Distinguished lawyer (and my old college friend) Kapil Sibal is reported to have expressed the opinion that state governments are constitutionally obliged to implement the Citizenship Amendment Act, an opinion reportedly seconded by another distinguished lawyer, Salman Khurshid. Being an economist and not a lawyer, I feel hesitant to contest the views of these legal luminaries. But I am convinced that they cannot be right, for what they are saying violates a basic principle of jurisprudence — the Nuremberg principle — so named because of the trial at which it was enunciated.
At the Nuremberg trial, where Nazi officials accused of various war crimes were being tried, the defence plea was that the accused were merely carrying out orders. This argument was rejected, and sentences were handed down on the principle that a person, no matter what the orders were, has to take responsibility for his or her actions. If an order was “illegal” or violated universally-accepted norms of basic humanity (such as not killing innocent people), then a person could not escape culpability simply by claiming that he or she was carrying out an order.
The Nuremberg principle was not enunciated just to punish war criminals of a bygone era. It forms a cornerstone of any democratic jurisprudence, including our own. In its absence, nobody would ever be held culpable for any atrocity: A would say that he or she was acting under orders from B, B would likewise shift the blame to C and so on, until the ultimate source of authority is traced, if at all, to someone who may well be dead by then, as Hitler was at the time of the Nuremberg trial.
The Nuremberg principle has a positive and a normative aspect. The positive aspect ensures that nobody escapes culpability for doing something illegal or inhuman. The normative aspect is that everyone must examine the legal and moral justifiability of any course of action that he or she is asked to follow. This is essential in a democracy if the exercise of “power without responsibility”, by merely pretending that the source of power lies elsewhere, is to be avoided. In fact we get exercised about “corruption”, and rightly so, but the exercise of “power without responsibility” is a massive form of corruption in the deepest sense. This is what the Nuremberg principle seeks to prevent.
What is true of persons is also true of other entities, like state governments in the present case. If they consider an order to be against the law, or humanity, or, in the present instance, the Constitution, then they cannot be obliged to act upon it unquestioningly, even if the order has the sanction of Parliament. They would have to first test the constitutionality of the order in the Supreme Court (SC), as the government of Kerala has done with the CAA.
Even if the SC eventually holds the Act to be constitutionally valid, but the state governments believe otherwise, the Nuremberg principle would still suggest that the latter not implement the Act, though they would then be going against the “deemed” law of the land and, hence, would have to face the consequences of their refusal. Of course, instead of facing such consequences, such as dismissal under Article 356, they may decide to implement the Act; but then, too, they would be held accountable for such implementation. There is, in short, no question of blind obedience to any law just because it has been passed by Parliament.
Hence, when these legal luminaries say that state governments are obliged to implement the CAA, it is not clear what exactly they mean. It cannot mean that state governments have no right to consider the Act unconstitutional and no right to approach the SC. What it could perhaps mean is that when the SC has finally decided on the issue, if it holds the Act to be constitutionally valid, then the state governments are duty-bound to implement it. But then this proviso should have been mentioned in the first place; and why talk about it now when the SC is still a long way from its decision?
A jurisprudence based on the Nuremberg principle is the diametrical opposite of a jurisprudence that invokes a hierarchy, with the lower echelon in the hierarchy being asked unquestioningly to follow orders from the higher echelon. The latter typifies an authoritarian society, while the former, by going against the very concept of unquestioning obedience, is characteristic of a democratic society.
It is democratic for two distinct reasons: One, it attributes “subjecthood” to all tiers of government and all individuals. Two, it underscores that every institution, including Parliament, operates within limits. To overlook this fact would amount to institutionalising majoritarianism. Parliament, no doubt, is supposed to express the will of the majority; but it is itself limited by constraints imposed by the Constitution.
The CAA is being widely seen as a sinister instance of Parliament crossing its limits, and impinging on the basic structure of the Constitution by distinguishing between religions in granting citizenship. The claim of the Union government and BJP that no citizen has anything to fear from the CAA is doubly wrong: First, even if every existing long-term resident of the country is given a guarantee about obtaining citizenship rights, the Act would still be invidious because of the distinction it draws between religions in granting citizenship at the margin. Second, the whole point of the NRC, being planned for the entire country, is to decide who is a citizen — when this very decision is at stake, to say that no citizen should fear is a meaningless proposition.
Opinion | Apoorvanand writes: CAA, NRC protests are an opportunity for students, Muslims to provide leadership
There are protests across the country against the CAA and NRC, with non-BJP state governments standing with the people. At this juncture, respected lawyers like Sibal and Khurshid making unclear statements about state governments being duty-bound to implement the CAA, may be construed as showing disregard, even if not intentionally, for the people’s struggle.
This article first appeared in the print edition on January 23, 2020 under the title ‘Constitution, not Parliament.’ The writer was professor of economics at JNU, Delhi