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Constituent Assembly Of India -Volume IX
Dated: August 11, 1949
Permit me to add, Sir, that in this demand it is not that I am becoming selfcontradictory, because just a moment before I said that a person who has settled in India should 'be guarded against as much as we can by our Constitution, lest the privilege of such acquired citizenship be used to our prejudice.. I am 'not-debarred from making the suggestion. I am now putting forward. I repeat, I am not becoming inconsistent, because, according to the information I have received, there are- 8 lakhs of Indians -in the Federated Malay States. Under the-new Constitution of -the Federated Malay States, they permit such Indians settled there, to: acquire the fullest rights of local citizenship, without losing their Indian nationality by birth. On the other hand, in Ceylon and Burma, according to the information I have, the position of Indians is very much more invidious. Burma for example, I have been informed by people who should know provides that an Indian can acquire Burmese citizenship according to certain formalities prescribed by the Burmese, legislation. But before a certificate of naturalisation can be delivered to him, be will have to make, an express declaration that he renounces his Indian citizenship. Speaking 'for myself, I -would say that this is not fair. But even if it be taken as fair dealing with good neighbours we can make an exception in the case of those Indian citizens, who leave to live their lives there, and who cannot remain Indians under the Municipal law, if they wish to remain in that country where their own life work lies. In that case, I would make an exception and not insist on Indian nationality being retained by one who has had to renounce it. But there is another case, that of Ceylon. Again I am speaking from the information that I have gathered--in Ceylon the local legislation for acquiring Ceylonese citizenship automatically denies or destroys the citizenship of the previous origin by birth or otherwise if once a person acquires by naturalization the citizenship of Ceylon. The obligations of citizenship are plenty,--and none would be more aware of them than I am of such obligations,--and would require allegiance to one's country of adoption, without however there being any necessity automatically to forego the nationality by birth. That I think is asking a little too much. But even so, I recognise that Cevlon is an independent dominion., and is entitled, to make its own laws, On that basis,we must allow those Indians, who are settled there, to follow the local legislation without any objection on our side as to their retaining their nationality by birth, even after acquiring Sinhalese citizenship. We need not insist that they shall continue to remain Indian nationals.
The case that I now come to is the reverse of these, and provokes much more strong sentiment than these three other cases, which are or were also British Dominions or Protectorates, until recently. I am now thinking of those other Dominions, countries like Australia, New Zealand, or Africa, where Indian do not receive equal treatment. I need not weary this House with a tale of woe of Indians in Africa. They are all fresh to us. We are all full of resentment against such legislation as is being perpetrated now in that country. With that our experience, I see no reason why we should not reserve in our fundamental Constitution express power that Parliament shall not grant rights of equal citizenship, or equal treatment to those who deny our nationals,--law abiding, peaceful, enterprising, carrying on business and adding to the prosperity of that country,-the same treatment that they accord to other classes within their jurisdiction.
frica is perhaps the most glaring, the most poignant case of invidious discrimination against Indians; and as such I should say, it is not enough to tell me as this Draft says, that Parliament is free to pass legislation for regulating the acquisition or termination of citizenship; and that under that power such cases will be dealt with. I would add a provision, making it incumbent upon Parliament also not to grant equal treatment to the nationals of those countries who discriminate in this manner against Indians settled there, working there for all their lives, and adding by their labour, by their enterprise, by their skill, to the wealth of that country, remaining peaceful, loyal, law-abiding citizens of that country.
Sir, it is an unfortunate fact that, for whatever reasons, we are still members of the so-called Commonwealth of Nations dominated by Britain our former exploiter. In the Commonwealth of Nations, even though theoretically we are supposed to be equal members, equality is shown more in exclusiveness by some, and maintaining their superiority of the old imperialist days by others, than in the real spirit of true brotherhood that might make that Commonwealth more honest and attractive. I for one have never been an admirer of the Commonwealth. Nor have I been converted by the recent utterances of high authority and the latest developments.
Accepting that as a fact, we must nevertheless preserve our right, as we have done in other cases, of retaliation, may I use the word, against those Dominions, against those countries, which do not give equal rights to our people. Even in the case of Australia, while it may not be so clear, so pointed, so invidious as in the case of South Africa, there is the policy of "White Australia" which is being proclaimed from the house-tops, and which is spoken of with pride by the present Prime Minister of that country; he has even asserted that the highest authorities in this country have also agreed to his ideal. I do not know how far that is true. Whether it is so or not, with this insistence of the Policy of "White Australia", I do not see why we cannot discriminate, in our own Constitution, against these people, who without regard for good neighbourliness, without regard to the many proofs of friendliness that we have given in the past and we, are still giving, would insist upon their narrow, restricted, geographical nationalism. That does not suit a new country of that type, which has yet to develop all its resources, and where its own population is hardly adequate to the climatic and other conditions prevailing in that country. It does not become such a country to say that they would insist on the superiority of the heaven-born white race, and that that race alone could settle and the citizens there, and all others, whatever their claim may be have no chance of becoming full citizens.This applies even to that country which now claims to be the leader of all civilised, 'progressive, western nations, I mean America. The United States of America is very rich in high professions about equality of human rights. But when it comes to implementation of those rights in their own land, I am afraid, the U.S.A. has not given in the past, and is not giving today, any concrete indication that there is a complete unanimity between the tongue and the heart. In fact there is a large gulf between the two. In the United States, until recently, Indians could not acquire full citizenship rights. Even today, so far as my memory goes,--I am open to correction by the superior knowledge of the Drafting Committee,--Only about one hundred Indians every ear can immigrate into that country and become eligible for full citizenship Of that country a country which professes to have advanced views on liberalism, a country which speaks of equality of human rights, a country which professes to be the pioneer and promoter of the famous four freedoms in the world, but which every lay violates the "freedom'. That is not quite compatible with -their own professions of equality all round in the world, and to whom anybody who wants dollars should go with bended knees, with the beggar's bowl, ready to submit to any condition that the masters of the mighty Dollar are prepared to lay down.
