The three-pronged idea of citizenship germinating at the constitutional moment as status, rights, and identity have undergone significant transformations since the Constitution was drafted. In this Special Issue on Citizenship, we take the occasion of the Republic Day to look back at the historical and material conditions surrounding the citizenship debates in the Constituent Assembly, as well as in the everyday lives of ordinary citizens who negotiated, resisted, or facilitated legal belongings with the state.

The ‘undesirable’ (Muslim) immigrant emerged as a legal category; vis-à-vis the non-Muslim refugee. Part, if not most, of the undesirability, lay in the possibility of said undesirable immigrants staking claim to the property they still legally owned, which had been placed in the evacuee property pool, writes MANAV KAPUR, Ph.D. Candidate in history at Princeton University. This is the fifth ­article in The Leaflet’s Special Series on Citizenship edited by Jhuma Sen.

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THE 1973 film Garam Hawa deals with the travails of a Muslim family in post-partition Agra. The protagonist’s elder brother moves to Pakistan; their haveli is taken over by refugees from Pakistan, prompting a move to a smaller, cramped house. Both the dispossession and the oppression, shown through shots of characters through windows and jaalis, is symbolic. Salim Mirza, the protagonist, is faced with a dilemma—should he safeguard his Indian nationality even at the cost of losing his house and hearth, or jettison it for a potentially brighter future for his remaining family in Pakistan?

This conundrum was faced by millions of Muslims in post-partition India. I show here that dilemmas around refugee resettlement and partition-related migration saw Muslim citizenship being ring-fenced at precisely the moment when a new constitution granted India’s population an unprecedented set of rights.  In both India and Pakistan, control over the property of minorities without outright expropriation was crucial to rehabilitate in-migrants belonging to the right religions.  In doing so, even an ostensibly secular citizenship law was inflected with religious undertones.

Resettle or Protect? The Evacuee Property Conundrum

The unplanned, often bloody migrations that accompanied Pakistan and India’s creation can be understood as the Long Partition,  an ambivalent and messy process of creating two nations and citizens from the 1940s to the 1960s. Within a year of independence, over ten million people had emigrated across the Indo-Pakistan border—largely Muslims from North India and Hindus and Sikhs from West Pakistan. ‘Evacuated’ by all means at their disposal, they were termed ‘evacuees’ by the state they had left, and ‘refugees’, sharanarthis or panahgeers by the receiving state, to which they looked for succor.

These migrants had left huge amounts of property. Hindus and Sikhs departing West Punjab had left an estimated 6.7 million acres in West Punjab (4.3 million of which was irrigated), while Muslims fleeing East Punjab left  4.7 million acres in East Punjab (only 1.3 million of which was irrigated).  Allowing for bias, figures in India’s Constituent Assembly suggest Rs. 20 billion worth of immovable property was abandoned in India, as compared to Rs. 140 billion in Pakistan. This was coupled with an acute huge of urban property-—newspaper reports suggested only 47% of housing stock in East Punjab intact in July 1948.

Both the spatial extent of these laws and the power of the Custodian increased rapidly. By late 1947, no transfer of the property by an evacuee owner was valid unless it had been approved by the Custodian. In January 1950, the Punjab blueprint had been further honed and extended across West Pakistan and all of India, barring Bengal.

Evacuee property norms initially emerged as a way of protecting the property of out-migrants, pending either their return or an inter-dominion agreement. In September 1947, East Punjab appointed ‘custodians’ to take over the property of ‘evacuees’; West Punjab followed suit. Crops, however, had to be harvested and refugees resettled. Two weeks later, West Punjab provided for a Rehabilitation Commissioner to take over this property temporarily and allot it to ‘refugees,’ who happened to belong to the right religion.  Nominally, however, the Custodian continued to hold this property in trust for the original owners.

Both the spatial extent of these laws and the power of the Custodian increased rapidly. By late 1947, no transfer of the property by an evacuee owner was valid unless it had been approved by the Custodian. In January 1950, the Punjab blueprint had been further honed and extended across West Pakistan and all of India, barring Bengal. This allowed the custodian, in the words of Rohit De, to enter the boardrooms and bedrooms of national minorities in the subcontinent. Simultaneously, however, the figleaf of holding property in trust meant that outright expropriation was avoided pending a possible international solution.

Restricting Migration, Sequestering Property

If evacuee property was to be used to rehabilitate incoming refugees, as it was on the Western flank, this migration had to be permanent and one-sided.  On the whole, there was little enthusiasm on the part of Hindus and Sikhs to return to their ancestral homelands.  From early 1948, however, the restoration of some element of normalcy in North India meant the cessation of Muslim migration to Pakistan and the return of some migrants to their homes. These ‘returnees’ were viewed with suspicion at all levels of the government. Not only was their loyalty suspect, but also their return implied returning their property and—reducing the already imbalanced compensation pool available to incoming refugees. As Deshbandhu Gupta pointed out, Indian ‘alacrity’ to return the property of Muslims who came back contrasted with Pakistan’s refusal to even allow minorities to enter West Pakistan!

These ‘returnees’ were viewed with suspicion at all levels of the government. Not only was their loyalty suspect, but also their return implied returning their property and—reducing the already imbalanced compensation pool available to incoming refugees.

From 19 July 1948,  an ordinance terminated the hitherto free movement between India and West Pakistan. Henceforth, all movement from West Pakistan to India would require one of five kinds of permits provided by the Indian Government. As Abhinav Chandrachud brings out, Indian officials were required to issue these ‘extremely sparingly. Interestingly, East Pakistan, which retained a large minority population, was exempt from the permit system, and that border remained open until just before the 1965 Indo-Pakistani war.

