Rights of citizenship of certain persons who have migrated to India from Pakistan

 Author: Osheen, Institute of Law, Nirma University

ABSTRACT

This article deals with citizenship rights of people migrated to India from Pakistan which is basically Citizenship by Migration, their eligibility criteria is also discussed along with excerpts from Constituent Assembly Debates which in turn outlined the effect partition played in drafting of these articles and contestations with respect to secularity. Other two forms of gaining citizenship which are citizens  by domicile and registration are also discussed briefly.

OUTLINE

Introduction

Conditions requisite for citizenship (of migrated people)

Other forms of gaining citizenship ( as provided by the Constitution)

Process of Registration

Relevant Dates

Conclusion

INTRODUCTION

Citizenship comes with a set of rights. These are the rights for which our freedom fighters struggled decades ago, and it is only for the protection and advancement of these rights that the Legislative, Executive, and Judiciary stand today.

Specific fundamental rights are reserved for citizens under the Indian constitution, including the right against discrimination on the basis of religion, race, caste, sex, or place of birth (Article 15); the right to equal opportunity in public employment (Article 16); freedom of expression, assembly, association, movement, residence, and profession (Article 19); cultural and educational rights (Article 29 and 30); 

Certain offices are exclusively open to  citizens: president (Article 58(1)(a), vice-president (Article 66(2)), judges of the Supreme Court (Article 124(3)) and high court (Article 217(2)), governor of a state (Article 157), attorney general (Article 76(1)) and advocate general (Article 165).

With the history of partition and present nationalist propaganda in place, it can be deduced what value citizenship bears today, and when it comes to Pakistan, immigration from Pakistan, this topic becomes a lot more essential. As a result, this page will answer questions about Pakistani migrants' citizenship, their eligibility conditions, citizenship exemptions, and CADs.

The article begins with an examination of constituent assembly debates on the current Articles 6 and 7 of the Indian Constitution, as well as modifications offered by its members at the time and the outcome of the debate. It then moves on to a detailed examination of Articles 6 and 7 of the Indian Constitution, which are the source of citizenship rights for migrants. Citizenship by residence and citizenship by registration, two further forms of citizenship provided by the Constitution, are also explored. The article concludes with a summary of all key dates pertaining to citizenship provisions.

CONSTITUENT ASSEMBLY DEBATES WITH RESPECT TO INSERTION OF THESE RIGHTS INTO THE CONSTITUTION

There was no consideration of a distinct chapter on citizenship when India's Constituent Assembly began proceedings in December 1946. The Partition had interposed by the time the Constitution was adopted, and citizenship had became the subject of Part II of the Constitution.

The declaration of the Partition in June 1947 re-ignited the Constituent Assembly's discussion over citizenship. In the aftermath of the Partition's changing conditions, an ad hoc committee was formed to re-examine the issue of citizenship. A number of potential obstacles were identified, ranging from arrangements for inter-Indian and inter-Pakistani marriages to provisions for people of seceding districts who wanted to keep their Indian citizenship. It was plainly critical to find an acceptable cut-off date for determining citizenship benefits for people migrating to India from Pakistan.

As the assembly deliberated what would eventually become Articles 6 [draft article 5 (a)] and 7 [draft Article 5A], echoes of the Partition's communally charged atmosphere surfaced.

Although religious differences were not overtly shown, they were clearly visible during arguments over Articles 6 and 7 of the Constitution. (ng)

Article 6 was manifestly unexceptional because it gave citizenship rights to what were primarily Hindu migrants from Pakistan, who were referred to as refugees at the time.

However, Article 7 alluded to Muslims who had departed India for Pakistan in the aftermath of Partition-related violence, only to return later to regain their lives, livelihoods, and property. The fact that there were so many of them required the authoring of this article.

There were accusations that Indian citizenship was "sold too cheaply" and that the migration of these people from India to Pakistan was planned. They might be conspirators, spies, or subversives looking to return to India. In this perspective, loyalty and purpose were repeating themes. Those in favor of the current Article 7, on the other hand, called for a broader definition of legal citizenship.

