The Debate on Citizenship in Constituent Assembly
The Constitution of India upon its adoption guaranteed fundamental rights to the citizens of India. It is but natural that the provision on who would be citizens of the newly independent nation produced one of the most contentious of discussions in the Constituent Assembly.[1]
Draft on Citizenship Provision
On 30 May 1947, Mr BN Rau, the Constitutional Advisor prepared the Memorandum on the Union Constitution and Draft Clauses. The Part on Citizenship consisted of three provisions.
The first provision prescribed who would be citizens of India on the date of the commencement of the Constitution.[2]
The second provision stipulated who would be citizens after the commencement of the Constitution.[3]
The provision recognised citizenship by birth, citizenship by naturalization and citizenship by descent. The third provision stipulated that further provisions governing the acquisition and termination of federal citizenship may be made by Federal law.[4] It was, however, observed in the Note appended to the Memorandum that the second clause was not necessary since
(a) it would be impossible to exhaustively define the conditions of nationality, birth or naturalisation in the Constitution; and
(b) there may be some difficulty in the interpretation of the provisions of legislation on citizenship if the provisions were entrenched in the Constitution.[5]
The ad-hoc Committee on Citizenship slightly altered the first clause[6], agreed to the second clause and recommended that in addition to the law making power on acquisition and termination of citizenship, a provision for avoiding dual citizenship may be included in the third clause.[7]
The provision on conditions for acquiring citizenship after the commencement of the Constitution, that is, the second clause in the memorandum, was not included in the Draft Constitution of India 1948 submitted by the Drafting Committee on 21 February 1948. The Draft Constitution only included provisions on who would be citizens on the date of the commencement of the Constitution,[8] and granted Parliament the power to make provision on acquisition and termination of citizenship and “all other matters relating thereto”.[9]
Article 5 of the Draft Constitution 1948
Article 5 of the Draft Constitution 1948 included provisions for refugees from East and West Pakistan. Clause (b) of Article 5 provided that every person who or either of whose parents or any of whose grandparents were born in India as defined in the Government of India Act 1935 or in Burma, Ceylon or Malaya and who is domiciled in the territory of India as defined by the Constitution will be a citizen upon the commencement of the Constitution, provided that the person has not acquired the citizenship of any foreign State.
The explanation to the provision stated that a person is deemed to be domiciled in the territory of India on depositing a declaration to acquire such domicile after having resided for at least one month in the territory of India.[10] According to the explanation, the declaration had to be deposited before the commencement of the Constitution. Thus, migrants from East or West Pakistan to India could be citizens by virtue of Article 5(b) of the Draft Constitution if they submitted a declaration after having resided in India for a month.
Dr Ambedkar, as the Chairperson of the Drafting Committee introduced amendments to draft Articles 5 (corresponding to Article 5 of the Indian Constitution) and 6 (corresponding to Article 11). He further introduced Articles 5 A (corresponding to Article 6), 5-B (corresponding to Article 7) and 5-C (corresponding to Article 10) which provided separate provisions for migrants to acquire citizenship.[11]
While introducing these amendments, Dr Ambedkar noted that the object of the above provisions was not to lay down a permanent law of citizenship but to decide who would be citizens as on the date of the commencement of the Constitution.[12]
The drafting history of the provisions on citizenship (in particular the deletion of clause 2 of the Memorandum) elucidates that after extensive deliberation in the Constituent Assembly and the Drafting Committee, it was decided that the Constitution would only stipulate who would hold citizenship “on the commencement of the Constitution”. This is also clear from the language and the substantive portions of the provisions included in Part II of the Constitution, which deals with Citizenship.
Article 5 of the Constitution deals with “Citizenship at the commencement of the Constitution”. The Article stipulates that every person who has their domicile in the territory of India will be a citizen of India at the commencement of the Constitution, if any of the following criteria is fulfilled:
a. The person was born in the territory of India; or
b. Either of their parents were born in the territory of India; or
c. The person was ordinarily resident in the territory of India for not less than five years immediately preceding the commencement of the Constitution.
Article 6
Articles 6, 7 and 8 of the Constitution begin with a non-obstante clause, overriding the provisions of Article 5. Articles 6 and 7 recognise the largest migration in human history[13] following the partition of undivided India into India and Pakistan. Article 6 deals with the citizenship of those who migrated from Pakistan to India.