This country need not be very much afraid of them, because we may have industries to develop and our resources are undeveloped. We are told by some that we have not our own capital resources adequate to do so. I am not one -of those who believe that. We need not show any apprehension; we need not be so hesitant about ourselves that we should not lay down, quite clearly and categorically, that those who do not treat us equally shall not be treated equally in this country. Whatever may be the consequences, I am not afraid. I do not see why this country, though only two years old as an independent sovereign State, should show, in its Constitution in the fundamental law of its being and working, that it is going to be afraid of any people lest that people be displeased, and lest they should regard us as out-castes. If they do so, it will be to their own prejudice, and it will not be -to our loss. The sooner the day comes when we learn by bitter experience to stand on our own logs, and fight with our own arms, the better for us. So long as we want to be protected, supported, assisted from outside, we shall not be able to call our soul our own.
Hence it is that without any ambiguity, without any circumlocution, I would lay down this point in the constitution itself regarding citizenship Whatever that may be, hereafter Parliament shall not be free to accord equal rights to those who deny 'such equal treatment to us. We are prepared to accord full reciprocity to all, be they Pakistan, America, Australia, Africa or Britain; we are prepared to grant equality, if equality is given to us. We are not prepared to take merely the word of these great white gentlemen if their acts do not correspond to their words. We are not prepared to accept merely their verbal professions of equality, like the spider's proverbial saying to the fly "come into my parlour." I do not compare ourselves to a fly-but we need not go to be devoured in a Battering manner by the spider, be the web in New York, or London or Brisbane, or Canberra. -It does not matter two hoots where they are, and what they are, so long as their words do not correspond to their deeds. We cannot take our stand too strongly and guard ourselves against being humbugged against being deceived betrayed and sold, too effectively. I, therefore, suggest that Parliament itself should be restricted by the Constitution against granting, as we have unfortunately granted and agreed to grant to the members of the Commonwealth, equal treatment to those that do not give us the same treatment.We have recently undertaken many international obligations. I call to mind only one of these just flow, that of the so-called Havana Agreement or the Havana Trade Agreement--I forget the exact words-one is so bewildered by this plague of initials that one cannot remember the original Christian name of these organisations. I take it that the House is aware that we are undertaking these international obligations. But these international obligations should not act, and I hope they are not acting, against us only. When it did not suit Britain for example to act up to the spirit of the Havana Charter, she was quite free to and has entered into trade agreements with Argentina, which I am told has seriously displeased the New York money market. That may be so, but Britain has not hesitated to seek her own interest. If an occasion like this should arise, we also ought to have this power with us to deal with the people and to deal with these circumstances when they arise without fear or favour. So, I say that by the amendments I have suggested, - I repeat I am not insisting upon the letter of the amendments - by the spirit of the suggestion, we would be able to guard against any such mischance. I hope nobody will consider me to be a narrow nationalist, though I am not ashamed to be called so. But this is essential to all those who would like to stand on their own legs, who would like to fight with their own arms, who would not care for any men on earth as to what they think or what they feel, provided we believe that we are right. On a famous occasion, when the timorous Generals of the civil war came to President Lincoln on the eve of a great battle and said, "We hope, Sir, that God is with us, "President Lincoln replied, " It does not matter if God is with us; it matters a great deal if we are with God." I am quite sure that we are with God and I am perfectly certain that if we accept the spirit of the amendments that I am suggesting, we shall have nothing to regret.
Shri Krishna Chandra Sharma (United Provinces : General): Sir, I beg to move.
The meaning is this that without these words that provision will come in conflict with international law, i.e., the children of the embassy station here are not subject to the law of this land. For instance, you can not haul them for conscription and it is an elementary law that a man would not enjoy the right of citizenship unless he takes up the obligation thereof. Therefore, you cannot bestow citizenship on a person from whom you cannot expect or you cannot call him to take up the obligation and therefore it is just to be in consistency with international practice and would bring the provisions in accord with the international law. This is necessary and I hope the Honourable Dr. Ambedkar will accept this.
Prof. Shibban Lal Saksena: Sir, I beg to move:
I have another amendment in common with Sardar Bhopinder Singh Man and I leave it to the Sardar Sahib to move it.
Sir, this is one of the most difficult articles in our Constitution, and as the speeches so far made have shown, and even Dr. Ambedkar has himself confessed that though this Draft has been put forward after the most careful consideration, still friends have come forward to point out its defects. I want to say, first of all, that my Friend Dr. Deshmukh has moved a very important amendment to the first clause of article 5. His contention is that we are making this 'Citizenship of India' very cheap whereas it is a very difficult thing to acquire in other countries. I concur fully with him and think that the article as it stands needs to be altered in some form. Let us see what would happen otherwise. The article says :
This clause will give citizenship to a class of persons to whom probably we would not like to give it. Mr. Amery. was also born in India in my District of Gorakhpur where his father was a Forest Conservator and his son John Amery. will get our citizenship if he only stays here for some time before 26th January 1950, and we shall not be entitled to stop him from acquiring that. In clause (c), five years residence is sufficient to give citizenship to anybody. I think we are making our citizenship very cheap. We have said' if he has not voluntarily acquired the citizenship of any Foreign State'. I think it should be 'unless he is already a Citizen of any Foreign State'. This clause has to be amended accordingly. Dr. Deshmukh suggested ' that he should be born of Indian parents'. Now 'Indian parents' will have to be defined because we are defining 'Indian' in this clause and I suggest that by Indian should be meant' whosoever may be called a citizen of India under the 1935 Act, and if a man is born of such parents, he shall certainly be called a citizen of India.' Dr. Deshmukh's amendment is quite correct, for the Hindus and Sikhs have no other home but India and I do not see how we can include everyone in this category unless we say it bluntly in this form. We should not be ashamed in saying that every person who is a Hindu or a Sikh by religion and is not a citizen of another State shall be entitled to citizenship of India. That will cover every class whom we want to cover and will be comprehensive. The phrase 'Secular' should not frighten us in saying what is a fact and reality must be faced. I therefore think that Dr. Deshmukh has given a very good suggestion. The present Draft is too wide and gives citizenship to almost everybody. In fact some friends from Nepal met me and asked me whether the Nepalese living in this country shall be called citizens of India and I was really at a loss to give an answer. But clause (c) gives an answer. If they have been here for five years, they will be citizens. Dr. Deshmukh's amendment would give them citizenship here if they wanted. So, this article needs to be amended. We must not make our citizenship very cheap; but for those who owe allegiance to this State, whosoever they may be, they must be allowed to have the citizenship of India and we must say so in our Constitution. The word "voluntarily" should go. Anybody who has acquired the citizenship of any foreign State should not be entitled to citizenship of India. If you say "voluntarily acquired" he may say ' I did not voluntarily acquire it' that it was something involuntary and all that sort of thing. I therefore think that my amendment to this article should be accepted.