Even though these citizenship provisions were ostensibly religiously-neutral, both their conceptualisation in the Constituent Assembly and their adjudication were inflected by religion. Often, links to the Muslim League before independence or family across the border justified a conclusion that migration was intended to be permanent, even as hapless returnees furnished proof of petitions for permits for resettlement. In doing so, the ‘undesirable’ (Muslim) immigrant emerged as a legal category; vis-à-vis the non-Muslim refugee. Part, if not most, of the undesirability, lay in the possibility of said undesirable immigrants staking claim to the property they still legally owned, which had been placed in the evacuee property pool.

 

Custodian Aggrandization and ‘Thought-Crimes’—Evacuee Property Law 1950-54

As debates in both Constituent Assemblies show, the right of those adjudged evacuees was constantly whittled down over their property.  Most members, even those who supported the right of return,  were more concerned with increasing property in the compensation pool for refugees. For many, such as JR Kapoor and B.S. Mann, themselves related to in-migrants, the possibility of returning property to those who returned from Pakistan “defeated the very purpose of the (evacuee property) ordinance!”. As India debated the provisions of a federal evacuee property law almost simultaneously with the Constitution’s citizenship provisions, these tensions were laid bare.

As Niraja Jayal points out, Muslim citizenship posed unique problems in the Indian context and contributed to making the citizenship provision the ‘ill-fated clause’ it was termed on account of the debates it engendered, even though ostensibly religiously neutral. The cut-off date specified in the permit system was carried forward into Article 6 of India’s Constitution. Any person who returned to India after 19^th July 1948 could no longer claim automatic citizenship.

Both A.K. Jain, the rehabilitation minister, and the Prime Minister themselves stated that this had had a chilling effect on Muslims in India. Indeed, increasingly restive refugees could wrongly ascribe intention to emigrate to Pakistan, enticed by the prospect of being allotted property.

As concerned around property inflected citizenship, so also did the reverse. By the early 1950s, both India and Pakistan were engaging a veritable ‘arms race’ of evacuee legislation, which now could potentially bring almost all minorities in both dominions under their ambit. No longer was it even necessary to visit Pakistan to come under the Custodian’s ambit. India’s Administration of Evacuee Property Act, 1950 now extended the definition of an evacuee to include not only someone who had ‘migrated’ to Pakistan, but also anyone who had “transferred any part of his assets” or whose family had “acquired any interest in evacuee property in Pakistan’’. A new clause, the ‘intending evacuee,’ now imposed restrictions on anyone whose “conduct or documentary evidence” established an intention to settle in Pakistan. As Rohit De notes, the Custodian’s powers were increasingly unchecked, exempt from judicial review, normal evidentiary rules, and almost all but the most rudimentary principles of natural justice. Indeed, evacuee property was a specific exemption to the fundamental right to property in the Constitution. This was judicially justified on the grounds that there was—if only potential—provision for restoration and that the Custodian merely held property in trust.

The effects of the ‘intending evacuee’ provision went far beyond the admittedly few cases it engendered. Both A.K. Jain, the rehabilitation minister, and the Prime Minister themselves stated that this had had a chilling effect on Muslims in India. Indeed, increasingly restive refugees could wrongly ascribe intention to emigrate to Pakistan, enticed by the prospect of being allotted property.

By 1951, even a permit for permanent resettlement did not imply that evacuees could regain their property. This had consequences for Muslim-owned property that went beyond the scope of evacuee property laws. In Bengal and Assam, there was no ‘compensation pool,’ and the border was technically open. Nevertheless, fears of Muslim migration prompted a bill aimed at preventing the migration of a class of persons “detrimental to the interest of the general public”’. Some parliamentarians went so far as to argue that harbouring such persons was ‘treasonous activity’ and that those who were found guilty should forfeit their property in India, despite a constitutionally-guaranteed right to property.

Shikhar Goel shows us how other communities—Parsis, for instance, tried to act as go-betweens. Nevertheless, the dice was loaded against them from the start. Especially when already allotted to refugees, it was almost impossible for them to have their property returned to them.

Most of those who came within the custodian’s ambit pushed back in many ways. Many approached High Courts against being declared evacuees, some challenged the constitutionality of evacuee property legislation itself. Indeed, Zulfiqar Bhutto, soon to become Prime Minister of Pakistan, both claimed compensation for his property in Pakistani Courts and simultaneously challenged his being declared an evacuee under Indian law through the 1950s. Shikhar Goel shows us how other communities—Parsis, for instance, tried to act as go-betweens. Nevertheless, the dice was loaded against them from the start. Especially when already allotted to refugees, it was almost impossible for them to have their property returned to them.

Seven years after partition, it was decided that the law had served its purpose. Migration had virtually ceased across the Western border after passports had been introduced in 1952, and there seemed no need of these ‘exceptional, transitory laws’. In 1953, the ‘intending evacuee’ clause was repealed.  From May 1954, no person could be declared an evacuee anymore. Nevertheless, very little property was eventually returned—until 1960, there was no way, even, to compensate those whose property had been placed in compensation pools by wrongly declaring them evacuees.  Furthermore, the evacuee property regime had served to ring-fence Muslims and attenuate their claims to citizenship—indeed, the Citizenship Amendment Act, 2020 makes explicit the concealed bias in India’s citizenship law.

At the end of Garam Hawa, Salim Mirza, enthused by his son’s desire to fight for his rights in India, turns his tonga back from the station. One wonders, though, how they fared—their business collapsing, their house taken over, and a rapacious custodian at their heels.

(Manav Kapur is a PhD candidate in history at Princeton University, working on property in post-colonial South Asia. Before this, he taught at Jindal Global Law School, Sonepat and NALSAR University, Hyderabad. Views are personal)