India’s Citizenship (Amendment) Act activity’, akin to waging war against the state. 124 Like evacuee property legislation, this was seen as an ‘abnormal legislation … applying to an abnormal set of circumstances’. 125 This called, in legislative minds, for exceptional penalties. Indeed, a sizable group suggested that those who ‘harboured’ these migrants — usually earlier Bengali migrants — be subject not to imprisonment, which they argued would provide ‘free food and lodging’ and thus be an incentive to come to India, but to forfeiture of their property. 126 It fell, finally, to the originator of the Bill to point out that doing so would violate constitutional guarantees, and with a new Supreme Court in place, such drastic measures would be liable to being struck down. 127 C The ‘Sentinel Qui Vive’ or ‘A Dead Letter’: The Judiciary and Citizenship in the 1950s and 1960s How did the judiciary, often the final arbiter of questions around citizenship, negotiate these questions? I argue that religion implicitly informed the operation of judicial decisions around citizenship laws. Under the permit regulations in place on the western border, subordinate officials — of sub-inspector rank and above — were allowed to issue orders of deportation. 128 Given that permits of permanent resettlement were very sparingly issued, most persons trying to move back to India tried to get temporary permits, come to India and then apply for resettlement.129 In some cases, persons were able to slip through; when the restoration of property was involved, however, this was much harder. After the Constitution of India came into force, petitioners tried to use the High Court’s writ jurisdiction (art 226) to challenge the most capricious exercise of deportation procedures. 130 Nevertheless, case law on citizenship and migration through the first 20 years of India’s Independence show subtle and not-so-subtle biases against Muslims. Article 7 of the Constitution required proof of ‘intention to migrate’ to support a conclusion that a person had decided to permanently give up Indian citizenship by shifting to the territory that later became Pakistan. In case after case, the petitioner’s links to the Muslim League before Independence, 131 or the fact that 124 ibid, in response to Gopalaswami’s argument that forfeiture of property was impossible to justify. 125 India, Parliamentary Debates, Provisional Parliament, 10 February 1950, 444 (JR Kapoor). 126 Thakur Das Bhargava, from the Punjab, and RK Chaudhuri, from Assam, were the most 127 128 129 130 131 strident advocates for this, as were Bugohain and Borooah from Assam: India, Parliamentary Debates, Provisional Parliament,10 February 1950, 426–28. ibid 431 (Gopalaswami Ayyangar). Sayeedah Khatoon v State of Bihar [1951] AIR Pat 434. ibid. In many of the cases I will discuss here, we see that this was the technique adopted. ibid. Nisar Ahmed v Union of India [1958] AIR Raj 65. Here, the petitioner claimed he had visited Karachi in July 1948 to arrange Scotch whiskey for the Maharaja of Jodhpur, but the Court relied on his links with the Muslim League before Independence to justify their finding that he intended to migrate to Pakistan. 227