Beruflich Dokumente
Kultur Dokumente
1
For
the
standard
account
of
the
framing
of
India’s
Constitution,
see
Granville
Austin,
India’s
Constitution:
Cornerstone
of
a
Nation
(OUP
1966);
see
also
Uday
Singh
Mehta,
“Constitutionalism”
in
The
Oxford
Companion
to
Politics
in
India
(OUP
2010).
2
For
accounts
of
citizenship
in
India
from
a
constitutional
perspective,
see,
e.g.,
Niraja
Gopal
Jayal,
Citizenship
and
its
Discontents
(Harvard
University
Press
2013);
Niraja
Gopal
Jayal,
“Citizenship”
in
The
Oxford
Handbook
of
the
Indian
Constitution
(OUP
2016);
Anupama
Roy,
Gendered
Citizenship
(Orient
Blackswan
2005).
acquisition
and
termination
of
citizenship
and
all
other
matters
relating
to
citizenship.3
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
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.
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.4
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”.
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.5
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.6
There
is
no
specific
exemption
for
citizenship
laws,
and
it
is
difficult
to
read
any
such
exemption
into
Article
11
either.
3
Article
11,
Constitution
of
India.
4
The
Citizenship
(Amendment)
Act,
2019.
5
For
a
version
of
this
argument
–
not,
albeit,
founded
on
Article
11,
see
Kanu
Agrawal,
“In
Defence
of
Citizenship
Amendment
Act:
Plenary
powers
and
the
idea
of
Indian
Citizenship”,
Bar
&
Bench
(December
19,
2019),
available
at
https://www.barandbench.com/columns/plenary-‐
powers-‐the-‐idea-‐of-‐indian-‐citizenship.
6
Article
13,
Constitution
of
India.
The
argument
also,
however,
has
a
weaker
–
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
citizens7),
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
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.
Method:
Reading
the
Constituent
Assembly
Debates
The
complexity
of
the
Constituent
Assembly
Debates
requires
a
brief
excursion
into
method.8
The
drafting
of
the
Indian
Constitution
was
a
long
process
that
lasted
over
three
years.
The
process
was
marked
by
a
dialogue
between
the
larger
Constituent
Assembly,
and
the
smaller
Drafting
Committees
that
were
in
charge
of
separate
parts
of
the
document.
Through
three
distinct
phases,
drafts
7
See,
e.g.,
Article
15,
Constitution
of
India.
8
See
Gautam
Bhatia,
“How
to
Read
the
Constituent
Assembly
Debates
–
I”,
Indian
Constitutional
9
For
a
complete
account,
readers
are
advised
to
consult
the
six-‐volume
B.
Shiva
Rao,
The
Framing
of
India’s
Constitution
(Universal
Law
Publishing
2015).
10
Clause
3,
Interim
Report
on
Fundamental
Rights,
as
introduced
in
the
Constituent
Assembly
on
29th
April,
1947.
See
Parliament
of
India,
Constituent
Assembly
Debates,
Vol.
III
(29th
April,
1947)
(speech
of
Sardar
Vallabhbhai
Patel)
(Emphasis
Supplied).
11
Parliament
of
India,
Constituent
Assembly
Debates,
Vol.
III
(29th
April,
1947)
(speech
of
B.
Das).
12
Ibid.
The
stakes
of
the
debate
were
immediately
clear
to
the
members
of
the
Constituent
Assembly.
Alladi
Krishnaswamy
Ayyar
–
one
of
the
foremost
members
of
the
Assembly
–
rose
to
defend
the
Clause,
noting
that:
There
are
two
ideas
of
citizenship.
In
the
Continental
countries
citizenship
is
based
upon
race:
it
has
nothing
to
do
with
the
birth
of
a
person
in
any
particular
place.
In
the
Anglo-‐American
system
if
a
person
is
born
in
a
particular
place,
he
gets
his
citizenship.
If
you
want
to
adopt
a
different
system
you
may.13
The
purpose
of
the
first
part
of
the
first
sentence
of
the
citizenship
clause,
Ayyar
noted,
was
to
commit
India
to
the
second
principle.
