CONSTITUENT ASSEMBLY OF INDIA - VOLUME IX
Thursday, the 11th August 1949
The Constituent Assembly of India met in the Constitution Hall, New Delhi, :at Nine of the Clock. Mr. President '(The Honourable Dr. Rajendra Prasad) in the Chair.
Mr. President: We shall now take up consideration of articles 5 and 6. I have been looking into the amendments of which notice has been given. A large number of the amendments relate to the original Draft, but quite a good number relate to the present Draft also. I think the consolidated form in which the proposition is now placed before the House meets the point of view of many of the amendments of which notice has been given. There are some which touch the details. I would ask honourable Members to confine their attention to only such of the amendments as are of substance and leave -out the others.
With regard to the amendments relating to the original Draft I find there are some amendments which deal with matters altogether outside the Draft. For example, there is an amendment dealing with the status of women after marriage--whether they become citizens or not. There are others also which deal with the position of persons who are not born Indians or born of parents or grand-parents who were Indians. I think all these matters under the present Draft are left to be dealt with by Parliament in due course. I would, therefore suggest that amendments of this nature might also be left over to be dealt with -by Parliament at a later stage and we might confine ourselves to the limited question of laying down the qualifications for citizenship on the day the Constitution comes into force.
Dr. Ambedkar drew the attention of the House to two important limitations. The first was that this Draft dealt with the limited question of citizenship on the day the Constitution comes into force. And the other point was that all other matters, including those which are dealt with by the present Draft, are left to be dealt with by Parliament as it considers fit. With these limitations in mind I think the discussion of these two articles can be curtailed to a considerable extent and the matter might be disposed of quickly.
I would suggest to Members to bear these considerations in mind when moving their amendments. We shall now take up the amendments of which I have received notice and I will take them up in the order in which they are on the list of the current session. Dr Deshmukh.
Dr. P. S. Deshmukh (C. P. & Berar: General) : May I also refer to the other amendments of which I have given notice?
Mr. President: Yes, you may take them together.
Dr. P. S. Deshmukh: Sir, this article on the question of citizenship has been the most ill-fated article in the whole Constitution. This is the third time we are debating it. The first time it was you, Sir, who held the view which was upheld by the House that the definition was very unsatisfactory. It was then referred to a group of lawyers and I am sorry to say that they produced a definition by which all those, persons who are in existence at the present time could not be included as Citizens of India. That had therefore to go back again and we have now a fresh definition which I may say at the very outset, is as unsatisfactory as the one which the House rejected and I will give very cogent reasons for that view of mine. But if it is necessary that I should move my amendment before I do so, I am prepared to do it. I would, therefore, like to move amendment 164 which is the same as amendment 2 in List III of Second Week. Sir, I move:
"That in amendment No. 1 of List I (Second Week) of Amendments to Amendments, for the proposed article 5, the following be substituted
'5. (i) Every person residing in India-- (a) who is born of Indian parents; or (b) who is naturalized under the law of naturalization; and (ii) 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."'
There are also, Sir, standing in my name other amendments which refer to the draft article that is before the House. By these amendments I have suggested the alteration of the article as proposed by the Honourable Dr. Ambedkar. The first of these amendments is No. 116 in List III of the Third Week. It reads as follows:
That in amendment No. 1 of List I (Third Week) of Amendments to Amendments, in the proposed article 5, the words 'at the date of commencement of this Constitution be deleted."
Mr. President: They are all consolidated in List I of the Third Week.
Dr. P. S. Deshmukh: Yes, Sir. But I have taken them from previous lists. I have suggested the omission of the words : "At the date of commencement of this Constitution".
I do not propose to move No. 117. I would like however to move 118 in List III of the Third Week.. I move :
"That in amendment No. 1 of List I (Third Week) of Amendments to Amendments, for clause (a) of the proposed article 5, the following be substituted :-
'(a) who was born of Indian parents in the territory of India."'
'Thirdly, I would like to move amendment No. 119 in List III of the Third Week. I move :
"That in amendment No. 1 of List I (Third Week) of Amendments to Amendments, in clause (c) of the proposed article 5, for the word 'five', the word 'twelve' be substituted."
This is the number of years for which residence is required for any person
I would also like to move amendment 120 in List III of Third Week, which I believe is going to be accepted because a similar amendment has been moved by Shri Gopalaswami Ayyangar: Sir, I move:
"That in amendment No. 1 of List I (Third Week) of Amendments to Amendments, the Explanation to the proposed article 5 be deleted."
I would next like to move amendment 172 in List III of Second Week Sir, I move :
"That in amendment No. 1 of List I (Second Week) of Amendments to Amendments, in the proposed new article 5-A, after the words 'territory of India' the words 'of Indian parents' be inserted. "The last amendment is No. 183 in List III of Second Week. I move.: "That in amendment No. 1 of list I .(Second Week) of Amendments to Amendments after the proposed new article 5-A, the following new article be inserted
5-B. Every citizen shall-
(a) enjoy the protection of the Indian State in foreign countries;
(b) be bound to obey the laws of India, serve the interests of the Indian communities, defend his country and pay all taxes.'" These are all the amendments that I would like to move. The rest May be treated as not moved.
Mr. Naziruddin Ahmad (West Bengal: Muslim) : May I suggest that all the amendments be moved first and then there can be a general discussion? Members could then have an overall picture of the proposals.
Mr. President: If that is the wish of the House, I have no particular objection.
Dr. P. S. Deshmukh: As the number of amendments is very large it would create confusion to let members only move the amendments and then call them to speak.
Mr. President: It seems that Members find it more convenient to speak when they are moving their amendments.
Dr. Deshmukh, you may proceed.
Pandit Hirday Nath Kunzru (United Provinces: General): Can you kindly tell us which amendments have been moved ?
Mr. President: I will give you the numbers in this week's list: they art Nos. 3, 17 and 29.
Then from List III of the Third Week: amendments Nos. 116, 118, 119 and 120.
Dr. P. S. Deshmukh: The Honourable Dr. Ambedkar admitted that this was a sort of a provisional definition and detailed legislation was going to be left to Parliament. I quite agree with the objective, but I am afraid that the definition and the article that he has suggested would make Indian citizen. ship the cheapest on earth. I would like to proceed with an analysis of the article that be has proposed. I do not see any reason why it is necessary to say "at the date of commencement of this Constitution". The whole Constitution is going to be promulgated on a specific day. Whatever provisions there are will come-into force and be applicable from that day alone. So, I submit that the words "at the date of the commencement of this Constitution" are entirely superfluous, so far as this article is concerned. It is sufficient to. say that every person, wherever domiciled in this territory of India .... shall entitled to be called a citizen of India.
Secondly, all these sub-clauses of this article will make Indian citizenship very cheap. I am sure neither the Members of this House nor the people outside -would like this to happen. The first requirement according to this article is domicile. After that, all that is necessary according to (a) is that lie should be born in the territory of India. This has no relationship whatsoever to the parentage. A couple may be travelling in an aeroplane which halts at the port of Bombay for a couple of hours and if the lady happens to deliver a child there, irrespective of the nationality of the parents, the child would be entitled to be a citizen of India. I am sure this is not what at least many people would like to accept and provide for. Indian citizenship ought lot to be- made so very easy and cheap. Then sub-clause (b) says "either of whose parents are born in the territory of India". This is still more strange. It is not necessary that the boy or the girl should be born on the Indian soil. it is sufficient not only if both the father and the mother have been born in India but if even one of them, happens to be born on the Indian soil as accidentally as. I have already pointed out, viz., a lady delivering a child in the course of an air-journey through India. Under the proposed sub-clause (a) the child would be entitled to claim Indian citizenship and under (b) even the son of that child (which happened to be born so accidentally) can claim the same important privilege without any restriction and without any additional qualification whatsoever. Nothing more is necessary except that they should acquire a domicile.'