All this can be well articulated by the below mentioned arguments of constituent assembly members

ARGUMENTSOF MEMBERS

P.S. Deshmukh(Central Provinces [CP] and Berar)

He was dissatisfied with the citizenship provision's drafting by the drafting committee.

Dr. Ambedkar's definition of citizenship, he argued, would make "Indian citizenship the cheapest in the planet." His gripe had been with his birthright citizenship. 

At least two modifications were requested. To begin with, simply being born in India is insufficient; the child must be born to Indian parents. Following that, Indian citizenship should be granted to all Hindus and Sikhs living everywhere in the world.

Deshmukh had expected the members to accuse him of "secularism" because of his plan to grant citizenship to all Hindus and Sikhs. He, for one, thought the assembly was going too far "in this secularity stuff."

In his speech he argued: “Does it mean that we must wipe out our own people, that we must wipe them out in order to prove our secularity, that we must wipe out Hindus and Sikhs under the name of secularity, that we must undermine everything that is sacred and dear to the Indians to prove that we are secular? …”

His proponents 

Das Bhargava,  said:“Hindus and Sikhs have no other home but India… The phrase ‘secular’ should not frighten us in saying what is a fact and reality must be faced…”

Deshmukh was also backed by Sardar Bhopinder Singh, who spoke up for Sikh refugees, and Rohini Kumar Chaudhury, who was worried about Assamese Hindus.

Shibban Lal Saxena (United Provinces), an Assembly member who backed Deshmukh's amendment, claimed that Hindus and Sikhs had no other home than India.

His opponents

However, Mahboob Ali Baig Sahib Bahadur spoke out against granting citizenship based on religion, and urged the parliament to remember the Mahatma's teachings on religious unity.

According to R.K. Sidva (CP and Berar), if Hindus and Sikhs are granted citizenship, the thousands of Parsis living in Iran must also be considered. At the same time, he had stated that naming a specific community for citizenship in the constitution "would appear as though we are disregarding other communities."

Brajeshwar Prasad

"I wish that all of Pakistan's citizens were welcomed to come and stay in our country," he remarked.

He emphasized that Hindus and Muslims were blood brothers, and that the harm caused by Partition should not be permitted to go beyond its legal status. In fact he proposed “a common citizenship for  all Asian(s), and also a joint citizenship between India and Pakistan.”

When Brajeshwar Prasad had his turn, he responded (to Jaspat’s query):

"I see no reason why a Muslim who is a citizen of this nation should be stripped of his citizenship at the start of this constitution, especially when we are asking Hindus who have immigrated to India from Pakistan to become citizens." People who have never been to India but have always lived in the Punjab and on the border have come and became citizens of this state; why can't a frontier Muhammadan be so when we've always claimed to be one?"

Alladi Krishnaswami Ayyar

Nehru's sentiments were mirrored by Alladi Krishnaswami Ayyar. "We may establish a distinction between persons who have chosen another country as their home and those who want to maintain their connection with our country," Ayyar remarked during the citizenship ceremony. However, we cannot do so on racial or religious grounds."

Jawaharlal Nehru

Jawaharlal Nehru is supposed to have risen up and expressed his displeasure with "this secular-state stuff that is being bandied around." He has previously stated that being secular does not imply that "we have done something wonderfully generous" or selfless.

"We have only done what that every country does except a few misguided and backward ones," he continued.

He unequivocally endorsed the draft definition of citizenship on a universal (non-religious) basis, as well as secularism.

He straightforwardly stated , "You cannot have rules for Hindus, Muslims, and Christians only and that it is ludicrous prima facie" 

In drafting Article 5A, Nehru also emphasized the prospect of a second wave of migration, which would include non-Hindus and non-Sikhs who had been part of the first wave. As a result, he believes that locking the doors because of the entrance of some may hinder others of expressing their right to choose.

