“11. Parliament to regulate the right of citizenship by law. – 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.”
Article 11 stipulates that the provisions of Part II (Citizenship) shall not ‘derogate’ from the power of Parliament to make any provision with respect to
(a) Acquisition of citizenship;
(b) Termination of citizenship; and
(c) All other matters relating to citizenship.
Article 10
Article 10 is also related to Parliament’s law making power on citizenship. The provision provides that every person who is or is deemed to be a citizen under the provisions of Part II of the Constitution shall continue to be so, subject to the provisions of any law made by Parliament:
“10. Continuance of the rights of citizenship. – Every person who is or is deemed to be a citizen of India under any of the foregoing provisions of this Part shall, subject to the provisions of any law that may be made by Parliament, continue to be such citizen.”
Article 246
Article 246 read with Entry 17 of List I of the Seventh Schedule to the Constitution confers Parliament the power to make laws with respect to ‘citizenship, naturalisation and aliens’.
The Purpose and Scope of Article 11- Draft of Article 11
The earlier draft of Article 11 read as follows:
“Further provisions governing the acquisition and termination of Union citizenship, and avoidance of double citizenship may be made by Union law.”
When the draft of Article 11 read as above, there was also a provision on who would hold citizenship ‘after’ the commencement of the Constitution. Thus, in the earlier scheme, the Constitution was to stipulate the conditions for securing citizenship and Parliament was conferred with the power to make ‘further’ provisions. However, the Draft Constitution of India 1948 did not consist of a provision on acquisition of citizenship after the commencement of the Constitution.
Part II of the Draft Constitution only consisted of provisions on citizenship at the commencement of the Constitution and Parliament’s power to make “further” provisions. Dr BR Ambedkar introduced an amendment to draft Article 6 (as Article 11 exists in the current form) when it was taken up for discussion. The phrase “further provision” was used when the Draft dealt with the acquisition of citizenship after the commencement of the Constitution. However, once that was deleted, the language of Article 11 was amended.
Article 246 read with the Seventh Schedule delimits the legislative competence of Parliament and the legislature of the States. The inference that can be drawn from the inclusion of Entry 17 in List I of the Seventh Schedule is that Parliament (and not the state legislatures) has the legislative competence to enact laws with respect to citizenship. The legislative subject to enact laws on citizenship is thus, traceable to Entry 17. Provisions of Part II (Articles 10 and 11, in particular) do not confer Parliament the power to enact laws relating to citizenship. The provisions operate in a different sphere. The provisions clarify the scope of the legislative power.
The question is whether Parliament’s power under Article 11 is restricted by other provisions in Part II. The provision stipulates that “nothing in the foregoing provisions of this Part”, meaning Articles 5-10, shall derogate from the power to make any provision with respect to citizenship.
The word ‘derogate’ may have two meanings: (a) to diminish or reduce; and (b) to diverge or depart. The phrase “derogate” is used in six other instances in the Constitution. In one of the instances (Article 13), the phrase takes the meaning of diverge or depart. In all the other usages, the provision takes the meaning of ‘diminish or reduce’.
Non-obstante Clause and ‘shall not derogate from’
The distinction between a non-obstante clause and the words ‘shall not derogate from’ lies in the fact that the former is used as an expression providing overriding effect while the latter is used as a clarificatory expression. The non-obstante clause is used when there is a link between two clauses/provisions and the link is sought to be detached by carving out an exception. For example, if the provision states that notwithstanding A, B has the power to do action C, it means that the provision confers power on B to do C, and this is an exception to provision A.
In contrast, the phrase ‘shall not derogate from’ is used to indicate that certain provisions do not reduce the effect or scope of the provision, thereby, de-linking the two provisions. For example, a provision which states that A shall not derogate B’s power to do C is used when B’s power to do C is conferred elsewhere and it is clarified that the scope of A and the scope of B do not overlap. This is evident on an analysis of the provisions which use the phrase ‘shall not derogate’.
The usage indicates that,
(a) the Constitution confers power elsewhere; and
(b) another provision does not override or in any manner impact the power.
For example:
a. Clause (4) to Article 226 stipulates that the power conferred upon High Courts to issue certain writs shall not be in derogation of the powers conferred on the Supreme Court by Article 32(2). It provides that the former shall not have an impact on the later since they operate in separate fields;
b. Article 239-AA(3)(a) provides the Legislative Assembly of the National Capital Territory with legislative competence over certain matters in the State List and the Concurrent list. Article 239-AA(3)(b) states that nothing in sub-clause (a) shall derogate from the powers of Parliament to make laws for the Union territory.
This provision must be read in the context of Article 246(4) which provides Parliament the power to enact laws on matters enumerated in all three lists for Union territories. Article 239-AA(3)(b) states that the power conferred in clause (a) shall not impact the law making power of Parliament with respect to Union territories;
c. Article 241(1) stipulates that Parliament may by law constitute a High Court for a Union territory. Clause (4) of Article 241 stipulates that nothing in the Article shall derogate from the power of Parliament to extend or exclude the jurisdiction of a High Court to, or from any Union territory. This provision must be read in the context of Entry 79 of List I which provides Parliament the power to legislate on the “extension of the jurisdiction of a High Court to, and exclusion of the jurisdiction of a High Court from, any Union territory.”