The
purpose
of
the
second
part,
and
of
the
second
sub-‐clause,
was
to
deal
with
the
inevitable
complications
that
would
arise
in
the
implementation
of
the
principle:
children
born
to
nationals
who
went
abroad,
to
diplomats,
and
so
on.
A
constitutional
charter
could
not
provide
for
these
details
–
parliamentary
legislation
would.
Members
of
the
Constituent
Assembly
were
not
satisfied
with
Ayyar’s
answer.
In
the
course
of
the
debate,
numerous
hypothetical
examples
were
put
to
him
about
foreigners
giving
birth
while
transiting
through
the
country,
children
of
temporary
residents,
statelessness,
dual
citizenship,
and
so
on.
In
responding
to
these
questions,
Ayyar
reiterated
that
while
the
details
would
be
worked
out
through
statute
law,
the
Constitution
was
committed
to
the
overarching
principle
of
“universal
citizenship”,
a
principle
that
was
embedded
in
India’s
anti-‐colonial
history:
In
dealing
with
citizenship
we
have
to
remember
we
are
fighting
against
discrimination
and
all
that
against
South
Africa
and
other
States.
It
is
for
you
to
consider
whether
our
conception
of
citizenship
should
be
universal,
or
should
be
racial
or
should
be
sectarian.14
Among
the
Assembly,
there
was
a
broad
consensus
that
supported
Ayyar’s
interpretation
of
the
citizenship
clause:
namely,
that
it
set
out
a
principle
of
universal
citizenship,
and
left
implementational
details
to
be
worked
out
through
legislation.
Ananthasayanam
Ayyangar,
for
instance,
cautioned
against
“making
any
distinction
between
foreigners
in
the
matter
of
citizenship.”15
And
the
point
was
reiterated
by
Sardar
Patel
himself,
who
made
it
clear
that:
There
are
two
ideas
about
nationality
in
the
modern
world,
one
is
broad-‐
based
nationally
and
the
other
is
narrow
nationality.
Now,
in
South
Africa
we
claim
for
Indians
born
there
South
African
nationality.
It
is
not
right
for
us
to
take
a
narrow
view...
It
is
a
curious
idea
that
...
you
[want
to]
introduce
racial
phraseology
in
our
Constitution...
our
general
preface
or
the
general
right
of
citizenship
under
these
fundamental
rights
should
be
13
Parliament
of
India,
Constituent
Assembly
Debates,
Vol.
III
(29th
April,
1947)
(speech
of
Alladi
Krishnaswamy
Ayyar).
14
Ibid.
15
Parliament
of
India,
Constituent
Assembly
Debates,
Vol.
III
(29th
April,
1947)
(speech
of
Ananthasayanam
Ayyangar).
so
broad-‐based
that
any
one
who
reads
our
laws
cannot
take
any
other
view
than
that
we
have
taken
an
enlightened
modern
civilised
view.16
In
similar
terms,
K.M.
Munshi
observed:
After
all
we
are
not
making
a
law
of
nationality.
We
are
only
enacting
two
indispensable
conditions,
namely,
persons
born
in
India
and
naturalised
according
to
the
law
of
the
Union
shall
be
citizens.
The
world
is
divided
between
the
ideas
of
racial
citizenship
and
democratic
citizenship,
and
therefore,
the
words
'born
in
India'
become
necessary
to
indicate
that
we
align
ourselves
with
the
democratic
principle.17
As
the
debate
over
the
details
continued,
however,
the
Constituent
Assembly
was
unable
to
arrive
at
a
satisfactory
wording,
and
decided
to
postpone
consideration
of
the
clause.
It
is
worth
noting,
however,
that
at
this
time,
Partition
had
not
yet
happened,
and
the
mass
migration
that
would
later
force
the
Constituent
Assembly’s
hand
was
still
an
eventuality
that
people
hoped
to
avoid.
