Protests have broken out across India, a few of them violent, against the Citizenship (Amendment) Act. The act provides a path to Indian citizenship for religious minorities that had fled persecution from neighbouring countries. So why is an act that the government calls humanitarian getting so much backlash? Why are states filing petitions to withdraw this act and is there a chance that the act gets withdrawn?
The CAA and NRC: Explained
For some context, let’s examine what the CAA and NRC are, and why people are protesting. The Citizenship Amendment Act fast tracks citizenship for religiously prosecuted refugees from select neighbouring countries. Namely, Hindu, Sikh, Buddhist, Jain, Parsi, and Christian refugees from Pakistan, Bangladesh, and Afghanistan only need to have stayed in India for 5 years, instead of the traditional 11 years.
Critics say that not including prosecuted Muslim communities from our neighbouring countries, such as Ahmadiyas in Pakistan, Uighurs from China, and Rohingyas from Myanmar, is against the secularism our Constitution promises everyone under article 14: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
The term person applies to citizens as well as immigrants and foreigners. Hence critics say it is wrong to select particular communities and exclude others in such a case.
The NRC, meanwhile, is the National Registry of Citizens, that aims to recognise and differentiate Indian citizens from illegal immigrants. Those not included in the NRC list, that is, not identified as citizens of India will be placed in detention centres that each state has been told to build. However, they can contest their exclusion from the NRC in court.
A lot of people find NRC problematic, especially after the way it was implemented in Assam, for several reasons.
2. the exclusion of 19 lakh people, mostly amongst lower-income groups.
3. The documents required were difficult to access or produce for a lot of people living around the poverty line due to poor bookkeeping. Even small differences such as spellings could put them under suspicions and exclude them from the NRC.
BJP’s Manifesto mentioned the implementation of the NRC as well. People are especially concerned about how the implementation of CAA and NRC may impact marginalised communities- such as Muslims- when used together.
Backlash and Opposition
Amidst the fierce protests against the CAA and NRC, several state governments have stated that they shall not carry out the NRC in their respective states. Amongst these are West Bengal and Kerala, who have suspended work on creating the NPR (National Population Register). Kerala and Punjab have since passed resolutions against the CAA, challenging it in the Supreme Court.
Why the NPR? Well, Section 14A of the Citizenship Act says that NPR data will be used to create the NRC list. Hence, by suspending work on the NPR, the NRC is put on standby as well, as there is no way for the government to find “doubtful citizens.”
However, the CAA has already been passed by the Parliament, and the NRC was approved by the Union Cabinet. In this case, do the state governments even have the legal power to stop their implementation?
The Indian Legislative System (sort of)
India is a federalist republic, which means that different kinds of powers are given to both the Union, or central government and the state governments. However, most of the authority lies in the hands of the central government. In comparison, state governments do not have as much power. For example, for a change in the constitution, the consent of states is not required unless the change proposed affects the structure of the government itself.
In comparison, the USA requires at least 3/4th of all states to consent to any amendment made to the constitution. Hence, the state governments are not as influential in India as they are in countries such as the USA.
The legislative power in India is divided into three lists: The Union List, State List, and Concurrent List. As the name suggests, the Union List describes items where the central government makes decisions, while the State List describes items in the hands of the State Government.
Indian Citizenship, as an issue and sector, comes under the Union List- in other words, it is decided by the central government. This means that legal decisions on the issue are carried out by the Centre, not the State government. It should be noted that state governments are bound to implement most laws made by the central government, without room for disagreement.
Through five provisions, the Constitution allows the Centre to warn state governments if they still do not implement Central laws and rules. If all these warnings are used and the state government continues to not implement a Union law, the Centre can impose President’s Rule upon the state, hence eliminating the state government’s power. In this case, as Indian President Ram Nath Kovind has already signed off on the Citizenship Amendment Bill to make it an act, it is unlikely that he shall oppose its implementation.
So What Can States Do?
Hence, the main way for any state government to challenge the Citizenship Act is by appealing in the Supreme Court against the law they claim is unconstitutional. At the moment, there are more than 60 petitions against the CAA that the SC shall begin hearing today (22nd January).
If the Supreme Court finds the Citizenship Act, or any of its provisions, to be unconstitutional, its implementation could be much more difficult or even declare the Act void, although the chances for the latter are very slim. While a petition is being heard and the final decision on it is still pending, it will also be difficult for the Centre to make a state government implement the NRC or CAA proceedings.
How the SC rules on this matter is unpredictable, with experts from both sides claiming they will support or reject the implementation of the CAA and NRC. As Resmitha R Chandran, a lawyer at the SC noted, recent SC judgements have often been vague and lacked clarity.
If the Supreme Court does not find any flaws with the CAA or NRC, there isn’t any way for a state government to legally deny proceeding with these.
Moreover, if the Central government chooses to, they can bypass the state government entirely under one of the clauses in the new CAA. This clause gives them direct control over an authority specified by, well, them, to deal with the applications of “persecuted minorities.”
This could be a mechanism to speed up the process, or even take entire control of the implementation of the CAA+NRC.
The central government can specify what authority they want for checking applications of a majority of citizens in India. There is not much clarity over how they will determine which applications possibly belong to prosecuted minorities. Hence, the state government that may be opposing CAA+NRC implementation will no longer have any say in the matter, and the Central government can carry out their plans as they wish.
Although there have been cases of state governments not implementing Supreme Court rulings, such as Punjab with the Sutlej Yamuna Canal, it’s unlikely for that kind of a situation to happen in an issue as highlighted as the CAA. Especially considering the clause that allows the state government to be entirely bypassed, the Central government still holds immense power in their hands, despite their hesitation to implement the NRC after the severe and fervent protests.
What Can We Do?
From where we stand, there’s not much we can predict about how things turn out.
Looks like all we can do is wait, with bated breath, and watch.