The West Bengal government ran an ad campaign on local television channels in mid December proclaiming its intention to resist the Citizenship (Amendment) Act and the proposed nationwide rollout of the National Register of Citizens. The state’s governor, Jagdeep Dhankhar—a member of the Bharatiya Janata Party—castigated the move. The advertisements were “absolutely unconstitutional,” he said. “It is a criminal use of public funds.” Within a fortnight, the Calcutta High Court imposed an interim ban on the campaign.
On the last day of 2019, the legislative assembly in Kerala adopted a resolution denouncing the CAA and demanding its repeal. Kerala’s chief minister, Pinarayi Vijayan, argued before the assembly that the CAA “contradicts the basic values and principles of the Constitution.” Arif Mohammed Khan, the governor of Kerala, and Ravi Shankar Prasad, the law minister of the BJP-led central government, responded with outbursts. The assembly had “ventured beyond its brief,” Prasad complained. “It is only the parliament which has got the power to pass any law with regard to citizenship.”
Punjab’s chief minister, Amarinder Singh, sent an open letter to Prasad soon afterwards, endorsing the Kerala resolution. He wrote that the Kerala assembly “has not passed any citizenship law,” but formalised “the will and wisdom” of the people of the state and invited the centre to reconsider the CAA. The states, he asserted, “are neither naïve nor misguided,” but performing a constitutional duty in transmitting local voices into a national debate.
The CAA and NRC are splitting open federal fissures across the country. The CAA’s selective sympathy is a coup against the idea of a plural, inviting India. It offers an accelerated path to Indian citizenship for Hindu, Buddhist, Christian, Sikh, Jain and Parsi refugees from Afghanistan, Bangladesh and Pakistan, to the deliberate exclusion of Muslims. The nationwide NRC, a sister initiative, aims to identify and oust illegal aliens from India. The two together will unleash an inquisition against India’s two hundred million Muslims, strip many of them of citizenship and slyly doctor the country’s demography. Convinced of these measures’ unconstitutionality, the governments of twelve states—Andhra Pradesh, Bihar, Chhattisgarh, Jharkhand, Kerala, Madhya Pradesh, Maharashtra, Odisha, Punjab, Rajasthan, Telangana and West Bengal—as well as the union territory of Delhi, have threatened to disobey the CAA and disregard the proposed NRC.
The states will to defy the centre; the centre wills to impose its arrant writ upon them. Implicated in this clash of wills are distinct ideas of federalism. Whether the states can defy the centre depends on how sharp the constitutional lines dividing them are.
Nullification—states’ power to disregard national laws—is not an Indian idea; it is originally American. With its long history of federal frictions, the United States offers an archive of pertinent vignettes.
American states ignited with the first political challenges to federal laws soon after the republic’s founding. In 1798, the US Congress passed the Alien and Sedition Acts. One law authorised the president to deport foreigners whose activities he considered dangerous without establishing their guilt. The other made it “illegal to speak, write, or print any statement that would bring the president into ‘contempt or disrepute.’”
State governments lambasted this federal power grab. The Virginia and Kentucky legislatures passed resolutions declaring the acts unconstitutional. These were anonymously drafted, respectively, by the future US presidents James Madison and Thomas Jefferson. The resolutions knit four discrete ideas into a radical theory of nullification: sovereign states compacted to create a federal government; the latter had limited powers; states were independent interpreters of the US constitution; and, collectively, they could void, or “nullify,” unconstitutional federal laws. This synergic idea of nullification—of states acting in concert against a federal bully—blended the historical with the legal.
While American states occasionally flirted with this compact approach, it was the US Supreme Court’s 1954 decision in Brown vs Board of Education that flung nullification back into constitutional prominence. State governments in the American South launched a ferocious assault on the court’s ruling that racially segregated public schools violated the equal-protection clause in the fourteenth amendment to the constitution. Eight states enacted resolutions sneering at the decision, asserting its unconstitutionality and resisting any “illegal encroachment” of their sovereign powers.
Governors, legislators and local officials stonewalled the court. The Louisiana legislature invested the state police with additional powers to keep schools segregated. The legislatures of Alabama and North Carolina permitted local communities to close public schools by popular vote if they were threatened with imminent desegregation. Virginia cut off state funds to integrated schools and created private schools for white students. In all, southern legislatures enacted over four hundred laws to stymie the court-mandated integration of public schools.
The idea of nullification lent southern states a white cloak to drape over its serial disobedience of a federal institution. Their actions perpetuated a vile idea of equality: of separate races in separate schools. Eventually, a more enlightened view would emerge, but that would take federal troops to force through integration, more court decisions, and nearly ten years.
Indian states opposing the CAA, however, are asserting an honourable reading of equality. A sectarian law for refugees, they insist, is unfair and un-Indian. Can they nullify it? It is unlikely. Indian states are weaker than those that forged the United States.
Just how weak are Indian states? Very. Parliament controls the states’ identities. It can marry or divorce states; it can amend their borders; it can demote them to union territories, too, as Jammu and Kashmir recently experienced. Since the 1950s, parliament has endlessly revamped India’s internal map, aligning states into more compact ethnic and linguistic units. Indian states are like dough, continually swashed and slapped without a proper say in creating a more perfect union.
