Millennium Post

Weighing in

Non-compliance of states to CAA-NRC-NPR has once again brought forth the issue of Central government’s primacy in the country’s otherwise federal polity

The protests against the draconian trio of CAA-NRC-NPR continue in India, while the Judiciary waits for the 'violence to stop' before making any meaningful intervention. In contrast, several state governments have voiced their strong disagreements on the principle behind and the implementation of these laws; out of these, Kerala and West Bengal stand out as the fiercest critics, with both the Chief Ministers, P. Vijayan and Mamata Banerjee, having directed to stop the work on the NPR (National Population Register) in their respective states. The growing opposition of the state governments to the fascist policies of the Central Government led by the duo, Prime Minister Narendra Modi, and Home Minister Amit Shah, is a clear indication of severe strain on the federal structure of India and the Indian Constitution. The issue is- are the states bound to follow an inherently discriminatory law or a law violative of the federal structure or does the Constitution provide enough safeguards to state governments to protect their autonomy? This is precisely the question before the Supreme Court in recent two cases, wherein the state governments have challenged the validity of a Central law in a suit proceeding. In one case, the State of Kerala has filed a suit under Article 131 of the Constitution, challenging the validity of the CAA (Citizenship Amendment Act, 2019), while in another case, the State of Chhattisgarh has filed a similar suit under Article 131 challenging the validity of the National Investigation Agency Act, 2008 on the ground that it violates the principle of 'cooperative federalism', which is part of the basic structure of the Constitution. Before we get into the specifics of these two cases, it is important to understand the federal nature of Indian polity.

Article 1(1) of the Constitution states that India, that is Bharat, shall be a Union of States. Though the Constitution did not use the word 'federal', the essence of the Constitution was federal in nature. The Constituent Assembly debates are replete with references to dangers of over-centralisation and the need to protect the autonomy and individual cultures of the provinces. There was an almost unanimous opinion that India was too diverse and vast as a country to be governed by a unitary government but the horrors of Partition in 1947 tilted the scale in favour of a strong central government. According to the Second Report of the Union Powers Committee tabled in August 1947 to the Constituent Assembly, "Now that partition is a settled fact, we are unanimously of the view that it would be injurious to the interests of the country to provide for a weak central authority which would be incapable of ensuring peace, of coordinating vital matters of common concern and of speaking effectively for the whole country in the international space." Accordingly, Dr. B. R. Ambedkar, while introducing the Draft Constitution in November, 1948 noted that "the Draft Constitution can be both unitary as well as federal according to the requirements of time and circumstances. In normal times, it is framed to work as a federal system. But in times of war, it is so designed as to make it work as though it was a unitary system. Once the President issues a proclamation, which he is authorised to do under the provisions of Article 275, the whole scene can become transformed and the State becomes a unitary state. The Union under the proclamation can claim if it wants (1) the power to legislate upon any subject even though it may be in the State List, (2) the power to give directions to the states as to how they should exercise their executive authority in matters which are within their charge, (3) the power to vest authority for any purpose in any officer and (4) the power to suspend the financial provisions of the Constitution. Such a power of converting itself into a unitary state no federation possesses."

Thus, it is clear from the debates that the Constitution-makers intended to make the Indian polity essentially a federal system, "with the Union at the Centre and the states at the periphery, each endowed with sovereign powers to be exercised in the field assigned to them respectively by the Constitution" and during external exigencies like war, the Centre can exercise its legislative and executive powers in a unitary fashion, without taking into account the state's concerns. This understanding was reflected by the Supreme Court of India in State of West Bengal v. Union of India (AIR 1963 SC 1241), wherein the apex court held that "our Constitution adopted a federal structure with a strong bias towards the Centre. Under such a structure, while the Centre remains strong to prevent the development of fissiparous tendencies, the states are made practically autonomous in ordinary times within the spheres allotted to them." In Kesavananda Bharati v. State of Kerala (1976), the Supreme Court held federalism as part of the basic structure of the Constitution, which cannot be altered by way of an amendment.

