The Supreme Court on Monday (July 13) held that the determination of citizenship status must be carried out through “a fair, lawful and reasonable process”, sending 27 cases back for adjudication before their respective foreigners’ tribunals in Assam.
In August 1949, over three days between August 10 and 12, the Constituent Assembly, with then-President Rajendra Prasad in the Chair, confronted the question of defining Indian citizenship while a newly independent India struggled with crores of migrants following the partition of Punjab, triggering an influx of refugees across the country.
While much of the debate centred on refugees arriving in north and west India, Assam’s concerns over migration also found their way into the Assembly, prompting a detailed response from B R Ambedkar, who defended safeguards built into the draft provisions.
Calling the nearly 140 amendments a “veritable jungle”, Prasad asked Ambedkar to take up Articles 5 and 6 of the original draft of the Constitution, which pertain to citizenship rights. The ensuing debate saw Ambedkar state that the question central to Article 5 had caused the Drafting Committee “a headache” like no other.
“Sir, except one other article in the Draft Constitution, I do not think that any other article has given the Drafting Committee such a headache as this particular article. I do not know how many drafts were prepared and how many were destroyed as being inadequate to cover all the cases which it was thought necessary and desirable to cover,” he reportedly said.
The draft provisions on citizenship
A Constituent Assembly of India meeting in 1950. Dr Ambedkar can be seen seated top-right. (Wikimedia Commons)
Having outlined Articles 5 and 6, Ambedkar said Article 5 defined who would be an Indian citizen “at the date of Commencement of this Constitution”: (a) a person born in the territory of India, or (b) either of whose parents was born in the territory of India or (c) those who had been ordinarily resident in the territory of India for not less than five years immediately preceding the date of the commencement of the Constitution. Such a person “shall be a citizen of India provided that he has not voluntarily acquired the citizenship of any foreign State”.
Article 5A laid out separate provisions for migrants from Pakistan, granting citizenship to those who had arrived before July 19, 1948, if they or their parents or grandparents had been born in pre-Partition India and they had ordinarily resided in India since their migration. Those who came after this date were required to register for citizenship after six months’ residence.
Article 5AA excluded those who had migrated from India to Pakistan after March 1, 1947, unless they had returned under a permit for permanent resettlement. Article 6, meanwhile, left it to Parliament to enact a permanent citizenship law.
The Assam question
Ambedkar faced questions from several prominent Members of the Constituent Assembly. The most prominent among these were those raised by Rohini Kumar Chaudhuri, who had been elected from Assam.
Swearing-in of the coalition ministry in Assam, British India, with Muslim League and Congress parties, with Sir Saadullah (top left) as Premier in 1938. Rohini Kumar Choudhury seated left. (Wikimedia Commons)
Chaudhuri sought citizenship rights for those who had come from East Bengal “because they found things impossible for them there.” “Can anyone imagine for a moment that there is no fear of disturbance in the winds of these East Bengal people who had come over to West Bengal or Assam?” he asked.
He also called for citizenship rights to a class of people who originally belonged to Sylhet in Assam and who had come to the Assam Valley long before the partition, “on some business or other; they had come as government servants or as employees of businessmen.”
Chaudhuri sought the exclusion of those who “came only three years ago, who set up the civil disobedience movement, forcibly occupied land which was not meant for them, and forced the benevolent and benign Government to have recourse to the military to keep peace in the province”.
“…I desire to exclude those persons who surreptitiously introduced themselves into my province and who now having mixed themselves with their own brethren, now desire to have citizenship rights, not out of any sense of insecurity on their part, in their own provinces but with a desire to exploit more from that province of Assam,” he had added.
Many belonging to Pakistan, he said, had entered Assam despite “no insecurity there”, even as he sought to flag the condition of “minorities in East Bengal”.
“They cannot get any Government Service. No person of minority community holds even a junior post there…Then, what is the reason why the people of that majority community in East Bengal who have all these advantages should come to Assam? The reason is to exploit and get some advantages. Are you going to encourage this?” he asked.
He also flagged that the Government of Assam had requested the Government of India to give them the authority to issue permits to restrict such entries, but had been denied.
“If you wish to govern a province properly, you should… see that the balance of the population is not so much disturbed and…that you do not give citizenship to persons whose presence…would be undesirable and prejudicial to the interests of the Dominion of India. That is the test I would apply to these cases,” he said.
Ambedkar’s answer
Eventually, the House voted beyond the required number to adopt Ambedkar’s proposed amendments to Articles 5 and 6. Ambedkar found support in Prime Minister Jawaharlal Nehru, who conceded that the articles related to citizenship had “probably received far more thought and consideration during the last few months than any other article contained in this Constitution”, especially due to the challenges posed by Partition.
In his reply to the debate, Ambedkar addressed concerns over migration from Pakistan, migration to Pakistan, and the Assam question.
Responding to Chaudhuri’s contention that the draft “left the gates open” to migrants from East Bengal, Ambedkar said Chaudhuri had misunderstood the provisions, and that the latter’s fears were “utterly unfounded”.
“If he will read the provisions again, he will find that it is only with regard to those who have entered Assam before 19th July 1948, that they have been declared, automatically so to say, citizens of Assam if they have resided within the territory of India,” he clarified.
Regarding those who entered Assam, whether they are Hindu Bengalis or Muslims, after the 19th July 1948, Ambedkar said citizenship “is not an automatic business at all.” He listed three conditions for persons who entered Assam after this date: the person had to apply for citizenship, prove he had resided in the state for six months, and, finally, that he must be registered by “an officer appointed by the Government of the Dominion of India”. He described the third condition as both severe and a “plenary power”, while emphasising that the government officer has “enough discretion” in deciding to register an applicant.
“In other words, the officer would be entitled to examine, on such material as he may have before him, the purport for which he has come, such as whether he has come with a bona fide motive of becoming a permanent citizen of India or whether he has come with any other purpose,” he said.
Dr B R Ambedkar being administered the oath of office and seceracy by President Dr. Rajendra Prasad. Pt. Jawahar Lal Nehru sits in front of Ambedkar. (Express Archive) 
A Constituent Assembly of India meeting in 1950. Dr Ambedkar can be seen seated top-right. (Wikimedia Commons)
Swearing-in of the coalition ministry in Assam, British India, with Muslim League and Congress parties, with Sir Saadullah (top left) as Premier in 1938. Rohini Kumar Choudhury seated left. (Wikimedia Commons)
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