According to sub-clause (c) Indian citizenship is obtainable by any person 'who has been ordinarily resident in the territory of India for not less than five years". This has also no reference to parentage, it has no reference to the nationality or the country to which they belong, it has no reference to the purpose for which the person chose to reside in this country for five years. For aught I know he might be a fifth columnist: he might have come here with the' intention of sabotaging Indian independence; but the Drafting Committee provides that so long as he lives in this country for five years, he is entitled So be a citizen of India.
The whole House and the whole country is aware of the way. in which Indian nationals are treated all over the world. They are aware of the kind of colour prejudice that used to be there in England, the kind of persecution through which Indian citizens are going even now in South Africa, how they are persecuted in Malaya and Burma, how they are looked down upon everywhere else in spite of the fact that India is an independent country. The House is aware how it is not possible except for the merest handful to obtain citizenship in America, although they have spent their whole lives there. I have known of, people who have been there in America and holding various offices for fifteen, twenty and twenty-five years and vet their application number for citizenship is probably 10,50,000th. There is -no hope of such a person getting his citizenship until the 10,49,999th application is sanctioned. In America Indians can obtain citizenship at the rate of 116 or 118 per annum. That is the way in which other countries are safeguarding their own interests and restricting their citizenship. I can well understand, if India was a small country like Ireland or Canada (which are held out as models for our Constitution) that we want more people, no matter what their character is or what the country's interests are. But we are already troubled by our own overwhelming population. Under the circumstances how is it that we are making Indian citizenship so ridiculously cheap ? There is no other word for it.
As I have already pointed out one of the sub-clauses says anybody who has chosen to stay in India for five years shall be a citizen of India. I had asked the Honourable Commerce Minister (when Mr. C. H. Bhabha was in charge) a question, when sitting in the other Chamber, as to whether there was any register of foreigners coming to India. He said "No". I asked if there were any rules and regulations governing the entry into the country of people from foreign countries and he said there were none. I have no doubt the situation continues very much the' same today. Such is the administration that we have. Is it then wise that we should throw open our citizenship so indiscriminately ? I do not side any ground whatsoever that we should-do it, unless it is the specious, oft-repeated and nauseating principle of secularity of the State. I think that we are going too far in this business of secularity. 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? I do not think that that is the meaning of secularity and if that is the meaning which people. want to attach to that word "a secular state". I am sure the popularity of those who take that view will not last long in India. I submit therefore that this discarded as we did the previous article, because there is nothing that is right in it. If really we want a tentative definition we can have it from other people, who are probably wiser than us and that should be quite, enough for us. That is one of the definitions that I have proposed in, my amendment No. 164, viz.,
"Every person residing in India-
(a) who is born of Indian parents; or
(b) who is naturalised under the law of naturalisation.
I do not mind if it is left to Parliament to debate the whole question of the citizenship of India. But for the present this very short and brief definition may be absolutely sufficient and that is my contention. and my submission to the House. It must be made clear that citizenship shall be primarily obtainable by a person who is a born of Indian parents and I do not exclude even those who had been in India previously, provided the requirement of domicile is satisfied. If they are resident here in this country, or if they have not claimed citizenship of any other country or if they are born of Indian parents they shall be entitled to citizenship of India. So far as other persons are concerned, there will be the law of naturalisation which would -make detailed provisions. We can lay down the business, the purposes for which or the way in which a person who-claims Indian citizenship chooses to live in India. There would be ample time for the Parliament to debate this question and to lay down the principles. But if you are going to have this definition at this Moment you are going to tie your hands, you are going to tie the hands of Parliament from interfering later. Will you then have the courage to deprive them of citizenship, the hundreds and thousands of them who have bad it under the Constitution ? It is impossible, it is quite improbable and no Parliament in India is going to take such a drastic step as to correct the foolishness that we are complacently committing today. I do not think any Parliament will be able to do it. Therefore I do not like citizenship to be made so cheap ,or so easily obtainable, because once you do it in this Constitution it will be very difficult for you to go back on it.
And then, this is not a definition in an Act of Parliament that is easily changeable. So, if by the Constitution you are going to give this right of citizenship in the way proposed in this article, you cannot change it later on and this will go against the interests of the Indian nation. So I have proposed that the circumstances and conditions of naturalisation should be left to be decided later on. Nothing need be done on this question by the Constituent Assembly at this stage.
Every condition and every circumstance, which we are convinced should be laid down and satisfied for the conferment of citizenship right on an individual, should come into play when we pass the Naturalisation Act in Parliament. We should not lay down some conditions here in the Constitution and some conditions elsewhere for the grant of citizenship Tights. The fact that a person is born in India should not be sufficient ground for the grant of citizenship, nor should five years' residence be sufficient. I say that we should leave all these things for the Parliament to lay down. We should merely say here that every person residing in India who is naturalised under the Law of Naturalisation will be a citizen of India.
In the second sub-clause I have proposed, I want to make a provision that every person who is a Hindu or a Sikh and is not a citizen of any other State shall be entitled to be a citizen of India. 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. by the mere fact that he is a Hindu or a Sikh, he should get Indian
citizenship because it is this one circumstance that makes him disliked by others. But we are a secular State and
do not want to recognise the fact that every Hindu or Sikh in any part of the world should have a home of his
own. If the Muslims want an exclusive place for themselves called Pakistan, why should not Hindus and Sikhs
have India as their home? We are not debarring others from getting citizenship here. We merely say that we have
no other country to look to for acquiring citizenship rights and therefore we the Hindus and the Sikhs, so long as
we follow the respective religions, should have the right of citizenship in India and should be entitled to retain such
citizenship so long as we acquire no other. I do not thing this claim is in any way non-secular or secretarian or communal. If anybody says so, he is, to say the least, mistaken. I think my description (amendment) covers every
possible case. The only thing we are agitated about is that our people, thinking that Pakistan would be a happy
country, went there and came back. Why should we recognise them by means of this or that provision in the
Constitution? Because, nothing of the sort is necessary. So long as they are resident in India when the Constitution is promulgated and they are born of Indian parents, they should be entitled to citizenship rights without any fresh registration or evidence. That is what is contemplated in my definition. I hope the House will accept it.
Prof. Shibban Lal Saksena (United Provinces : General): You say, 'being born of Indian parents'. How do you define 'Indian parents'?
Dr. P.S. Deshmukh: I think it should refer to all those persons who are resident in India. It would be quite
easy to define it. If the Professor thinks a definition is necessary, it would be quite easy to frame one.
Prof. Shibban Lal Saksena: Then give a definition?
Dr. P.S. Deshmukh: Yes. I thought that an Indian is a very easily recognisable person. When combined with domicile, it is easier to define it. But if the Professor thinks that an Indian cannot be recognised and that it is
necessary to lay down who is an Indian, what is his colour and complexion and so on, I would leave it to him to
suggest a suitable definition. I think the existing definition is capable of being understood without any difficulty. I do not think that a definition is necessary for every expression used. If you examine the Constitutions of other
countries, the Constitution of Poland for instance, you will find that all that they provided is that any person who is
born of Polish parents is a citizen of Poland. They know who is a Pole, just as we know who is an Indian. I do not think therefore that any definition is necessary in this connection. If we want a tentative definition, an article which will serve as a transitory provision, my article should be quite enough.