The provision states that notwithstanding anything in Article 5, a person who migrated to the territory of India from Pakistan would deemed to be a citizen of India at the commencement of the Constitution if the following two conditions are satisfied[14]:
a. he or his parents or grandparents were born in India as defined in the Government of India Act 1935 (which included the present Pakistan and Bangladesh) [Article 6(a)]; and
b. if (i) he migrated before 19 July 1948, he must have been an ordinary resident since then [Article 6(b)(i)]; or
(ii) he migrated on or after 19 July 1948, he must register as a citizen of India on an application made by him before the commencement of the Constitution in the manner prescribed. A person can be registered under this provision only if he has resided in the territory for at least six months before the application. [Article 6(b)(ii)][15].
A brief historical background is necessary to understand the objective of this provision and in particular, the division of the migrants into two classes: those who migrated before and after 19 July 1948. The significance of the date 19 July 1948 can be traced to the provisions of the Influx from West Pakistan (Control) Ordinance 1948[16]. The West Pakistan Ordinance which came into force on 19 July 1948 introduced a system by which any person from West Pakistan could enter the territory of India only on the possession of a permit.[17]
Thus, while persons who entered India before the permit system was introduced could become Indian citizens if they were domiciled in India, those who entered after the cut-off date had to satisfy the following criteria:
a. They must have resided in India for six months since 19 July 1948; and
b. They had to make an application upon the completion of six months but before the commencement of the Constitution.
Article 394 provides when different provisions of the Constitution commence. The provision states that Article 394 and Articles 5,6,7,8,8,9,60,324,366,367,379,380,388,391,392 and 392 will come into force “at once” and the remaining provisions will come into force on 26 January 1950.
The provision also states that the commencement of the Constitution, where used in the Constitution means 26 January 1950. In terms of Article 394, Article 6 came into force on “at once”, that is, immediately after the Constitution was adopted. The Constitution was adopted on 26 November 1949.
Thus, for migrants after 19 July 1948 to secure citizenship in terms of Article 6, the application ought to have been filed before 26 January 1950. Since the application could only be filed if the person had resided in India for at least six months before that, the provision only covered those who migrated to India after 19 July 1948 but before 26 July 1949. The ad hoc/temporary nature of the provision is evident from the provision itself. In addition to the use of the phrase ‘at the commencement of the Constitution’, the substantive portion also prescribes a temporal limit.
Article 6 grants citizenship to all persons who migrated from Pakistan to India till 26 July 1949. Article 7 carves out an exception to Article 6.[18] The provision stipulates that notwithstanding the provisions of Articles 5 and 6, any person who migrated from India to Pakistan after 1 March 1947 shall not deemed to be a citizen. 1 March 1947 signifies the date from when the intense communal violence broke out in India, particularly in Punjab.[19]
Article 7 deals with re-migration.
That is, the deeming citizenship conferred by Article 6 shall not apply to a person who before migrating from Pakistan to India had earlier migrated from India to Pakistan immediately after partition. The proviso to Article 7 provides an exception to those who remigrated to India under a ‘permit for resettlement or permanent return issued by or under the authority of any law’. According to the proviso, irrespective of the date when persons entered the Indian Territory, it shall be deemed that they entered after 19 July 1948 for the purposes of Article 6(b).
Thus, any person who falls under this category (migration must be completed between 1 March 1947 and before the commencement of the Constitution[20] would have to register as citizens upon the submission of an application as prescribed by Article 6(b)(ii) of the Constitution.
Thus, the following conditions must be fulfilled to secure citizenship in terms of the proviso to Article 7:
a. The person must have migrated from the Indian territory to the territory of Pakistan after 1 March 1947;
b. The person must have migrated back from the territory of Pakistan to the Indian territory under a permit for resettlement or permanent return issued under the authority of any law; and
c. The person, in terms of Article 6(b)(ii), must apply for citizenship to such officer of the Government before the commencement of the Constitution (that is, 26 January 1950). The person must have resided in India for a minimum of six months before the application. Thus, the proviso covers those who remigrated to India between 1 March 1947 and 26 July 1949.
The distinction between Article 6 and Article 7 is that the former provision does not specifically refer to the permit system while the latter does. Though the significance of the date 19 July 1948 is traceable to the permit system, Article 6 does not mandate that citizenship would be granted only if the person entered the Indian territory on a permit. As opposed to this, Article 7 provides citizenship only to those who entered India through a valid permit. Article 7, like Article 6 is temporary in nature because
(a) persons covered by the proviso to Article 7 must have registered as a citizen under Article 6(ii)(b) which prescribes a time limit; and
(b) the guarantee is dependent on a parliamentary legislation (that is, the permit must be issued under authority of law) which itself indicates that it is not a permanent code.
