What is the best way for Kerala to challenge the Citizenship Act?

On Tuesday, the Kerala assembly passed a resolution against the Citizenship Amendment Act, calling it a violation of fundamental rights. Chief Minister Pinrayi Vijayan reiterated his view that the law was against the secular nature of the Indian Constitution.

The resolution drew sharp reactions: Union Law Minister Ravi Shankar Prasad said making laws on citizenship is the exclusive domain of the Parliament and states have no role to play in it. Kerala governor Arif Mohammed Khan on Thursday called the assembly resolution unconstitutional and insignificant.

The Citizenship Amendment Act, passed by Parliament on December 11, has sparked nationwide protests. It creates a special pathway for Indian citizenship for non-Muslim migrants from three neighbouring countries, thereby introducing religious discrimination in the citizenship law for the first time. With Home Minister Amit Shah repeatedly threatening to draw up a National Register of Citizens, Indian Muslims fear the law could be used with NRC to disenfranchise them.

Multiple states ruled by non-Bharatiya Janata Party governments have said they will not implement CAA and NRC. West Bengal and Kerala have suspended work on the National Population Register, which is the first step towards implementing the NRC.

But do the states have any powers under the Constitution to stop the implementation of laws and rules made by Parliament? In case the states refuse to comply with Union laws and rules, what steps can the Centre take?

This article will explain the constitutional relationship between the Centre and the states and why the Supreme Court may be the only real avenue available to the state governments to challenge CAA and NRC.

Parliament and states

India is a federal republic. But the political structure is skewed in favour of the Centre, which has powers to make laws on more subjects than the states.

While the state governments enact their laws through the state legislatures, the Centre does this through the Parliament. The laws made in Parliament can be applied to the entire territory of India or to specific areas. Subject to certain restrictions on its powers, the laws made by Parliament are bound to be implemented by the state governments.

There are five significant provisions in the Constitution that allow the Centre to ensure the implementation of law passed by Parliament and also of orders issued by it in exercise of its executive powers. This includes rules framed under the laws. The NRC, for example, derives its legal basis from the Citizenship Rules framed under the Citizenship Act.

When a state government refuses to implement a law or an executive order of the Centre that it is expected to enforce, the Centre can resort to action under Articles 256, 257, 258, 355 and 356.

Article 256 states the following:

“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.” 

In Sharma Transport vs Government of Andhra Pradesh, the Supreme Court made a strict interpretation of the term “for that purpose” in Article 256. The purpose here is the implementation of a law passed by Parliament and so such a law becomes a prerequisite to invoke Article 256. In the case of CAA, this stipulation is fulfilled.

Then comes Article 257 (1), which is titled in the Constitution as “Control of the Union over States in certain cases.” This Article is categorical in its statement that the state governments shall not exercise their executive powers in a manner that will “impede or prejudice” the exercise of the executive powers of the Union. That is, even if a state claims it is implementing the law passed by Parliament, the expectation is that the law is enforced in the manner the Parliament wants it to and not in any other way. Thus, the Centre not only makes the laws through Parliament but it also tells the states how the law should be implemented.

There has been much discussion over the strain that the NRC will place on the resources of state governments and how this is a compelling reason for states to not implement it. But the Constitution does not give the states an option to pick and choose laws to implement based on bureaucratic efficiency.

Article 258 (2) makes it clear that even if the law passed by Parliament is on a subject over which the state has no jurisdiction, the Centre can “impose duties” for its implementation. The Article says:

“A law made by Parliament which applies in any State may, notwithstanding that it relates to a matter with respect to which the Legislature of the State has no power to make laws, confer powers and impose duties, or authorise the conferring of powers and the imposition of duties, upon the State or officers and authorities thereof.” 

The same Article also provides a clause that makes Centre compensate the states for the administrative cost incurred in enforcing a law or an executive order.

Non-implementation

If state governments refuse to implement a law passed by Parliament or rules framed for such laws, the Centre can use either Article 256 or 257 to direct the states to enforce them.

What if the states ignore these directives? The focus will then move to Articles 355 and 356. Under Article 355 of the Constitution, the Centre has the duty to ensure “that the government of every State is carried on in accordance with the provisions of this Constitution.”

In the context of the CAA, NPR and NRC, if the state governments refuse to implement them, the Centre can issue a warning under Article 355 after exhausting the measures under Articles 256 or 257.

If the state ignores the warning under Article 355 as well, the Centre can impose President’s rule.

It is interesting to note that while the Constitution provides scope for such coercive measures by the Centre in case state governments do not act in accordance with the Constitution, there are no provisions that enable the states to take coercive action against the Centre if it violates the Constitution.

In the Constituent Assembly debates, these provisions were hotly contested. Dr BR Ambedkar, the chairman of the Constitution drafting committee, made it clear that action under Article 356 can only be contemplated under extraordinary circumstances. He said:

“In view of the fact that we are endowing the provinces [states] with plenary powers and making them sovereign in their own field, it is necessary to provide that if any invasion of the provincial [states] field is done by the Centre it is in virtue of this obligation [to maintain the Constitution in the states]. 

Thus, if the state governments feel that the Centre is acting in a manner that is unconstitutional, the remedy cannot be non-implementation of the laws. This is because such non-implementation in itself is unconstitutional.

Judicial review

Given the Constitutional scheme, the state governments are in no position to assume powers to determine the constitutionality of a law passed by Parliament.

The option left to the state governments is to approach the Supreme Court, which, as per Article 131 of the Constitution, has original jurisdiction to the exclusion of other courts in cases between states and Centre or between states.

A state like Kerala can move the Supreme Court challenging the validity of the Citizenship Amendment Act or the Citizenship Rules, which enable the National Register of Citizens and the National Population Register. Validity of a law comes under the definition of “legal right”, which has to be established for any litigation under Article 131.

In fact, given that the Centre has considerable coercive powers under Articles 256, 257, 355 and 356, it may be prudent on the part of state governments to approach the Supreme Court. While the matter remains pending in the Supreme Court, the Centre would find it difficult to coerce states into implementing CAA, NPR and NRC.

In the Sabarimala case, for instance, the Supreme Court has kept its own judgement allowing women entry into the Ayyappa temple in abeyance citing pending review petitions.