In regard to article 5-A I agree with Mr. Jaspat Roy Kapoor that the words "deemed to be" should not be there. Those who have come to India from Pakistan are citizens of India. Why say "deemed to be "? These words do not add any luster to the article. We should give dignity to our friends who have come over here. They are citizens of India and there is no question of their being " deemed to be "citizens of India.
Then the words "now included in Pakistan" are ambiguous particularly the world 'now'. This Constitution is made for a long time to come. Whenever it is read, the words "now in Pakistan" will not convey the proper meaning, as the word 'now' will have changing meanings. For instance, today some areas are in Pakistan, tomorrow they may not be there. Or, today some areas are not in Pakistan, but later on they may be acquired by it. Then it will mean that everybody who is a citizen of Pakistan at that time shall, if he had migrated, be a citizen of India. I therefore suggest that instead of saying, "now in Pakistan" we might say ' in Pakistan at the commencement of this Constitution ". We must limit what Pakistan means. As I said, "now" will be a word with a changing meaning according to the area of Pakistan. I therefore suggest that the word "now" should be deleted and the words "at the commencement of the Constitution" be added at the end of the Explanation. This is my amendment. I hope Dr. Ambedkar will carefully see whether the words "now in Pakistan " may not be differently interpreted at a later period of time.
In my amendment No. 163 of List VI, which my Friend Sardar Bhopinder Singh Man will move, I have desired the deletion of the proposed proviso to the proposed new article 5AA. My friend Mr. Jaspat Roy Kapoor was very frank in giving his opinion in this respect. Apart from his reasons I will say one thing. This will allow the executive authority to give anybody a permit and he shall become a citizen of India, so that it will be something changing and it may have repercussions which we do not like. We must definitely say what we have said in clauses 5-A and 5AA, that person who has migrated from India will be treated as a foreigner and when he comes back he will have to acquire citizenship by residence of five years and so on. I do not think the proviso is necessary and I therefore think amendment No. 163 seeking to delete the proviso should be accepted. I would request the Honourable Mr. Gopalaswami Ayyangar and Mr. T. T. Krishnamachari to withdraw the amendment which they have moved, or the House should reject it. This proviso should not nullify what is contained in the other portions of the article.
In clause 5-B, my Friend Mr. Jaspat Roy Kapoor suggested that the omission of the words subject to the provisions of any law that may be made by Parliament " was incorrect and Mr. T.T.Krishnamachari pointed out that as article 6 is there it is not necessary. I do not agree with Mr. T.T.Krishnamachari, because it will again become a question of interpretation. I do not want it to be a matter of litigation. Parliament must have full authority to put limitations on the rights of diplomatic and consular representatives to enrol men as citizens of India. Otherwise it will be very easy for anybody to acquire citizenship of India. I think these words should remain in this very article 5B. Article 6 is of course an overall clause, but unless the thing is mentioned in the other articles also, Parliament's power will be limited. Article 5B is absolute and therefore it should not be limited by the omission of these words. These words are not superfluous there. The words were there in the original Draft and I do not know why they were omitted. They should remain there so that the intention may be clearer than what it is.
Our learned Professor Shah has just now told us how keenly we feel the discrimination against Indians in other countries. In amendment No.7 he says 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". I think our self-respect demands that this proviso should be there. Otherwise it is hopeless that when we are discriminated against by any country, still to the nationals of such country when they come here we accord equal rights of citizenship. I personally feel, and the people also feel, that if they kick us they shall also be kicked. This amendment No.(7) is a very important amendment and should be accepted.
His suggestion about foreign capitalists coming here and trying to take advantage of this article is also worthy of consideration and I hope the learned Doctor will give it the weight it deserves.
There is another word "Dominion" here. The word "Dominion will on the ears of people after India has obtained freedom and has ceased to be a Dominion. I therefore think that in article 5-B, the words of "Dominion of India" should be changed to some other language. In fact in connection with another article of the Constitution we felt that the word "Dominion" in the Constitution should not be a reminder of the days of slavery, which we have passed. This should also be changed and the amendment contained in Professor Shah's amendment No.20 should be accepted.
The whole article is a difficult one and Dr. Ambedkar has said that this contains the greatest common measure of agreement. The article still leaves much room for improvement. There are still many lacunae in the article which will affect millions of countrymen and also the future. The article must therefore be properly considered and amended as required.
Pandit Thakur Das Bhargava (East Punjab : General) Sir, I beg to move:
I further beg to move:
I further beg to move:
I further beg to move:
Sir, I move:
(i) The words 'nothing in this article shall apply to' be deleted;
(ii) for the words beginning with' and every such person shall' and ending 'nineteenth day of July 1948' the following words be substituted:-
Further, Sir, I move:
With your permission, Sir, I would further move:
Mr. President: Am I right if I say that the following amendments have been moved:
List VI/3rd Week: Nos.160,161,162,164,165,167,168 and 169.
List I/3rd Week : No.32?
Pandit Thakur Das Bhargava: Yes. A perusal of articles 5, 5A, 5AA, 5B, and 5C will show that it is established that birth, domicile stay for five years, migration plus birth, or registration by the officers appointed by the Government of India, or some sort of registration in any country with the Embassy have been regarded as giving qualifications for citizenship.
So far as the question of birth is concerned, I for one fail to understand how the birth of a grand mother or the birth of a grand-parent in India or any other country can be regarded to give qualification to any person for citizenship. If you at least consider these articles separately, one by one, it would appear that there is no account taken even of birth because under 5C, if there is a foreigner and he settles in India for five years, he is also entitled to become a citizen provided he has got the domicile of India.
