“Domicile cases require for their decision a detailed analysis and
assessment of facts arising within that most subjective of all fields of legal enquiry—a man's mind.”
--Justice Scarman, 1968, In Re: Fuld158
After Partition: Seven Weeks, Seven Years
The travails of N. Basar Khan and his wife Amirunnissa Begum illustrate the way in which the unity of husband and wife produced impractical outcomes as the newly
independent Indian state put its citizenship law into practice.159 When N. Basar Khan was
born in Peshawar, North-West Frontier Province in 1923, the idea of Pakistan did not yet exist.160 By the time Khan came of age in 1942, the Pakistan proposal to divide the sub-
continent into two separate nation-states was still unresolved. Khan’s early adult life was influenced as much by European nationalism as by Pakistani. During World War II, Khan, an Indian, joined the Royal Indian Army Service Corps, which provided such services as transportation for the Indian army.161 In this capacity, Khan was posted to Madras, where he
158 Re: Fuld (1968 P 675; 1965 3 All Er 776, Probate Division). Reprinted in J.H.C. Morris and P.M. North,
eds., Cases and Materials on Private International Law (London: Butterworth, 1984), 15.
159 This case is briefly examined by Vazira Zamindar, The Long Partition and the Making of Modern South Asia:
Refugees, Boundaries, Histories (New York: Columbia University Press, 2007), 208-9. Zamindar includes this case as an example of the category of the “undefined.” However, my examination of the same file shows that N. Basar Khan was recommended to apply for a Pakistani passport if he wanted to visit his mother. Professor Zamindar also does not examine the outcome of wife Amirunissa's position in this case.
160 Peshawar was then in the North-West Frontier Province in territory that later became part of Pakistan. 161 Indivar Kamtekar recounts some of World War II’s effects on India, showing how inevitable a Japanese
married Amirunnissa Begum, whose family hailed from the city. After their 1943 marriage, Amirunnissa travelled with her husband to his various postings until he was discharged in 1946. The couple then spent about six months in Peshawar before they returned to Madras in 1946, where Khan began his post-war life as a driver.162
For almost a decade, the two remained in Madras, a city not much affected by the Partition-related violence of northern India. In 1955, the couple wanted to return to Peshawar (by then in Pakistan) to visit Basar's sick mother, and they applied to the
government of Madras for the India-Pakistan passports that would allow them to do so.163
The Madras Government in Fort St. George refused to grant the passports without first obtaining the approval of the Ministry of External Affairs in the capital, New Delhi.
The Madras Government reasoned that Basar Khan did not have Indian citizenship. The Constitution required domicile in India along with either birth in India or residence in India for at least five years prior to January 1950. Khan, who was born in Peshawar and only took up residence in Madras in 1946, failed to meet either of these requirements.164 The
Constitution also granted citizenship to those who migrated to India from Pakistan. However, when Khan came to Madras in 1946, he came from British India, not Pakistan, which then did not exist.165 He was not migrating, simply moving within the territory of
British India. If Basar Khan was not a citizen, how could he receive the special India-
162 National Archives of India (NAI), Ministry of External Affairs (MEA), F. 41(61) 55-PSP, Grant of an India-
Pakistan passport to Shri N Basar Khan & his wife (p. 3/corres).
163 Ibid.
164He and his parents were presumably born in what was now Pakistan, preventing him from coming within the
ambit of article 5(a) or (b). In fact early on in the correspondence an officer in the MEA argued that Basar could be said to have been resident in Indian since 1943, giving him the requisite five years' residence. His period in Peshawar could be seen as only a visit and his visit to Burma was in government service. However this contention was rejected. NAI, MEA F. 41(61) 55-PSP, Grant of an India-Pakistan passport to Shri N Basar Khan & his wife, 1.
165 Ibid., p. 1/corres. Likewise for Sale Mohammad Khan of Naraspur, Andhra state, who was denied on article
6 citizenship because he migrated in 1939, “when there was no Pakistan,” as his file stated. NAI, MEA, F. 41/31/55-PSP, 1955, Grant of Indo-Pakistan passport to Sale Mohd. Khan. However Sale Mohammad Khan applied after the Indian Citizenship Act (ICA) took effect in 1955 so Khan had two options, to take out a Pakistani passport or to apply under the ICA.