Shorn
of
the
Partition-‐specific
provisions,
then,
the
initial
citizenship
clause
reads
a
lot
like
what
we
find
in
the
final
constitutional
text:
an
initial
provision
that
guarantees
citizenship
by
birth,
and
then
an
umbrella
provision
that
allows
for
the
modalities
of
citizenship
to
be
worked
out
through
a
law.
A
close
reading
of
the
first
phase
of
the
debates
–
as
indicated
above
–
gives
us
an
insight
into
what
the
Consituent
Assembly
was
intended
to
achieve
through
this
combination:
a
restatement
of
universal
citizenship
as
a
principle,
with
the
acknowledgment
that
details
of
implementation
would
have
to
be
left
to
legislation.
Phase
Two:
Partition
–
an
Idea
Challenged
The
Drafting
Committee
worked
through
the
fag
end
of
1947,
and
then
1948,
to
prepare
a
draft
Constitution.18
But
when
the
Constituent
Assembly
met
to
consider
it,
the
world
had
changed.
India
was
independent,
and
partitioned.
The
creation
of
Pakistan
had
taken
place
on
explicitly
communal
lines.
The
violence
of
Partition
remained
fresh
in
memory.
It
was
inevitable
that
when
the
Assembly
considered
the
Draft
Constitution
in
the
months
of
November
and
December
1948
–
and
then
again
in
August
and
September
1949
–
the
Partition
would
cast
a
long
shadow
over
its
deliberations
–
and
especially
its
deliberations
on
what
it
meant
to
be
an
Indian.
The
first
illustration
of
this
occurred
in
the
text
of
the
citizenship
clause
itself.
The
simplicity
of
the
original
clause
now
needed
to
be
complemented
by
a
host
of
detailed
provisions
dealing
with
Partition
–
the
very
kind
of
detail
that
the
members
of
the
Constituent
Assembly
had
been
averse
to
go
into
the
first
time
around.
Faced
with
a
host
of
amendments
and
additions,
the
Chairman
of
the
Drafting
Committee,
Dr.
B.R.
Ambedkar,
collated
them
and
came
up
with
a
fresh
16
Parliament
of
India,
Constituent
Assembly
Debates,
Vol.
III
(29th
April,
1947)
(speech
of
Sardar
Vallabhbhai
Patel).
17
Parliament
of
India,
Constituent
Assembly
Debates,
Vol.
III
(29th
April,
1947)
(speech
of
K.M.
Munshi).
18
draft
of
the
citizenship
clause,
which
he
submitted
to
the
Constituent
Assembly
in
the
autumn
of
1949
(noting
wryly
that
it
was
one
of
the
two
clauses
that
had
given
the
Committee
“maximum
headache”).
The
fresh
clause
now
provided
for
citizenship
to
those
were
born
in
the
territory
of
India
(in
line
with
the
previous
draft),
whose
parents
were
born
in
India,
or
who
had
been
resident
in
India
for
five
years
before
the
commencement
of
the
Constitution;
then
it
came
to
Partition:
based
on
when
an
individual
had
migrated
from
Pakistan
into
India
(before
or
after
19th
July
1948),
they
were
either
unconditionally
Indian
citizens,
or
had
to
apply
to
register
to
be
Indian
citizens;
and
then
there
were
provisions
for
citizens
who
had
migrated
back
to
India
after
initially
migrating
to
Pakistan,
subject
to
a
license
system.19
Ambedkar
acknowledged
that
this
bewildering
profusion
of
provisions
(5,
5A,
5AA,
5B,
5C)
were
designed
to
solve
the
immediate
and
specific
problems
presented
by
Partition,
and
were
essentially
“ad-‐hoc”.
These,
he
went
on
to
state,
were
not
meant
to
be
“permanent.”
“The
business
of
laying
down
a
permanent
law
of
citizenship,”
he
observed,
“has
been
left
to
Parliament
...
[and]
Parliament
may
make
altogether
a
new
law
embodying
new
principles.”20
Was
Ambedkar
here
providing
a
carte
blanche
to
future
Parliaments
in
laying
down
principles
of
citizenship?