I now come to my remaining amendments. I case my definition and the article, the substance of which I have
given, are not accepted, I have suggested that, in the article proposed by the learned Doctor, the words "at the
date of the commencement of this Constitution", should be omitted. Then, in (a), after the words 'who was born in the territory of India', the words, 'born of Indian parents' should be added, and in (c) the words 'at least' should
be added before the words 'five years'. I would like the word 'five' to be altered to 'twelve',so as to make it
necessary for anybody to obtain citizenship by residence in India for that period.
So far as the Explanation is concerned, I think the Doctor himself is convinced that it is not necessary to retain it and for very good reasons. It says: "For the purposes of this article, a person shall not be deemed to be a citizen of India if he has after the first day of April 1947 migrated to the territory now included in Pakistan". I see no reason why Pakistan should be singled out. The word 'migrated' has a definite meaning. It means going out of the country with the intention of settling permanently in some other country and not remaining in the country from
which he has migrated. If the meaning of the word 'migrate' is clear, then nobody who leaves the Indian shoes and
goes out - it does not matter whether he goes to Pakistan or Honolulu or the North or the South Pole, he will not
be entitled to the citizenship of India. Therefore the explanation is meaningless.
In addition to this I have proposed that there should be some responsibility which ought to be shared by every one who claims to be a citizen of India and for that purpose. I have proposed amendment No. 29 that 'Every citizen of India shall enjoy the protection of the Indian State in foreign countries; and (b) be bound to obey the laws of India, serve the interests of the Indian communities, defend his country and pay all taxes". I would not like to press this very much because even this must be possible to include in the Naturalisation Act, when we pass it.You have also suggested, Sir, that all these might be left to Parliament. In view of that I would not mind
withdrawing this amendment. But I would like to move my other amendments. If, however, my whole article is
accepted, then there would be no need to move the other amendments which deal with the wording of the article
as proposed. Otherwise it will be necessary that those words to which I have objected ought to be omitted.
Mr. Naziruddin Ahmad: Mr. President, Sir, I have a few amendments to move. Before I do so, may I
request your ruling as to whether I am to speak on my own amendments or to speak generally on the article. I
think it would be inconvenient if I have to speak on the article generally. This should actually be at the end,
because I do not know what further amendments would be moved. I however would like to say that there would
be no repetition. Sir, may I have your ruling as to whether I should only move and speak on my amendments or
generally on the article.
Mr. President: I think it would be much better if you make only one speech.
Mr. Naziruddin Ahmad: There is no doubt about it, but it will be inconvenient to speak generally on the article unless we get all the amendments before us. That is the difficulty. Further, I find that in spite of your kind help to inform the Members as to what amendments are to be moved, there is yet some amount of confusion among some Members as they still do not know what amendments have been moved. The difficulty has been caused by last-minute changes, and the number of amendments is due to the fact that there have been constant changes.
Mr. President: I think the difficulty has arisen because Members have been offering to lists of previous weeks.The system that has been followed by the Office is to consolidate all the amendments at the end of the week and to put them into the first list of the next week, so that all the amendments that remained by the end of the second week are consolidated in the first list of the third week, and any further amendments that come in the third week are put, down in the subsequent lists, II, III etc. Dr. Deshmukh referred to the previous week's lists but I have mentioned the corresponding numbers in the existing week's lists. So, if the Members refer to the lists of the
current week, they will find all the amendments according to their number. If the Member so desires, I will
mention the numbers once again.
Mr. Naziruddin Ahmad: I do not know whether all Members have got the correct numbers by this time, but so far as I am concerned, I know what amendments I shall move. I shall move from List I amendments Nos. 4, 18, 22, and 30 and from List V amendments Nos. 148, 149, 151, 153, 154, 155 and 156. There may be one or two others, but I hurriedly noted down only these numbers.
Sir, I move amendment No. 4 in List I -
"That in amendment No. 1 above, in the proposed article 5, for the words ' At the date of commencement of this Constitution every person who' the words 'Every person who at the date of the commencement of this Constitution' be substituted."
Sir, I will omit the word "date", and so my amendment will substitute the words "Every person at the
commencement of this Constitution" for the words "At the date of commencement of this Constitution every
person who". I shall explain the necessity for this amendment at once. The expression "date of commencement of
this Constitution" is not proper. We have throughout this Constitution always referred to the "commencement of
this Constitution" That clearly and distinctly refers to the "date" of commencement. Commencement only refers to
the date. So, the "date" of the commencement of this Constitution" is unnecessary. Therefore I have sought to
remove the words "date of". It is unnecessary and in other contexts it does not appear. The rest of this amendment is merely a rearrangement of the article to give more emphasis t the words "every person". That is my firstamendment.
Then I come to amendment No. 18 in the First List. Sir I move:
"That in amendment No. 1 above, in the proposed new article 5-A, for the words 'now included in Pakistan' the words 'which at the commencement of this Constitution is situated within the Dominion of Pakistan' be substituted."
I submit, Sir, that in the context of article 5-A as proposed by Dr. Ambedkar, the word "now" is extremely
ambiguous. It is at any rate unprecise. if the words "territory now included in Pakistan" are used, we do not know
to what period of time the word "now" refers. Does it refer to this date, the date on which this amendment is
accepted? Does it refer to the 11th August 1949 or does it refer to the date when any lawyer to jurist reads the
article? In fact, the word "now" is very unprecise. It has never been used in any part of this Constitution. Therefore for the word "now" I would like to substitute the words "commencement of this Constitution". The rest is merely verbal. The word "now" is highly objectionable, it is vague and it may lead to some difference of opinion.
The next amendment which I would like to move is amendment No. 22 in the First List. Sir I move:
"That in amendment No. 1 above, in sub-clause (ii) of clause (b) of the proposed new article 5-A, the words 'date of' be deleted."
I have already explained the reason for removing these words. If we remove these words, it will read "the
commencement of the Constitution". It certainly means the date of commencement of the Constitution.
Sir, I move:
"That in amendment No. 1 above in the proposed new article 5-B, for the words 'made by Parliament' the words 'made in this behalf by Parliament' be substituted."
This is merely verbal and I suggested this by way of improvement. This may be considered by the Drafting
Committee. That concludes List No. 1 of Third Week. Then I come to List V, Third Week.
Sir, I move:
"That in amendment No. 1 of List I (Third Week) of Amendments to Amendments in the proposed article 5, in line 1, the words 'date of' be deleted."
Sir, I move:
"That in amendment No. 1 of List I (Third Week) of Amendments to Amendments, in clause (c) of the proposed article 5, the words 'the date of' be deleted."
I have already explained the need. Then I move amendment No. 151.
"That in amendment No. 1 of List I (Third Week) of Amendments to Amendments, in the proposed new article 5-A, for the words 'a person' the words 'any person' be substituted."
In proposed article 5-A the text of the article runs thus: "Notwithstanding anything contained in article 5 of this Constitution a person who has migrated to the territory of India" and the word "any person" would be better. The word "any person" has been used in a similar context in proposed article 5-B. "A person" is rather vague and "any person", though meaning the same thing, is more precise and besides this amendment, if accepted, would make the drafting of this clause and clause 5-B the same. It is a drafting amendment and may be left over for
consideration by the Drafting Committee.
