2021 Statelessness & Citizenship Review 3(1) of North India and West Pakistan (especially in the Punjab) at this time meant that both sets of governments had to respond to a massive crisis of refugees as millions of people moved both ways using whatever means of transport they had at their disposal. 32 This was given legal imprimatur through a series of ordinances that, barely a month after Independence, allowed both states ‘the most drastic powers’ to ensure a complete population transfer in the Punjab. 33 By December 1947, sectarian violence had spread much beyond the borders of the Punjab — into the United Provinces (the bulk of which forms the modern-day state of Uttar Pradesh (‘UP’)), Rajputana, Sindh and the North–West Frontier Province (a province of British India and later Pakistan, now called Khyber Pakhtunkhwa), though the eastern frontier remained quiescent. Practical consideration, as we shall see, prevented replicating the transfer of populations across the subcontinent without the possibility of additional territorial transfers. Both governments, therefore, agreed to provide all facilities for all those members of minority communities that wished to leave. 34 This resulted in minorities on both sides, particularly in India and East Pakistan, being left much more vulnerable to capricious and arbitrary government action in taking over their property and questioning their loyalty. Simultaneously, this encouraged fringe (and increasingly mainstream) elements in India to question the loyalty of Indian Muslims, whose ‘natural home’, they asserted, was now in Pakistan, as opposed to Hindus and Sikhs, who were ‘Indian’, even though separated from the ‘motherland’. 35 In contrast to the Constituent Assembly of India, which had at least a set of defined objectives and an ‘oligarchy’ already in place to aid the process of drafting, 36 the Constituent Assembly of Pakistan faced a set of questions about the nature of the new union, the place of minorities within it and the tension between being a ‘Muslim’ or ‘Islamic’ state which, as scholars have identified, was to bedevil the future of the country. 37 This, coupled with the fact that both countries were unwilling to share details of their minority populations on the floor of the Assembly, meant that questions around citizenship were constantly debated. 38 On both sides, governments lauded their own efforts to provide ‘their’ minorities with succour while simultaneously confining the activities of the Relief and Rehabilitation Ministry to those belonging to the right religion. In the initial months of Partition, religious categories came to stand in as substitutes for nationality on the western border at least, most notably in the Punjab. South Asian disenchantment with a treaty-based refugee law regime also emerged at about this time. The late 1940s were a time of unprecedented 32 33 34 35 36 37 38 India, Constituent Assembly Debates, 10 August 1949, vol IX, 9.115.175 (BR Ambedkar): here, Ambedkar refers to the citizenship clause in the Constitution as a ‘headache’. See also India, Constituent Assembly Debates, 11 August 1949, vol IX, 9.116.7 (PS Deshmukh) where PS Deshmukh refers to it as a profoundly ‘ill-fated’ article; Zamindar (n 13) 71. India, Constitutive Assembly Debates, Legislative Branch, 3 February 1948, 155. ibid 156–57. Granville Austin, The Indian Constitution: The Cornerstone of the Nation (Oxford University Press 1966). I take this term from Austin (n 35). The ‘oligarchy’ referred to Nehru, Patel, Prasad and Azad, who were presumed to steer the debates along. Nevertheless, I argue the ability of the oligarchy to effect decisions was limited, as a look at the citizenship provisions, among others, shows us. Farzana Shaikh, Making Sense of Pakistan (C Hurst and Co 2009) 68–73. Pakistan, Constituent Assembly Debates, 8 September 1948, vol 2, col 28 (Nur Ahmed, reply given by Khwaja Shahabuddin). 214