Pakistan passports from the Indian government? Would he not need a Pakistani passport instead?
Others in a similar situation could wait until the Indian Parliament adopted a new citizenship law,166 but Basar and his wife urgently needed travel documents to visit Basar’s
“sickly” mother, as she was described in the correspondence.167 In reference to his wife
Amirunnissa, the Madras Government wrote: “it appears doubtful whether, in view of the indeterminate nature of her husband's national status, she can be considered an Indian citizen, for though she was born in India and has been ordinarly [sic] resident in India since her birth, she married Shri Basar Khan prior to the commencement of the Constitution.”168
By virtue of her marriage to Basar Khan, Amirunnissa became a woman without a country in her own hometown, Madras.
In contrast to the Madras government, the Ministry of External Affairs in Delhi took the sympathetic position that the couple could be granted special “passports of restricted validity” so they could go to Pakistan and visit Basar's mother.169 This was a prospective
granting of documents on the basis of the idea that the two would eventually become citizens after Parliament enacted a new citizenship statute, which will be discussed in this chapter. Astutely noting their legally indefinite status, the Madras government wrote back to New Delhi, asking which national status should be listed on these passports.
This follow-up query from Madras prompted the ministries in the capital to scrutinize the case anew. During the re-examination, the Ministry of Home Affairs
166According to the Madras government's letter, the MEA had issued general instructions in August 1955 that
“Pakistan Nationals who entered India, from West Pakistan before the introduction of the permit system may, if they claim to be Indian nationals or aspire for Indian citizenship, be allowed to stay on in an unidentified position, till their status is determined when the Indian Citizenship Act is enacted.” NAI, MEA, F. 41(61) 55- PSP Grant of an India-Pakistan passport to Shri N Basar Khan & his wife (1).
167 Ibid., p. 3/corres.
168 Ibid. Sri is an Indian respect-marker roughly equivalent to Mister. For women, the term is Srimati
(abbreviated Smt.), again roughly equivalent to Mrs.
considered issuing Basar an Emergency Certificate rather than a restricted passport.
Emergency Certificates, though, were only for stateless people, and Basar was, in the Home department’s view, not stateless but still a Pakistani national.170 The telephone consultation
with the Ministry of Law left no record of the reasoning employed, but it convinced the Home Department bureaucrats that Basar was a Pakistani national. If Basar wanted to travel to Pakistan, he could only do so on Pakistani documents.171
No ministry provided advice on how Basar and his wife, once in Pakistan, would surmount their apparent Pakistani identities in claiming permits to return to Madras from the Indian consulate. Without such permits, they would be stuck in Peshawar on Pakistani documents, an almost insurmountable barrier to returning to India and claiming Indian citizenship due to the complex and vigorously enforced system of permits for travel between the two countries. “In seven weeks it was done, the frontiers decided/A continent for better or worse divided,”172 wrote W. H. Auden about the cartography of Partition. But for Basar
the process was not done even by 1954—it had only just begun, seven years, not weeks, after the Partition. Having escaped the ravages of Partition’s violence by living in Madras, his origins in Pakistan represented an inescapable blot on his heretofore British Indian identity.
Perhaps the ruling that Basar was a Pakistani national had some tenuous claim on reality—after all, he was a native of Peshawar. This decision produced a far stranger result for his wife. Amirunnissa was deemed a Pakistani national by virtue of her marriage to Basar. If she wanted to go to Pakistan, she too would need a Pakistani passport. The Ministry of External Affairs decided, “she also cannot be held to be an Indian national, for after her
170 In order to get his Emergency Certificate, he would have to renounce his Pakistani nationality first as well as
making an affidavit of his intention to remain permanently in India.
171 NAI, MEA, F. 41(61) 55-PSP Grant of an India-Pakistan passport to Shri N Basar Khan & his wife, 4-6. 172 W.H. Auden, “Partition,” 1966, reprinted in Sugata Bose and Ayesha Jalal, Modern South Asia: History, Culture,
Political Economy, 3rd ed. (London: Routledge, 2011), 155-6 and in Collected Poems, ed. Edward Mendelson (New
marriage with Mr. Khan in 1943, she acquired the domicile of her husband.”173 Therefore
she could not take out an Indian passport. The anomalous outcome in this case was due to the Constitution’s requirement of domicile for Indian citizenship and the interpretation of domicile using coverture-based principles. A woman’s domicile was defined by her
husband’s. Amirunnissa lost her Indian domicile due to her marriage to Basar. The file on Basar was sometimes unclear as to whether the requirement he lacked was residence for five years or Indian domicile, ultimately suggesting he lacked both and was a Pakistani national. But it was far more certain that Khan’s wife lost her Indian domicile upon her marriage to him.174 The strict requirement of unity of husband, wife, and marital home produced a
division between identity and home for Amirunnissa and her husband. Tied to the husband’s place of origin in Peshawar by this interpretation of the law of domicile, the Madras couple faced an impossible choice between what they considered national belonging and family obligations.
