Parth Chhapolia
Source: BBC
Abstract: This article examines the constitutional concerns raised by a recent executive measure altering citizenship eligibility timelines in Assam. Tracing the evolution of citizenship cut-off dates and the legal framework governing them, it argues that redefining the boundaries of such constitutional powers is an essential legislative function that cannot be reshaped through delegated executive authority. The piece situates the issue within principles of separation of powers, democratic accountability, and contends that any such change must occur through Parliament rather than administrative action.
Introduction
What if the future of an entire community could be rewritten not at a crowded border checkpoint in Dhubri, but at a silent desk in North Block? Nearly 1,700 kilometres away, in an air-conditioned room, a single notification quietly rewrites their legal existence. No debates in Parliament, no constitutional amendment, just an order by a bureaucratic signature shifting the rights of many. What sounds like a simple illustration, in reality, is the actual reflection of Assam’s present moment.
On 1 September 2025, the Union Ministry of Home Affairs has rescripted the promise of citizenship through an executive order named Immigration and Foreigners (Exemption) Order, 2025 (“2025 Order”). By minting the Immigration and Foreigners Act, 2025, under Section 3(e) of the Order, extended the cut-off date for entry under the Citizenship (Amendment) Act, 2019 from 31 December 2014 to 31 December 2024 i.e., by over a decade. Almost immediately, protests broke out across Assam, reviving the deep-rooted anxieties around “foreigners”. The All Assam Students’ Union (“AASU”) launched hunger strikes and district-level satyagrahas, decrying the order as a ‘betrayal’ of the Assam Accord. The Asom Gana Parishad (“ AGP”) has further claimed to move against this extension to the Apex Court.
To further understand this commotion, the article proceeds in three parts. Firstly, it traces the shifting constitutional statutory timelines of Indian Citizenship, from the Constitution’s 1948 cut-off to the Assam Accord’s 1971 exception, the CAA’s 2014 extension, and finally the 2025 Order. Secondly,it interrogates the constitutional limits of the powers of ‘derogation’ under Article 11 as well as the legislative competence of the Parliament, by revisiting the In Re: Section 6A judgment. And thirdly, it briefly considers whether such executive action may implicate the basic structure doctrine.
A Timeline of Shifting Cut-Offs
To begin with, the story of Indian citizenship has always been convoluted with shifting timelines. The constitution itself fixed the first and most important date, i.e. 19 July 1948. Under Article 5, 6 and 7, this date determined who would enter the Republic of India as a citizen at its birth i.e. jus soli, and who would be classified as having migrated after. This cut-off was a constitutional attempt and temporal embargo to stabilise the identity in the aftermath of the Partition. Unsurprisingly, the 1948 cut-off was one of the most debated clause in the constituent assembly debate led by K.M. Mushi and B. N. Rau.
Yet, barely three decades later, Assam emerged as an exception to this constitutional certainty. Following years of agitation over undocumented migration from erstwhile East Pakistan, the Assam Accord of 1985 was adopted under the Rajiv Gandhi regime post the Nellie Massacre. This led to the enactment of Section 6A under the Citizenship Act, 1955 (“the Act”) through the 1985 Amendment, creating a region-specific regime unlike any other country. It recognised pre-1971 entrants as presumptively Indian, those between 1966-1971 as regularizable after ten years, and those entering post-1971 as illegal immigrants. For Assam, this was a victory carved out by blood and agitation, but one that would not survive for long.
The Citizenship (Amendment) Act, 2019 introduced yet another switch. The Parliament served persecuted minorities with a new chosen date of 31 December 2014, marking a significant departure from both the temporal nature of Part II of the constitution as well as the 1985 Accord’s promise leading to widespread violence against CAA beneficiaries in the State of Assam.
It is against this backdrop that the 2025 order creates the sharpest disjuncture yet, which shifts the cut-off dates for non-Muslims applicants to 31 December 2024, not through legislation, but through the signature of an Additional Secretary to the Government of India through the Immigration and Foreigners Act, 2025. The Assam Jatiya Parishad went ahead to call this extension “the biggest crime” committed against the Assamese People. This begs the question: Can the power to redefine the temporal boundaries of citizenship historically treated as an essential legislative function be exercised through delegated executive authority at all? To answer this, one must first turn to the constitutional text and trace how law-making authority over citizenship is structured within it.