Similarly, with regard to domicile, this is not a condition sine qua non, because in 5-B, if a person was born in the territory defined in the Government of India Act, 1935 as India and is then staying in any foreign country, these two are enough for his acquiring the right of citizenship, provided he applies to the Embassy and registration is allowed. Even the domicile is not required. I do not know, Sir, what is there in this citizenship which is absolutely necessary for a person to be acquired before he becomes a citizen. To my mind, Sir, domicile is a very important factor and I should think that domicile is one of the indispensable conditions of citizenship. Whatever else may or may not be, as I understand the laws of naturalization in all civilized countries of the world, any foreigner can acquire the right of citizenship by naturalization if he satisfied the conditions laid down by the law of the land. But so far as domicile is concerned, unless this is present, in my humble opinion no person can say that he has got this citizenship of a particular country if he has not got the domicile. After all, the rights of citizenship, the obligations of citizenship, the status of being a citizen is not an ordinary matter. It is not a nebulous thing, it must be definite. I understand that a person gets certain rights by becoming a citizen of a State, and he also takes upon himself the liability to discharge certain obligations if he belongs to or is a citizen of that State. What I find is that in our desire to spread out our net too wide, we have not cared to see whether we can impose any sort of obligations on those to whom we are giving the right to citizenship: nor have we cared to see that after all, if we make a person a citizen of India we undertake a very large responsibility so far as that person is concerned. Who does not know in this House that when Miss Elise was captured by the tribal people in North-West Frontier, the whole of Great Britain was convulsed, because she was a citizen of England? Now, Sir, do we not find that today those who are regarded as our people, and who may or may not be our citizens, are insulted in different lands and we are helpless? Do we not know that even our ladies are yet in Pakistan and we can not recover them? I do not know, Sir, if a country is so poor and so weak as not even to be able to protect the ladies or citizens of this country, what right it has got to extend its net so wide. If our country is resources and if we cannot find solace and comfort for and rehabilitate our refugees, what right have we got to call others from Pakistan and make them our citizens? What right have we to call South Africans our citizens, if we have no resources in this country even to see that those who live here are properly fed and housed?
My humble submission is that I do not want that we should make our citizenship so cheap because the State has certain obligations, and the obligations of the State are shared by the rest of the citizens: and if a citizen is insulted in any part of the country, it is the duty of the State and of the citizens of this country to see that the insult is avenged and amends are made. If we are not able to deliver the goods, what is the use of taking so many people who may or may not like to be citizens and asking them to call themselves our own citizens?
In this connection I do not want to take much time of the House, as already some of the Members have spoken in this vein on the subject. I would rather like, Sir, to give you my own views on the matter in regard to the present question. When we are making almost a provincial law I am desirous that not a single person who has come from Pakistan as a refugee should have any trouble in being a citizen of India. I am anxious that no obstacle should be placed in the way of those refugees who have come from Pakistan on account of disturbances and who have left their hearths and homes and come to this country. My second desire is that those who were desirous to become the citizens of Pakistan on the 15th August 1947 or who left this country to become citizens of Pakistan with open eyes and with the song on their lips:
Should not be made the citizens of India. Those persons have now forfeited their right to become citizens of this country. Sir, I submit that so far as these refugees are concerned they were the nationals of India. By the mere fact of partition they have not ceased to be citizens of India, provided they have come here and want to settle permanently in this country. They have every right to citizenship and any obstacle in their way I regard as unjustifiable and wrong.
With this view I have tabled my amendments. I would, with your permission, Sir, just state what further corrections or amendments I want to be made in these articles to achieve the two objects I have mentioned.
First of all I come to article 5. Before coming to the cases of those refugees and those who want to re-enter India from Pakistan, I would first refer to the case of those who come under article 5. Under this article according to the definition of the clause, there can be persons who may have never seen India. He should be a person born in India or any one of his parents should be born in India or possesses a domicile. This domicile is merely a mental attitude or conception that he may ultimately have a permanent home in India if a person desires to be a citizen of India. I do not know how this country will be able to impose any obligations on such a person. However, that is about those who were born in India or whose parents were born in India or who had the domicile of India. In regard to foreigners who desire to acquire rights of citizenship there is the Naturalization Act VII of 1926. This Act with the necessary modifications must be accepted as the law of India. In other countries also there are similar laws regarding naturalization and if any foreigner wants to become a citizen of this country the law requires not only that he should have lived for five years in the country but insists that he must be a man of good character and further that he must take the oath of allegiance to this country. With your permission, Sir, in this connection I would refer you to section 5 of the Naturalization Act VII of 1926 which gives the conditions under which a person acquires the rights of naturalization. Among other conditions like possessing a good character, etc., which are given in section 3 a further provision is made in section 6:
In the case of persons who have been living here in this country, the mere fact of their stay for five years in this country should not be enough, if other conditions relating to citizenship by naturalization are waived in their favour. My humble submission is that if you study the law of naturalization you will come to the conclusion that a person who even acquires the right of citizenship by naturalization has a liability to fulfil certain conditions. He has to perform certain obligations, and be a man of good character. All those conditions are being waived and he is regarded as being a citizen of this country. It is therefore only fair that we should provide for a residence of at least ten years to show that as a matter of fact a person means to stay in India. Otherwise there are many persons who have been in the service of the Crown and have stayed here for a good time. They might now prefer to stay here for reasons best known to themselves. The difficulty in my way is that I do not, believe, that those who come from Pakistan and other countries propose to stay here only for the love of the country. If they stay for that purpose, I have no objection that they become citizens of this country. But I know very well that there are a good many people who have not come to this country, or are not staying in this country with this object. In their case, I would like to provide ten years instead of five years which should be regarded as indispensable in the interests of caution.