Jaspat Roy Kapoor

He  had dealt a few sharp words at Brajeswar Prasad while suggesting that the economic impact of granting citizenship to Muslims at the commencement of the constitution should be borne in mind.

He also labeled Article 7 the ‘obnoxious clause’:

“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, where he would put in his best efforts to make it a free progressive and prosperous state.”

He advocated amending Draft Article 5 to confer citizenship to anyone born between the "commencement of the Constitution" and the enactment of a citizenship statute by the Parliament. Kapoor was also concerned about the language "deemed to be an Indian citizen" and if it implied an unequal right to citizenship, particularly for Pakistani migrants. This sparked debates on tone and legal clarity.

Result

The proposed adjustments, as well as amendments that came up to fine-tune them, were largely debated on August 11 and 12, 1949.

Following this, Assembly member Alladi Krishnaswamy Ayyar (Madras) stated that Part II of the Constitution could not address all of the difficult issues surrounding citizenship, which would be addressed by the Parliament when drafting legislation on the subject.

In his closing remarks, Dr. Ambedkar stated that future parliaments should have their say. He believed that the constituent assembly's only role was to facilitate a transition through the constitution.

Dr. Rajendra Prasad wanted the citizenship clause to be put to a referendum. Another vote was held to determine whether it was ready for the vote. There were 59 yes votes and 35 no votes. As a response, Ambedkar advised, "Let them all be withdrawn."

Deshmukh, on the other hand, had not abandoned his aforementioned two amendments. Dr. Deshmukh's proposed amendment No. 164, which would change Article 5 to make citizenship a right for Hindus and Sikhs regardless of where they live, was rejected.

Dr. Rajendra Prasad called for a vote on the draft article proposed by Dr. Ambedkar. The motion was carried out.

The debates on citizenship in the Constituent Assembly demonstrated that intellect and wisdom triumphed out across ethnicity and mistrust, resulting to tolerance and acceptance and the foundation of a secular state, which unfortunately today is being contested.

CONDITIONS REQUISITE FOR A MIGRATED PERSON TO BE CONSIDERED AS A RESIDENT

All questions about migrated people's citizenship can be answered by looking at Articles 6 and 7 of the Indian Constitution.

Articles 6 and 7 were declarations of citizenship for unusual times. If Article 6 was intended to grant citizenship rights to those who migrated from Pakistan to India around the time of Partition, Article 7 deals with population migration from India to Pakistan and establishes special criteria for determining who will not be considered such citizens, subject to certain exceptions.

ARTICLE 6 

Art. 6 solely refers to migration from outside India, and it must have occurred prior to the Constitution's inception, not afterward..

For the purposes of citizenship, these individuals have been divided into two groups: 1) those who arrived in India before July 19, 1948, and 2) those who arrived on or after July 19, 1948.

If the below-mentioned two qualifications are met, a person in the first group, i.e. an immigrant before July 19, 1948, is considered an Indian citizen.

1. He or one of his parents or grandparents was born in India, as specified by the Government of India Act of 1935, and

2. Since his relocation, he has lived in India on a regular basis.

The following conditions must be met by a person in the second group, i.e. an immigrant who arrived on or after July 19, 1948:

1. he or one of his parents or grandparents was born in India, as specified by the Government of India Act, 1935;

2. he must apply for citizenship;

3. He must show that he has spent six months in India; and

4. An officer appointed by the Government of India under the 1935 Act or the Union Government under the current Constitution shall register him as a citizen.

If all of the aforementioned qualifications are met, a person is considered an Indian citizen..

ARTICLE 7 

Article 7 was designed to keep anyone who migrated from India to Pakistan after March 1, 1947 from becoming citizens. However, a person who has returned to India on the basis of a permission for resettlement in India is granted an exception. Such a person is eligible to become an Indian citizen if he or she meets all of the other requirements set out in Article 6 for immigrants from Pakistan who arrived after July 19, 1948.

