Indians. Citizenship Rules too have been amended from time to time.

The subject of citizenship was contentious even when the Constitution was being drafted, and the Constituent Assembly debates are a reflection of that. Intervening in a discussion on August 10, 1949, on Articles 5 and 6 (Constituent Assembly Debates, Lok Sabha Secretariat, Volume IX, Pg 347), BR Ambedkar remarked: “Mr. President sir, except one other Article in the Draft Constitution, I do not think that any other Article has given the Drafting Committee such a headache as this particular Article. I do not know how many drafts were prepared and how many were destroyed as being inadequate to cover all the cases which it was thought necessary and desirable to cover. I think it is a piece of good fortune for the Drafting Committee to have ultimately agreed upon the draft which I have moved, because I feel that this is the draft which satisfies most people, if not all.”

A number of amendments were proposed by various members of the Constituent Assembly (CA) with a view to fine-tuning the provisions, so much so that the president of the CA had some trouble shuffling them according to the needs of the debate. The discussion on the subject stretched to three days, leading one member, Naziruddin Ahmad, to remark that “a long adjournment might make us forget everything”. The Draft Constitution listed five categories of people that could be conferred the citizenship of India: Persons born and domiciled in India, persons not born in India but domiciled in India, persons who are residents of India but migrated to Pakistan, persons resident in Pakistan and have migrated to India, and, persons who or whose parents are born in India but are residing outside India.

Various opinions in favour of and against the draft provisions were expressed by the members. PS Deshmukh noted his reservations in the following words: “…I am afraid that the definition and the Article… would make Indian citizenship the cheapest on earth.” He went on suggest that a provision be made to say that every Hindu or Sikh who is not a citizen of any other country should be entitled to be a citizen of India, adding, “We have seen the formation and establishment of Pakistan. Why was it established? It was established because the Muslims claimed that they must have a home of their own and a country of their own. 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.”

The debate also the saw expression of bizarre, if theoretically possible, situations. A member, Naziruddin Ahmad, said that as per the proposed Articles, if a foreign lady were to give birth to a child mid-air over Indian territory, the child, being born in India, can claim Indian citizenship. On the other hand, the mother and the father of the child would present their respective domiciles. In such a situation, “all the three countries will compete with one another and claim the child to belong to his or her own nationality”.

Yet another member, Jaspat Roy Kapoor, while speaking on an amendment which sought to offer Indian citizenship to those who had moved to Pakistan following Partition but had returned to India, opposed the change in the following words: “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…” When another member (Brajeshwasr Prasad) countered him by suggesting that many of those who had gone to Pakistan may have done so in panic over the communal disturbances, Kapoor retorted, “May be that some of them or quite a good number of them went to Pakistan at that particular time because of the disturbances here, but has my honourable friend any doubt that even if there were no disturbances, many of them, almost all of them, would have gone away to Pakistan, because they were themselves demanding that there should be a transfer of population?”

Coming to the present, we have not heard the last word on the latest amendment. Critics of the new law have taken the matter to the Supreme Court, challenging it as being violative of Article 14 of the Constitution, which guarantees the Right to Equality. But the Article also does not take away the legislature’s right to classify persons for legitimate purposes. This has been upheld, in the State of Bombay versus Balsara FN (1951) verdict of the Supreme Court. The court also said that every classification is likely to, in some degree, produce inequality, but “mere production of inequality is not enough”. Differential treatment, per se, does not violate Article 14, nor does it become obnoxious when it deals equally with members of a well-defined class. That said, the issue is a legal minefield and we must wait for the court’s verdict for further clarity.

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