The second amendment which I have moved is No. 161. In regard to this amendment it would appear that this seeks to make certain changes in the Preamble of article 5A. I have provided for a case in which a person born or domiciled in India as defined in the Government of India Act, 1935, if he came to India three years before Partition and has not been living here for five years. Such a man is not provided for in this article. To safeguard the rights of persons like these about whom I am told there are many in Assam I have tabled this amendment. I want that every person who had come to India before Partition and has been staying for less than five years and has decided to stay here, because he does not want to go back on account of conditions in East or West Pakistan, such a person should be allowed to be a citizen of India. If you do not provide for this class of persons many will be left without citizenship who would like to be citizens of India. This is wrong. This article 5A provides for such people whom everybody will consider to be fit citizens of India.
There is another difficulty and I do not want to conceal this fact. I have been told by a reliable authority, by some honourable Members of this House, that after partition as many as three times the Hindu refugees from East Bengal, Muslims have migrated to Assam. If a Muslim comes to India and bears allegiance to India and loves India as we love her, I have nothing but love for that man. But even after the partition for reasons best known to themselves many Mussalmans have come to Assam with a view to make a Muslim majority in that province for election purposes and not to live in Assam as citizens of India. My humble submission is that those persons have come here for a purpose which is certainly not very justifiable. Those who have come here on account of disturbances in Pakistan or fear of disturbances there, certainly they must get an asylum in India. If any nationalist Mussalman who is afraid of the Muslims of East Pakistan or West Pakistan comes to India he certainly should be welcomed. It is our duty to see that he is protected. We will treat him as our brother and a bona fide national of India. In regard to those others who have not come here on account of disturbances, we should not allow them to become citizens of India, if we can help it. Therefore, I have added these words:
I would rather insist that that man should not come here and become a citizen just to bolster up a Muslim majority in one of the provinces of India. Therefore, the first condition of migration would be that he comes here on account of disturbances. For those who want to stay here on account of disturbances the doors of India would be open. But to those who come from sinister motives, from motives of occupying lands and usurping the rightful owners by terrorising them and becoming a majority in this country, it is up to us to say that no asylum would be offered here. They are not migrating with a view to live permanently here. Their object is only to create trouble here. But to achieve our object I would request everyone to agree with me that this innovation should be made in article 5A.
Then I proceed to consider the next amendment (162). In regard to this my own fear is that when article 5A was drafted the possibility of many refugees not being covered by it was not envisaged. I am thankful to the Drafting Committee for accepting my suggestion and for being pleased to waive the condition that all the refugees should file declarations about citizenship. But, in regard to those who have come after 19th July 1948 - there will be some ignorant people, ignorant of the condition that the door will be closed on 26th January 1950 - I do not know what will happen to them. Perhaps a new law may provide something for them, that after five years' residence they will be regarded as citizens. In regard to such people I believe we are bound to make a provision that if they come to India and settle permanently, that will give them right to citizenship without any further qualifications. For that, I have provided that, if a person before the commencement of this Constitution unequivocally declares not before any officer, but by his own conduct - of permanent residence in the territory of India, he shall be a citizen of India. This question may not crop up now. But sometime it may crop up in some civil or criminal case. So, whenever a question arises whether a person is a citizen of India or not, he should be allowed to say that he came to India before the commencement of the Constitution and by permanent residence unequivocally declared his intention to be a citizen of India. I have included this provision on behalf of those who will not be registered before the commencement of this Constitution. Unless this is included you will be shutting the door against many people who, on account of ignorance or illiteracy, have not been able to take advantage of the new provision. After all, this provision has not been promulgated in the country so far and no officer has been appointed so far. We do not know what steps will be taken to get every refugee registered. When lakhs of people are involved, I think it will be difficult to inform every person to get himself registered. Therefore, no person who came to this country for permanent settlement on account of the troubles in Pakistan should say that no provision has been made by this Government for him. It is only to provide against that contingency that I want amendment No.162 to be accepted.
Coming now to article 5AA and the provisos thereto, I must submit that I approach this subject with a certain amount of feeling. I am glad that the Drafting Committee accepted the principle suggested by me, that a person who has once migrated from this country has migrated for all time. The legal maxim is that any person who has abandoned his domicile has abandoned it for all time. There is no question of partial abandonment. The Explanation to article 5 which originally did not appear and was subsequently added there is now included in 5AA. That Explanation says that a person who migrated from the territory of India to Pakistan will not be deemed to be a citizen of India. That is good so far as it goes. But so far as the question of persons who have come to this country subsequently, after having migrated to Pakistan is concerned, a new proviso is sought to be added. I have no quarrel with that proviso except in a certain particular. If the Government of India in their or Eastern Pakistan and allowed them permits for re-settlement, they are themselves responsible for it. Perhaps you are not conscious as to what difficult questions of property and propriety are agitating the minds of the refugees in this connection. Now we all know that Pakistan has refused to give compensation for the properties which it originally agreed to give so far as movable property is concerned. With regard to other properties we know the attitude of Pakistan and how it is behaving. The properties of persons who are living in Pakistan have been declared evacuee property and taken possession of. I do not know how the return of these thousands of Muslims to India will affect the rights of evacuee property here. Now a new Ordinance has been passed by our Government and perhaps another is under contemplation. If a person who comes for resettlement and becomes a citizen and then after that his property is confiscated or seized. I do not know how the provisions of article 24 relating to compensate will affect him. He may in a court of law get a declaration that he has a right to the property taken possession of by the Custodian or apply for restoration. Therefore many difficult question are likely to arise. These questions are agitating the minds of every evacuee. Though bona fide refugees have not yet been rehabilitated, the houses in Delhi etc., were reserved for those who had yet to arrive from Pakistan and many of such returned people have got their houses back. There is a good deal of confusion and uncertainty in he minds of the refugees that they do not understand the position of the Government of India. At a Conference recently held some responsible persons stated that some people came here with temporary permits obtained from the High Commissioner of Deputy High Commissioner in Pakistan and were taken by Muslim dignitaries and ministers of our high placed ministers and leaders and recommended for permanent permits. This may or may not be so. But even if there was a single instance of this nature, this must give rise to agitation in minds of refugees who are driven from pillar to post and not rehabilitated properly. Therefore, I say that, apart from rights to property which may run to crores, I for one do not understand how, according to law and equity, we can hold to a proposition that if any person gets a permit for resettlement in India, proprio vigore he becomes a citizen of India. It means that the High Commissioner at Karachi has got the power of making any person he likes a citizen of India. It virtually comes to that. By saying this, I may be doing some sort of injustice to that dignitary. I should say in fairness that he never knew that any person to whom a permit has been given was proposed to be made a citizen of India. Therefore my humble submission is that if he knows that his permit will have this effect, he will consider twice before issuing a permit. May I know, Sir, how any person can justify that position because the permits have been begun to be given after the 19th July 1948? Those persons who will come after the 26th July 1949 will not have completed six months before they apply for registration. Therefore, I beg to point out that permits issued between he 19th July 1948 and 26th July 1949 will only come under the provisions of this rule. After all, what is the difference between the two persons ? How can anybody justify different treatment in their cases ? All such persons could be considered under article 6.
