Constitutionally speaking, India represents, perhaps, a unique model of governance. Law teachers are fond of telling eager-beaver undergraduates that `India is a federal republic with a unitary bias’. BR Ambedkar, the principle architect of the Constitution, considered India to be “both unitary as well as federal according to the requirements of time and circumstances.”
As far as formulations go, this structure is distinctive in many ways. The 1935 Government of India Act laid down the respective powers of the Centre and state governments, and that has remained the keystone of governance well enshrined in the Constitution of India as well.
While politics between the Centre and the state governments is a given, keeping in mind that different political parties with competing vote banks could be holding the reins of power in the national capital and the state capitals, when it comes to policy, there has been a consensus that has held strongly for the last seven decades: What New Delhi decides holds good for the rest of the country. In other words, while politics is fair game between parties of different sizes and orientation, policy, at all times, is sacrosanct.
The introduction of the Citizenship Amendment Act (CAA), however, threatens to alter this well-settled arrangement. The Kerala government has filed a suit under Article 131 making the CAA a Centre-state dispute. Punjab intends to follow suit and a clutch of anti-BJP governments led by West Bengal are threatening to adopt the same course. Clearly, such a provision places an onerous burden on the federal structure envisaged by the Constitution.
Article 11 of the Constitution clearly lays down that enacting and determining the country’s citizenship laws are the prerogative of the central government. The Seventh Schedule of the Constitution of India puts matters related to Citizenship on the central list, not on the state or the concurrent list, and categorically asserts that it is an act of Parliament, where the states are the implementing agencies of law. As per the Constitution, the states are obligated to abide by the Union government’s decision.
A union of strong states
In other words, Centre-state relations have been well settled, as far as the principal stakeholders are concerned. In the words of legal luminary extraordinaire, late Nani Palkhiwala: “We do need a strong Union. But a strong Union is in no way inconsistent with strong states. On the contrary by definition, a strong Union can only be a Union of strong states.”
The protests against CAA must get due space because the right to protest is undeniably a fundamental right. But to suggest that this right be extended to destruction of public property or to stop movement of traffic or to incite communal passions, is to go over the top.
While non-BJP states are entitled to political posturing in terms of passing resolutions against the CAA in their assemblies, there is no scope for a counter legislation by state governments opposed to the Act. “States can express a view, but finally they have to abide by the Constitution. I would like to believe that states not implementing a law enacted by the Parliament, is a hypothetical situation. It invites violation of Articles 256, 257,365, 355 and 356,” former Secretary-General Lok Sabha and ace constitutionalist, Subhash Kashyap, told this writer.
To carry this logic further, he says that in such a hypothetical situation, either a law can be initiated in Parliament which introduces an amendment or there are judicial remedies that seek the intervention of the Supreme Court.
Earlier, Congress party’s legal luminary Kapil Sibal, set the cats among the pigeons when he pointed out that “if the CAA is passed, no state can say `I will not implement it.’ It is not possible and is unconstitutional.” While Sibal has subsequently watered down his earlier remark, he has reflected on the constitutional position.
In 2004, when Congress-led UPA was in power, the BJP government in Madhya Pradesh had filed a suit under Article 131 in the Supreme Court challenging the validity of Parliament-enacted MP Reorganisation Act of the issue of division of electricity board assets and dues after carving out of Chhattisgarh and Madhya Pradesh.
A landmark case
Disproving a state government challenging the validity of a Parliament-enacted Act through Article 131, the SC observed in 2011 that, “Normally, for questions relating to validity of Central or other laws, the appropriate forum is the extraordinary writ jurisdiction under Articles 32 and 226 of the Constitution of India in a writ petition and not an original suit filed under Article 131, which vests exclusive jurisdiction of this court…”
Sure enough, the apex court is all set to decide whether the suit under Article 131 filed by Kerala challenging CAA, are maintainable in India’s federal structure of governance. Indeed, depending upon what the highest court of the land says, it could well turn out to be a landmark case.
Ranjit Bhushan is an independent journalist and former Nehru Fellow at Jamia Millia University. In a career spanning more than three decades, he has worked with Outlook, The Times of India, The Indian Express, the Press Trust of India, Associated Press, Financial Chronicle, and DNA. Read his columns