Entering and Leaving the Body Politic
India’s Constitutional law of citizenship shaped this dilemma. The Constitutional moment took place in the midst of the ideological and practical difficulties of creating two new nation-states out of one colony. After World War II, it was clear that the British would need to withdraw from India. There were several underlying reasons: promises made to secure Indian co-operation during the war; the unrelenting pressure of Indian nationalism, both non-violent and violent; and Britain’s own straitened post-war circumstances.
However, the timeline and logistics of granting independence and determining the post-
173 NAI, MEA, F. 41(61) 55-PSP Grant of an India-Pakistan passport to Shri N Basar Khan & his wife, p. 5. 174 The note in the Ministry of Home Passports Section noted that she lost her domicile upon marriage to
Basar. NAI, MEA, F. 41(61) 55-PSP Grant of an India-Pakistan passport to Shri N Basar Khan & his wife, p. 5, R.S. Chavan, September 1955.
independence political settlement presented enormous challenges for both British rulers and Indian politicians.
In February 1946, Prime Minister Clement Attlee announced that Britain would grant India her independence, and quickly: by June 1948. The May 1946 Cabinet Mission Plan offered a resolution to the conflict between the Indian National Congress and the Muslim League over the role of India’s Muslim population. The various Indian provinces would be sorted into three groups so that Muslim and Hindu political power would be nearly equal, and Muslim voices would have representation justified by their historically integral role to the Indian nation and not based on their numerical minority. The central government would be relatively weak, with most power vested in the provinces and only foreign affairs, communications, and defense reserved to the center. For a while this seemed a disagreeable if effective method of resolving the fundamental disagreement between the Congress and the League and moving quickly towards independence. On the basis of this agreement, in the summer of 1946, an interim government of Indian politicians was appointed and elections for the Constituent Assembly were held on the basis of a limited franchise. In late July, the Muslim League withdrew its support of the plan and announced its intentions to boycott the new Constituent Assembly. The Assembly postponed meeting until December 9, 1946, in the hope that the League would come around. Finally, in December, the
Assembly began its deliberations, avoiding making any decisions on topics that would foreclose the possibility of a unified India.175
The penultimate Viceroy, Archibald Wavell, was unable to break the stalemate and, in hopes of solving the India problem once and for all, British Prime Minister Clement Attlee appointed Louis Mountbatten Viceroy in February 1947. Mountbatten forced Jinnah’s
175 The foregoing account draws on Granville Austin, The Indian Constitution: Cornerstone of a Nation (Delhi:
hand by offering him either an undivided India without any guarantee of Muslim power at the center, a far worse deal than the Cabinet Mission had been, or a sovereign independent nation-state of Pakistan comprised of the western and eastern Muslim-majority wings of India. Jinnah had refused previous such offers, believing that dividing India in this fashion would undercut the Indian Muslim nation that was, after all, dispersed across India in both Muslim-majority and Muslim-minority provinces. He would have preferred “parity” within the Indian nation but accepted the division of Indian sovereignty and the Partition plan.176
Nehru saw the Pakistan plan as the painful compromise necessary to bring colonial rule to a close. It would also avoid the problems of a weak federal center presented by the Cabinet Mission’s provincial grouping plan.177The Mountbatten Plan called on the state assemblies of Sind, Baluchistan, Punjab, and Bengal to vote on Partition.178 Nehru announced the
Congress Party’s support for the proposal even before the state assemblies formally assented: “These proposals will be placed soon before the representative assemblies of the people for consideration. But meanwhile, the sands of time run out and decisions cannot wait the normal course of events.”179
It was now clear that independent India would not exercise sovereignty over all of her current territory. The definite borders between India and Pakistan were not yet decided. Neither was the issue of the entrance of the princely states to Indian union fully resolved. Despite these remaining open questions, the new developments gave a push to the process of Constitution making in India.