Article 7 takes precedence over Articles 5 and 6.. Only individuals who arrived in Pakistan between March 1, 1947, and January 26, 1950 are included by Article 7.. These people were stripped of their Indian citizenship. The Indian Citizenship Act must be applied to determine the citizenship of anyone who immigrated to Pakistan after January 26, 1950.

Art. 7 has a broad scope and allows no exceptions for a wife who migrates to Pakistan while her husband remains in India. The idea of domicile is found in Art. 5, but because both Arts. 6 and 7 are in effect 'notwithstanding Art. 5,' the term 'domicile' is not included in the scope of Arts. 6 and 7.

In Kulathil Mammu v State of Kerala the term "migration" (as used in Arts. 6 and 7) was read broadly to encompass "moving from one region to another without regard to residence." The Court pointed out that Articles 6 and 7 of the Constitution provide particular provisions for dealing with an exceptional situation resulting from large-scale population movement between India and Pakistan. The authors of the Constitution did not intend for "the concept of domicile to be inserted into Articles 6 and 7," they decided..

The meaning of the term migrated was scrutinized by a split Supreme Court in Kulathil. The majority interpreted the term "migrated" in Articles 6 and 7 in light of the context, intent, and political climate at the time the Constitution was drafted. The term "migrated" could be taken in this way to signify nothing more than deliberately moving from India to Pakistan, either permanently or temporarily.

While the majority decision in Rehmatullah held that the term "migrated" had a broader meaning than "moving from one place to another," it acknowledged that the movement needed have been voluntarily. 

OTHER FORMS OF ACQUIRING CITIZENSHIP

Articles 5 to 11 in the Constitution provide for as to who are the Indian citizens at the commencement of the Constitution 

These citizens have been classified into: (1) citizens by domicile; (2) citizens by migration, and (3) citizens by registration

With the second category i.e. citizens by migration been discussed above, we shall briefly discuss about the other two.

Citizens by domicile

Article 5was a preliminary foundational statement of jus soli citizenship. 

It confers citizenship, at the commencement of the Constitution, on 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.

It applied only to persons already living rather than to future persons born after the commencement of the Constitution.

An intent to reside in a country where one has taken up residence for the rest of one's life is a necessary component factor for the existence of domicile in that country, as the Supreme Court stated in Central Bank of India v. Ram Narain. In Louis De Raedt v. Union of India, the Supreme Court explored this theme.

Citizens by registration

Article 8 is about citizenship through registration. This clause gives Indian citizenship on a person who does not appear to have a primary residence in India, and it is intended to cover foreign Indians who wish to get Indian citizenship.

Section 5 of The Citizenship Act, 1955 also provides for citizenship by Registration.

PROCESS OF REGISTRATION

S. 5  of THE CITIZENSHIP ACT, 1955 is about citizenship through registration. After taking an oath of loyalty, the following types of people can be registered as Indian citizens if they are not already Indian citizens:

(a) persons of Indian origin who are generally resident in India and have lived there for at least six months prior to filing the registration application; 

(b) persons of Indian origin who are ordinarily resident outside of undivided India;

c) Indian women married to Indian men;

d) Indian citizens' underage children;

e) nationals of a Commonwealth country who are of full age and capacity.

The above-mentioned category (a) refers to Pakistani migrants who are unable to become Indian citizens due to constitutional restrictions.

Cls. (a) and (e) of this section are mutually exclusive, and a person of Indian ancestry who is a Commonwealth citizen falls under (e) rather than (a)

There is no provision in the Citizenship Act for the cancellation of a certificate of registration given under section 5.3.

Citizenship has been awarded to an Indian citizen living overseas since 2003, in accordance with Sections 7A and 7B of the Indian Citizenship Act. 

PROCESS

As per this link An application in the relevant Form for grant of Indian citizenship by registration under section 5 must be filed to the Collector/District Magistrate of the region where the applicant resides (together with all the documents and fees as specified in the relevant Forms).

