Contested citizenship: What Constituent Assembly debates from 70 years ago reveal about India today

In November 1948, as ZH Lari was making a case in the Constituent Assembly for the rights of minorities to be protected, he was constantly heckled. Some members asked the Muslim representative from the United Provinces what “his leaders” in Pakistan were going to do to ensure the safety of minorities in that country.

Lari eventually took on their taunts. His hecklers, he said, wanted him to follow the footsteps of Pakistan but he was not going to do so. “I have not mortgaged my rights to Pakistan,” he said. “What Pakistan does or does not do is not my concern.”

The lawyer added that Indian Muslims “are the children of the soil and as such we claim the rights of citizens of India”.

More than seven decades have passed since then but the public discussions in India today remain uncannily similar. India’s Muslim community continues to be subject to similar heckling – and worse.

As hundreds of thousands of Indians take to the streets to protest the Citizenship Amendment Act, which introduces a religious criterion into the country’s citizenship law, some of the questions that engaged the Constituent Assembly that was framing India’s Constituency are being debated all over again.

While there were many apprehensions, disagreements and criticisms about the document in terms of what India’s destiny ought to be, a larger sense prevailed about what it ought not to be. The members of the Assembly decisively decided against making India a majoritarian state – though the advocates for that position were quite loud even then.

Reading the deliberations of the Constituent Assembly could be useful for Indians to get a better understanding of the present debate around citizenship and minority rights. It would probably help illustrate as to why the collective wisdom of the assembly rejected efforts to adopt a narrow, sectarian agenda at the time.

Blood or birth?

Among the most pitched battles in the Constituent Assembly was the one to determine the basis on which Indian citizenship rested.

As Alladi Krishnaswami Ayyar noted, the two principles that determined citizenship were lex soli and lex sanguinis. Lex soli means “the law of the place of birth”, while lex sanguinis means “the law according to blood”.

Some members said that everyone born in the Union should be considered an Indian citizen – part of “We the people”, irrespective of religion.f

As opposed to this universalistic idea was poised a definition based on race, bloodline and religion that is in vogue at the time in continental Europe and beyond. This notion suggested that no matter where they were born, people belonging to a particular race would get citizenship.

It is this principle that is being bottled and served to us in the form of the Citizenship Amendment Act. Prime Minister Narendra Modi and others have repeatedly stated that this Act is for those who have no other place to go except India. In this conception of citizenship, the minorities who do not belong to a particular race, or religion, do not have equal footing as they are not considered natural citizens of the land.

Secularism an offence?

While BR Ambedkar, Jawaharlal Nehru and several others made an effort to divorce the question of citizenship from the subject of religion, there were those who were bent on linking the two. Many of them were members of Hindu supremacist organisations who were drawn to the racial theories of Nazi Germany and admired fascist Italy.

Among them was PS Deshmukh of Central Provinces and Berar who on August 11, 1949, introduced an amendment that read, “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 a citizen of India.”

Deshmukh claimed that Ambedkar’s universalistic definition would make India’s citizenship “easy” and the “cheapest on earth”. The reason for such “easiness”, Deshmukh claimed, was the “specious, oft-repeated and nauseating principle of secularity of state”.

He explained, “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?...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...I am sure the popularity of those who take that view will not last long in India.”

Deshmukh’s words found an echo in Narendra Modi’s victory speech in May 2019. He said that secularism was a “drama going on for very long”, but the resounding victory for his Bharatiya Janata Party marks the end of the drama. “In this elections not even a single political party could dare to mislead the country by wearing the mask of secularism,” Modi claimed.

In a few months’ time came the Citizenship Amendment Act which has, in effect, tied the question of citizenship to religion. This is clearly an attempt to re-open their unfinished task of 1948.

Secularism, a defence

Nehru was among those who was alarmed by the constant haggling around the word “secular”, which was being presented as the root of all India’s problems.

He did not mince his words.

“It is brought in in all contexts, as if by saying that we are a secular state we have done something amazingly generous, given something out of our pocket to the rest of the world, something which we ought not to have done,” he noted in the assembly. “We have only done something which every country does except a very few misguided and backward countries in the world. Let us not refer to that word in the sense that we have done something very mighty.”

