From Article 5AA to CAA

As I have written here before, the Constitution was being debated in the Constituent Assembly even as the fires of Partition burned around them. However, the Constitution does not make any mention of Partition itself. That doesn’t mean Partition had no influence on it.

In her 2016 article, scholar Kanika Gauba points out three areas in the Constitution where Partition’s influence is clearly seen -- citizenship, minority rights, and centralisation. The Articles relating to citizenship are perhaps where the impact of Partition is most obvious. These Articles were also the subject of some of the most heated debates in the Assembly. As Gauba shows, it wasn’t just the question of citizenship but Partition which made the debate so heated.

The issue of citizenship was first debated in 1947. In February 1947, the Sub-Committee on Fundamental Rights which included, among others, J B Kripalani, Hansa Mehta and B R Ambedkar, suggested the inclusion of Article 3 into the Constitution, which said that everyone born in India would be a citizen of India. The text of this proposed Article was almost the same as the Fourteenth Amendment of the US Constitution.

When this Article was discussed in the Constituent Assembly in April 1947, most of the debate focused on what we would today call “edge cases” -- What happens if a visiting foreigner has a child in India? What about Indian children born elsewhere? Even as Sardar Patel, Alladi Krishnaswamy Iyer and others defended the clause explaining the Anglo-American laws on citizenship, some, including Rajendra Prasad, were uncomfortable with the broad phrasing and suggested that a committee of lawyers go into it for more clarity. No one seriously suggested that citizenship should be based on race, religion or ethnicity.

However, when the topic of citizenship was taken up in August 1949, the atmosphere for discussion was very different. Partition had taken place, millions of people had fled their homes on either side of the new border, with no certainty on whether they would ever get to go back to their homes or know their future in the country they found themselves in.

To address this situation, two new articles were introduced into the draft Constitution -- Articles 5A and 5AA. Article 5A bestowed citizenship on those who had migrated to India from what was then Pakistan. Article 5AA said those who had moved to Pakistan from India after 1 March, 1947, would not be Indian citizens unless they returned to India under a permit of resettlement.

This provision enabling the return of those who had left India for Pakistan to claim Indian citizenship sparked furious reactions among certain members. Ambedkar admitted that no other article in the Constitution had given the Drafting Committee “such a headache” as this one. The communal feeling behind some of the interventions is hard to miss. P S Deshmukh, who wanted all Hindus and Sikhs and everywhere in the world to be automatically entitled to Indian citizenship, felt that these clauses had made India’s citizenship “cheap”. Jaspat Roy Kapoor considered 5AA obnoxious and said that anyone who once moved to Pakistan should not be allowed to take up Indian citizenship while returning, even while insisting that the bitterness that Partition caused should be forgotten soon.

Others worried about more prosaic concerns resulting from such a right to return, such as the immoveable property of those who had left India and moved to Pakistan -- an issue that continues to persist till today. Eventually, however, Article 5AA was passed in the Assembly and became Article 7 of the Constitution.

The contrast between the two discussions on citizenship in 1947 and 1949 could not be more stark and is explained, as Kanika Gauba points out, by the after-effects of Partition. A discussion which was on a fine point of law becomes one animated by bitterness and carries obvious communal overtones. It is a reminder that the framers of India’s Constitution were flesh and blood humans, with their own prejudices and feelings that were not always set aside when it came to the Constitution. The CAA simply shows that those prejudices are now on steroids.