186 SOCIO-LEGAL REVIEW VOL. 17 migrants; specifically, the permit system allowed easier access to Hindus but created a disadvantage for Muslim migrants seeking Indian citizenship.205 He highlights that the differential requirements for citizenship was not an accident but an intentional design – the Constituent Assembly was aware of, and actively used, the difference in faith among migrants to encourage citizenship for Hindus and discourage it for Muslims.206 Thus, although the text of the Indian Constitution does not mention religion in terms of citizenship requirements, its consequence was to develop a divergent approach for Hindu and Muslim migrants. There was no formal discrimination based on religion, but the result of the law was the creation of a major disadvantage for Muslim refugees.207 In this backdrop, as Niraja Gopal Jayal argues, Indian citizenship law has experienced a tension in conceiving itself as jus soli or jus sanguinis beginning from Constituent Assembly debates around and arising out of Partition.208 This tension has reproduced itself in independent India through the slew of amendments that seek to topple jus soli and replace it with jus sanguinis citizenship – primarily by making Indian citizenship increasingly contingent on the applicant not being an illegal migrant.209 N. Ram and Gautam Bhatia caution against overemphasising revisionist arguments that try to characterise Indian citizenship as inherently non-secular 205 206 207 208 209 Muslim migrants were required to obtain a permanent resettlement permit whereas Hindu migrants were not. Acquiring a permanent resettlement permit was extremely arduous because it involved several steps of state scrutiny including disclosure of faith, details of property in India, and subject to veto by the Indian state where the Muslim migrant wished to resettle as in Chandrachud (n 27); Chatterjee (n 194); Chatterjee (n 204); Influx from West Pakistan (Control) Ordinance 1948; Influx from West Pakistan (Control) Act 1949; Permit System Rules 1948, r 3, r 10, r 16, Appendix II (C). Chandrachud (n 27); the reason behind this intentional design was the issue of ‘evacuee’ property as in Chatterjee (n 204); Vazira Zamindar, The Long Partition and the Making of Modern South Asia (Columbia University Press 2007); Sarah Ansari, Life After Partition: Migration, Community and Strife in Sindh 1947 – 1962 (OUP Pakistan 2005). Chandrachud (n 27); in contemporary times, this consequence-based test has been recognised in the context of Article 15 in Navtej Singh Johar v Union of India (2018) 10 SCC 1. The SC held that it is not only whether a law bases its discrimination on one of the grounds mentioned in Article 15, for instance, sex. Instead, the real test is whether the effect of such classification results in discrimination. Using this idea, we can examine Articles 6 and 7 through their effects – creating differential pathways to citizenship based on religion and creating a disadvantage for Muslim migrants. This consequence-based test has also been discussed in Rani Raj Rajeshwari Devi v State of UP 1954 SCC OnLine All 90 : AIR 1954 All 608; Gautam Bhatia, ‘Sex discrimination: Anuj Garg and the anti-stereotyping principle’ in Gautam Bhatia The Transformative Constitution: A Radical Biography in Nine Acts (HarperCollins India 2019). Jayal (n 23); Jayal (n 27). Jayal (n 23).