Clause (4) states that Clause (1) does not impact the legislative competence exercised by Parliament under Article 245 read with Entry 79 of List I; and d. Article 371F(m) provides that no court would have the jurisdiction to deal with any dispute arising out of an agreement or treaty relating to Sikkim but that nothing in the provision shall be ‘construed to derogate from the provisions of Article 143’.
Here, the phrase is used to ensure that the provision does not have any impact on the power under Article 143. Thus, the use of the phrases ‘notwithstanding’ and ‘shall not derogate from’ produce different effects. Article 11, when interpreted on the basis of the above analysis produces the following meaning:
a. The legislative competence of Parliament to enact laws related to citizenship is traceable to Entry 17 of List I and not Article 11; and
b. The provisions in Part II do not impact or limit the legislative competence of Parliament.
A non-obstante clause cannot be artificially read into Article 11.
Izhar Ahmed v. Union of India
In Izhar Ahmed v. Union of India, the constitutional validity of Section 9(2) of the Citizenship Act and Rule 3 in Schedule III of the Citizenship Rules 1956 were challenged. Before dealing with the challenge, Justice Gajendragadkar writing for the Constitution Bench delineated the scope of the provisions in Part II of the Constitution. With respect to Article 11, the learned Judge observed that the provisions of the parliamentary law on citizenship cannot be challenged on the ground of a violation of the provisions in Part II. The relevant part of the observations is extracted below:
“11. That takes us to Article 11 which empowers the Parliament to regulate the right of citizenship by law. It provides that nothing in the foregoing provisions of Part II 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.
It would thus be noticed that while making provisions for recognising the right of citizenship in the individuals as indicated by the respective articles, and while guaranteeing the continuance of the said rights of citizenship as specified by Article 10, Article 11 confers and recognises the power of the Parliament to make any provision with respect to not only acquisition but also the termination of citizenship as well as all matters relating to citizenship.
Thus, it would be open to the Parliament to affect the rights of citizenship and the provisions made by the Parliamentary statute in that behalf cannot be impeached on the ground that they are inconsistent with the provisions contained in Articles 5 to 10 of Part II. In this connection, it is important to bear in mind that Article 11 has been included in Part II in order to make it clear that the sovereign right of the Parliament to deal with citizenship and all questions connected with it is not impaired by the rest of the provisions of the said Part.
Therefore, the sovereign legislative competence of the Parliament to deal with the topic of citizenship which is a part of Entry 17 in List I of the Seventh Schedule is very wide and not fettered by the provisions of Articles 5 to 10 of Part II of the Constitution. This aspect of the matter may have relevance in dealing with the contention raised by the petitioners that their rights under Article 19 are affected by the impugned provisions of Section 9(2) of the Act.”
By the above observations, the Court did not read in a non-obstante clause in Article 11. This is clear from the observations in the subsequent paragraph where Supreme Court discusses the alleged conflict between Article 9 of the Constitution and Section 9 of the Citizenship Act. Section 9 of the Citizenship Act provides that any person who has acquired citizenship of another country between the commencement of the Constitution and the commencement of the Act shall cease to be a citizen of India.
While dealing with Section 9, Supreme Court observed that Article 9 dealt with the acquisition of citizenship of a foreign State prior to the commencement of the Constitution. As opposed to Article 9, Section 9 dealt with the acquisition of citizenship after the commencement of the Constitution. Thus, the possibility of the provisions of parliamentary law conflicting with Article 9 (and other provisions of the Constitution) would not arise.
In Izhar Ahmed (supra), the observations that statutory provisions on citizenship cannot be challenged on the ground of violation of provisions in Part II cannot be interpreted as a reading in of a non-obstante clause in Article 11. Provisions of the Parliamentary law on citizenship cannot be challenged on the ground of violation of the provisions of Part II because the constitutional provisions on citizenship are redundant for all purposes after the commencement of the Constitution.
Though in the context of Article 11 the use of the non-obstante clause and the phrase ‘shall not derogate from’ will produce the same result, it is important to clarify the distinct usage of the phrases.
Similarly, the reason that Article 11 does not include a clause (similar to Article 4(2)) that the law shall not be deemed to be an amendment of the Constitution for the purpose of Article 368 is because there is no possibility of the law amending the constitutional provisions in Part II in view of the temporal limit of all the provisions.[1]
Therefore[2],
(a) Section 6A of the Citizenship Act does not have the effect of amending Articles 6 and 7; and
(b) Article 11 is not a non-obstante clause.
However, since the Constitution confers citizenship only at the commencement of the Constitution, the law enacted in exercise of the power under Article 246 read with Entry 17 of List I and the constitutional provisions on citizenship operate in different fields.
Reference
In Re: Section 6A of the Citizenship Act 1955 (2024)
[1] In Re: Section 6A of the Citizenship Act 1955 (2024)
[2] Ibid