Hear out the States

by February 6, 2020 0 comments

The responsibility of States to attend to displaced people or illegal immigrants cannot be taken away by the Centre assuming for itself a bigger role by a law such as the CAA

India, as defined in Article 1 of the Constitution, is a “union of States.” These States, therefore, are constitutive of the Indian Union and no executive power can be exercised in a manner that undermines their quasi-autonomous status. Even under Article 368, where the Parliament enacts a law, the power of the House is only a “constituent power”, which, though without limitation, only implicitly permits amendments in part-II (citizenship provisions) of the Constitution. The critical question is, can the constituent power of the Parliament in enacting a law override the constituent power of the State in implementing such a law? Given the quasi-autonomous status of the States, are they obliged to blindly comply with a Central law, which creates a conflict with part-III (basic structure) of the Constitution? Many such questions assume great significance in understanding the constitutional provisions and scope of its operation in relation to States, especially with regard to the recent Citizenship Amendment Act (CAA). Apart from embedded quandaries of the CAA, prima facie, in conflict with Article 14 of the Constitution, the CAA puts the onus of reparation indirectly on States, as the target class of immigrant citizens would have to reside or settle in a State of the Union. Therefore, the constituent power of the Parliament cannot bypass the State in a manner that creates conflict of interest with State(s). The Parliament needs to ensure that existing balance of power and interest is not grossly disturbed by a piece of law.

In Centre-State relations, the Parliament’s capacity to recommend an appropriate course of action in a matter that consequentially affects the State shall run the risk of getting limited by other obligations and interests of the State. A law such as the CAA cannot overwhelm both lex fori and lex loci conditions in relation to States. Obviously, the States remain as both the jurisdictional forum and locus of CAA in terms of its operation, which has to operate through Rules framed under the Citizenship Act of 1955, that necessarily involves officials under the State Government, who are delegated with “procedural” powers to determine who is a citizen.

To put it differently, the responsibility of States to attend to displaced people, who could be legal or illegal immigrants cannot be taken away by the Centre assuming for itself a bigger role by a law such as the CAA. Mere grant of citizenship by the Centre is a form of personal right, which requires the support of a State in entirety to secure all other rights of the citizen, including the right to life, as enshrined under Article 21. Indeed, the CAA in the first instance of its passage in Parliament did recognise lex fori and lex loci conditions by exempting States and areas under the Sixth Schedule from its operation. There remains much scope to fulfil these conditions in framing of rules under the CAA, as Assam and Tripura have State-specific accords to decide on matters of citizenship. The Supreme Court (SC), on its part, distinguishably recognised the case of Assam and Tripura as different from concerns of other parts of the country in relation to the CAA, which is recognition of lex fori and lex loci conditions under which the CAA must operate.

It must also be noted that under Article 13 of the Constitution, laws prior to the commencement of the Constitution such as Foreigners’ Act of 1946 under which the Foreigners’ Tribunals (FT) are ordered in violation of Article 323(b) are inconsistent with part-III of the Constitution and hence it can operate even with CAA framed under Article 368 of the Constitution.  This establishes the limited application of the CAA that still requires a much wider framework, apart from its “religious” bias.

Indeed in the case of Assam, operation of the FTs in violation of basic principle of law, namely, “innocent until proven guilty” and its broad sweep of executive discretion in sending someone to a detention camp along with purported operation of the CAA hardly makes a case of consistent application of law. Indeed such inconsistency in operation of the citizenship law is exploited to the extent that a suspected foreigner or an illegal border crosser is often denied right to fair trial, as nothing in law explicitly puts a check and balance on a FT judge from placing a one-sided “onus of proof”, under Section 9 of the FT Act, 1946 on a person claiming to be an Indian citizen in dispute of what the Executive has attributed upon her as a foreigner.