His
words
were
certainly
broad
in
character,
and
the
“Article
11
defence”
rests
upon
attributing
to
him
an
unqualified
acceptance
of
this
proposition.
As
I
shall
show,
however,
a
closer
reading
of
the
debates
demonstrates
that
this
would
be
too
quick
–
and
too
easy
–
an
interpretation.
Because,
as
the
more
than
ten-‐hour
long
debate
on
the
citizenship
provisions
went
on
to
show,
there
was
a
complex
factual
and
principled
matrix
that
underlay
Ambedkar’s
sparse
language,
much
of
which
would
be
strongly
challenged
in
the
Assembly.
The
first
set
of
challenges
arrived
long
before
even
Ambedkar
presented
his
fresh
draft:
on
the
8th
of
November
1948,
during
the
second
reading
of
the
Draft
Constitution,
Gurmukh
Singh
Musafir
was
the
first
to
ask
for
a
religious
test
for
citizenship,
in
view
of
the
Partition:
...
in
this
Article
no
distinction
has
been
made
between
a
foreigner
and
the
Hindus
and
the
Sikhs
coming
from
Pakistan.
Those
that
are
still
perforce
in
Pakistan
will
have
no
right
of
acquiring
citizenship
after
this
Constitution
has
been
framed.
I
think
this
Article
should
be
so
amended
that
they
might
be
regarded
as
the
citizens
of
this
land,
whenever
they
come
here.21
Musafir
was
the
first
to
voice
the
argument
that
individuals
belonging
to
specific
religions
had
a
claim
of
priority
on
Indian
citizenship,
rooted
in
the
19
See
Draft
Article
5,
as
introduced
into
the
Constituent
Assembly
on
10th
August,
1949.
Parliament
of
India,
Constituent
Assembly
Debates,
Vol.
IX
(August
10,
1949)
(speech
of
Dr.
B.R.
Ambedkar).
20
Ibid.
21
Parliament
of
India,
Constituent
Assembly
Debates,
Vol.
VII
(November
8,
1948)
(speech
of
Deshmukh).
23
Ibid.
24
Ibid.
25
Parliament
of
India,
Constituent
Assembly
Debates,
Vol.
IX
(August
11,
1949)
(speech
of
Shibban
Lal
Saksena).
26
Parliament
of
India,
Constituent
Assembly
Debates,
Vol.
IX
(August
12,
1949)
(speech
of
Bhopinder
Singh
Man).
27
Ibid.
But
the
argument
was,
however,
resisted
equally
strongly.
R.K.
Sidhva
cited
the
example
of
the
Parsis,
and
asked
why
specific
communities
needed
to
be
mentioned
at
all.28
Other
members
of
the
Assembly
criticized
the
“invidious
distinction”29
between
communities
that
this
proposal
underlined;
and
no
less
a
figure
than
Nehru
himself
rose
to
outrightly
reject
writing
discrimination
formally
into
the
citizenship
law:
“You
cannot
have
rules
for
Hindus,
for
Muslims
or
for
Christians
only.
It
is
absurd
on
the
face
of
it.”30
Nehru
went
on
to
note
that
in
framing
citizenship
in
secular
terms,
India
had
only
“done
something
which
every
country
does
except
a
very
few
misguided
and
backward
countries
in
the
world.”31
The
position
was
summed
by
–
once
again
–
by
Alladi
Krishnaswmi
Ayyar,
who
–
we
may
recall
–
had
first
drawn
the
distinction
between
the
“narrow”
and
the
“broad”
conceptions
of
citizenship,
and
committed
the
Indian
Constitution
to
a
“universal”
vision.
Ayyar
noted:
We
are
plighted
to
the
principles
of
a
secular
State.
We
may
make
a
distinction
between
people
who
have
voluntarily
and
deliberately
chosen
another
country
as
their
home
and
those
who
want
to
retain
their
connection
with
this
country.
