Citizenship and the Constitution

Abstract

This article explains the vision of citizenship set out in Part II of the Indian Constitution,

through a close reading of the Constituent Assembly speech. I shows that through its specific

provisions in Part II, the Constitution articulates a vision of Indian citizenship that is

interwoven with Indian constitutional identity as a whole: secular, egalitarian, and non-

discriminatory. Drawing upon universal humanist principles – and in specific and conscious

contrast to the State of Pakistan – the Constituent Assembly crafted an idea of citizenship that

rejected markers of identity, whether ethnic or religious. A careful reading of the Constituent

Assembly Debates reveals, therefore, that while Parliament was free to legislate on

citizenship, it was to be bound – always – by the defining features of the Indian polity.

Parliament could not – and was not intended to – ever create conditions for entry into the

polity (through citizenship laws) that were fundamentally at odds with its secular and civic-

nationalist identity. This was meant to act as an “implied limitation” (a concept familiar to

students of constitutional law) upon Parliament’s powers under Article 11. Under this

Constitution, therefore, religion cannot become a basis for citizenship.

Keywords: Indian Constitution, secularism, citizenship, implied limitations

Introduction

India’s Constitution was framed in extraordinary circumstances. During the three years

(January1947–January 1950) that the Constituent Assembly sat, debated, and drafted, the

country gained independence, was partitioned, and more than five hundred “princely states”

were integrated into what became the Indian Union. These events were often accompanied by

bloodshed and violence.

The Constituent Assembly’s own character reflected these extraordinary circumstances. The

Assembly began as a creature of British statute,but swiftly declared itself unbound and free

to determine its own powers.Its composition changed as time went by, and as the country

split up. And until the first elections, it was the same men and women who sat both as

the Constituent Assembly framing the national Charter, and as a provisional Parliament,

passing laws and administering the country (often in the course of the same day).

The framers of the Constitution, therefore, were faced with a challenging and unprecedented

task. They had to frame a document that would endure for generations – an endeavour that

required them to take a step back from the immediacy of their context, and think in general

and universal terms. At the same time, they had to respond and react on an almost daily basis

to a rapidly shifting national landscape. Unsurprisingly, the Constitution that finally emerged

reflected the circumstances under which it had been framed: grand and lofty principles,

embodied in the Preamble and the fundamental rights chapter, jostled for space with

provisions dealing with the governance of everyday life and the details of administration.

And perhaps nowhere was this contrast more evident than in the Constitution’s

citizenship chapter (Part II). The mass migration that accompanied the Partition required a

concrete and definite solution. After significant debate,this solution emerged from Articles 5

to 8 of the Constitution, which spelt out the citizenship status of those who were born in

undivided India but lived abroad,those who had come into India from Pakistan, and those

who had left India–but decided to come back. And then,without anything further on the

general principles governing citizenship,there came Article 11:

"Nothing in the foregoing provisions of this Part shall derogate from the power of Parliament

to make any provision with respect to the acquisition and termination of citizenship and all

other matters relating to citizenship."

Constitution: About citizenship

In effect, therefore,on a simple reading of Part II of the Constitution, it appears that the

framers in the Constituent Assembly devoted their energies to solving the problems of

Partition,while leaving the citizenship question–as it were –to a future Parliament (Parliament

did indeed enact the Citizenship Act in 1955).Consequently, there is a simple and brief

answer to the question: what does the Constitution say about citizenship? The answer:

nothing.Partition– and its legal consequences- are over, and those provisions,with their quaint

cut-off dates of July1948–have no more than a vestigial role to play. It is the Indian

Parliament that is empowered to laydown the conditions of citizenship (subject,of course,

to the Constitution’s fundamental rights chapter), conditions that it can – and has

–altered from time to time.

This “plenary” power of Parliament and Article 11,which guarantees it – has been a

central part of the debate around the 2019 amendments to the Citizenship Act. These

amendments provide that migrants (a)from three countries–Pakistan, Bangladesh,and

Afghanistan,(b) belonging to any one of six religions – Hindu,Jain, Buddhist, Sikh,

Parsi,and Christian, and (c)having come to India before December 31,2014, would be granted

immunity from prosecution as illegal immigrants,and a fast-track to citizenship. Objections to

this“religious test”for citizenship had been made for months,while the CAA had still been a

Bill,and were made again when it was passed,both in the public sphere,and in the many

petitions that were filed before the Supreme Court, challenging it.

Article11 has played a central role in the CAA’s defence.This defence has taken two

forms,which we can helpfully label a “strong form” and a “weak form”.

In its strong form, the argument goes that Article 11 exempts citizenship law from any

form of constitutional objection,including (effectively) a fundamental rights challenge. The

words “any provision” and “all other matters” suggest that questions of citizenship lie

within the exclusive domain of Parliament. In this essay,I will not engage in detail

with this argument:a look at the text of Article11 demonstrates that it is mean to operate as an

exception to the rest of Part II,but not to the Constitution as a whole. Article13 of the

Constitution clarifies that any law passed by Parliament must comply with the

fundamental rights chapter.6 There is no specific exemption for citizenship laws, and it is

difficult to read any such exemption into Article11 either. Therefore, on a simple

reading of Part-II of the Constitution, it appears that the framers in the Constituent

Assembly devoted their energies to solving the problems of Partition, while leaving the

citizenship question – as it were – to a future Parliament (Parliament did indeed enact the

Citizenship Act in 1955).