In the last few decades, the Indian jurisprudence has seen the rise of 'cooperative federalism', wherein the Centre and the state governments cooperate with each other in a meaningful federal spirit to implement the social welfare legislation of the Union, e.g., the Right to Food Security Act, 2013, the Mahatma Gandhi National Rural Employment Guarantee Act, 2005, etc.

In this context, one has to analyse the current situation wherein 11 states have disagreed with the CAA-NRC lethal combo out to destroy the Indian Constitution and its people. Is it then a question of cooperative federalism? Should the states cooperate with the implementation of a blatantly discriminatory Central law? If they don't, then is it a violation of Constitution or in the interest of preservation of the Constitution?

The state of Kerala in its suit against the Central Government challenging the CAA has argued that "the Impugned Amendment Act, the Impugned Passport Rules and the Impugned Foreign Order Amendments are class legislations harping, interalia, on the religious identity of an individual, thereby contravening the principles of secularism, which has been recognised repeatedly by this Honourable Court as a basic structure of the Constitution. The same make religion and the country of origin of the person criteria for grant of citizenship and result in classifications based on religion and based on country, both classifications being apparently and manifestly discriminatory, arbitrary, unreasonable and have no rational nexus with the object sought to be achieved."

Similarly, the state of Chhattisgarh, while challenging the validity of the NIA Act, contends that "the NIA Act is ultra vires to the Constitution of India and is beyond the legislative competence of the Parliament since the Act empowers the defendant to create an agency for 'investigation', which, notwithstanding the NIA, is carried out by the State Police, which is a subject matter of the State under Entry–2, List–II, Schedule-7. The NIA Act, in its present form, not only takes away the power of conducting investigation by the plaintiff through Police but also confers unfettered discretionary and arbitrary powers on the defendant. Moreover, there are no rules governing the exercise of power which gives ample discretion to the defendant to exercise its power at any juncture without providing any reason or justification for the same".

It is noted that the law on the question whether a state government can challenge the validity of a Central law in a suit under Article 131 of the Constitution is yet to be settled and the precise issue is currently pending before a larger bench of the Supreme Court. It is important to understand the distinction between a writ jurisdiction and a suit proceeding, wherein the writ proceedings do not involve disputed questions of facts, while a suit proceeding is a mixed question of facts and law. In a suit proceeding, pleadings are critical, along with a full evidentiary procedure, including cross-examination of witnesses and thus it would be highly interesting to see if the Supreme Court hears the CAA challenge in a suit or in a writ or hear them together.

At the heart of the current two challenges is the fact that the federal structure of the Indian Constitution is increasingly under attack, owing to the unilateral and arbitrary decisions of the Central Government, completely bypassing the constitutional norms and principles of federalism. This is especially true in the context of state governments governed by opposition parties like Kerala, West Bengal, etc. The unilateral revocation of Article 370 and the arbitrary division of the State of Jammu & Kashmir into two Union Territories created terror in the federal heart of the Constitution whereby a majoritarian Central government can just reduce a full state into Union territories within a few hours. This assault on the federal polity only got aggravated with passage of draconian laws like NIA Act and CAA, thereby, proving true the real apprehensions of the Constitution-makers of an all-powerful Centre trying to homogenise the entire country by diluting or erasing the regional diversity and specificities.

So the question is whether the Supreme Court will be guided by constitutional morality, i.e., upholding the core values of equality, non-discrimination, liberty, and fraternity of the Constitution or by Constitutional formalism that prioritises the bare form of unitary government over state autonomy. The choice is all too clear and stark but going by the recent history of the Supreme Court's decisions, one has reasons to be very fearful. But still one hopes..#Hum Dekhenge. IPA

Amritananda Chakravorty is a Delhi based lawyer. Views expressed are strictly personal

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