ON CITIZENSHIP by unknow

Author:unknow
Language: eng
Format: epub
Publisher: Aleph Book
Published: 2021-01-10T00:00:00+00:00

Phase Two: Partition—an Idea Challenged

The Drafting Committee worked through the fag end of 1947, and then 1948, to prepare a draft Constitution. 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—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 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 who 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 19 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 licence system.

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.’

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

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