I then move amendment No. 153:
"That in amendment No. 1 of List I (Third Week) of Amendments to Amendments. in sub-clause (ii) of clause (b) of the
proposed new article 5-A, the words 'date of' be deleted."
It occurs in connection with the date of the commencement of the Constitution. These words, as I have already explained are unnecessary.
Then I move amendment No. 154:
"That in amendment No. 130 of List IV (Third Week) of Amendments to Amendments, in the proposed new article 5-AA, for the words ' a person' the words 'any person' be substituted."
I have already explained the necessity for this amendment.
I also move amendment No. 155:
"That with reference to amendments Nos. 130 and 131 of List IV (Third Week) of Amendments to Amendments, in theproposed new article 5-AA, for the words 'now included in Pakistan' in the two places where they occur, the words 'which at thecommencement of this Constitution is included in the Dominion of Pakistan be substituted."
The main purpose of this amendment is to remove the word "now" and to put in its place a more precise
expression, namely, "at the commencement of" in the context of the article. The rest of this amendment is merely
Then I also move my amendment No. 156:
"That in amendment No. 133 of List IV (Third Week) of Amendments to Amendments, for the proposed article 6, the following be substituted:-
'6. Notwithstanding anything contained in the foregoing provisions of this Part, Parliament may by law make further provisions with respect to the acquisition and termination of citizenship and all other matters relating to citizenship.
Provided that the making of any law by Parliament referred to in this article shall not be deemed to be an amendment of this Constitution within the meaning of article 304 of this Constitution."
With regard to this amendment, the first part, the body of the proposed article 6 is more or less verbal, but the proviso is new and I have suggested it simply to obviate the difficulties which would attend to the amendment of the Constitution itself. We are providing some rules of citizenship in the Constitution. By article 6 we authorise the Parliament to make further laws, lest it be said later on if the Parliament does so, it would have the effect of
amending the Constitution itself, because it is quite conceivable that Parliament may make laws which will undo or
at least modify clauses which are under consideration. That would involve the amendment of the Constitution itself.
We have in a similar context taken care to provide that these amendments which are merely of a mechanical
nature and not likely to go into the root of the Constitution may be done by Parliament and we have provided in
those cases as a matter of caution that these amendments made by Parliament shall not be deemed to be
amendments of this Constitution within article 304. So any possible controversy that the amendments are
amendments of the Constitution itself would lead to almost an impasse by setting in motion the entire apparatus of
amending the Constitution which would be highly inconvenient. On a small matter like this the matter should be left entirely to Parliament without it being considered to be an amendment of the Constitution itself. These are my
With regard to the entire set of articles proposed by Dr. Ambedkar, his amendments are needlessly
cumbersome and as Dr. Deshmukh has pointed out, will lead to the introduction of "cheap" citizenship in India. I
should suggest that it would introduce something more. Continuing the example cited by Dr. Deshmukh that a
foreign lady, while passing through India on an aeroplane journey, gives birth to a child in Bombay, the child at
once acquires the citizenship of India. Dr. Deshmukh things that this would be too flimsy a ground to give the child the status of an Indian citizen. I should submit it would lead to other serious consequences. The mother of the child in the example is a foreigner. It is conceivable, and it is easy to take it that the law of the country of her domicile will claim the child as her own citizen. In fact, citizenship follows parentage. The father's domicile would also be the child's domicile. So, the father's or the mother's domicile will compete with the child's citizenship of India. On the one hand, India will claim the child to be a the citizen of India and the mother of the child will claim the child to be a citizen of her domicile. It is conceivable that the father has another nationality and he claims the child to belong to that nationality. All the three countries will compete with one another and claim the child to belong to his or her own nationality. Carrying the illustration a little further, there are the grand parents; the four grand parents father and mother of the mother and father and mother of the father. There are thus again four sets of claimants whose nationality will decide the citizenship of the grand-child. The four different countries may claim the child to belong to them. What is more, the child is in a particularly favourable or unfavourable position of claiming or dis-claiming the nationality of India or the nationality of the mother or the father and those of the four grandparents. It will mean a confused state of affairs. The manner in which these articles have come into being and have been presented to the House and the way in which amendments have been coming in from day to day, to say the least and to quote Dr. Deshmukh, is very unfortunate. I think a subject of this difficulty and complexity should not have been dealt with in this fashion and I should have thought it much better to have postponed the consideration of these articles and allow the Members to have an over-all picture of the entire subject together with the suggested amendments. I find that I am not the only member of this House who finds it difficult to follow even there-print of the entire Draft because we have to consider the amendments and place them in their context and consider this effect. To do so accurately is not an easy job. As I have already submitted, there are many slow
Members like me in this House who find it also equally difficult not only to follow the intricacies of this proposed
new clause, but also the amendments to be proposed. It is this state of affairs which almost forces many Members to be inattentive and we appreciate the very just remarks which you made yesterday that many Members are interested in discussions having nothing to do with the amendment or the subject under consideration. The real reason is that the amendment and the new ideas come in too late to the Members for real consideration. The subject of these series of articles will inevitably lead to inattention because it is a little bit difficult to follow them without mistake. As these are difficult matters and as there are anomalies. I feel, that if we postpone the discussion of these articles for further consideration, more complications will follow. Therefore, the best course would be to adopt these articles and to provide for any correction or supplementation if there is necessity through the excuse of article 6. That would to a certain extent avoid any complications which may unconsciously be created by further amendments. That would afford an excuse to Members for going more deeply into the matter; we relegate our thoughts and our labours to the future Parliament which may cure defects if there are any in these drafts. It will be very difficult to follow them and it will lead to confusion of nationalities landing us in difficulties, not merely granting cheap citizenship. These are the few words that I have to submit before the House.
Shri Jaspat Roy Kapoor: (United Provinces : General): Mr. President, Sir, the first amendment that stands in my name is amendment No. 5 in the First List, Third Week which relates to the definition of citizenship subsequent to the date of the commencement of this Constitution. In view of the explanation which Dr. Ambedkar gave yesterday that his intention was to confine the definition of citizenship only at the date of the commencement of this Constitution and more particularly in view of your advice that we should confine our remarks only to this aspect of the question, I should not venture to move this amendment. But, Sir, I find that the Draft which has been moved by Dr. Ambedkar is not a provisional Draft, but it is of such a limited nature that it does not make any provision for the acquisition of the right of citizenship subsequent to the date of the commencement of this Constitution even up to the period that Parliament may make any law in this respect. I, therefore, suggest to Dr. Ambedkar to seriously consider whether it would not be advisable to accept the suggestion contained in this amendment. The suggestion reads like this:
"That in amendment No. 1 above, in the proposed article 5 -
after the words 'at the commencement of this Constitution' the words 'and thereafter' be inserted; and
In clause (a) after the word 'was' the words 'or is' be inserted;
or alternatively, that with reference to amendment No. 1 the following new article be inserted as 5-D:-
'After the date of the commencement of this Constitution, every person who possesses the qualifications mentioned in article 5 of this Constitution shall, subject to the provisions of any law that may be made by Parliament be a citizen of India, provided that he has not voluntarily acquired the citizenship of any foreign State."
Mr. President: You drop 'continue to be'.
Shri Jaspat Roy Kapoor: This is a mis-print. It will only read as "shall be a citizen of India.... I hope Dr.
Ambedkar will give serious consideration to this suggestion and find it acceptable.
