OPINION: Opposition to Citizenship Act may herald new chapter in Centre-State ties

The Citizenship (Amendment) Act, 2019, has led to widespread protests in many parts of the country. The constitutionality of the amended act has been doubted by many, including prominent legal luminaries like Soli Sorabjee. The declarations of chief ministers of five states (West Bengal, Kerala, Madhya Pradesh, Chhattisgarh and Punjab) that they are not going to implement the Citizenship (Amendment) Act in their respective states raises the delicate question of Centre-state relations in India once again.

Background

For a proper analysis of the stand taken by these state governments, a brief discussion of the law in question is needed. Citizenship has been a contentious and emotive issue in India, mainly due to the Partition and the large-scale migrations that followed. In that volatile situation, the Constituent Assembly rightly decided to leave it to the wisdom of the future Parliament to enact a law on the subject after the situation became normal (Article 11) and dealt only with the issue of citizenship at the commencement of the Constitution.

The Citizenship Act was passed by Parliament in 1955 and provided birth in the territory of India as the main criterion for Indian citizenship. (There were other provisions like citizenship by descent, naturalisation, registration and incorporation of territory). However, successive amendments by prescribing more conditions made citizenship by birth more stringent. An amendment in 1987 prescribed that in addition to being born in the territory of India, a criterion for eligibility for citizenship was that one of the parents of a person had to be a citizen of India.

The 2003 amendment to the Citizenship Act insisted that both the parents had to be Indian citizens, or either of the parent had to be an Indian citizen and the other parent should not be an illegal migrant. Illegal migrant, in simple terms, meant a foreigner who entered India without valid travel documents or who overstayed.

The 2019 amendment, contrary to the earlier amendments, relaxes the norms for citizenship and makes three important changes to the law. First, a Hindu, Sikh, Buddhist, Jain, Parsi or Christian from Afghanistan, Bangladesh and Pakistan is not considered as an illegal immigrant even if he or she entered India without valid travel documents or overstayed in India. Second, a special provision is made to grant citizenship to them through a process of registration or naturalisation. Third, all the legal proceedings initiated against them as illegal immigrants are dropped.

Granting of citizenship based on religion has been criticised as unconstitutional mainly on the grounds of violation of equality, violation of the basic structure of secularism and even violating Article 355 that imposes a duty on the Union to protect states from external aggression and internal disturbance. It is in this backdrop that the voices of dissent by certain chief ministers must be analysed.

Role of state governments in matters relating to citizenship

Under the Constitutional scheme, citizenship is a subject falling under the Union list (Entry 17 List I), meaning thereby the Parliament and Central government has absolute power over that subject. But it does not mean that the states have no role in matters relating to citizenship. Unlike the US, in India there are no separate cadre of services for enforcing Central laws and state laws. Customs, Income Tax and few other areas are the exceptions. But, by and large, the Central laws are enforced by the state government and its officials.

The Citizenship (Amendment) Act is not an exception. Under the Citizenship (Rules), 2009, an application for citizenship under the registration and naturalisation processes is to be made to the collector of the district where the applicant is residing. Based on the report of the collector, the state government has to make recommendations to the Central government and a final decision is taken by the Central government. The legal proceedings against the illegal migrants are taken by the police force of each state under the Foreigners Act, 1946. As the states have a role to play in citizenship, the question arises whether they can defy and refuse to enforce a Central law. One must turn to the Constitution for answers.

Administrative relations under the Indian Constitution

The framers of the Constitution, mindful of the fact that most of the Central laws are to be implemented by the states, have made elaborate provisions in this regard. Article 256 mandates the states to exercise the executive power in such a manner that the parliamentary laws are complied with. By the same article, it has been provided that the executive power of the Union extends to giving directions to the states to ensure compliance with such laws.

Failure to comply with such directions can lead the president to hold that a situation has arisen where the government of the state cannot be carried on in accordance with the provisions of the Constitution (Article 365). This literally means that President’s rule can be imposed under Article 356 under such circumstances. Articles 257 and 258 also deal with similar situations.

