Indian Citizenship: Views of the Drafting Committee

Author : AASTHA AGARWAL*.

Christopher Lasch, an American historian, once said “The effect of the mass media is not to elicit belief but to maintain the apparatus of addiction.”(The True and Only Heaven: Progress and Its Critics)(1991). In the Indian context, this quote has become rather ultra precise, given the fact that the subject of citizenship, which was otherwise a group of spiritless alphabets resting in peace in the Indian Constitution, has suddenly become the new buzzword in the country.However, instead of hammering away at the media, it would be common sensical to shed light on that which doesn’t make headlines in the newspaper or incite theatricals in the newsroom.

Given such a state of affairs, a sneak peek into the Drafting Committee’s explanation on citizenship in the Constituent Assembly is of paramount importance. This is because a preliminary study of such deliberations will help one have a more learned understanding about the rationale of the Drafting Committee members when they proposed the articles on citizenship in the original draft of the Constitution that was moved by Dr. B.R. Ambedkar as the Chairman of the Drafting Committee.

At the very onset of the Debate, Dr. Ambedkar made it clear that the object of the articles on citizenship was not to lay down a permanent law of citizenship for the country, but simply to define citizenship as on the day of the commencement of the Indian Constitution. The business of laying down a permanent law of citizenship was left to the Indian Parliament as is evident from the wording of Article 11 of the Indian Constitution which 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.”

By way of this Article, as explained by Dr.Ambedkar, the Parliament is not only entitled to make altogether a new law embodying new principles but also has the power to take away citizenship from those who were declared to be citizens on the day of the Commencement of the Indian Constitution. Thus, the constitutional provisions on citizenship are in no way, permanent or unalterable.

Further, in conferring citizenship as on the day of the commencement of the Indian Constitution, the Drafting Committee provided for five different classes of people who could become citizens on the date on which the Constitution commenced, provided they satisfied the terms and conditions which were laid down in Articles 5-10 of the Indian Constitution.

The first category of people include those persons who are domiciled in the territory of India and who are born in the territory of India. They are recognised as Indian Citizens under Art 5(a) of the Indian Constitution. In this regard, Alladi Krishnaswami Ayyar, a Drafting Committee member, argued that the Indian Constitution is much stricter than the Constitution of the United States where any person born in the United States would be treated as a citizen of the United States irrespective of colour or of race. This is because the Indian Constitution adds a further qualification: that the person must have his permanent home(domicile) in India. The second category include those who are domiciled in India but who are not born in India. It was argued that they shall be considered citizens only if they satisfy the conditions laid down in Art 5 (b) or 5 (c) of the Indian Constitution. While Art 5(b) requires that either of the parents of such people should be born in the territory of India; Art 5(c) requires that the person concerned must have been resident in the territory of India for not less than five years immediately preceding the commencement of the Indian Constitution.Art 5(c) particularly provides for outlying tracts in India like Goa, French Settlements and other places from where people have come to India and have settled down in this country, regarding India as a permanent home, and they have contributed to the richness of the life in this country. They have assisted commerce and they have regarded themselves as citizens of India. Therefore, on grounds of their unfettered loyalty to the Indian state, such persons were granted citizenship.All these categories are subject to a general limitation : that they have not voluntary acquired the citizenship of any foreign State. (Art 9)

The third category of people include persons who have migrated to India from the territory now included in Pakistan. Such persons are recognised as Indian citizens provided the person concerned 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)[Art6(a)]; or that such person has so migrated before the nineteenth day of July, 1948.[Art 6(b)(i)]. However, if a person has so migrated on or after the nineteenth day of July, 1948, it was required that he must be 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 [Art 6 (b) (ii)]; 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.

The fourth category of people include persons who are residents in India but who have migrated to Pakistan. They are recognised as citizens under Art 7 of the Indian Constitution provided they have returned to the territory of India after the nineteenth day of July, 1948 under a permit for resettlement or permanent return issued by or under the authority of any law. In this regard, Dr. Ambedkar made a mention of three kinds of permits:Temporary Permit, Permanent Permit and permit for resettlement or permanent return. It was only the last permit which allowed persons to come back with the express object of resettlement and permanent return.

Articles 6 and 7 intended to provide for all cases of mass migration from Pakistan into India, without making any distinction between one community and another, between one sect and another. This is because it was felt that it would be the grossest injustice on the part of the Government of India now to deny the rights of citizenship of India to those people who have come and settled 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. However, to ensure that such an entitlement is not extended to those who have deliberately, voluntarily and intentionally migrated to Pakistan, Art 7 was included in the Constitution.

The fifth category of people include persons who or whose parents or whose grand-parents were born in India as defined in the Government of India Act, 1935, but persons who are ordinarily residing in any territory outside India. They are called ‘Indians abroad’ and are recognised as citizens of India under Art 8 of the Indian constitution provided that the person concerned has been registered as a citizen of India on an application made by him to the diplomatic or consular representative of India, whether before or after the commencement of this Constitution, in the form and manner prescribed by the Government of the Dominion of India or the Government of India. This is because it was argued that the Government of India has certain obligations with regard to its citizens abroad and that none of the International Conferences have been able to formulate any principle which can remove altogether the principle of double citizenship.

Despite listing five explicit categories of citizens, Dr. B.R. Ambedkar, in his concluding speech on citizenship, admitted that it is not possible to cover every kind of case for a limited purpose, namely, the purpose of conferring citizenship on the date of the commencement of the Constitution. To this, Alladi Krishnaswami Ayyar added that there is hardly any Constitution in the world in which a detailed attempt has been made in regard to the nationality law in the Constitution. However, since the Indian Constitution was to become a republican constitution with provision for election to the Houses of Parliament and to the various assemblies in the units, and for rights being exercised by citizens, it was necessary to have some provision as to citizenship at the commencement of the Constitution. Otherwise, there would have been difficulties connected with the holding of particular offices, and even in the starting of representative institutions in the country under the republican constitution. However, since it was not possible for a Constitution dealing with several subjects to deal with all the complicated problems that arise out of citizenship, the Parliament was given a free hand in enacting any law as to nationality or citizenship suited to the conditions of our country.

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*AASTHA AGARWAL is pursuing Masters course in Political Science from St. Xavier’s College, Kolkata. She was awarded the Best Parliamentarian Award in the District Level Youth Parliament Competition organised by the Department of Parliamentary Affairs, Government of West Bengal, for the Year, 2019-20.

Kindly note that the point of views expressed in the article are entirely the author’s personal views. IPD takes no responsibility for the same.

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