Six Chief Ministers in India — Kerala Chief Minister Pinarayi Vijayan, Punjab Chief Minister Capt Amarinder Singh, Madhya Pradesh Chief Minister Kamal Nath, Chhattisgarh Chief Minister Bhupesh Baghel, Maharashtra Chief Minister Uddhav Thackeray and West Bengal Chief Minister Mamata Banerjee — have declared that they will not be implementing the Citizenship Amendment Act, 2019 in their states. A little before midnight on Thursday, President Ram Nath Kovind gave his assent to the Citizenship Amendment Act, 2019.
But will this dissent hold? Can states choose not to implement the Citizenship Bill? No, say experts.
"Citizenship is a central subject and as a central enactment, states are bound by it. So states cannot say that we cannot implement it,” senior advocate Aryama Sundaram tells TNM, because citizenship is not of a particular state, it is of the country of India.
Constitutional expert Subash Kashyap says the states have no role as far as the Constitution is concerned. “The rest of their role is their political stance,” Kashyap says.
In order to counter such decisions or Acts, the states have the option of moving the courts of India.
“On disputes between states and Centre, there is always the provision of going to the Supreme Court in an original suit,” Supreme Court lawyer Sanjay Hegde says. “Alternatively, they could file affidavits supporting those who are challenging the Bill. As far as implementation is concerned, the states really have no role because the grant of citizenship is an act by the Centre,” Hegde says.
However, in the case that along with the Citizenship Amendment Act, there is an NRC-like exercise carried out in the country, the states will have a say in the movement of those named as illegal migrants or refugees. Home Minister Amit Shah had recently stated that they are planning a nationwide NRC exercise by 2024.
“If there is an NRC-like exercise that accompanies the Citizenship Amendment Act, and the NRC enumerations, definitely, the state administrations will have to have a role. And there, the states can choose not to cooperate in the enumerations,” Hegde says.
Here, the movement of refugees becomes a state subject under law and order. For example, the state government can choose not to round up refugees and move them to a detention centre.
"This is a matter of detail because law and order is a state subject and so far as citizenship grant is concerned, that is for the Union government to consider,” Subash Kashyap says.
What happens when a state refuses to carry out the Centre’s orders?
“In such a case, the Centre can invoke Article 256 of the Constitution to issue directions to the state,” Subash Kashyap says.
Article 256 of the Constitution defines the obligation of states and the Union. “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, and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose,” Article 256 states. The states then are under the obligation of the Constitution to follow the Centre’s orders.