The Legislative Conundrum
The Parliament has the competence to enact laws with relation to Citizenship under Entry 17, List 1 read with Article 245 & 246 of the constitution. This is in extension to the powers to “derogate” and “make any provision” provided under Article 11 of the constitution. During the Constituent Assembly debates around the intricacies of Article 5-10, Dr. B. R. Ambedkar repeatedly clarified the ad hoc and temporary nature of Part-II, which was only meant to determine the citizenship on the date of commencement of the constitution (Chapter 10, page 164). These provisions were not designed as a permanent code, but neither were meant to be reopened endlessly. Notably, in the drafting stages in 1947, the word “further” in Article 11 was replaced with “any”, which in-turn highlights an intention of the framers to provide an unrestricted flexibility for the future parliament (see page 177). Ambedkar considered the powers under Article 11 to be counted as the plenary powers of the legislature to fill the gaps after the commencement of the constitution (Chapter 10, page 168).
Furthermore, the wide scope of Article 11 was first judicially interpreted by the Supreme Court headed by Justice Gajendragadkar in Izhar Ahmed Khan v. Union of India, stating that it was ‘open’ to Parliament to affect the rights of citizenship by relying on Article 11 (see para 11). However, the constitutional bench did not pause to consider the constitutional consequences of reading this power as virtually unrestricted, nor did it attempt to reconcile such breadth with the stabilising role Part II was meant to play. Later, Justice Chandrachud and Justice Kant in In Re: Section 6A of Citizenship (Amendment) Act, 1955 further expanded the scope by saying that Article 11 is not a non-obstacle clause, and the powers can be traced through Entry 17 of List I and not Article 11. Further, the provisions in Part II will not restrict the legislative competence of the parliament (see para 38). The Bench interestingly also held that legislation enacted under Article 11 would not amount to an amendment of the Constitution under Article 368, on the reasoning that the citizenship provisions in Part II were intended to operate only at the moment of commencement and were therefore inherently temporal with Article 11 not having a similar clause to that of Article 4(2) (see para 41).
Hitherto, what remains striking is the absence of any meaningful constitutional anxiety about this expansion of power. Why does the Court assume that Parliament, along with constitutional organs, can be trusted with such unrestrained authority? Justice Khanna, in his majority opinion in Kesavananda Bharati v. State of Kerala, observed that if the Parliament and the Government are trusted with decisions of far-reaching importance on the belief that they will act reasonably and in the national interest, it would be inconsistent to adopt an attitude of distrust toward those same institutions in other domains (see para 1475). The ‘wide’ powers under Article 11 has been invoked seven times so far. From the 1955 Act to the amendments of 1985, 1992, 2003, 2005, 2015 and 2019. The present moment marks an even more unusual turn: Article 11’s shadow is invoked once again, but this time not by the people’s elected legislature. Precisely, the faith in the Parliament cannot automatically translate into faith in those to whom it delegates the power.
The Executive’s Playground
This brings us to the enquiry to the core constitutional problem i.e., the violation of the separation of power doctrine. The Constitution structurally allocates the function of law-making to the legislature and the function of implementation to the executive. In this framework, delegated legislation has always been tolerated only as a matter of administrative necessity, and not as a means to alter substantive legal policy. Section 16 of the act expressly prohibits the delegation of powers under Section 10 and 18 as it states, both of which deal with the functions of deprivation of status and rule-making powers respectively. What is also notable is Section 16’s silence on Article 11. This omission is hardly accidental and leaves open a clandestine space through which the executive can rely on Article 11’s shadow to justify such extensive delegation. In that sense, Section 16 is less of a safeguard and more of an ingenious gap that enables such an overreach.
Justice Kania in his majority opinion in In Re: Delhi Laws Act categorically stated that the test of “abdication” has to be fulfilled as to whether the power which is conferred by the legislature retains it control over the subject or not? Justice Kania further noted that the Parliament by itself does not have the power to formulate another legislative body performing the same function and authority (See para 352), if the same power of modification is allowed, it allows the central legislation to change the whole basis of the legislation and the reason for making the law (see para 354). Furthermore, Justice Kapur in Hamdard Dawakhana v. Union of India, went ahead to say that “unguided” and “uncanalised” power to the executive is arbitrary in nature (see para 29). Collectively, these ratios emphasise that while Parliament may delegate ‘rule-making’ power, it cannot delegate the essential legislative policy that gives the statute its identity.