But
we
cannot
on
any
racial
or
religious
or
other
grounds
make
a
distinction
between
one
kind
of
persons
and
another,
or
one
sect
of
persons
and
another
sect
of
persons,
having
regard
to
our
commitments
and
the
formulation
of
our
policy
on
various
occasions.32
It
is
in
the
words
of
Ayyar,
then,
that
we
see
the
clear
and
unambiguous
link
between
the
secular
character
of
the
Indian
polity,
and
the
rejection
of
racial
or
religious
criteria
as
grounds
for
citizenship.
And
ultimately,
it
was
this
position
that
carried
the
day:
Deshmukh’s
amendment
was
defeated,
and
Ambedkar’s
draft
clauses
–
that
remained
scrupulously
religion-‐neutral
–
were
adopted.
There
was
also,
however,
another
debate
that
was
proceeding
side-‐by-‐side.
Members
of
the
Constituent
Assembly
took
strong
exception
to
granting
citizenship
to
those
who
had
re-migrated
back
from
Pakistan,
after
having
migrated
there
in
the
first
place.
Lurking
underneath
that
objection
was
the
lingering
bitterness
from
the
wounds
of
partition,
and
a
fear
–
rarely
voiced
explicitly,
but
present
nonetheless
–
of
Fifth
Columnists.
Pandit
Thakur
Das
Bhargava,
therefore,
wanted
to
preface
this
clause
by
the
phrase
“on
account
of
civil
disturbances”,
on
the
basis
that
a
“man
should
not
come
here
and
become
a
citizen
just
to
bloster
up
a
Muslim
majority
in
one
of
the
provinces
of
India.
Therefore
the
first
condition
of
migration
would
be
that
he
comes
here
on
account
of
disturbances.”33
This
argument
was
repeated
multiple
times,
and
by
28
Parliament
of
India,
Constituent
Assembly
Debates,
Vol.
IX
(August
12,
1949)
(speech
of
R.K.
Sidhva).
29
Parliament
of
India,
Constituent
Assembly
Debates,
Vol.
IX
(August
12,
1949)
(speech
of
Mahboob
Ali
Baig).
30
Parliament
of
India,
Constituent
Assembly
Debates,
Vol.
IX
(August
12,
1949)
(speech
of
Jawahar
Lal
Nehru).
31
Ibid.
32
Parliament
of
India,
Constituent
Assembly
Debates,
Vol.
IX
(August
12,
1949)
(speech
of
Alladi
Krishnaswamy
Ayyar).
33
Parliament
of
India,
Constituent
Assembly
Debates,
Vol.
IX
(August
11,
1949)
(speech
of
Thakur
Das
Bhargava).
multiple
members
of
the
Assembly.
Ultimately,
however,
these
objections
were
defeated,
and
the
19th
July
cut-‐off
date,
as
well
as
the
permit
qualification
for
those
who
came
after
it,
was
retained.
Specific
attempts
–
such
as
that
by
Thakur
Das
Bhargava
to
narrow
the
clause
to
“on
account
of
civil
disturbances”
–
with
the
assumption
that
Muslims
would
not
flee
Pakistan
for
that
reason
–
were
rejected.
What
is
important
to
note
however
–
as
Abhinav
Chandrachud
points
out
–
is
that
the
permit
system
did
hve
the
indirect
effect
of
disadvantaging
Muslim
migrants34;
Nehru
himself
pointed
out
that
the
“first
wave”
of
migrants
(pre-‐July
1948)
had
been
Hindus
and
Sikhs.35
While
this
was
used
to
assuage
the
concerns
of
the
objectors,
the
language
of
the
draft
clause,
nonetheless,
remained
neutral.
The
August
1949
debates
reveal
something
of
crucial
importance.
Even
as
the
Drafting
Committee
worked
to
prepre
an
“ad-‐hoc”
set
of
provisions
dealing
with
the
bloody
fall-‐out
of
Partition,
it
–
and
the
Constituent
Assembly
–
held
fast
to
the
broader,
“universal”
notion
of
citizenship
with
which
they
had
first
set
forth
in
April
1947.
