US shows that states can defy citizenship laws

Non-BJP states say they will not implement the proposed National Register of Citizens (NRC) or Citizenship Amendment Act (CAA) or both. When the CAA was passed by both houses of Parliament, it induced little political resistance. But after student agitations exploded all over India, most non-BJP state governments have gained courage to flatly refuse to implement the new law. Suddenly what looked like an unstoppable Modi juggernaut has come to a screeching halt.

The Supreme Court may end the stand-off by declaring the CAA unconstitutional. But if it clears the CAA, will we face a constitutional crisis? What if state governments refuse to obey the law of the land? Will the Centre be justified in imposing President’s Rule to ensure that the national law is implemented?

The experience of a large country like the US suggests that in a federal democracy, states have the right (which they have often exercised) to refuse to implement federal laws; that the federal authority can then threaten to penalise the naysayers but cannot throw them out of office; and that federal governments need to win over state governments on some issues, and cannot force all to toe the line.

When President Trump came to power, he swore to throw out millions of illegal immigrants, also called undocumented workers. The US has 11 million such workers, mostly from Latin America. But many states and cities have refused point blank to co-operate with the federal authorities in detecting or expelling illegal immigrants. Hundreds of these so-called “sanctuary cities” offer not just sanctuary but encouragement to illegal immigrants, viewing them as valuable contributors to local employment, production and prosperity. California has a nonwhite majority after decades of Hispanic immigration and boasts of almost 100 sanctuary cities. Many such cities were created in the 1980s after hordes of refugees arrived from civil wars in Central America. Their number has expanded fast since.

They include New York, Los Angeles, San Francisco, New Orleans, Boston, and top cities in most states. New York Mayor De Blasio has offered illegal immigrants a city identity card so that they get all the benefits and rights of citizens. California gives illegal immigrants driving licences, a form of ID widely used in the US. However, some Republican states are highly anti-immigrant and support Trump. Texas has passed an anti-sanctuary Act, which is, however, being contested in the courts. So, the President finds support for his law in many states but faces blanket refusal and open sabotage in other states and cities.

Trump has responded by threatening sanctions. He recently tweeted that he is planning to dump illegal workers rounded up elsewhere on the sanctuary cities. These cities have shrugged their shoulders or said they will welcome the additional illegals!

Trump has warned that “cities that refuse to cooperate with federal authorities will not receive taxpayer dollars, and we will work with Congress to pass legislation to protect those jurisdictions that do assist federal authorities.” In response some cities are reconsidering their sanctuary policies, but not the big naysayers. Trump’s threatened sanctions have been challenged in courts across the US, and many judges have ruled against him. One judge found unconstitutional Section 1373 of the law obliging local governments to exchange information with federal authorities on illegal immigrants.

India’s Constitution is not identical to the US’s. Technically, the US is a federation of states while India is a union of states. Does that mean the central government in India can ride roughshod over states in ways that the US cannot?

The Supreme Court will have the last word, but will surely take into account the US experience. Nobody in the US argues that the emergence of sanctuary cities equals Constitutional breakdown. In India too, the refusal of some states to implement something as controversial as the CAA cannot be called a Constitutional breakdown. It cannot justify the mass dismissal of naysaying state governments, or the imposition of President’s Rule.

India already has a prominent example of a naysaying state. The Supreme Court ordered Punjab to build the Sutlej-Yamuna link to give Haryana its fair share of Sutlej waters after Punjab was bifurcated to create Haryana. But every Punjab government has refused to do so. Amarinder Singh says the project will revive the demands for Khalistan. Punjab’s rebellion has succeeded.

The BJP suddenly looks dazed and uncertain. It should re-think its entire strategy. Modi should publicly contradict Home Minister Amit Shah’s pledge to force a National Register of Citizens on all Indian states. Otherwise it risks looking foolish and ineffective, with states rubbing its nose in the dust. Discretion is the better part of valour.

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