176 Metcalf and Metcalf, Concise History, 216. 177 Ibid., 216-7
178 Bose and Jalal, Modern South Asia, 151-3.
179 Jawaharlal Nehru, “Nehru’s Broadcast, June 3, 1947” reprinted in B. Shiva Rao, ed., The Framing of India’s
Mountbatten’s announcement in June 1947 set the date for British withdrawal as August 14-15, 1947, a year earlier than originally anticipated. This gave only three months to decide on the new borders for India and Pakistan. The Radcliffe Boundary Commission was tasked with drawing the boundaries between India and Pakistan in the state of Punjab in the west and the state of Bengal in the east. Since the members of India’s various religious groups did not live in wholly distinct geographic areas, this was a difficult proposition.180 In
the Punjab, it was further complicated by that state’s historic role as the birthplace of Sikhism and home to many of its holiest sites. Fear that they would end up on the “wrong” side of the as yet undetermined new border drove millions to migrate: approximately 5 million Hindus and Sikhs migrated from Pakistan into India and an estimated 5.5 million Muslims left India for Pakistan.181 The Radcliffe Commission’s decisions were not
announced until after independence, fueling the uncertainty.182 Feminist histories of Partition
have shown how women’s bodies were linked to religious community during Partition violence and in subsequent recovery and rehabilitation efforts. During the period of
Partition violence from 1946-8, men of all religious communities used rape and other forms of violence against women and forced marriages and conversions as weapons of communal violence.183 Violence fed violence and retaliation.
On the eastern border, things were calmer but not placid. Exchanges in populations took place, but they spanned a longer period and were less violent if not less traumatic.
180 Interestingly, enclaves of Indian territory completely surrounded by Pakistan and vice versa were created in
East Pakistan (now Bangladesh). This raised a question for the Supreme Court about whether the Parliament was competent to cede Indian territory without Constitutional amendment, In re: Berubari Union and Exchange of Enclaves, All India Reporter [AIR] 1960 SC 845). The social, though not legal history, of these enclaves is discussed in Urvashi Butalia, “The Nowhere People,” in The Trauma and the Triumph: Gender and Partition in Eastern India, ed. Jasodhara Bagchi and Subhoranjan Dasgupta (Kolkata: Stree, 2003), 113-22, and Willem van Schendel, “Stateless in South Asia: The Making of the India-Bangladesh Enclaves,” The Journal of Asian Studies 61, no. 1 (2002): 115-47.
181 Metcalf and Metcalf, Concise History, 222. 182 Bose and Jalal, Modern South Asia, 155.
Hindu Bengalis from the new East Pakistan migrated to Calcutta, substantially reshaping the landscape of that city. Many Bengali Muslims also left Calcutta and the new Indian state of West Bengal to cross over to the new East Pakistan, which in 1971 would declare its
independence as the country of Bangladesh. One historian estimates that between 1947 and 1962 approximately 4.1 million refugees crossed from west to east Bengal while about 1.5 million Muslims left West Bengal and neighboring Indian states to go to East Pakistan.184 India officially became independent from Great Britain on August 15, 1947: a day that simultaneously marked trauma and triumph.185
In July 1948, India announced the introduction of a permit system to control migration on the western border. Called the Influx from Pakistan (Control) Ordinance, and then Act, the permit system made crossing the border without a valid permit illegal. Under the system the Indian High Commission could issue five types of permits to those in Pakistan wanting to cross the border to India. The first three (temporary; repeated journeys; transit) do not come into play here. The other two, the permanent return permit and the permanent resettlement permit, however, were directly mentioned in the Constitution. As Zamindar has shown, the permanent return permits were for Muslims who had come to Pakistan from India and wanted to return and the permanent resettlement permits were designed for Hindus in Pakistan.186 The permit system was termed the “real partition,” and
many observers, in retrospect, over-optimistically hoped it would come to an end.187
184 Joya Chatterji, “Right or Charity? The Debate over Relief and Rehabilitation in West Bengal, 1947-50,” in
The Partitions of Memory: The Afterlife of the Division of India, ed. Suvir Kaul (Bloomington: Indiana University Press,