The states of West Bengal, Punjab, Kerala, Madhya Pradesh and Chhattisgarh, all non-BJP ruled states have said they will not implement the Citizenship Amendment Act (CAA) 2019 because they don’t agree with the contentious Act. A debate has now ensued as to whether states can disregard a law passed by Parliament. This is unprecedented. Subject to the provisions of the Constitution, the Parliament ‘may’ make laws for the whole or any part of the territory of India while the Legislature of a State may make laws for the whole or any part of the State. Indeed the framers of the Constitution have created a federation where cooperation between the Union and States is essential. This is called cooperative federalism. However, in practice the Indian Constitution is not true to any traditional pattern of federalism. Constitutional experts aver that the Indian model is broadly based on a federal form of governance but with a tilt towards the Centre. In this it is expected that all authority and power must be exercised in conformity with the Constitution. Neither the Centre nor the State should encroach upon the power or jurisdiction vested on the other. Constitutional experts also say that State governments have no powers to reject the implementation of the Citizenship (Amendment) Act, 2019 as the legislation was enacted under the Union List of the 7th Schedule of the Constitution. The Chief Ministers of the above states however, argue that (a) the Act passed in great hurry is unconstitutional as it violates Article 14 and 15 of the Constitution. Article 14 guarantees Right to Equality which means equality before law. This implies the absence of any discrimination without rational basis. The CAA discriminates against Muslims by mentioning that only non-Muslims persecuted in Pakistan, Bangladesh and Afghanistan would be given Indian citizenship. Article 15 is more specific. It prohibits discrimination on grounds of religion, race, caste, sex, place or birth or any of them.
In ordinary circumstances the CAA would not have been problematic except that the NRC exercise in Assam has resulted in 19 lakh stateless individuals or illegal migrants largely from Bangladesh. With the CAA in place, the Hindus out of the 19 lakh stateless people would be conferred Indian citizenship whereas the rest who are non-Hindus, meaning Muslims would either be confined to relief camps or be deported. The latter option is very slim since there is no legal framework for deportation of illegal migrants to Bangladesh.