The Collector/District Magistrate must submit the application, together with a report on the applicant's eligibility and suitability, to the concerned State Government/UT Administration before 60 days.

Following that, the state government/UT administration must submit the application to the Ministry of Home Affairs (MHA) of the Indian government within 30 days.

Each application is reviewed by MHA in accordance with the Citizenship Act of 1955 and the Citizenship Rules of 1956.

If the applicant does not meet the eligibility criteria, the applicant will be notified by the State Governments/UT Administration.

Any deficiencies in the application will be brought to the applicant's attention by the State Government/UT Administration.

Following that, the applicant must make good on the deficiency through the State Governments/UT Administration.

There would be no direct contact with the applicant. However, the applicant will receive a copy of the letter sent through the State Governments/UT Administration.

Each applicant whose case is judged to be eligible after a review of his application is notified by the State Government that his application has been accepted.

The applicant should not renounce his or her foreign citizenship until the citizenship application has been approved and the applicant has been notified of the outcome.

The applicant must next submit a document of renunciation of his foreign citizenship issued by the concerned country's mission, proof of fee payment as per SCHEDULE IV of the Act, and personal information in Form-V.  to the State Government.

Following that, the State Government issues the applicant a certificate of Indian citizenship.

RELEVANT DATES CONCERNING CITIZENSHIP

January 26, 1950

Articles 5 to 11 in the Constitution lay down as to who are the citizens of India at the commencement of the Constitution, i.e., on January 26, 1950. 

Art. 5 declares that anyone residing in India at the time of the Constitution's inception and meeting any of the following criteria is a citizen of India: (a) he was born in India; (b) either of his parents was born in India; and (c) he has been ordinarily resident in India for not less than five years immediately preceding the Constitution's inception.

July 19, 1948

The Government of India passed an ordinance on July 19, 1948, stating that no one could enter the country unless they obtained a permit. On the same day, the government enacted guidelines under which a person traveling to India from Pakistan might obtain a permission allowing them to enter the nation. A person could get three types of licenses: temporary, permanent, and resettlement or permanent return permits, but only those with resettlement permits would be considered for citizenship under Article 5(a) of the Draft Constitution (which later became Article 6 of the Constitution (link)

According to Art. 6, an immigrant from Pakistan became a citizen of India if he, either of his parents, or any of his grandparents, was born in India (as it was prior to Independence) and met one of the following two conditions: (1) if he migrated to India before July 19, 1948, he had been ordinarily resident in India since the date of his migration; or (2) if he migrated on or after July 19, 1948, he had been registered as a citizen of India.

March 1, 1947.

A citizen of India via domicile (Art. 5) or migration (Art. 6) ceases to be a citizen if he migrates to Pakistan after March 1, 1947, according to Art. 7.

Only individuals who arrived in Pakistan between March 1, 1947, and January 26, 1950 are included by Article 7. These people were stripped of their Indian citizenship. The Indian Citizenship Act must be applied to determine the citizenship of anyone who immigrated to Pakistan after January 26, 1950.

CONCLUSION

We looked how critics of secularity existed back then too, yet the battle was won against them. Today as we stand in the midst of political propaganda of distorted nationalism , we ought to recall the principles which laid the very foundation of this NATION, and it was surely not  what it is been portrayed today. Having been learnt that how and why Article 6 and 7 was incorporated in Indian Constitution, it is necessary to infer the intention of our Constitution makers, which was definitely not the divided India. Analysis of Article 6 and 7 , with the former providing for inclusion of migrated people before commencement of Constitution and the latter though restricting citizenship for specific people, it also provides an opportunity for citizenship subject to certain conditions, reveals that how India has always inclined towards the inclusionary politics, amalgamating people from various sects, castes, races, color along with providing each with an opportunity to live and grow together. Same inference can also be made from the analysis of other citizenship provisions discussed. Principles of ‘secularity’, ‘equality’ speak out very loud from these provisions, and it is our , WE THE PEOPLE OF INDIA’s responsibility now that these voices don’t go unheard.