The
specificity
of
the
Partition
–
including
the
mass
religious
violence
meted
out
to
Hindus
and
Sikhs
in
what
would
become
Pakistan
–
presented
a
tempting
set
of
reasons
to
the
Assembly
to
frame
these
“ad-‐hoc”
provisions
in
a
manner
that
would
have
responded
in
an
equivalent
fashion,
namely
–
as
Deshmukh’s
amendment
sought
to
do
–
by
placing
religion
as
a
basis
of
priority
claims
to
citizenship.
Yet
despite
that
–
and
despite
concessions
to
that
in
the
form
of
the
post-‐July
1948
Permit
regime
–
the
Committee
and
the
Assembly
deliberately
drafted
and
adopted
provisions
that
remained
consistent
with
what
K.
Santhanam
had
described
on
the
6th
of
November,
1948,
as
one
of
the
founding
principles
of
the
Constitution:
“a
single,
equal
and
secular
citizenship.”36
Phase
Three:
Finalising
the
Constitution
–
The
Warp
and
the
Weft
“Citizenship
constitutes
the
rock
foundation
of
our
Constitution.”
-‐ Ajit
Prasad
Jain,
Constituent
Assembly
Debates,
In
November
1949,
the
Constituent
Assembly
met
for
the
third
and
final
reading
of
the
draft
Constitution.
The
third
reading
was
different
from
the
first
two:
the
debates
over
the
great
constitutional
questions
had
been
resolved
–
to
the
satisfaction
of
some
and
the
dissatisfaction
of
others,
but
resolved
nonetheless.37
The
third
reading,
therefore,
did
not
see
the
fractious
disputations
and
the
lengthy
wrangles
that
had
occupied
the
Assembly
for
almost
two
years.
34
Abhinav
Chandrachud,
“Secularism
and
the
Citizenship
Amendment
Act”,
(forthcoming,
Indian
Lal
Nehru).
36
Parliament
of
India,
Constituent
Assembly
Debates,
Vol.
VII
(November
6,
1949)
(speech
of
K.
Santhanam).
37
Algu
Raj
Shastri,
for
example,
specifically
complained
about
the
denial
of
automatic
citizenship
to
Hindus
and
Sikhs
during
the
Third
Reading.
See
Parliament
of
India,
Constituent
Assembly
Debates,
Vol.
XI
(November
21,
1949)
(speech
of
Algu
Raj
Shastri).
The
third
reading,
however,
is
important
for
another
reason.
It
was
here
that
the
members
of
the
Constituent
Assembly
rose,
looked
back
on
the
work
that
they
had
done,
and
offered
a
synthesis
of
the
core
principles
of
the
Constitution,
and
the
vision
that
it
set
out
for
Indian
society.
And
it
is
through
a
reading
of
those
speeches,
I
suggest,
that
we
can
glean
a
fundamental
insight:
the
citizenship
provisions
were
never
intended
to
be
read
in
isolation.
Rather,
they
formed
one
strand
in
a
web
of
harmonious
and
mutually
reinforcing
principles,
which,
woven
together,
made
up
the
Constitution.
And
this,
I
suggest,
is
the
fundamental
flaw
of
the
“Article
11
defence”:
it
attempts
to
read
the
text
of
Article
11
in
glorious
isolation,
ignoring
the
fact
that
citizenship
–
like
the
fundamental
rights,
the
directive
principles,
the
federal
structure,
and
the
rest
of
the
Constitution
–
were
part
of
a
coherent
web
of
principle,
not
single
strands
floating
in
the
air.
This
vision
of
the
Constitution
as
a
seamless
whole
comes
through
many
of
the
speeches
delivered
at
the
Third
Reading.
For
our
purposes
here,
we
need
extract
only
a
sampling
of
the
most
relevant.
As
Ajit
Prasad
Jain
noted:
In
Part
II,
which
defines
citizenship,
all
persons
born
in
India
or
who
are
bona
fide
residents
of
India
or
who
have
migrated
from
Pakistan
and
made
India
their
home
have
been
given
equal
recognition
as
citizens
without
distinction
of
religion,
race,
caste
or
class.