Then again, Sir, when a permit for entry has been given, it means that the person concerned wants to come in and rehabilitate himself, and the provisions of the Naturalization Act which I have read out require that this man should be of good character. I will not say that all the persons who want to come in for resettlement are coming with sinister motives, with a view to making money, with a view to dispose of their property and for other purposes. After all, Sir, there are many here who have got sons there, wives there and just a son or wife here, and they get all the advantages here and all the advantages there. Now, Sir, those specially in Western Pakistan have got much more facilities, much more comfort than we enjoy in East Punjab. There is no reason why they should come here at all. My submission is that they are coming not with the idea of remaining here. Of course, they have got permits, but we all know how permits can be obtained. Sir, those people do not take any oath of allegiance to this country. We are not sure that these people are of good character. All the provisions of sections 6 and 8 of the Naturalization Act should apply to them. With your permission, I would just read out section 8 under which a foreigner from any other country would be subjected to certain liabilities, and there is no reason why people coming from Pakistan and thereafter choosing to remain here for a year or two and then going back should be treated in a different manner. The relevant portion of section 8 says.
Where the Central Government is satisfied that a certificate of naturalization granted under this Act, or the Indian Naturalisation Act 1852, was obtained by false representation of fraud or by concealment of material circumstances or that the person to whom the certificate has been granted has shown himself by act or speech to be disaffected or disloyal to His Majesty, the Central Government shall, by order in writing, revoke the certificate."
In the case of a man who comes to this country by obtaining a permit, where is the guarantee that he will stay here? Even if we see under the Naturalisation Act that he behaves well, where is the guarantee that he will not go back after he has disposed of his property? My submission is that there is no reason why the Government of India or we should have a soft corner for these people, who come in in order to take advantage of our weakness or leniency towards them. I do not say that they should not have the right to be repatriated according to law when we have passed a Naturalisation Act under article 6 or any other article. I only want that they may be given their proper rights and to that end. I have proposed amendment No.164 which says such persons -
I do not disqualify him for all time. I have only sought to give him his due.
Now, Sir, one of the conditions is that if during the first five years, a man goes to jail for committing any crime, then his certificate will be revoked. Now, I do not see why this condition should not apply to those gentlemen who come here after obtaining permits. Now, Sir, with raged to 5AA, I do not want to take the time of the House any further.
I would now proceed to 5B. In regard to 5B, I have already submitted that it is no use by giving rights of citizenship to any person whose parents or grandparents were born in India as defined in the 1935 Act and who is now residing outside India. He has to apply before an Embassy and this can be done before the commencement of the Constitution and even after that. My submission is that in 5A, 5AA and 5C the words used are " before the commencement of this Constitution." It is only article 5B in which it is contemplated that even after the commencement of the Constitution a person can become a citizen. Now, has such a person got any sort of connection with India? His grand-parents might have been born in some far-off corner of India, but I do not see what possible connection can there be between him and India. My submission is that unless and until he can prove and show that he possesses at least a remote idea of returning to India, that person has no right to become a citizen of India. To be consistent, I propose that the words "whether before or after" should be replaced by the word "before" because after the commencement of the Constitution we propose to enact a law which will provide for these contingencies. In connection with 5B and 5C the words used are "subject to any law made by Parliament" and I welcome these, because after all even we are passing today rather hastily these provisions which are not justifiable after the commencement of the Constitution Parliament will have the right to rectify them. In article 5B as well as in 5C I welcome these words and I want that those words should be retained. I oppose the amendment which says that these words should not be there. After all, Parliament should be armed with powers to rectify these if it thinks them unjust. My submission is that these words " of the Government of India" should to also find a place there, because before the commencement of the Constitution ours is the Dominion Government of India. My submission is that all these three amendments should be accepted.
As regards amendment No.32, as I have already submitted, if a person has acquired the citizenship of any other country, he can not become a citizen of this country. These words do not find a place in 5B. If they are good for 5, I submit these words are good for 5B also. Therefore they should find a place in 5B also.
Now, Sir, I have come to the end of all my amendments. I have one more word to submit for your consideration. When the Act relating to these permits was placed in the House, we did not know that they would acquire this force. Now, since we find that attempts are being made to make citizens of people who have got these permits, I would beg and humbly beg the Ministry concerned not to issue any further permits. What is the meaning of taking people from Pakistan and foisting them on us when our own people are suffering? My submission is that any further issue of these permits would not be just and would not be conducive to the solidarity of this country.
Shri R. K. Sidhwa ( C. P. & Berar :General): Mr. President, Sir, I beg to move:
Before giving the reasons as to why I move this amendment, I would like to make few observations on the main article. Sir, the Honourable Dr. Ambedkar has rightly stated that it has given them a headache for framing this article. Originally in the Draft Constitution it comprised only one main clause and three sub-clauses. In the new article there are 6 main clauses and 6 sub-clauses. In the old article the clauses were so vague and conflicting with each other that the Drafting Committee I am very glad - had to reconsider the whole question de novo and submit to this House a very comprehensive article, which in my opinion covers all the points. I have gone through it very carefully and from the experience that they have gained for eighteen months, they have come to the right conclusion and of including even future events that are likely to occur. I therefore congratulate and compliment the Drafting Committee, not only myself, but I think the whole House will compliment them for the trouble they have taken in framing this article. It is true that there are many amendments, but I do feel that in proposing these amendments, Members do not wish to belittle the work of the Drafting Committee and the pains that they have taken to bring about such a comprehensive article; but what these amendments mean is that if there are some loopholes or there are some points and difficulties, they would like to point them out to the Drafting Committee, so that they may consider and accept them wherever possible.