Consequently, there is a simple and brief answer to the question: what does the Constitution

say about citizenship? The answer: nothing. Partition – and its legal consequences – are

over, and those provisions, with their quaint cut-off dates of July 1948 – have no more than a

vestigial role to play. It is the Indian Parliament that is empowered to lay down the

conditions of citizenship(subject, of course, to the Constitution’s fundamental rights chapter),

conditions that it can – and has – altered from time to time.

Amendments

This “plenary” power of Parliament – and Article11, which guarantees it – has been a central

part of the debate around the 2019 amendments to the Citizenship Act. These amendments

provide that migrants (a) from three countries – Pakistan, Bangladesh and Afghanistan, (b)

belonging to any one of six religions – Hindu, Jain, Buddhist, Sikh, Parsi and Christian and

(c) having come to India before December 31, 2014, would be granted immunity from

prosecution as illegal immigrants, and a fast-track to citizenship.Objections to this “religious

test” for citizenship had been made for months, while the CAA had still been a Bill, and

were made again when it was passed, both in the public sphere, and in the many petitions

that were filed before the Supreme Court,challenging it.

Article 11 has played a central role in the CAA’s defence. This defence has taken two

forms, which we can helpfully label a “strong form” and a “weak form”.

Article 11 of Indian Constitution

In its strong form, the argument goes that Article 11 exempts citizenship law from any form

of constitutional objection, including (effectively) a fundamental rights challenge. The words

“any provision” and “all other matters” suggest that questions of citizenship lie within the

exclusive domain of Parliament. In this essay,I will not engage in detail with this

argument:a look at the text of Article 11 demonstrates that it is meant to operate as

an exception to the rest of Part II, but not to the Constitution as a whole. Article 13 of the

Constitution clarifies that any law passed by Parliament must comply with the fundamental

rights

chapter.There is no specific exemption for citizenship laws, and it is difficult to read any such

exemption into Article 11 either.

The argument also,however,has aweaker–and more nuanced–form.What the text of Article 11

reveals – according to this weaker version – is that the Constituent Assembly never

intended to bind Parliament to a particular principle, or set of principles, when it came to

questions of citizenship.Subject to the constraints of the fundamental rights chapter – many of

whose provisions are in any case limited to those who are already citizens– Parliament was

free to decide to whom – and on what bases – to accord citizenship.This could even include

religious bases (as the Constitution’s non-discrimination provisions are limited to

citizens), as long as there was a rational reason for Parliament to do so. The“Article 11

defence” goes on to argue, then, that the discrimination of religious minorities in these

three neighbouring countries provides the rational basis for Parliament to pick them out for

special treatment.

It is this second version of the “Article 11 defence” that I shall engage with in this essay.My

task here is not,of course, to examine the constitutionality of the CAA.Nonetheless, the

manner in which Article 11 has been deployed to defend the CAA provides an ideal starting

point, I suggest, from which to begin an answer to that fundamental question:what, if

anything, does the Constitution say about citizenship?My answer– that I shall elaborate over

the course of this essay–will be as follows: through its specific provisions in Part II, the

Constitution articulates a vision of Indian citizenship that is interwoven with Indian

constitutional identity as a whole: secular, egalitarian, and non-discriminatory.Drawing upto

universal humanist principles – and in specific and conscious contrast to the State of

Pakistan– the Constituent Assembly crafted an idea of citizenship that rejected markers of

identity, whether ethnic or religious. A careful reading of the Constituent Assembly Debates

reveals,therefore, that while Parliament was free to legislate on citizenship,it was to be

bound– always– by the defining features of the Indian polity. Parliament could not – and was

not intended to – ever create conditions for entry into the polity (through citizenship laws)

that were fundamentally at odds with its secular and civic-nationalist identity. This was meant

to act as an “implied limitation” (a concept familiar to students of constitutional law) upon

Parliament’s powers under Article11. Under this Constitution, therefore,religion cannot

become a basis for citizenship.

Conclusion

In 1947,when it began its great project of framing the Indian Constitution, the Constituent

Assembly was faced with a stark choice: an inclusive and universal vision of Indian

citizenship, or a narrow vision that privileged ascriptive identities in prioritizing claims to

Indianness. Even before Independence, the Constituent Assembly was clear in its

choice: it chose the former.

Independence, the violence and bitterness of partition, and the establishment of Pakistan as a

State based on religion, put that commitment to severe test. The mass migration that followed

Partition forced the Constituent Assembly to scramble to accommodate the refugees who

came from across the newly-born borders, many of them fleeing religious violence. There

were some in the Assembly who suggested that the only way to meet this moment was –

like Pakistan –to model Indianness on religious lines, and to treat India as a default homeland

for some identities – but not others. The stakes were clear, and the Constituent Assembly

turned down that proposal. Even as it drafted, worked,and reworked provisions to deal with

the largest human exodus in history,it did not let go of the constitutional commitment to

universal citizenship, and to civic rather than religious or ethnic nationalism.

This reading, I hope,will help to bring to life the long-dead provisions in Chapter II of the

Constitution. The relevance of Articles 5 to 8 did not end with the end of the refugee crisis

after Partition. Seventy years later,the rigorously universal and non-discriminatory language

of these provisions is a reminder of the path that the Constituent Assembly could have chosen

to walk– but didn’t. It is in the rejection of sectarian citizenship, at a moment when the fire of

religious hatred and persecution was at its peak, that the universal humanism of the Indian

Constitution’s citizenship chapter truly shines through.

Reference

1. www.barandbench.com

2. www.indconlawphil.wordpress.com

3. Indian Constitution

credit: M.Aadhithiya,

clg name: School of excellence in law.