How Pakistan grants citizenship, and what provisions cover its minorities

Souce: Indian Express dated 18.12.2019

-- Faizan Mustafa (Expert in constitutional law and Vice-Chancellor, NALSAR University of Law, Hyderabad)

Neighbourhood Constitutions: What are the constitutional and legal provisions for citizenship and rights of religious minorities in countries neighbouring India? A look at Pakistan.

The newly passed Citizenship Amendment Act makes it easier for religious minorities of three neighbouring countries to get Indian citizenship. What are the constitutional and legal provisions for citizenship and rights of religious minorities in neighbouring countries of India? A look at Pakistan:

How does the preamble to Pakistan’s Constitution compare with the preamble to India’s?

The preamble to the Indian Constitution declares the country as a “sovereign, socialist, secular, democratic republic”, with the terms “socialist” and “secular” having been added by the 42nd Amendment, 1976. On the other hand, as many as 60 Constitutions in the world refer to God including those in Germany, Brazil, Greece and Ireland. Pakistan’s Constitution starts with “In the name of Allah, the most beneficent, the merciful”, acknowledges sovereignty of God in respect of the universe, and contains references to Muslims and Islam. When this provision in the Objective Resolution was moved by Liaquat Ali Khan on March 12, 1949, it was opposed by non-Muslim members of Constituent Assembly. Sris Chandra Chattopadhya said, “There is no place for religion in the State… The state religion is a dangerous principle.”

Does Pakistan give citizenship on the basis of religion?

Although an Islamic state, Pakistan does not have any religious test for citizenship. Its Citizenship Act, 1951 is similar to India’s Citizenship Act in certain respects may be seen as more liberal. Section 6 lays down that any person who migrated to Pakistan before January 1, 1952 is a citizen. Section 3 gives citizenship on the commencement of the Act (April 13, 1951) to anyone who, or any of whose parents or grandparents, was born in the territories included in Pakistan on March 31, 1973. Pakistan grants citizenship to any person who migrated there before April 13, 1951 (India’s cutoff is July 19, 1948, except in Assam, where it is March 25,1971) from any territory in the subcontinent with the intention of permanently residing there. Like India’s law, Section 7 in Pakistan says that a person who migrated to India after March 1, 1947 shall not be a citizen of Pakistan except if (s)he returned under resettlement or permanent return.

While Section 4 in the Pakistan law lays down that every person born in Pakistan after the commencement of the Act shall be a Pakistan citizen by birth, India has added restrictive qualifications by amendments in 1986 (one parent should be an Indian citizen) and 2003 (both parents should be Indian citizens, or one a citizen and the other not an illegal migrant). Section 5 of the Pakistan Act talks of citizenship by descent if one of the parents was a Pakistani citizen at the time of the person’s birth.

J&K migrants to Pakistan are deemed to be Pakistan citizens until Kashmir’s relationship with Pakistan is finally determined. British residents were similarly deemed to be citizens. Citizenship can also be given to Commonwealth citizens by the government.

What is different in the way Pakistan and India define freedom of religion?

Unlike the preamble to the Constitution of India, Pakistan’s Constitution explicitly lays down in the preamble itself that “adequate provision shall be made for the minorities freely to profess, practice freedom of religion and develop their culture” and that “adequate provision shall be made to protect legitimate interests of minorities and backward classes”. Of course, the expression “legitimate interests” in respect of minorities is restrictive.

Unlike India, Pakistan gives the right to freedom of religion only to citizens. In India everyone, including foreigners, has freedom of religion and that’s why foreign missionaries have a right to propagate Christianity.

Unlike in India, freedom of speech in Pakistan specifically includes freedom of press – but this is subject to “glory of Islam”. Due to this restriction, Pakistan has a regressive blasphemy law with a mandatory death penalty, which runs contrary even to fundamental principles of Islamic criminal law. Its widespread abuse raises questions about Pakistan’s commitment to free speech.

Also Read | Citizenship law could lead to India-Pakistan conflict: Imran Khan

What steps has Pakistan taken to protect the ‘legitimate interests’ of minorities, as provided for?

Article 36 says the state shall safeguard the legitimate rights and interests of minorities including their due representation in the federal and provincial services. While religious minorities do face discrimination, the Constitution makes a provision of reservation for them. In the National Assembly, 10 seats are reserved for them. In Balochistan, though religious minorities constitute just 1.25% of the population, reservation for them is 4.62 %; in Punjab, they are 2.79% and have reservation of 2.16%; in Sindh, they are 8.69% and reservation is 5.36%; in NW Province, they are 2.46% but reservation is just 0.56%.

Hindus in West Pakistan (today’s Pakistan) in 1951, after migration to India of about 5 million post-Partition, were just 3.44 per cent. In the 1961 Census, non-Muslim population got reduced to 2.83 per cent in today’s Pakistan. This went up to 3.25 per cent in 1972, 3.30 per cent in 1981, and 3.70 per cent in 1998.

Are there personal laws for religious minorities in Pakistan?

Yes. Although there is a provision that laws that are inconsistent with the state religion are to be struck down as unconstitutional, Article 227(3) of Pakistan’s Constitution does exempt personal law of minorities from this provision. In India, any provision of personal law that is inconsistent with the Constitution is null and void. Triple talaq was thus declared invalid in 2017.

In 2016, Sindh province, which has the highest number of Hindus in Pakistan, passed legislation outlawing forced conversions. The Punjab Assembly enacted the Sikh Anand Marriage Act in 2018.