Wednesday, January 14, 2009

Enemy Alien under the Indian Constitution

The concept of enemy alien began to intrigue me ever since I attempted to write this article. Therefore, I tried to find its basis in our Constituent Assembly Debates (link introduced on the left), but drew a blank after reading the debate for draft Article 15A on September 16, 1949. One Member,Mahavir Tyagi referred to it, but said it was agreed. Originalism appears to be of no help to know why Article 22(3)(a)was inserted in the Constitution.

2 comments:

tarunabh said...

Venkatesan, the purpose of the clause must have been to detain without trial aliens with whose country of nationality India is at war, during the pendency of such war. Clearly, as soon as the war is over, the alien stops being an 'enemy' alien. As you rightly point out, Kasab is not an enemy alien.

On a related matter, has the constitutionality of several bar council resolutions demanding non-representation of kasab (or anyone else) been challenged in any high court? i strongly feel that they will be struck down as unconstitutional and illegal.

பிரபு ராஜதுரை said...

Sir,
Article 4 of Geneva Convention on Protection of Civilian Persons in time of war may throw more light on the understanding of the term 'enemy alien' as referred in our Constitution. In brief, an enemy alien is a person who finds himself in the hands of a country, which is in the outset or in the state of war with his country and includes his refugee.

My blog on this subject at
http://marchoflaw.blogspot.com/2008/12/blog-post.html