Now, Sir, coming to article 5A, my honourable Friend, Mr. Kapoor has suggested an amendment that after the words "At the commencement of this Constitution" the words "and thereafter" be inserted. Reading English as it is, it appears there is some vagueness in it that at the date of the commencement only those persons will be called as citizens of India, but I understand that under birth - right clause a person wherever he is born, he is supposed to be a citizen of that country. I am not very clear in my mind on that but if that is not so. I would really like to know whether this expression "at the date of commencement" would mean that even after the date of commencement, that is to say when a person is born after 27th of January 1950 and when he becomes a major, will be entitled to be a citizen of this country. English as it is, I take it that at the date of commencement means at that time only and not 'afterwards'. As far as my memory goes, there is an Act which says that the birth-right of a person is born in that country is supposed ipso facto to be a citizen of that country. This matter, therefore requires looking into.
Then my honourable friend, Dr. Deshmukh has suggested an amendment to this very article wherein he wants that the Sikhs and Hindus wherever they are born and whenever they desire shall be entitled to become citizens of India. When he has mentioned names of communities, I would like to point out to you, Sir, and the Members of this House, that there are nearly 16,000 Parsis who are professing the faith of Zoroastrian outside India; there are about 12000 in Iran and those persons who are in Iran are professing the same faith as the Parsis are professing in India and I know that article 5B covers the point which my honourable friend Dr. Deshmukh desires wherein it is laid down that even the grand-fathers and their grand-fathers if they are born in other countries, if they desire to become citizens of India, can so become. Dr. Deshmukh's amendment causes a wider privilege and right. Although I am not keen on this amendment if the Drafting Committee is going to consider this, I would like them to bear in mind that there are other communities and merely to mention the Sikhs and Hindus would not I think be proper. That is the only point that I wanted to bring to the notice of the Drafting Committee. There are 12,000 Parsis who are professing the same faith as we here, but their grand-fathers are born in Iran and several of them come to Bombay and to other parts of India; they would like sometimes to make India their home. It is a far-fetched point that I am making, but if at all it is going to be considered, then my point is this that we need not mention necessarily 'any community'; if we do so it would look as if we are ignoring other communities which do require attention and therefore, I place this view point before the House, if they at all want to take this amendment into consideration.
Then, Sir, I am coming to my own amendment which has a bearing on article 5A wherein it states, "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 want that the words "deemed to be " should be deleted. Sir, we are all very glad that the Drafting Committee has made no distinction between the citizens (original) of India and citizens who unfortunately on account of the division of India have come from Pakistan into India.; So far so good: you are giving them equality of right. But why do you call them "deemed to be" and why do you give them a lower status ? In the first paragraph, it is stated " he shall be a citizen of India." Why these refugees shall be "deemed to be " citizens of India and why a lower status, I rather fail to understand . Probably it has escaped the notice of the Drafting Committee and I would request them to bear this in mind seriously. We know that the refugees who have come to this country, wherever they are placed, they say that they are not wanted by the citizens either by a province or by a Government or by the people, and they always make a grievance that they are sometimes not wanted and wherever they are wanted, they are not rehabilitated and some are treated very badly. I do not share that view. I totally disagree with that view; I know that wherever they have gone, with open arms the citizens of that province have welcomed them: they are trying to rehabilitate them to the best of their ability and to give them all shelter and provide for them houses wherever is possible. But there are many refugees who take the view as mentioned by me. Why do you say in the constitution "your status will be second, your status will not be first" ? It is a very minor thing but we should remove that kind of sentiment in this Constitution. You have given them equality of right, but why do you say "deemed to be"? I therefore appeal to the Drafting Committee that they will kindly see that the words "deemed to be" are deleted. Mr. Kapoor has also explained this view-point elaborately but at the conclusion of his speech he said, "The Drafting Committee might consider this." I say "The Drafting Committee must consider this." Sir, why should they "might consider" this point on which you have agreed and you want to give equal right? But why do you want to say "You might consider"? I would request them to "do kindly consider" and remove these words. I desire that they must remove them and if they do not want to remove, it is their choice; we cannot force them. When they by this clause want to treat them as equals, I submit, we should not give them the slightest chance to feel we treat them on a lower status. The refugees are having wrong notions in their minds; you do not give them a cause for complaint by putting these words in the Constitution and say that "you will have a second status in this matter of citizenship".
Then, Sir, coming to the so-called obnoxious clause, I welcome this clause, both the main clause and the proviso. Those honourable Members who have referred to this proviso are also justified in their complaint; I do not want to belittle their arguments. I want to state that this proviso is necessary. It is not a question of Mussalmans; there are hundreds of thousands of Parsis and Christians today in Pakistan who may like to come back - why should you close the door against them? They were born in India; they have everything to do with India; for certain reasons they are there. If at any time they want to come, this proviso gives them this right. I do want that right to be taken away.
But, there is one danger which my honourable Friends Messrs. Jaspat Roy Kapoor and Thakur Das Bhargava rightly stated about evacuee property. Their grievance is a legitimate one. What they stated is this. Recently, the Government of India has issued an Ordinance on the question of evacuee property. This question was the subject of inter-dominion conferences for a number of months and they came to a certain settlement in the month of January this year. The whole thing has come to a fiasco only two months ago. Pakistan broke that agreement. Properties worth crores of rupees were left in the lunch. Our Government all along wanted to take up a persuasive attitude and hope to bring them round. They made all efforts; but they failed. The point is that under this clause there are many grounds for apprehension. Parliament can make a law that a permit shall be necessary before a man comes here. After the promulgation of the Ordinance, there has been a stir in that community and the Secretariat Office of the Bombay Government is being flooded by that class of people on he ground that these properties were left only temporarily, and that they want to come back. I also know of cases where a property was declared evacuee property by the Custodian, and after some influence, and not even compliance of the provisions of the Transfer of Property Act which was passed by this Constituent Assembly ( Legislative) last April, that proclamation has been negatived to be evacuee property. This has created doubt and sensation. I do not say that there is any place in the law. The law is quite clear. The action of an official has created doubts in the minds of the people. Therefore, my friends say that these people, if they come, they may settle for three years, and after selling their property, they may go back to Pakistan. There should be caution against this. I feel, Sir, that in the proviso, this caution is there, permits are provided. parliament will take note of this and see that the object is not fulfilled. I do not in the least deprecate the apprehension in the mind of my Friends, Thakur Das Bhargava and Jaspat Roy Kapoor, they have their genuine danger. But I do not want from this point of view, that this proviso should be deleted. The reasons I have already explained, Sir. This proviso must remain for future eventualities. It may be in our own interests, it may be in the interests of those persons who are anxious honestly to come back to India.