The next amendment that stands in my name is No. 13, but in view of the fact that the substance of this
amendment is covered by amendment No. 130 which has already been moved by Dr. Ambedkar, I do not
propose to move it. I am not moving Nos. 8 and 9 either. Then I pass on to No. 31 which I beg to move:
"That in amendment No. 1 above, in the proposed new article 5-B, the words 'deemed to be' be deleted."
There is another amendment No. 19 in my name as well as in Mr. Sidhva's name but I leave it to be moved by Mr. Sidhva because he is my senior partner in this amendment.
The next amendment which I would like to move is amendment No. 124 which runs thus:
"That in amendment No. 1 of List I (Third Week) of Amendments to Amendments, in the proposed new article 5-A, after the word 'who' a comma and the words 'on account of civil disturbances or the fear of such disturbances,' be inserted."
There are some other amendments also standing in my name but I do not propose to move anyone of them.
Sir, this article 5 which relates to the definition of citizenship has had rather a chequered history. The Drafting Committee has placed before us for our consideration various drafts from time to time, each draft being supposed to be an improvement on the previous one, but every time that it came before us for scrutiny and consideration, it was found to be defective and not comprehensive enough, and, therefore, it had to be sent back to the Drafting Committee for being recast and improved upon. Even during this Session one amendment after another has been pouring in from the Drafting Committee until we have before us the Draft as has been moved by Dr. Ambedkar yesterday. Let us see whether even this Draft is satisfactory enough. I am afraid even this is not satisfactory and is not comprehensiv enough. First of all, we find that it confines itself to defining Citizenship at the date of commencement of this Constitution and makes no provision for the acquisition of the right of citizenshi subsequent to that date. Of course under article 5(s) the right acquired on the citizens even thereafter, but with all that it makes no provision for acquisition of the right of citizenship subsequent to that date. It has been
conveniently left over to be dealt with by Parliament. Now, the date of commencement of the Constitution is going to be under the schedule which has been thought of at present as 26th January, 1950. So it means that 26th
January 1950 is going to be the deadline by which the right of citizenship should be acquired and no provision has
been made for the acquiring of this right rather a very unsatisfactory state of affairs. I can quite appreciate the view
that it may not be very easy today to make an exhaustive definition of citizenship. It may not be possible to
envisage at this stage as to what possible qualifications should be provided for the acquisition of the right of
citizenship, and it should be left to Parliament to make a very comprehensive definition of citizenship; but I see no
reason why we should not make an attempt, when it is easy enough - according to me - to provide for acquisition
of this right during the period intervening between the date of commencement of this Constitution and the date on
which the Parliament may enact any new Law on the subject. Is it not very unsatisfactory that we should make no
provision for all those persons who may be born after midnight of 26th January 1950, and should we not make
any provision for acquisition of the right by those who may have been domiciled in this country and some time
after January 1950 may be completing the period of five years of residence? That seems to be an obvious lacuna. Lacs of persons would continue to be considered as non-citizens of this country between the date of
commencement of this Constitution and the date when the new law will be made Parliament, and the brunt of this
difficulty will be felt even by several members of this House who have been recently married including even
Honourable Ministers who may have children born immediately after 26th January 1950 and who will find
themselves in the very unhappy and uncomfortable position of being parents of children who are not citizens of this country. The anomaly of the position becomes more funny when we find this in article 5-B - the relevant portion runs thus:
"He shall be deemed to be a citizen of India if he has been registered as a citizen of India by the diplomatic or consular representative of India in the country where he is for the time being residing on an application made by him therefor to such diplomatic or consular representative, whether before or after the commencement of this Constitution."
I particularly wish to draw attention to the word 'after' which means that whereas article 5-A confines itself to defining citizenship only at the date of commencement of this Constitution, according to 5-B, in respect of persons who are not born or residing here but who have been born in a foreign country or residing there, even on a date subsequent to commencement of this Constitution, if an application for registration is made to our embassy there, they shall be registered as citizens. So obviously persons born in this country are going to be placed at a
disadvantage as compared to persons born in a foreign country - of course of Indian parents. It may be said thatsuch persons would not necessarily become automatically citizens because they will have to be registered and it may be said that certain rules may be framed by our Government laying down the conditions under which onlythey could be registered, or that a subsequent law may be made - a comprehensive law - on the subject which would take note of all these contingencies. According to article 5-B, a citizen of Pakistan whom we are trying to eliminate from our definition of citizenship, if he goes over to a foreign country and presents an application to our embassy, he can be registered as a citizen of India. In this article 5-B the condition that he should not have
acquired the right of citizenship of any foreign State which we find in article 5-A does not find place. It may be
said that we shall not allow such an anomalous position to stand and we shall make necessary legislation on the subject. True, but then what I find is that this very safeguard which there was originally in the original article 5-B
incorporated as follows: "and subject to the provision of any law made by Parliament" is proposed to be deleted.
Originally it stood like this : "Notwithstanding anything contained in articles 5 and 5-A of this Constitution and
subject to the provisions of any law made by Parliament etc." If the saving clause be there, of course any defect
that may have appeared to us in the provisions of 5-B could be removed. Now Mr. T.T. Krishnamachari
yesterday moved an amendment which has been very generously and gladly accepted even before it was moved,
by Dr. Ambedkar. I do not see with what object Mr. Krishnamachari suggests that these words should be
deleted. If his contention be that this is redundant because under article 6 Parliament shall have the right to frame
any new law laying down what qualifications there shall be for the right of acquisition of citizenship, I submit.......
Shri T.T. Krishnamachari (Madras : General) : May I point out that if he reads article 6 as amended, he will find the explanation for my amendment.
Shri Jaspat Roy Kapoor: I did rightly anticipate the argument that would be placed before us by Mr.
Krishnamachari in reply to my objection, but if article 6 as amended covers such case and makes these words
redundant may I ask where is the necessity for these very words being inserted in article 5-C? Article 5-C says "Every person who is a citizen of India under any of the foregoing Provisions of this Part shall, subject to the
provisions of any law that may be made by Parliament, continue to be such citizen." We have these words in
article 5C. But in article 5B these words, which were originally there, are now proposed to be dropped. If they
are redundant and are covered by the newly drafted article 6, they must go from both these articles. If they are
necessary in article 5C, they are still more necessary in article 5B.
I submit that I consider that it is necessary to retain these words in article 5B. I do not think it will be open to Parliament to enact any law by virtue of the powers conferred on it by article 6, which is in contravention of the
provisions of article 5B. 5B is a definite article laying down the qualifications for citizenship in respect of persons mentioned therein. A definite article conferring the right of citizenship under the Constitution cannot, I
think, be tampered with by any subsequent law made by Parliament. Be that as it may, to avoid the possibility of
any ambiguity it is necessary either to have these words both in article 5C may lead to the presumption that 5C
only is subject to the provisions of any subsequent law on the subject and article 5B is not subject to any such subsequent law.
My submission with regard to the point that I had raised originally is that we should amend article 5 in such a
manner as to cover the cases also of those persons who are newly born of Indian parents on Indian soil after the
26th January 1950. I see absolutely no difficulty in my suggestion being immediately accepted. Even if it is
accepted article 5 would not become an absolutely permanent definition of citizenship : that can be amended,
varied or altered under article 6, as has just been pointed out by Mr. T.T. Krishnamachari. I only want that the
lacuna that is there must be filled in. Let it not be said that the period immediately following auspicious day of 26th January 1950 was so inauspicious that persons born in this country after that date and before the enactment of a new law was so unlucky that children born therein were not citizens of this land by birth. I therefore, suggest very seriously and respectfully that article 5 be amended in the way I have suggested. This can be done merely by incorporating the two words "and thereafter" after the words "At the date of commencement of this Constitution".
