January 18, 2021
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Three CMs Oppose Implementation Of Amended Citizenship Act, But Can They?

So, is there any way these chief ministers can stop CAB from being implemented in their states? Constitutional and legal experts explain:

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Three CMs Oppose Implementation Of Amended Citizenship Act, But Can They?
(From left) Kerala chief minister Pinarayi Vijayan, Punjab CM Captain Amarinder Singh and West Bengal CM Mamata Banerjee.
Three CMs Oppose Implementation Of Amended Citizenship Act, But Can They?

Chief Minister of at least three states -- West Bengal, Punjab and Kerala -- have vehemently opposed the Citizenship Amendment Act.

While West Bengal Chief Minister Mamata Banerjee has been a longtime critic of the CAB and NRC, her counterparts in Kerala and Punjab – Pinarayi Vijayan and Amarinder Singh respectively - say they will not allow the law to be implemented in their state.

The Centre has, however, hit back, saying the states don't have any option but to implement the new law, for the matter concerning the citizenship comes under the union list.

So, is there any way these chief ministers can stop CAB from being implemented in their states? Constitutional and legal experts explain:

Rajeev Dhavan, Senior advocate

Awarding citizenship is the prerogative of the union government. The states have a very small role to play for verification. But one sees the protest of the states as symbolic because they were not consulted properly and that this measure is not acceptable to the state.

The chief ministers are also saying that in their state, they won't discriminate between Hindus, Muslims and others. To my mind, the citizenship act is refugee legislation but the states have been put in a position of great embarrassment and the statement states their embarrassment. The right to enact a law is one thing, the right to implement it with full socio-economic impact is quite another. This is the statement that Muslims and others are welcome in India and should be on the same terms as ones protected in the CAB.

Once they get the citizenship, the next question will be: Where will they settle? What support will they get? These questions have not been thought through. These statements by chief ministers are just to remind the union that they have gone too far in a manner contrary to cooperative federalism.

The cutoff date in the bill is December 31, 2014. It doesn’t go forward, it only looks back. The refugee procedure has not been followed. And the majority of the lack of it in the Assemblies is quite irrelevant except that it has been violative of cooperative federalism.

This is a well-known way of states protesting that we were never consulted where these people will settle become our responsibility, not the unions. Therefore we reject the bill on two grounds; Lack of consultation, and discrimination against the Muslims. That’s a symbolic statement of some consequence. It’s for the union now to say that we will sort the problems.

It can be legally challenged by anyone. But the states have been warned both by the select committee and the debates in Parliament that they have been doing something which is constitutionally wrong. And the states say that we have a right to tell you that it’s constitutionally wrong. Beyond that, they have to work it out.

The Bill will come into force at any time. So the states are also telling them in one sense not to notify the Act. There are a number of messages which are coming from the state.” You haven’t consulted us, this is a constitutional travesty, which we disagree with and please do not notice it because many consequences will affect us to provide wellbeing to one group and denying it to others.

Senior advocate, a former ASG, who spoke on condition of anonymity, says:

States have the machinery for verification. Centre, even if through the citizenship department starts processing the application, the states will have to verify through revenue department, police department etc. If the states decide not to co-operate, it will delay the whole process. The Centre will have to heavily rely on state revenue departments and police officials for verification.

There is also a flip side to it. The Centre also has grants and aspects, where it has control over the states. The centre can pull back on grants if there is large scale non-co-operation without getting into presidents rule. Going by law, states cannot refuse to implement CAB. But they can resort to measures like pen-down strike and go slow procedures by which, verification can be delayed.

On paper, they can’t refuse. But shadow boxing will happen.

Subhash Kashyap, constitutional expert

Citizenship is not a state subject. There is no citizenship for states as in the United States. In India, a state has no constitutional position about citizenship. The rest is political posturing. They can go to court. They can challenge it in the court of law. Then the SC will decide if there was anything wrong with the law. The state government has no locus-standi on the subject.

The state legislature has no role in matters of citizenship as far as the constitution is concerned. Constitutionally, they can’t do anything except going to the court

P D T Achary, former Lok Sabha Secretary and Constitutional expert

Every state is required to implement it. That’s the constitutional position. I do not know what the chief ministers have in mind when they say that the states won’t implement it. The question is whether the state can go against the central law. It’s not possible under the constitution. Constitution requires every state to implement a law passed by the parliament. They can approach the Court. If the central government issues a direction to the state, they are supposed to follow and implement it. It’s not even in the concurrent list.

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