Can States Refuse To Implement NPR And NRC?

The legislation of the CAA and impending NPR and then NRC sets the stage for showdown between the Centre and states.

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The legislation of the Citizenship Amendment Act and the impending National Population Register, and thereafter National Register of Indian Citizens have set the stage for a potential showdown between the Centre and states.

The NPR will be the base database for the NRC, as stated in several government documents. The West Bengal government-run by All India Trinamool Congress Party has ordered a stay on all NPR activities, as reported by news agency PTI. Soon after, Kerala also put NPR work on hold, the report said.

The Indian National Congress, in power in five states, has protested against the CAA and NRC, and its leaders have in speeches and rallies said Congress chief ministers will not permit the NRC to progress.

But no official statement though has been made by the party. Meanwhile, chief ministers of Odisha and Andhra Pradesh have said they will not implement NRC in their states.

On the other hand, Union Minister Arjun Ram Meghwal said on Monday, 30 December 2019, that all states will have to implement the Citizenship Amendment Act, according to PTI.

And that begs the question – can states refuse to co-operate in implementing these proposals, and if they do, does the Centre have any recourse?

What Does The Constitution Say?

The Seventh Schedule of the Constitution divides the subjects on which the Centre and states can make laws under the Union, State and Concurrent lists. The subject of citizenship, naturalisation and aliens (foreigners) finds mention exclusively in the Union List which contains a total of 97 subjects.

Experts BloombergQuint spoke with are united in their view that citizenship and the laws related to it are exclusively in the domain of the central government and the refusal by states to implement NRC or NPR has no legal ground.

As far as the Citizenship Amendment Act is concerned, the Union can conduct that exercise on its own from Delhi because it’s related to grant of citizenship. It could ask people to send in their application and then decide on the citizenship under the provisions of the Citizenship Act, Senior Advocate Chander Uday Singh said.

However, as far as exercises such as the NRC and NPR are concerned, it will be difficult to go ahead without the co-operation of the state governments, he said.

Singh caveats it by adding that the states are bound to carry out the parliamentary mandate and a state’s refusal may be argued as an example of constitutional breakdown.

“It’s a huge exercise which involves use of massive administrative machinery. Central government cannot send its officers without the protection provided by the states’ law and order machinery. The Tribunals for determining status of those who have been left out by the NRC also have to be made available by the states.”

Chander Uday Singh, Senior Advocate

For all practical purposes, a nationwide NRC is impossible without the help of the state governments. This isn’t the first time that a state government has refused to abide by a law or directive introduced by the central government.

In October 2017, the West Bengal government had approached the Supreme Court challenging the central government’s directive to implement Aadhaar for delivery of subsidies. However, after the apex court’s direction, the West Bengal government did implement the scheme in the state.

In the case of NPR and NRC, too, state governments can move courts but not refuse to implement the centre’s directions, Seema Singh, professor at Faculty of Law, University of Delhi, said.

“The state governments can move the courts to challenge the central government but a refusal to implement is not within their powers. Article 365 of the Constitution makes it mandatory for the state governments to follow and implement the directions of the Central government, failing which the President can hold that the state government cannot carry on,” said Seema Singh, Professor, Faculty of Law, Delhi University.

What Can The Central Government Do?

The Central Government may consider using its power of fund allocation to get the states to implement its directions, says Singh. There are already some murmurs of this happening.

The state BJP unit has warned the Kerala government that it may be denied its share of ration allocation if it refuses to implement the CAA or NPR, The New Indian Express reported on 27 December 2019.

There’s no precedent of any central government resorting to such measures, Senior Advocate Sanjay Hegde said, on being asked if funding to states can be withheld if they refuse to implement Central government’s decision.

“Delivery of funds is part of the central government’s responsibility. We have also witnessed delay by the central government in delivery of these funds such as the states’ share under goods and services tax. But if the Centre does use this tool as a matter of policy, we can expect a full-blown federal crisis landing at the doorsteps of the top court.”

Sanjay Hegde, Senior Advocate

The Supreme Court is currently hearing a batch of over 60 petitions which have challenged the constitutionality of the Citizenship Amendment Act. The top court has decided to hear the case on 22 January.

The Citizenship Amendment Act, passed by the parliament, seeks to provide citizenship to non-Muslims from Pakistan, Bangladesh and Afghanistan. The cut-off date to qualify for citizenship under CAA is 31 December 2014. The NRC will be prepared as per the rules prescribed under the Citizenship Act, 1955.

The NPR was introduced in 2010, with the aim to produce a database of every usual resident living in the country, including non-citizens. A usual resident is defined to mean a person who has resided in a local area for the past six months or more or a person who intends to reside in that area for the next six months or more.

On 24 December, the cabinet approved the update of NPR starting April 2020, as per a statement by Information and Broadcasting Minister Prakash Javadekar.

While the final list of questions to be answered by citizens in the NPR survey is not yet public, activists are concerned that the NPR data collection will include information on details of the date of birth and place of birth of one's parents. And that will, in turn, be used by the NRC to seek proof of citizenship.

That promised citizenship under the CAA will be safe but several others not covered by the amnesty law will be harassed and sought to be evicted. Genuine citizens may get trapped in this exercise due to lack of documentation, a common problem across India.

(Published in an arrangement with BloombergQuint.)