This proviso also shows that the Drafting Committee is vigilant. Provision has also been made in article 5B for the persons who are now in foreign countries and who may feel at any time to come back. You know, recently there has been an agitation in Malaya. In the past, many Indians went to these colonies as indentured labour, or for betterment of their future, or from the business point of view. There are lakhs of our brethren there. After attainment of freedom, it some people in these countries want to come back to India, thinking that India is free and their position and privileges would be better off in India, they should be welcomed. But, I do not share the arguments of my honourable Friend Pandit Thakur Das Bhargava, when he states that even his grand-parent was born there why should he be allowed to come here and acquire the Indian citizenship You will have to remember the circumstances under which they went there. They are our countrymen. They are our own brethren. They had to go to foreign countries from the economic point of view. When India is free, they would like to come back. Why do you want to deny that right to them. I therefore, say, not only the grand-father, but if the great grand-father was born in India, and if they want to come back, let them come here. They should be welcome. They will be a great asset to us. After their experience in those countries, they will be very useful to us; they will be industrialists, businessmen and ardent labourers who will certainly be an asset to this country. I welcome this article also. We have Indians in South Africa and Ceylon where the new laws of citizenship, have made our Indians feel that they are being discriminated. In that even if they want to establish in India they must be permitted.
As I told you, Sir, such an eventually may not happen. But if it does, we have to make a provision. There are 10,000 Parsis in Iran. When they were ruling until the last Kingdom of Medezand Shariar they were happy. Subsequently, under the Muslim rule, they were driven away. They came to India. Remote as the case may be, in such an eventuality in future, if these people are driven away, why should you close the door against them? Their grand parents were born in Iran, but by virtue of their being driven away, they may desire to come to India. Why should we close the door against them? Therefore, I contend that article 5B is a very helpful one. I think the Drafting Committee in framing this article has taken into consideration the recent agitation in Malaya, South Africa and probably the case of Indians in Iran has not come to their notice. Our nationals have spread all throughout the world. If their parents and grand-parents went thereunder extraordinary circumstances and became citizens of that country, and subsequently and particularly after the attainment of freedom in India if they choose to settle in this country they should not be denied the entry. I feel such bona fide citizens should not be denied the right of coming and establishing themselves for the betterment of themselves and for the betterment of this country.
With these words, I support the amendment that I have moved.
Shri B. P. Jhunjhunwala (Bihar:General) Mr. President there are two amendments in my name Nos. 123 and 150 . Regarding 123, a similar amendments has been moved here and sufficient has been said on this point and I would not take the time of the House much but I would only say few words after reading it.
"That in amendment No. 1 of List I ( Third Week) of Amendments to Amendments in the proposed new article 5A for the words beginning with "Notwithstanding anything" and ending 'at the date of commencement of this Constitution if, the following words be substituted:-
"Notwithstanding anything contained in article 5 of this Constitution a person who on account of civil disturbances or the fear of such disturbances -
The object of moving this amendment of mine is that article 5 contemplates the general principle of citizenship and we have given some concession in article 5A to persons who have come from Pakistan. Article 5 says:
I want by my amendment to confine the right of acquiring citizenship just after residing for six months, at the date of commencement of this Constitution, only to displaced persons, and others who come under article 5A can very well acquire the right of citizenship after remaining in India for five years. I do not really understand the object of article 5A when it extends the right to persons other than those who have been refugees or who have been displaced or have come from Pakistan on account of civil disturbance or the fear of such disturbances. I do not understand where is the hurry about it. If the right of six months be confined only to such persons, then there is absolutely no difficulty, because after all we hare not taking away the right of acquiring citizenship from any persons who come from Pakistan. The only thing we want to know is the real intention of the persons who has come to India and is residing here, and we shall know it better during the period of five years, I have been told that from Eastern Pakistan people are infiltrating into Assam for some sinister motive i.e. to increase their population. It is not my first hand knowledge, but responsible reliable persons have told me like thing. This has led me to move this amendment. They are going to Assam, not because they are inconvenienced in Pakistan, but simply with a view to remain in Assam and increase their population there. It is to avoid giving right to such persons that I am moving this amendment.
The other amendment I have proposed is No. 150 and similar amendment has been moved by my Friend Professor Shah and he has spoken a lot over it and I share his views. The amendment reads:
Shri S. Nagappa ( Madras : General): Sir, I beg to move :
I also move:
Sir, in moving this my intention is that the word "application" means it should be only a written one. In our country, literacy is very low and so the majority of the people who seek citizenship may not be educated and may not be in a position to make an application in writing. So, I suggest that a man who is not in a position to make an application can merely make a statement. The statement should be given as much importance as is given to an application. I hope the Honourable Dr. Ambedkar and the House will concede this request.
Sardar Bhopinder Singh Man ( East Punjab: Sikh): Since the time is limited, I request that I may be permitted to move my amendment formally and make my observations tomorrow or I may be permitted to move it tomorrow.
Mr. President : You may move it now and speak tomorrow.
This proviso which has now been incorporated by Dr. Ambedkar reads as follows:
Sir, I feel that this Proviso ( and we are agreed on it) is absolutely obnoxious and does injustice to the Hindu and Sikh refugees who have come here and are awaiting resettlement.
Mr. President: The Honourable Members may continue his speech tomorrow.
The Assembly then adjourned till Nine of the Clock on Friday, the 12th August 1949.