The legislation(s) which introduced the permit system must be referred to understand the scope of the proviso to Article 7. On 26 July 1949, the Governor General promulgated the Influx from West Pakistan (Control) Ordinance 1948. The Ordinance stipulated that persons can enter India from any place in West Pakistan only if they are in possession of permits. ‘Permit’ was defined as a permit for the time being in force issued or renewed by the prescribed authority after satisfying the described conditions relating to the class of permits to which it belongs.[21]
The Central Government was conferred the power to issue rules, inter alia, prescribing the authorities by whom permits may be issued or renewed and the conditions to be satisfied for such permits. It is crucial to note that the Ordinance only applied to the influx from the part of Pakistan which lies to the west of India (that is, the present day Pakistan).[22] It did not apply to migrants from East Pakistan (that is, present day Bangladesh).
On 7 September 1948, the Government of India in exercise of its power under the West Pakistan Ordinance issued rules for the implementation of the permit system. The rules introduced three kinds of permits: the permit for temporary visits, the permit for resettlement or permanent return and the permanent permit. The proviso to Article 7 only covers those who remigrated to India under the resettlement or permanent return permit.[23]
On 10 November 1948, the Governor General promulgated the Influx from Pakistan (Control) Ordinance 1948 by which a permit system was introduced for a person from ‘any’ place in Pakistan to enter India. This Ordinance introduced a permit system for persons entering India from East Pakistan also (that is, present day Bangladesh). The Ordinance also repealed the Influx from West Pakistan (Control) Ordinance 1948. The Pakistan (Control) Ordinance 1948 was repealed and replaced by the Influx from Pakistan (Control) Act 1949 which contained provisions pari materia to the Pakistan (Control) Ordinance 1948.
Section 4 of the Influx from Pakistan (Control) Act 1949 conferred the Central Government the power to make Rules prescribing, among other things, the conditions to be satisfied by applicants for permits. On 20 May 1949, the Central Government issued Rulesin exercise of the power conferred by Section 4.
The Rules called the ‘Permit System Rules 1949’ prescribed elaborate provisions only regarding the permit system introduced between Western Pakistan (that is, current day Pakistan) and India. Though the Influx from Pakistan (Control) Act 1949 applied to the whole of Pakistan (including the current day Bangladesh), the Central Government did not frame any Rules to implement the permit system for the movement from East Pakistan to India.
The reason for not implementing the permit system for the migrants from East Pakistan to India was explained by Mr. Gopalaswami Ayyangar while introducing the Undesirable Immigrants (Expulsion from Assam) Bill 1950[24]. The Immigrants (Expulsion from Assam) Bill granted the Central Government, the power to expel persons who come into Assam.
Mr. Ayyangar stated that the Central Government examined the suggestion to introduce a permit system between East Pakistan and India but decided against it because it would restrict the freedom of movement of a large number of persons who, in their ordinary avocations, had to pass between East Pakistan and either Assam or West Bengal.[25]
Thus, the geographical placement of Bangladesh (East Pakistan) prevented the Indian Government from replicating the permit system that was applied for movement inthe Western border. The proviso to Article 7 which dealt with persons who remigrated to India did not apply to those who came from East Pakistan because the permit system was not implemented there. 28. On 1 January 1952, the Influx from Pakistan (Control) Act was repealed[26] putting an end to the permit system governing the travel between West Pakistan and India. In October 1952, the India-Pakistan Passport and Visa Scheme regulated the travel between India and Pakistan. The scheme proposed a specific passport system between India and Pakistan.[27]
Reference
In Re: Section 6A of the Citizenship Act 1955 (2024)
[1] BR Ambedkar in Constituent Assembly Debates (10 August 1949). “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.”
[2] B Shiva Rao, The framing of India’s Constitution: Select Documents (Part II), 472 “At the date of commencement of this Constitution:- Every person domiciled in the territories subject to the jurisdiction of the federation-
(a) Who has been ordinarily resident in those territories for not less than five years immediately preceding that date, or
(b) Who, or whose parents, or either of whose parents, was or were born in India, Shall be a citizen of the Federation. Provided that any such person being a citizen of any State may, in accordance with Federal law, elect not to accept the citizenship hereby conferred.”