Applied to the 2025 Order, these principles leave little doubt about its invalidity. The Citizenship Act sets the cut-off date as the core determinant of eligibility which is a matter that defines the very identity and scope of the statute. By allowing the executive to replace the 2014 cut-off with 2024, the Order does not “fill in details” or execute Parliament’s policy; it rewrites it. What Parliament determined through legislation in 2019 is now being revised administratively in 2025, without debate, scrutiny, or legislative oversight. The effect is the transfer of an essential legislative function to the executive, coupled with an unguided discretion to expand the class of prospective citizens without any statutory standards.
Advancing to the question of the violation of the basic structure doctrine, the 2025 Order further raises a colossal constitutional concern that goes beyond the limits of delegated legislation. Citizenship cut-offs have always been framed by the Parliament through the route of a constitutional amendment under Article 368. However, when the executive assumes the power to shift this boundary, it collapses the distinction between the law makers and those who merely enforce it.
Although, it has been clearly stated by J. Khanna in Kesavananda Bharati that the basic structure doctrine operates exclusively with respect to constitutional amendments and not ordinary legislation (see para 1432). Also, J. Ray in Indira Gandhi called the threshold to be “subject to restrictions” to equate legislative measures with constitutional amendments (see para 132). However, it is quite paradoxical to appreciate the distinction taken by J. Sabharwal in a 2006 judgement, where he clearly reiterated this distinction (see para 107). Yet, only a year later in 2007, J. Sabharwal in I.R. Coelho v. State of Tamil Nadu examined the validity of the Ninth Schedule and changed his stance. The bench formulated the “effects test,” holding that the form of an amendment is not considered to be a relevant factor, but the consequence thereof would be the determinative factor (see para 150). Moreover, in the Fourth Judges Case, J. Khehar went ahead to infuse the ‘independence of judiciary’ as an integral part of the basic structure through the route of ordinary legislation (see para 380). To simply put, these precedents diluted the application of the basic structure doctrine by expanding its scope into ordinary legislation in a colourable manner.
Against the backdrop, the 2025 Order presents a difficult constitutional conundrum: If delegated executive action effectively alters an essential legislative function under Article 11 of the Constitution, does it begin to implicate the basic structure doctrine? While a definitive answer may remain contested, the nature and extent of the delegation in the present case arguably push the issue beyond routine administrative flexibility and into a domain that warrants closer constitutional scrutiny left with the judiciary.
Conclusion
If the constitutional analysis reveals anything, it is that the 2025 Order does not merely stretch the limits of delegated powers, but in arguendo might sway the architecture of the constitution through Article 11. The constructive path forward therefore requires a recalibration of the fallacy made. Firstly, this could be achieved by amending Section 16 of the act to expressly bar the delegation of any power that alters the eligibility of citizenship, or by requiring that any such modification to be laid down and approved by both the Houses of the Parliament. Secondly, Article 11’s expanse needs constitutional contouring which requires a clarification by the Parliament or the Judiciary that the authority to “make any provision” related to the citizenship cannot be exercised through delegated legislation. And thirdly, to respect the very demarcation of the 1985 Accord and provide justice to the Assamese people.
At the end, we return to the city of Dhubri, the riverine border in Assam where the story first began. For decades, those living along this frontier have carried the burdens of every shifting cut-off, waiting for the law to decide who belongs within the territory and who doesn’t. Yet, as the Assam Chief Minister recently acknowledged, only three people in the entire state have been granted citizenship under the 2019 Amendment. The irony is stark and it reminds us that numbers, whether large or vanishingly small, cannot justify a constitutional overreach. When eligibility for citizenship can be altered from North Block by a single executive signature, the distance between Dhubri and New Delhi becomes not just geographical but democratic. At this juncture, the boundaries of this power must change. A date that refuses to settle cannot be allowed to unsettle the Constitution; such a shift must come only through the Parliament and in the manner the Constitution enjoins.
Parth Chhapolia is a student at Jindal Global Law School, O.P. Jindal Global University, Sonipat.