Citizenship
constitutes
the
rock
foundation
of
our
Constitution.
All
the
rights
in
the
Constitution
are
equally
guaranteed
to
all
citizens.
Every
citizen
of
India
shall
have
the
right
to
freedom
of
speech
and
expression
to
assemble
peacefully
and
without
arms
to
form
associations
and
unions,
to
move,
settle
and
acquire
property
in
any
part
of
India
and
to
practise
any
profession
or
trade
or
business.38
In
similar
terms,
Kamaleshwari
Prasad
Yadav
observed:
Our
Constitution
contains
many
noteworthy
features.
It
lays
down
that
India
shall
be
a
Union
of
States
and
that
there
will
be
one
official
language
for
the
whole
of
the
Union;
it
provides
for
the
abolition
of
untouchability
–
a
great
sin
–
that
has
been
tarnishing
the
name
of
our
country.
We
are
proud
to
have
embodied
such
provisions
in
our
constitution.
The
provision
regarding
adult
franchise
surpasses
those
of
Australia,
Canada
and
other
countries.
The
same
thing
applies
in
case
of
the
provisions
regarding
citizenship.
Under
the
able
leadership
of
Pandit
Jawaharlal
Nehru,
we
have
made
our
Sate
a
secular
one
and
have
thereby
maintained
a
very
high
ideal.
There
was
a
time,
Sir,
when
the
whole
of
Asia
was
looking
to
Japan
but
today
the
eyes
of
the
whole
of
Asia
are
fixed
towards
India.
They
are
watching
if
we
are
making
any
discrimination
or
not
in
our
treatment
to
the
citizens
on
the
ground
of
religion,
caste,
language
38
Parliament
of
India,
Constituent
Assembly
Debates,
Vol.
XI
(November
21,
1949)
(speech
of
Ajit
Prasad
Jain).
and
race;
they
are
keenly
watching
the
progress
we
are
making
towards
achieving
our
ideals.39
I
extract
these
speeches
out
of
a
profusion
of
similar
ones,
because
they
make
the
two
points
pellucidly
clear:
first
–
as
pointed
out
above
–
the
citizenship
provisions
were
consciously
non-‐discriminatory
in
character,
because
they
–
along
with
other
core
constitutional
principles
such
as
secularism
–
were
meant
to
present
a
coherent
and
morally
consistent
political
vision.
And
secondly,
unlike
a
lot
of
present-‐day
discourse,
and
–
indeed
–
the
Supreme
Court’s
observations
on
occasion
–
the
Constituent
Assembly
did
not
consider
citizenship
to
be
an
ancillary
privilege
that
was
of
no
great
consequence
from
a
constitutional
perspective:
a
few
years
before
Hannah
Arendt’s
famous
formulation
of
citizenship
being
the
“right
to
have
rights”,
Ajit
Prasad
Jain
hit
upon
the
same
idea
when
he
called
citizenship
the
“rock
foundation”
of
the
Constitution.
It
was
precisely
because
so
much
rested
on
citizenship
–
rights
to
free
speech,
assembly,
trade,
movement,
and
so
on
–
that
the
criteria
for
citizenship
couldn’t
be
whimsical,
arbitrary,
or
discriminatory,
but
instead,
consistent
with
the
normative
vision
that
underpinned
the
rest
of
the
Constitution.
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.
Through
debate
and
dissension,
the
Assembly
finally
came
around
to
endorse
a
holistic
constitutional
vision,
a
vision
founded
on
principles
of
republicanism,
secularism,
equality
and
non-‐discrimination,
and
inclusion.
The
citizenship
chapter
formed
an
integral
part
of
the
web,
a
thread
in
the
design.
In
this
essay,
I
have
tried
to
show
that
taking
the
citizenship
clauses
in
isolation,
and
reading
into
them
a
permission
to
introduce
religious
tests
for
citizenship,
will
mean
39
Parliament
of
India,
Constituent
Assembly
Debates,
Vol.
XI
(November
25,
1949)
(speech
of