Citizenship Amendment Law: All three chief ministers claim that the bill is discriminatory and goes against the secular tenets of the Indian Constitution. But can they really refuse to implement something that is not even in their domain?
Days after the Parliament cleared the Citizenship Bill, three state chief ministers — Mamata Banerjee, Amarinder Singh and Pinari Vijayan — have announced that they will not implement the law that seeks to grant citizenship to six minority communities from Afghanistan, Pakistan and Bangladesh. All three chief ministers claim that the bill is discriminatory and goes against the secular tenets of the Indian Constitution. But can they really refuse to implement something that is not even in their domain?
What Constitution says
According to the Constitution of India, Parliament has the power to regulate the right of citizenship by law. Citizenship is in the Union List, so only Parliament can legislate on this. The Constitution says: “Nothing in the foregoing provisions of this Part (II) shall derogate from the power of Parliament to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship.”
As per the Constitution, the states are mandated to comply with the law passed by Parliament. Article 256 of the Indian Constitution says: “The executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State.” It further states that the executive power of the Union can give “directions to a state as may appear to the Government of India to be necessary for that purpose”.
‘States bound by Constitution’
Constitutional expert PDT Achary says that the states have no legal ground to say that they won’t implement the new Citizenship Law. “They will have to, as they are bound by the Constitution and Article 256 is very clear about it.” He adds that he finds it difficult to understand on what basis the chief ministers say that they won’t implement it. “If they are saying that the law is unconstitutional then it is to be decided by the Supreme Court,” the former Lok Sabha Secretary-General says.
‘States’ role limited to policing’
Former Supreme Court chief justice KG Balakrishnan concurs with Achary’s view and says that the states have no role in it. “All they can do is to say that we won’t identify or drive illegal immigrants out. Their role is limited to policing,” he says. The former CJI further says that citizenship is finally to be decided by the government of India. “The states have no role in the matter of giving citizenship. The only thing that they can say that they will not use their police against the people. Citizenship Law is a central enactment and states cannot say that they will not enforce it,” Balakrishnan says.
The best that state governments stacked against the legislation can do is refuse to provide the support of the local administration and police, departments that fall within their control. However, that too can be construed as defiance of the Constitution and make ground for dismissal of the government, or imposition of the President’s rule.