The other point that I would like to refer to is regarding article 5A. This article relates to those persons who
have migrated to India after the partition. They are to be "deemed to be citizens of India." I particularly object to
the retention in this article of the words "deemed to be". The article reads like this:
"Notwithstanding anything contained in article 5 of this Constitution, 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 date of commencement of this Constitution."
I do not know with what particular object these words "deemed to be" have been incorporated herein.
This article relates to the acquisition of the right of citizenship by persons who have migrated into India. I do not see any reason why they should not be considered after having migrated into India as citizens of India as of rights, and why it should be suggested that we are conferring on them this right by way of grace, as it were. It seems to me that it is likely to be felt very seriously and bitterly by those of our brethren who took all the trouble and who underwent all that misery and agony by migrating from Pakistan to this dear and sacred land of theirs. All the while that they were on their way to this land, they were thinking of this beloved country of theirs, pining and praying to reach our borders, and immediately on reaching those borders, with a great sense of relief they cried out "Jai Hind", a cry which touched every one of us. They had such tremendous loyalty and affection for this country. They were so eager to rush to this country, to offer their loyalty to it, and yet we say that we are conferring on them this right of citizenship more by way of grace than by way of right. I do not see any reason for it, Sir. On the contrary, I see very great reason that these words must be deleted and satisfaction given to our refugee brethren. In matters like this, it is always best to act gracefully and go give a psychological satisfaction to our refugee brethren. I would, therefore, respectfully and earnestly suggest that these words might be deleted, for nothing is to be lost by the deletion of these words, and much is to be gained.
Similarly, Sir, in article 5-B these words 'deemed to be' may be deleted, though it is more necessary to delete these words in article 5-A than in article 5-B.
Then I turn to amendment No. 124 which I have already read out. It says that in the proposed new article 5A, after the word "who" a comma and, the words 'on account of civil disturbances or the fear of such disturbances,' be inserted. So after the incorporation of these words, article 5A would read thus:
"Notwithstanding anything contained in article 5 of this Constitution, a person who, on account of civil disturbances or fear of such disturbances, has migrated to the territory of India....."
Now, Sir, the object of this amendment of mine is to bring it in line with certain other legislation already in force:
I mean the legislation relating to the evacuee property. We have, Sir, not only at the Centre but also in several of the province in the country - almost every other province, excepting West Bengal, Assam and probably Madras too - an Evacuee Property Ordinance in force. According to that ordinance, an evacuee has been defined as one who has left a territory because of civil disturbances or because of fear of such disturbances. It appears to me very rational and reasonable, Sir, that in a provision like article 5A, we must say what are the particular reasons which are guiding us for making a provision like this. We must make it known definitely here that it was not our intention to confer the right of citizenship on anybody who wanted to migrate to this country; but we want to confer this right on such persons because of certain reasons, the particular reason being that such persons found it difficult to stay in the place of their original domicile. We must lay it down definitely what are the reasons which are guiding us in making a provision as is contained in article 5A. I therefore think that the inclusion of the words which I have suggested is very necessary to make our intention very clear.
Then, Sir, I have one thing more to say with regard to another amendment which has been moved by Shri T.T. Krishnamachari - that is amendment No. 131. This amendment stands in the name only of Shri T.T.
Krishnamachari. I do not know what particular reason there was for Dr. Ambedkar to dissociate himself from thisamendment, though of course, while moving his amendment as a whole, he has accepted it. I do not like the idea of himself being associated with it.
The Honourable Dr. B.R. Ambedkar (Bombay : General) But he has not even moved it! Oh, that proviso - yes, I have accepted it.
Shri T.T. Krishnamachari : It is not in Dr. Ambedkar's name but in Shri Gopalaswami Ayyangar's and mine.
Shri Jaspat Roy Kapoor: That is exactly what I was submitting. Therefore, I was perfectly correct. I am glad to find that it has come to Dr. Ambedkar as a surprise. I have said that this amendment has been accepted by him. He was under the impression that it had not been moved at all, and if he has accepted it in an unguarded moment, or under any misapprehension, I hope he will immediately correct himself and make it clear to us that it is not his intention to accept this amendment.
Shri T.T. Krishnamachari: May I interrupt my honourable Friend and tell him that he knows very well why that amendment has been moved.
Shri Jaspat Roy Kapoor: Yes, I know very well why this amendment has been moved: I know also very well why this amendment is a very obnoxious one, and why it should not be accepted. I say it is obnoxious even to this extent that 'Dr. Ambedkar did not originally consider it necessary and advisable and proper to associate himself with this amendment.
Why is it, Sir, that I consider it obnoxious? It says that those persons who migrated from India to Pakistan if, after 19th July 1948 they came back to India after obtaining a valid permit from our Embassy or High
Commissioner, it should be open to them to get themselves registered as citizens of this country. 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, where he would put in his best efforts to make it a free
progressive and prosperous state. We have no grudge against them...
Shri Brajeshwar Prasad (Bihar : General) : May I ask my honourable Friend whether it is true that all those persons who fled over to Pakistan did so with the intention of permanently settling down there and owing allegiance to that State? Is it not a fact that they fled in panic?
Shri Jaspat Roy Kapoor : My honourable Friend Mr. Brajeshwar Prasad even today, on the 11th August 1949, doubts as to what was really the intention of those persons who migrated to Pakistan. I do not want to refer
to this unpleasant subject, because the sooner we forget the bitterness of the past the better. But do we not know
that Muslim Leaguers wanted division of the country and exchange of population, and that the number of persons
belonging to the Muslim League was tremendously large? To our misfortune, only a handful of nationalist Muslims
were opposed to the idea of Pakistan. The vast majority of the Muslims and most certainly those of them who
went away to Pakistan immediately after Partition had certainly the intention of permanently residing in Pakistan.
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 ther
should be a transfer of population? ..... (Interruption by Shri Brajeshwar Prasad.)
Mr. President : The honourable Member is entitled to his own views and it is no use cross-examining any
Member across the floor of the House. If Mr. Brajeshwar Prasad has his views, let him have them and let Mr.
Kapoor express his own views.
Shri Jaspat Roy Kapoor : I know that my honourable Friend Mr. Brajeshwar Prasad does not agree with
any sensible view or proposition that is advanced in this House, and it is no surprise to me that he is not agreeing
with me on this occasion as well. What I was submitting is that those persons who went away to Pakistan went
definitely with the intention of settling down there permanently. They gave up their loyalty to this country and they
gave their allegiance to the new country of Pakistan. Their migration was therefore complete and absolute and,
therefore, the right of citizenship which they had before their migration is eliminated altogether. There have been
cases of a large number of government employees, both in the higher and lower posts and particularly in the
railways, who had opted of their own free will for Pakistan, even before Partition had taken place; and quite a
large number of them, particularly railway employees, after going over to Pakistan came back to India finding tha
they had no scope for a decent existence in Pakistan, after obtaining valid permits. Could it be said in their case,
as Mr. Brajeshwar Prasad is contending, that they had left this territory because of fear of disturbances? They had definitely said even before there was any sign of disturbance that they would like to go and settle down
permanently in Pakistan and serve the Pakistan Government. There should, therefore, be no doubt in the mind of
anyone of us that such persons definitely went away with the idea of settling there permanently. Now if they want
to come back to India to settle down here permanently, we may welcome them as we would welcome any other
foreigner. Once they became foreigners to our land they must be treated on the same footing as any other
foreigner. If any permit is given to them to come over and settle down permanently, it only means that we are
showing consideration to them and telling them. "You can come back again and settle permanently here if you like; but please do not think it is for the reason that you kicked this country once. We do not wish to put a premium on this conduct and grant any concession therefor. But we are prepared to give you the same facility for re-acquiring, the right of citizenship of India as we are prepared to give to any foreigner." It means let them come back by permit and settle here for five years, and thereafter perhaps the may be permitted to acquire the right of citizenship as any other foreigner may be permitted to any subsequent law made by Parliament. Therefore it is a matter of principle and we should not throw away this principle for any reason, without any valid reason.