Indeed, the affidavit filed by some of the parties disputing the CAA in the SC refers to this “onus of proof” to be placed upon an immigrant covered under the CAA to make it consistent with the FT Act. In effect, the Code of Civil Procedure that provides right to fair trial and assumes someone not to be guilty until proven guilty is ostensibly a matter of dispute in the case against the CAA that is lying before the SC now, which substantially involves the role of the State in deciding the fate of a suspected foreigner.

So, the SC has to decide on the basis of the principle of “better law” or “more rational law” in the cases filed against the CAA. Additionally, when a State disputes the CAA as a violation of the basic structure of the Constitution, especially the principle of secularism and right to equality before law, the SC has to decide on its jurisdiction as granted by Article 131 of the Constitution.

Kerala, West Bengal and Punjab are raising the same dispute under Article 131. Article 131 clearly stipulated original jurisdiction in any dispute between the Centre and States pertaining to validity of a Central legislation. Independent of the outcome of the case on the CAA, it is to be noted that the right to disputation by a State is a recognised constitutional position that cannot be questioned by raising the issue of prior permission by the constitutional authority of the Governor.

The quasi-autonomous status of the State and full power of the legislature in framing laws under the Seventh Schedule allow for a room of manoeuvering by the States in creative ways without directly contravening a Central law. In a quasi-federal structure like India, there is no “supremacy clause” attached to the Central law, as the Indian Constitution followed a principle of separation of powers guided by a thumb rule of avoiding inequality and imbalance.

This makes it amply clear that there is only an abiding responsibility of the State to follow a Central law without a binding obligation or liability in case the State is not convinced of its correctness. The whole set of issues of federal cooperation and consensus comes into play in enforcing a Central law in case the State concerned sees it as violative of part-III of the Constitution.

What causes the hiatus here is the filtering out of Muslims under the CAA and treating them differently from the rest, in case they have entered India from neighbouring countries covered by the law. Further, exclusion of Tamil immigrants from the purview of the CAA is a potent cause of heartburn in Southern States. The praxis of federalism, being a constantly-developing subject in the world’s large democracies, tells us that distinctions drawn among people on the basis of race, religion, colour, sex, culture and so on are to be disbanded by the State. Hence, in the case of India, no State can be made to practise such distinction and discrimination between people by a Central law, if the State sees it as an incorrect practice. It is correct that in no way can the constituent State of the Union remain non-compliant even if it sees a law giving rise to an incorrect practice, except for approaching the SC to resolve the dispute. However, it is also true that compliance by the State should not violate legal principles of non-discrimination, while denying certain rights to a segment by an established procedure of law. No constitutional law could be bereft of constitutional morality and ethical principle of “no harm” and hence no State could be forced by an executive decree to implement a law that the State sees causing discrimination and harm to a segment in a certain local situation.

The Bommai judgment makes it very clear that the Centre cannot apply “arbitrary powers.” Arbitrary powers here would mean decrees and pronouncements that explicitly subvert a State’s autonomy and jurisdiction of its executives in its own territory. Citizenship Rules, 2003, recognise this executive power of the State by delegating certain crucial powers to the State executive like the District Magistrate. Further, the Bommai Judgment, read with the Sarkaria Commission report, also makes it clear that one of the major sources of arbitrary power lies in “partisan” affairs. When there is no consensus in a bipartisan or multi-partisan sense on the CAA, it does not become non-partisan, as per the language of the Sarkaria Commission, which is the only major commission to examine and understand Centre-State relations in post-independent India. Further, the Inter-State Council, another constitutional body created to resolve any dispute between federal constituents, could discuss the points of contention related to the CAA, which, of course depends on how the respective players raise the matter.

In sum, there is a clear need for check and balance in the operation of executive powers under a Central law, which the CAA certainly warrants. All contentious issues related to the CAA also need a clear resolution in the good federal spirit, giving due importance to the States’ perspectives in the interest of social and political harmony across India.

(Writer: Prasenjit Biswas; Courtesy: The Pioneer)

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