While there were those who had the moral conviction to defend the very idea of secularism even in the aftermath of the bloody Partition riots, that belief seems to be depleted today even among members of so-called secular parties. The vocal commitment of Hindutva parties to their divisive ideas is met with a hesitant, uninspiring defence of secularism. It is, in fact, only the protestors against the Citizenship Amendment Act who have revived secularism in political discourse.

Minority rights: Relative or absolute?

Gandhi, who was not a member of the Constituent Assembly, believed that the test of a democracy was deeply tied to the manner in which a society treats its minorities.

But there were those who, much like today, disagreed with the above and yet called themselves followers of Gandhi. They advocated for Hindutva’s narrower definition of citizenship that was inextricably linked to the project of “otherisation” and for curtailing the rights of the minorities.

Among them was Congressman Mahavir Tyagi, who advised the house to postpone any discussion around the minority question and leave the matter to be decided later.

His attitude was echoed in recent comments in Parliament by Home Minister Amit Shah. Shah claimed that minorities do not have the moral right to oppose the Citizenship Amendment Act if they support special provisions for themselves.

Tyagi’s ideas and Amit Shah’s iteration of them had been dismissed conclusively in the Constituent Assembly by Ambedkar.

“The only reason in support of this proposal – one can sense – is that the rights of minorities should be relative, that is to say, we must wait and see what rights the minorities are given by the Pakistan Assembly before we determine the rights we want to give to the minorities in the Hindustan area,” Ambedkar said. “Now, sir, with all deference, I must deprecate any such idea. Rights of minorities should be absolute rights. They should not be subject to any consideration as to what another party may like to do to minorities within its jurisdiction.”

Who’s welcome, who isn’t?

The question of Partition refugees that the Constituent Assembly debated is very similar to the questions being asked today about immigrants. Some wanted to grant citizenship status only to Hindu and Sikh refugees. Others argued that it would be unjust to be selective. After all, there were Muslims who may have had to flee India in the wake of the bloody massacres that accompanied Partition but who chose to return once the dust settled to be citizens of India.

While there were those who wanted to exclude all Muslim returnees, members like Congress leader Brijeshwar Prasad argued for India’s borders to be open to anyone who wanted to live here.

Of course, There were those who said that the Muslim returnees could in fact be “spies” and thereby, a threat to “national security”. But Prasad reiterated Nehru’s contention that a majoritarian Hindu sentiment, if it presented itself, would pose a greater threat to India than any minority.

Some argued that it was economically unviable to take in Muslim returnees from Pakistan. But Brajeshwar Prasad had an unequivocal response: “We are not a nation of shopkeepers...Whatever the economic consequences may be, we want to stand on certain principles. It is only by a strict adherence to certain moral principles that nations progress. The material development of life is no index to progress and civilisation. I do not think it is politics or statesmanship to subordinate sound political principles to cheap economics. I see no reason why a Muslim who is a citizen of this country should be deprived of his citizenship at the commencement of this Constitution, specially when we are inviting Hindus who have come to India from Pakistan to become citizens of this country.”

The war is far from over

The votaries of a majoritarian state had decisively lost the battle in the Constituent Assembly in 1948, albeit by forcing advocates for secularism to make a few compromises. But the war between a racial idea and a more democratic idea of citizenship was far from over. The Rashtriya Swayamsevak Sangh and its branch organisations such as the Bharatiya Janata Party have strived to conclude the debate in their favour. The Citizenship Amendment Act, after all, is not intended to merely give citizenship to non-Muslim refugees from three countries. That could have been, and has been, achieved even without the Act. Instead, it aims to give legal sanction to the idea that India is the natural home to some while others are still aliens.

Ambedkar’s fears were real.“Democracy in India is only a top-dressing on Indian soil, which is essentially undemocratic,” he said. “Constitutional morality is not a natural sentiment. It has to be cultivated. We must realise that our people have yet to learn it.”

Today, the battle for the future is being fought in the streets – in the many Shaheen Baghs across the country. Armed with music, poetry, paintings, placards and slogans, India’s women are leading this struggle.

Each of these sites of struggles is also a school in which we are learning constitutional morality. With each recitation of the Preamble, with its exposition and reiteration, we are earning for ourselves what was given to us. After all, there is no real learning without earning our rights on the streets.