Also it has certain financial implications which we should not forget to realise at this stage. The question will
arise as to whether in regard to the property which such persons had left at the time of migration they will be
entitled to get them back along with their citizenship after they have been promulgated an attempt has been made
to vest in the Custodian of Evacuee Property the right of management of all the property which has been left over by evacuees. Now such persons, even though they have come back after the 19th July 1949 under a valid permit continue to be evacuees under the definition of the various Ordinances. There will be an anomalous position then.While on the one hand we confer on them the right of citizenship, the property which they had left behind at the time of migration will continue to be evacuee property. You will perhaps treat the question with fairness and generosity, and I agree that it must be treated with fairness and generosity, because every great nation must always adopt that attitude. With that attitude of fairness and generosity, I am afraid it will be well nigh impossible for you to say to them that "Though we adopt you as citizens of this country, yet we would treat your property."
That may not be possible and, therefore, property worth crores of rupees will be going out of your hands. I need
not elaborate this point because the implications of this are very clear to every one of us and more particularly to those who are responsible for sponsoring this amendment.
I would only say one word. While it is good to be generous, generosity loses much of its virtue when it is at the cost of others, because this generosity will be at the cost of nobody else but ultimately perhaps at the cost of our refugee brethren. Eventually it may or may not be so we do not know, but we will very much regret it, if thatbecomes the position. It is the refugees who are going to benefit from all such property and if we are going to
make a free gift of all this property to those who migrated but have come back it is the refugees who are going to
suffer and none else. I would, therefore, beg of Mr. T.T. Krishnamachari and also Mr. Gopalaswami Ayyangar not to press this amendment and let this article 5A remain as it is in the draft without the proviso.
I have done, Sir. I will only repeat the appeal I have already made, that this particular amendment at least of
Shri T.T. Krishnamachari should not be accepted.
Mr. President: Professor Shah may now move amendment No. 6 (List I - Third Week).
Prof. K.T. Shah (Bihar : General) Sir, I have some amendments in the Printed List. Vol. I which have not been covered by the revised Draft. I would like to move them with your permission.
Mr. President: I had one such amendment of yours in mind when I made certain remarks in the beginning.
Prof. K.T. Shah : That is a new article. That comes later. I am speaking just now of amendments 203 and 208 which relate to the restriction of parents on the paternal side. That has not been moved.
Mr. President: You may move amendment No. 203.
Prof. K.T. Shah : With your permission, Sir, I would move all my amendments and then speak on them
The first amendment I would like to move is :
"That in clause (a) of article 5, after the words 'grand-parents' the words 'on the paternal side' be added."
The numbering of the clauses will have to be altered. As the same idea is repeated in amendment No. 208 I am repeating it. The next amendment of mine in the Printed List is No. 227. As it is included in the new amendment I have given notice of, I do not read it just now. My next amendment is No. 231. As it relates to a new article, I do not propose also to read it just now. Then I move :
"That in amendment No. 1 above, in the proposed article 5 -
(i) after the figure '5' the brackets and figure '(1)' be inserted;
(ii) before the Explanation, the following proviso be added:-
'Provided further that the nationality by birth of any citizen of India shall not be affected in any other country whose Municipal Law permits the local citizenship of that country being acquired without prejudice to the nationality by birth of any of the citizens; and Provided that where under the Municipal Law no citizen is compelled either to renounce his nationality by birth before acquiring the citizenship of that country, or where under the Municipal Law nationality by birth of any citizen does not cease automatically on the acquisition of the citizenship of that country.';
(iii) after the Explanation, the following new clause be added:-
'(2) Subject to this Constitution, Parliament shall regulate by law the grant or acquirement of the citizenship of India.' "
I also move:
"That in amendment No. 6 above, after the proposed new clause (2) of article 5, the following proviso be added:-
'Provided that Parliament shall not accord equal rights of citizenship to the nationals of any country which denies equal treatment to the nationals of India settled there and desirous of acquiring the local citizenship.' "
Then there is my amendment No. 152 in today's list (List V of Third Week).
Mr. President: But, then, are you not moving amendment No. 20 (List I of Third Week)?
Prof. K.T. Shah : I am moving it.
"That in amendment No. 1 above, in the proposed new articles 5-A and 5-B for the word "Dominion', wherever it occurs, the word 'Republic' be substituted."
The next amendment that I move is No. 152 in List V of Third Week. I move:
"That in amendment No. 1 of List I (Third Week) of Amendments to Amendments, at the end of sub-clause (i) of clause (b) of the proposed new article 5-A, but before the word 'and', the following proviso be added:-
'Provided that any person who has so migrated to the areas now included in Pakistan but has returned from that area to the territory of India since the nineteenth day of July, 1948, shall produce such evidence, documentary or otherwise, as may be deemed necessary to prove his intention to be domiciled in India and reside permanently there.' "
There are all the amendments which I move in this connection at the present time. While commending these
amendments to the House, may I offer my sincere congratulations to the draftsman for the great erudition and
mastery of a very complicated subject that he has shown and also, in the midst of very serious difficulties, tried to
keep a balanced judgement on an admittedly very difficult subject where feelings run high? It is not customary for
me to throw many bouquets at the learned draftsman of this Constitution. I therefore trust that as I do such a thing so rarely, let me for once offer this bouquet of roses which I trust he will appreciate, even though there are some thorns in the bouquet.
Sir, I have been obliged to move these amendments, spread over a number of items, and dealing with a number of aspects, because I think a number of vital principles are involved. Would you permit me to simplify the entire series of amendment by formulating in general terms by idea why they have become necessary in the face of this Draft, which I consider to be of importance, and why, if they are included, the Draft would be very much improved in my opinion?
Sir, to put the matter briefly and succinctly citizenship of a State is had or acquired in a variety of ways.
Therefore the first proposition that may be laid down is that anyone born in a country is automatically a citizen of
that country, unless by his own act, when he attains maturity, he or she renounces that privilege. This is a simple
proposition to which there ought to be no exception. It goes further and makes citizenship not only a birthright, but also an inheritance. That is to say any one whose father or mother according to my amendment and according to this Draft whose grand-parents, or whose grandfathers on the paternal side according to my amendment were
born in this country, would also acquire automatically the privilege of being a citizen of this country, unless it is
specifically renounced by any act of the person concerned.
