This newscard is an excerpt from the ‘Letter and Spirit’ section in the print edition of TH, which is a new column that will focus on explaining and understanding basic Acts and Articles enshrined in our Constitution.

Context

• With the contentious farm laws repealed, the discussions turn to the second most politically and legally resisted legislation of recent times, The Citizenship (Amendment) Act, 2019.
• The citizenship question finds its retro-reflection in the Constituent Assembly debates which serve as the undeniable autobiography of India’s basic law.

Debate over CAA, yet again

• CAA asserts that only people belonging to some faiths are victims of persecution and violence and the doors of the country can be legitimately shut to any other instance of persecution and ethnic violence.

A ‘headache’ for the Drafting Committee

• The citizenship question had been one of the most difficult tasks confronted by the drafting committee as admitted by Dr B.R.Ambedkar.
• He moved a set of consolidated amendments to the citizenship provisions of the original draft.
• He said that the task had given the drafting committee “such a headache” and multiple “drafts were prepared” and “destroyed” before arriving at a consensus.

The critics

• The draft did not satisfy all but to the most due to its secular and liberal provisions.
• It was fiercely contested on the floor of the Constituent Assembly on religious, ethnic and hyper-nationalistic considerations.
• The Article 5 of the draft constitution was criticized for its lack of exclusive and preferential provisions on religious lines regarding the declaration as to who shall be the citizen of India during commencement of the Constitution.
• Then Article 5A (today’s Article 7 of the Constitution) sought to grant citizenship rights to the migrants of Pakistan who had returned to India under a permit for resettlement granted by Indian authorities.

The ‘Jus Soli’ Principle

• This principle is premised on the automatic grant of citizenship based on the place of birth provided the person is domiciled in India, qualifying it with religious identity.
• It was in fact a proposal to ingrain religion into the bedrock of the Constitution.
• Dr P.S.Deshmukh from the Central Provinces and Berar proposed changes to Article 5 of the draft by proposing to replace the universally honoured “jus soli” principle by qualifying it with a religion.
• He went on to state that 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.

Issue over indiscriminate grant of citizenship

• The concern of Dr. Deshmukh justifying the exclusion of people belonging to other religions, as echoed in his question- Is it then wise that we should throw opens our citizenship so indiscriminately?
• It found fraternal support from members who opined that Hindus and Sikhs have no other home but India.
• This finds its resonance today in the presumptive base of the CAA.

The defenders

• Some highlighted the fact of panic driven migration without certain intention to settle down in Pakistan was left unanswered with precision.
• Some retorted that mentioning the name of some communities will make other communities feel that they were being ignored.

What did Nehru opine?

• Nehru stated that we cannot have rules for Hindus, for Muslims and for Christians only.
• He stressed upon the possibility of the second wave of migration including non-Hindus and non-Sikhs who were part of the first wave influx.
• Hence, in his view, foreclosing the doors fearing the influx of some may deprive others of exercising their choice.

Ambedkar on Pakistan returnees

• Ambedkar clarified that the principal thrust of Article 5A was to declare that persons who migrated to Pakistan after 1st of March 1947 due to internal disturbances.
• He declared that some migrants from Pakistan were allowed to return on the basis of the agreements between both the Governments and on the basis of an ordinance promulgated.

Conclusion

• The Constituent Assembly debates on citizenship showed that in the rousing of sentiments of ethnicity and distrust, sagacity had an upper hand, leading to the saner denouement of toleration.
• History is known to set examples.

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