Article 258 (2) is particularly relevant in this regard. It states, “A law made by Parliament which applies in any state may, notwithstanding that it relates to a matter with respect to which the legislature of the state has no power to make laws, confer powers and impose duties, or authorise the conferring of powers and the imposition of duties, upon the state or officers and authorities thereof.”

The question that arises in such situations is that whether the state government can give directions to such state government officials about the exercise of such powers. For example, can one of these five state governments direct the collectors not to accept applications for registration and naturalisation from persons covered by the 2019 amendment?

The decision of the Mysore High Court in Mount Corporation vs. Director of Industries (1964) may throw some light. In this case, the Parliament had conferred power on the Director of Industries in a state to give essentiality certificate for importing certain metals. The Karnataka government constituted a committee with a minister as chairman to decide such issues.

The High Court quashed the orders of the committee and observed, “The scheme of federation would be a myth if the state government, by a clever device as in the instant case, could direct the actions of their officers when they exercise statutory powers in the discharge of the affairs of the Central government… The instant case is one where there has been an encroachment by the state government on the exclusive field of action of the Central government.”

But the question emerges when the Union government and state governments belong to different political parties, based on distinct political ideologies. Can a democratically elected state government be forced to act against its convictions? The Calcutta High Court dealt with such a situation in Jay Engineering Works Ltd. vs. State of West Bengal (1967). The Left Front Government in West Bengal through two circulars had instructed the police not to interfere in labour disputes within the state. This led to a situation where the workers were holding the management confined through gherao, with the police not intervening, disregarding the provisions of the Code of Criminal Procedure (parliamentary law).

The High Court found the circulars to be in violation of Article 256 and struck them down. The High Court observed that the rationale behind Article 256 (2) was that the rule of law demanded that power in the hands of the executive could not be coupled with the determination by itself as to whether it had been exercised according to law.

The Parliament also had occasion to discuss this very intricate issue. The refusal to act against the striking Central government servants under the Essential Services Maintenance Ordinance came up for discussion in the Lok Sabha on November 19, 1968. The then Communist government in Kerala, headed by E.M.S. Namboodiripad, expressed its inability to carry out the instructions of the Central government to act against the striking workers.

In a heated debate, then home minister Y.B. Chavan stated, “Whatever conventions we may evolve for this purpose, ultimately the Constitution, as it is, will be the basic guide for Centre-state relations. A state government may not share our views in regard to a certain policy. But certainly, legal or constitutional obligations, which flow from certain things, have to be followed.”

The constitutional position of states’ role vis-a-vis implementation of parliamentary law is well settled and may be summed up as follows:

1. States have a constitutional duty to implement parliamentary laws.

2. Central government can give directions to the state governments as to the implementation of these laws.

3. State governments cannot exercise any control or give any direction to its staff in implementation of such laws.

Laws in violation of basic structure

Constitutional jurisprudence is a dynamic field and continues to evolve to deal with emerging situations. New doctrines are developed as new issues crop up. In 1951, the Supreme Court did not find it imperative to impose any limitation on the amending power of the Parliament. But after witnessing the rampant abuse of amending power, the Supreme Court came up with the 'basic structure' doctrine in 1973 to check the power of Parliament and to save the Constitution.

Examples are aplenty when the judiciary has deviated from the established norms to limit the arbitrary exercise of power by the executive. Thus, the idea that the states are mere implementing agencies when it comes to parliamentary laws may undergo an imaginative transformation. Can the principles evolved in the context of ‘ordinary laws’, whose constitutionality or morality were never doubted, be applied to the Citizenship (Amendment) Act, 2019?

Here, several democratically elected state governments feel that the Citizenship (Amendment) Act violates one of the basic features of the Constitution, secularism, and is manifestly arbitrary. The declaration by the five chief ministers may be the beginning of a new chapter in Centre—state relations. The states are no longer required to comply with a law or direction that is manifestly arbitrary or violates a basic feature of the Constitution.

Shiju Mazhuvanchery is professor and Head of Department at Christ Academy Institute of Law, Bengaluru.

The opinions expressed in this article are those of the authors and do not purport to reflect the opinions or views of THE WEEK.