Sir, it has been said by previous speakers, and I would like t endorse it, that the privilege of citizenship of India should not be regarded as something very commonplace affair, cheap and easy. It is, I submit - and it promises to be still more, - a great privilege, of which not only those of us who are now citizens may be proud, but even those who may hereafter become citizens of India should also be proud. It was the proud privilege in the days of the Roman Republic for any Roman citizen simply because of that citizenship to regard himself as equal to any King. The last word in status and importance was said when he proudly asserted : "civis Romanum sum=I am a Roman citizen". I hope the time is coming when the same proud boast may justly be made by Indians, when the citizenship of India will not be merely regarded as a burden of our 'nativity'-for we were used to be called 'natives' in the dead and buried past - but it would be regarded as something to which the rest of the world will look up with respect.
Holding this opinion, Sir, as I do regarding the great privilege of being a citizen of India, I entirely agree with
those who think that we should not make it too cheap and easy. Nor should we be unduly niggardly about any
reasonable demand or reasonable claim by birth or inheritance to that citizenship.
Sir, I think now that the subject of citizenship has become complicated, we would be landing ourselves into
great difficulties if we continue this right of inheritance almost ad infinitem. For, though you take it only up to the
grand-parents on both sides, - that is to say, the inheritance by descent from the mother and father of the mother
and father of the person claiming citizenship, - it is a very difficult matter to prove and establish. It has been said,
Sir, that whereas maternity is a fact, paternity is an assumption. It is difficult to prove paternity beyond the shadow of a doubt, though there may be unimpeachable evidence in support of maternity. Nevertheless, for centuries, if not millenia past, we have been accustomed to reckon descent only on the paternal side. And hence my amendments. Under these circumstances, and especially in view of our country's very poor registration system, where the evidence of birth and death is not easy to obtain, I am afraid that the extension in this manner to inheritance of citizenship is bound to create difficulties especially in view of the circumstances that led to the
partition of this country, and the aftermath of terror and migration that has followed that partition. I would,
therefore, willingly accept for my part the suggestion of Dr. Deshmukh, which would restrict the privilege of
citizenship by birth only to the second degree, which can be more easily established or proved. If you go further, if you want to be more liberal and generous, you may take it up to the third generation. But there I would stop and try to keep the right of inheritance of citizenship only on the paternal side.
I say this with no desire to suggest, even by implication, that I have any lack of belief in the equality of men and women so far as citizenship rights are concerned. I say it because of the many complexities and difficulties involved in this tracing of inheritance from the maternal side, not the least of which is the problem of proof. I
would, therefore, suggest, either and preferably, that the definition suggested in this regard by Dr. Ambedkar be
accepted in preference to my own suggestion ; or at any rate, if you wish to be generous in this regard, you might
keep it to the male grand-parent of the person claiming to be citizen by inheritance.
Sir, inheritance is a thing that can be acquired; and it can also be renounced; and, therefore, in the case of those who have voluntarily or, as some honourable Member has suggested, in panic, gone out of this country, and have indicated by every act in their power that they would have nothing to do with this country, that they belong to a different nation, that they are difference in race, language, culture and religion, or whatever the reason that inspired them, we would be justified in presuming that they have renounced their birthright. They having renounced their birthright, we are justified in saying that they would not be entitled to the right of inheritance.
If they want to return and desire to become once again the citizens of India, in such cases, also, I hope the House will agree with me that we would be entitled to see to it that there would be no Quislings amidst us. It is but fair, therefore, that such persons be required to produce sufficient evidence, documentary or otherwise, not only to their right by descent, but also to show their intention to permanently reside in this country, and be its loyal citizens. For that purpose, Sir, the amendment that I have suggested would, I think, be much more adequate, much more appropriate, and much more necessary than the Draft before us. I, therefore, commend that item to the honourable Draftsman.
Coming next, Sir, to the case of those who happen to be away, who by settlement in other lands for business connection or by a formal act of acquisition of another citizenship, under the Naturalisation laws of that country, become citizens of that country, we would be right in providing that, if they desire to acquire the citizenship of India, their path should be simplified. Subject however to the condition that I have already indicated, viz., that there must be some concrete evidence that they really intend to reside in that country, be part and parcel of that country, would share all the duties and obligations of that country's citizenship, and would not be traitors to their country of adoption.
If citizenship is given as a matter of course to those who by settlement, by business connection, or otherwise, claim the right of being citizens of this country, and demand all the advantages and accrue from it, I think we must have reasonable evidence, we must demand reasonable proof that they intend permanently to live here, and be part of this land, loyal and devoted to her; and not merely for taking advantage of our generosity or liberalism in this regard.
I am thinking, Sir, in this connection much more of those foreign capitalists or businessmen who had been with us, and who had claimed in the past that there should be no discrimination against them. The Government of India Act, 1935, is disgraced by a whole chapter of many discriminatory provisions, - the discrimination being always against Indians and in favour of those outsiders. With that experience before us, and with the possible
development of our future fiscal policy in such a manner that Indian citizenship in business, in industry or any other
enterprise may receive special protection, may receive special benefit, we must take good care against foreign
capitalists who might come and settle here, merely to enjoy those benefits of our fiscal or industrial policy, without their heart being in this country. I, therefore, suggest that whether in the Constitution, or in any legislation that
Parliament may make in this regard, we should see to it that such citizens by self-interest furnish evidence,
sufficient evidence of their intention to make India their permanent home, and not merely being mere birds of
passage, exploiting the country, and only taking advantage of any fiscal legislation or financial advantage, and then
quitting the country after their purpose is served.
Sir, here is a point, which, may I say with all respect, does not seem to me to be sufficiently borne in mind by the Drafting Committee; and perhaps the amendment of the kind that I have suggested, or some other amendment in that sense may be necessary to cover that position. I frankly confess, with the views that have been expressed from the highest quarters about the need for foreign capital, and about the necessity for offering all kinds of advantageous terms to these foreign investors, we are not going to end exploitation of this country, if we permit the citizenship of India and its attendant privileges to be lightly acquired. Unless the Constitution contains some provisions which entitled Parliament to make discrimination, - I have no hesitation in using that word, - so that indigenous talent and enterprise will be sufficiently protected and safeguarded against their foreign competitors, unless there is some such provision and authority in the Constitution itself, Parliament itself may be unable to protect adequately our own enterprise as against those people whose only purpose in acquiring Indian citizenship is to take advantage of our fiscal policy, or any other cognate advantage, and not make any adequate return to the country that gives them that advantage. I, therefore, trust, Sir, that my reasoning in this regard will at least commend itself to the Honourable the Drafting Committee Chairman even if the actual wording may not, I would trust to his erudition, to his understanding, to his patriotism to see to it that some such provision as I have asked for would be incorporated in the Constitution in any form which he thinks most appropriate. So far as the actual technical drafting is concerned, I have not the slightest hesitation in admitting that the Chairman of the Drafting Committee is a far greater master than I could ever pretend to be; and that, therefore, I would leave it entirely to him, if he accepts the reasoning I have put forward, to put up such an amendment as he may think necessary in his own words.
I now come, Sir, to the next amendment, I mean, that which relates to those countries, our near neighbours in Asia, where large numbers of Indians have settled; and where, under the new up-surge of local nationalism, their treatment is not all that can be desired. There is a feeling that in Burma, in Ceylon, or in Malaya, for instance, our citizens are not meeting with all the equality of treatment of reciprocity that we may desire. Hence it is that by two of the amendments in amendment No. 6, I am trying to suggest that wherever the local legislation permits an
Indian to acquire all the rights and advantages of citizenship, without prejudice to his own nationality by birth, we
should give the same treatment. We should also preserve the nationality of that person of Indian birth who has
settled, and who owes allegiance to the Government of another country, though that country's legislation permits him to do so.