[3] B Shiva Rao, The framing of India’s Constitution: Select Documents (Part II), 472
“After the commencement of this Constitution-
(a) Every person who is born in the territories subject to the jurisdiction of the federation;
(b) Every person who is naturalized in accordance with Federal law; and
(c) Every person, either of whose parents was, at the time of such person’s birth, a citizen of the Federation”
[4] B Shiva Rao, The framing of India’s Constitution: Select Documents (Part II), 473
“Further provisions governing the acquisition and termination of Federal citizenship may be made by Federal
Law.”
[5] See the Constitution of the Irish Free State; Article 3
[6] B Shiva Rao, The framing of India’s Constitution: Select Documents (Part II), 683
“At the date of commencement of this Constitution, every person who:
(a) Who or whose parents or either of whose parents, was or were born in the territories of the
Federation and subject to its jurisdiction, or
(b) who is domiciled in the territories subject to the jurisdiction of the federation.” The clause granting
citizenship to those who have been ordinarily resident for five years was removed.
[7] B Shiva Rao, The framing of India’s Constitution: Select Documents (Part II), 683
[8] Draft Constitution of India 1948, Article 5
[9] Draft Constitution of India 1948, Article 6.
[10] Draft Constitution of India 1948, Explanation to Article 5(b)
[11] Constituent Assembly Debates (10 August 1949)
[12] BR Ambedkar, Constituent Assembly Debates (10 August 1949) “Now, Sir, this article refers to, citizenship
not in any general sense but to citizenship on the date of the commencement of this Constitution. It
is not the object of this particular article to lay down a permanent law of citizenship for this country. The
business of laying down a permanent law of citizenship has been left to Parliament, and as Members will see
from the wording of article 6 as I have moved the entire matter regarding citizenship has been left to
Parliament to determine by any law that it may deem fit.”[emphasis supplied]
[13] UNHRC, The State of the World’s Refugees 2000L Fifty Years of Humanitarian Action (Oxford University
Press) 59
[14] “6. 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 grand-parents 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 therefore 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 for at least six months immediately preceding the date of his application.”
[15] This provision is a modification of Article 5(b) of the Draft Constitution.
[16] “West Pakistan Ordinance”
[17] Pakistan also enacted a similar legislation introducing the permit system for anybody to enter into Pakistan
from India; See the Pakistan (Control of Entry) Ordinance 1948
[18] “7. 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.”
[19] Yasmin Khan, The Great Partition: The Making of India and Pakistan (Penguin India) 168
[20] See Kulathil v. State of Kerala, AIR 1966 SC 1614 [Justice Shah, 32]
[21] West Pakistan (Control) Ordinance 1948, Section 2(c)
[22] West Pakistan (Control) Ordinance 1948, Section 3(2)
[23] See Speech by Dr BR Ambedkar and Pandit Jawaharlal Nehru in the Constituent Assembly on 12 August
1949: [Nehru]“There are three types of permits, I am told. One is purely a temporary permit for a month or
two, and whatever the period may be, a man comes and he has got to go back during that period. This does
not come into the picture. The other type is a permit, not permanent but something like a permanent permit,
which does not entitle a man to settle here, but entitles him to come here repeatedly on business. He comes
and goes and he has a continuing permit. I may say; that, of course, does not come into the picture. The
third type of permit is a permit given to a person to come here for permanent stay, that is return to Indian
and settle down here.”
[24] The word undesirable was removed from the short title after extensive discussion.
[25] Shri Gopalaswami while introducing the Undesirable Immigrants (Expulsion from Assam) Bill,
Parliamentary Debates: Official Report (Volume 1, 1950), 313 “The obvious suggestion that was put forward
at the beginning was that we should introduce a permit system as between Assam and East Pakistan. The
Central Government examined this suggestion and studies its repercussions on other parts of India
particularly on West Bengal and the restrictions it would impose on the freedom of movement of a large
number of persons who, even in their ordinary avocations, had to pass between East Pakistan and either
Assam or West Bengal. If restrictions by way of a permit system had been imposed, it was feared that there
would have been difficulties experienced which it would not have been easy to get over, and after further
discussions with the Government of Assam, it was settled in consultation with them that instead of introducing
a permit system which would control the entry of outsiders into Assam, we might take power to expel from
Assam such foreign Nationals who entered that State and whose continuance was likely to cause disturbance
to its economy.”
[26] See the Influx from Pakistan (Control) Repealing Act 1952; the Statement of Objects and Reasons stated
that it was agreed “with the Government of Pakistan that with effect from prescribed date, the permit system
should be replaced by a system of passports.”
[27] 2 See paper Rights: The emergence of Documentary Identities in Post-Colonial India, 1950-67 (2016),
History Faculty Publications.129