Administratively, centrally appointed governors are heads of states. Elected state governments, headed by chief ministers, must work with them. But governors, as unabashedly political appointees, often behave as the centre’s Machiavellian goons. The Constitution also empowers the centre to dismiss state governments and dissolve state legislatures, as it has done approximately a hundred and thirty times. These dismissals are regularly partisan. And states have finite financial powers—they have few powers of direct taxation, and the new goods-and-services-tax regime hands most of their powers of indirect taxation to the centre, too. Clearly, the centre commands an imperial grip. No wonder, then, that J Jayalalithaa, the former chief minister of Tamil Nadu, once anguished about Indian states turning into “glorified municipal corporations.”
The David-and-Goliath structure of India’s feeble federation was a product of design, not accident. When deliberations in the Constituent Assembly began, in 1946, India had an uncertain atlas. Partition came a year later. With it came anxieties over states that bordered the newly created Pakistan—might Pakistan prey on them, the leadership wondered. There were also the princely states—nominally free, but effectively spinning in Britain’s colonial orbit. With Britain’s exit in 1947, some maharajas lusted for complete sovereignty. A few others fancied allying with Pakistan.
India’s national leadership harboured misgivings about both Pakistan and the princely states. It made demolishing fissiparous dissent the Constitution’s dominant objective. This delivered a beastly hold over states. BR Ambedkar, a key architect of the Constitution, stressed India’s unitary instincts. Though divided into different states for administrative convenience, the country, Ambedkar insisted, “is one integral whole, its people a single people living under a single imperium derived from a single source.” This was a riposte to Winston Churchill, who in a speech to London’s Constitutional Club in 1931 dismissed the idea of a composite India. “India is no more a political personality than Europe,” he slurred. “India is a geographical term. It is no more a united nation than the equator.”
The new constitution axed references to “federal” or “federation.” Instead, it proclaimed India a “Union of States.” India, effectively, is a top-down union, not a bottom-up federation. But states also do not enjoy the power to interpret the constitution with finality. And in this regard Indian states are no worse off than their American counterparts.
In 1957, in the wake of the Brown verdict, Orval Faubus, the governor of Arkansas, blocked nine African-American students from entering a school for three weeks. The Arkansas legislature also amended its state constitution to render Brown unconstitutional. The following year, in Cooper vs Aaron, the US Supreme Court upbraided the state government for stalling Brown. “The federal judiciary is supreme in the exposition of the law of the Constitution,” the court’s unanimous verdict read. That position, the court underscored, is “permanent and indispensable.” The constitution means what the court finally says it means.
The Indian Supreme Court has deployed a similar approach. The judiciary, it insists, is the ultimate arbiter. While the Constitution belongs to all—citizens, officials, ministers and legislators—it belongs to the court above all else. Well over a hundred legal challenges, including one by Kerala, have been lodged against the CAA, and only the court can decide on them. States have no powers to separately assess the act’s validity.
Still, the American states, endowed with fragments of sovereignty, retain a capacity to consent. They are not hapless playthings in the federal process, with neither will nor say. As the US Supreme Court clarified in 1997, in Printz vs United States, the federal government cannot commandeer state personnel to implement federal laws.
In India, the centre, because of its prying federal powers, can command, and the states must comply. They can neither disobey nor disregard. Article 256 of the Constitution makes this painfully clear: states must “ensure compliance with the laws made by Parliament,” and the union’s powers extend “to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose.”
When it comes to implementing the CAA, the states are to have the barest involvement—the powers to grant citizenship rest with the central government, as they always have. But states must house and assist new citizens, and enrol them into food-security schemes and other local programmes. The NRC, though, is different. There, state governments have more intensive responsibilities. They must build detention centres, identify illegal aliens and hold them until they are legally processed and repatriated, if at all.
This is the Indian states’ destiny: they can neither nullify central laws nor neglect federal commands. But they can do what Madison and Jefferson did in 1798: enact resolutions. The Kerala assembly has done just that. The centre’s criticisms of it—harping on constitutionality—misread the prevailing mood. The Kerala legislature is not engaged in constitutional legalities. Rather, it is trading in constitutional politics: assessing the CAA, assembling a reservoir of arguments against it and asserting the state’s idea of India. The union has long made the states its business. The states can make the union their business, too.
More states are emulating Kerala. Punjab, Rajasthan and West Bengal have passed anti-CAA resolutions too, and legislators in Puducherry, Tamil Nadu and elsewhere have demanded similar interventions. A repository of anti-CAA resolutions, of the official voices of elected lawmakers, may matter in the Supreme Court. Or, it may not. But they will matter on the street. With a plurality of Indians already on the streets to protests the NRC and CAA, perhaps this popular mobilisation is what alarms Ravi Shankar Prasad more.
In 1798, other states ignored Madison and Jefferson’s resolutions against the Alien and Sedition Acts. But the two men’s strident arguments provoked an electoral backlash. In 1800, Jefferson won the presidency, and his Democratic-Republican party swept into the US Congress. In his inaugural address, Jefferson indirectly promised to repeal the two unpopular laws as a first step towards national harmony.
The CAA is a duel over ideas of national self-definition. Annexed into the centre’s suffocating embrace, Indian states have scant elbow room. But they do have a voice; they can speak. State resolutions are speeches in defence of a plural India. And they are calls to the people—who, ultimately, will settle India’s idea of itself.