Can five states refuse to implement Citizenship Amendment Bill, 2019 (CAB)?
Part XI of the Constitution of India pertains to the relation between the Union and the
States. The concept of federalism is embedded in the said part in relation to the division
of powers to make legislations inter-se between the Parliament and the State legislatures.
The Parliament has got exclusive power to make laws in respect of matters enumerated in
list – I (union list) of Schedule seven of the Constitution. The Constitution confers certain
power upon the State to make its own legislation viz. the matters enumerated in the list –
II (state list) and list – III (concurrent list). The states are bound by the legislation made
by the Parliament which is applicable to whole of the territory in India.
Article 13 of the Constitution of India contains an inclusive definition of “law”. One of
the major legal sources is enacted law. Article 246 confers exclusive power to make laws
with respect to any of the matters enumerated in list one in the seventh schedule. Entry
seventeen (17) of list – I pertains to citizenship, naturalization and aliens. Article 246(3)
confers power on legislature of the States to make laws in respect of any matters
enumerated in list – II of the seventh schedule only. And therefore a State cannot make
any legislation in respect of the matters enumerated in list – I of the seventh schedule.
Citizenship Amendment Bill, 2019 is a legislation made by the Parliament and therefore a
“law in force”.
Article 15 prohibits discrimination on grounds of religion, race, cast, sex or place of birth.
Article 15 (5) enables the State to make any special provision by law for the advancement
of socially educationally backward classes of citizen including schedule castes and
schedule tribe in the matters relating to admission into educational institutions. Similarly
Article 16 provides equal opportunity in the matters of employment. However both the
Articles 15 & 16 use the word “citizen” which means only a person who is a citizen of
India can claim protection under the said Articles.
The Citizenship Amendment Bill, 2019 has been attacked on various grounds basing on
the circumstances prevailing in each State. One of the major two grounds are (1) on the
legal ground i.e., it is in gross violation of Article 14 of the Constitution of India and (2)
that the beneficiaries under the said Bill would compete with the existing citizens in the
matters of admissions and employment and disturb the local fabric. First issue has to be
tested before the Hon’ble Supreme Court. In so far as later is concerned the five States
i.e., West Bengal, Punjab, Kerala, Madhya Pradesh, and Chhattisgarh have declared that
they would not implement the Legislation due to the local reasons. The question is
whether such a power is vested with the said States or it can only be politically resolved.
The Citizenship Amendment Bill, 2019 (Act) is duly made by the parliament by virtue of
power under Article 246(1) of the Constitution of India. The State legislature does not
have any power to make any legislation in respect of “citizenship” and therefore all the
five States are bound by the law unless and until the same is held to be unconstitutional
by the Hon’ble Supreme Court on the ground that it is in violation of Article 14 of the
Constitution of India. The States cannot refuse to implement the said Act. Article 245(1)
empowers the Parliament to make laws for the whole or any part of the territory in India.
In case if the States refuse to implement the said law it would be in gross violation of the
Constitution of India and there is a possibility of invoking Article 356 of Constitution of
India. Article 356(1) of the Constitution of India states that if the President is satisfied
that a situation has arisen in which the government of State cannot be carried in
accordance with the provisions of the Constitution of India, the President may by
proclamation assume to himself all or any of the functions of the State and declare that
the powers of the legislature of the State shall be exercisable by or under the authority of
the Parliament. If the five states refuse to implement the legislation, it would be
unconstitutional and it may warrant invocation of Article 356 of the Constitution of India
or impose sanctions for compliance with the same. Therefore the five states are bound to
implement the law made by the Parliament unless and until it is politically resolved.
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By Chittarvu Raghu, Advocate,
High Court’s of A.P. & T.S.
chittarvu_raghu@yahoo.com.