States can delay CAA implementation but cannot defeat it: Senior advocate Vikas Singh

Vikas Singh on CAA and how states can stop them

States can delay implementation of the Citizenship Amendment Act, 2019. However, they cannot defeat its purpose completely, as per law, senior advocate and former additional solicitor general Vikas Singh told Moneycontrol.

The CAA makes illegal migrants belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities from Afghanistan, Bangladesh and Pakistan eligible for Indian citizenship. It only applies to migrants who entered India on or before December 31, 2014. Though enacted as far back as 2019, the rules to implement the law were notified only in 2023.

The recently notified rules under the CAA contemplate two committees that are empowered to process requests for citizenship: an empowered committee, comprising seven members, and a district-level committee, comprising five members.

“Because the quorum of the meetings of the empowered committee and district level committee under CAA is only two, they (states) really can’t defeat the provisions of the Act. But they can delay by not appearing in the meetings and seeking time. For an effective meeting, they have to call the district officials as well,” he said.

Any request for citizenship of India must be submitted to the empowered committee through the district-level committee. However, both these committees will be led by central government officials. The empowered committee, which is a state-level committee, will be led by the director of census and operations, who is a central government employee. The district-level committee will be led by the jurisdictional Senior Superintendent or Superintendent of Post, also a central government employee.

However, a representative not below the rank of Naib Tehsildar or equivalent from the Office of the District Collector is to be a part of the district-level committee as an ‘invitee’.  The district-level committee can pass its decision even if the state government officers are not present as the quorum for the meeting of the committee is two. However, according to Singh, a state government can create hurdles and challenge the order of the committees on the ground that it was not consulted.

Singh spoke to Moneycontrol on whether States can halt the implementation of CAA in light of the chief ministers of Kerala, Tamil Nadu and West Bengal stating that they would not be implementing the law. Tamil Nadu chief minister MK Stalin said: “There is not going to be any use or benefits due to the CAA, which only paves the way for creating divisions among the Indian people. The stand of the government is that this law is completely unwarranted; it is one that must be repealed."

West Bengal CM Mamata Banerjee on Wednesday noted that CAA is linked with the National Register of Citizens (NRC) and that is the reason she is opposing the legislation. "CAA is related to NRC, that is why we are opposing it. We don't want detention camps like those in Assam," she said. Kerala chief minister Pinarayi Vijayan noted that CAA was an ‘open challenge’ to humanity and it would not be implemented in Kerala.

Delhi CM Arvind Kejriwal criticised the CAA stating that the law could pose a big national threat. He stated that the migration into India after CAA could be more than what had happened during the partition in 1947, as a result of which there could be thefts and rapes.

Commenting on the statements by the chief ministers, Singh said, “Whenever this kind of law is made by the centre, when the states start dilly-dallying, in the end you will see a Public Interest Litigation coming out. Eventually, the court will direct the States to nominate authorities and start taking applications. But, they can delay and they can always defeat the purpose of this Act if they want to, at least in the short term.”

‘CAA could have been notified earlier’

Singh, who appears for one of the parties in challenges to the CAA, noted that the rules could have been notified earlier as there was no stay to implement the law even though petitions challenging the law were filed five years ago. “Mere pendency of a matter in the court is no good for the government to not notify a law as there is no legal bar,” he said.

Singh, a former president of the Supreme Court Bar Association, said that notifying the rules so close to the election “cast clouds on it”. He added, “I think if somebody were to make an application in court, there may be a ground to stay the law till the election so that nobody takes an undue advantage of these rules.”

Nearly 200 petitions have been filed in the supreme court challenging the constitutional validity of the citizenship amendment act, dating as far back as 2019. They have been kept pending since the rules to implement the law had not been notified. The primary contention of these petitions is that the law violates the constitution by not making Muslims from Pakistan, Bangladesh and Afghanistan eligible for citizenship.

The Indian Union Muslim League (IUML), which is leading the charge against the CAA and has a case pending on the matter, filed an application on March 12 to halt the implementation of the CAA. The plea is yet to come up for hearing.

Singh noted that considering the importance of this case, the Supreme Court should constitute a constitutional bench to hear it.

Is citizenship a right?

“Citizenship is definitely not a right. Citizenship is definitely a privilege. It's upon the Parliament of the day to decide who can be given this privilege and the method of doing it,” Singh said.

He noted that although challenges to the CAA are pending in court, the argument that Muslims have been excluded can be grounds to strike down the law. “However, according to me, because this law has been made only for people from Muslim countries coming to India, obviously Muslims could not have been given this privilege. So, it had to be given to other communities,” he said. “If you ask me whether it will sustain in a court of law or not, I would say it is as constitutional as it is unconstitutional.”

Singh noted that it would be “touch and go” for the law when the Supreme Court scrutinises it. According to the senior advocate, the CAA passing muster would depend on the bench of judges that will hear the case. “Every Bench has its own views on giving more credibility to the parliamentary legislation or not giving credibility,” said Singh.