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Saturday Interview | ‘CAA shouldn’t have named communities’

Before the controversial Citizenship Amendment Act (CAA) was passed recently, he had advised the Joint Parliamentary Committee on the Amendment Bill as an expert, and held that it should not mention names of the communities to be granted citizenship.

Deepak Razdan | New Delhi |

Subhash C. Kashyap, constitutional expert and former Secretary- General of the Lok Sabha, began his career in Allahabad as a journalist, advocate and university teacher.

He joined the Parliament Secretariat in 1953, and was Secretary-General of the 7th, 8th and the 9th Lok Sabha, during the governments of Indira Gandhi, Rajiv Gandhi and V P Singh.

A prolific and wellknown author, Kashyap is an expert on constitutional and parliamentary laws, and was a member of the National Commission to Review the Working of Constitution, and chairman of its Drafting and Editorial Committee.

Before the controversial Citizenship Amendment Act (CAA) was passed recently, he had advised the Joint Parliamentary Committee on the Amendment Bill as an expert, and held that it should not mention names of the communities to be granted citizenship.

Awarded with Padma Bhushan in 2015, Kashyap turns 91 on Sunday (10 May). In an interview with DEEPAK RAZDAN over telephone, he shares his views on a range of issues.


Q. The Indian Constitution has often come under strain over Centre-state relations. Why?

A. There is tremendous constitutional illiteracy in our country, not confined to the uneducated alone. There are many myths about the Constitution. People do not read the Constitution. The Constitution does not speak of Centre-state relations anywhere.

We talk about it deliberately, and that has caused tremendous damage to the relationship between the Union and the states. The right phrase is Union-state relations that is part of the Constitution. The states are parts of the Union, it is the states which make the Union – the relationship has to be a relationship between the whole and the parts, not as between the Centre of authority and the states and the periphery.

Even the Sarkaria Commission was called a Commission on Centre-State Relations. There is a tremendous myth because of the wrong use of the word Centre. As a result of this, the states psychologically feel they are the periphery. The confusion would not have arisen if we had used the word Union.

Q. The National Register of Citizens (NRC) was part of the Assam Accord but when it was mentioned in the context of the whole country, states became apprehensive, why?

A. As per the Constitution, it is for Parliament, and Parliament alone, to enact on citizenship. The states have no role, and citizenship in the whole country is one. We the People are one; there is no separate citizenship of states, as in the USA.

Every country has a record of its citizens, whether you call it national register of citizenship or not, there has got to be a record to show who are your citizens. It is common sense. It is not a subject for the states; citizenship is entirely for the Union to decide, it is in the jurisdiction of the Union Government and the Union legislature to decide.

The NRC is only to keep a record, should we not have it? Why should there be any objection to it, I don’t see any logic objecting to keeping a record of who are citizens of India.

Q. The Citizenship Amendment Act (CAA),2019,had limited purpose to grant citizenship to people who had already migrated to India, still it caused doubts, why?

A. The objections are more in the field of party politics and vote-bank politics. So far as the Constitution is concerned, citizenship is a matter which is entirely in the field of the Union Government and the Union legislature. The states should have nothing to bother about.

Q. What was your advice to the Joint Parliamentary Committee on the CAA, when you were associated with it?

A. That was in 2016. I had forgotten about it till the media reminded me about it. When the JPC called me and asked me about it, what I had said, from memory and from the printed record, was that it was not necessary or desirable to mention the names of the communities, Hindus, Christians, Sikhs etc. I had taken strong exception to the mention of communities.

Mentioning persecuted minorities would have been enough, and the purpose would have been served. And all this noise would not have been so much, perhaps not so blatant, because people could say you had singled out the Muslims, and mentioned all other communities.

I had mentioned that objections could be there under Article 14 which provides for equality for all, that the State shall not deny equality before the law and equal protection of laws to anyone, not just citizens. Article 15 applies only to citizens and prohibits discrimination on grounds of religion, caste etc.

But Article 14 prohibits discrimination against any person. So, if you mention the communities, you are opening yourself to being questioned. I had suggested that communities need not be mentioned. The Government in its wisdom did not take that advice.

Lot of damage has been caused. But that does not change my position that citizenship is entirely for the Union Parliament alone to decide, and Parliament is within its right to enact on it. The objection to the CAA is not so much on the violation of the Constitution but it is used as an alibi. As has been clarified by the Prime Minister, the CAA is to give citizenship to those who suffered, and is not meant to take anybody’s citizenship.

Q. Governors are often seen in conflict with state governments,how should this relationship work?

A. As I said, the relationship between the Union and the states is of the whole and the parts.

The Governors represent the whole in the part; the Governors are Union appointees, so they are to take care of the interests of India, if they come into conflict with the interests of the states, or if the state politicians think in terms of their state and come in conflict with the interests of the Union as a whole, the Governors are there to take care.

One of the objectives of there being Governors is to save the interest of India as against the narrower, regional and parochial interests. The Governors have a legitimate role to save the interests of the whole of India.

Q. Post Assembly elections, like in Maharashtra recently, Governors sometimes tend to act before there is clarity?

A. The Governor has to act according to his discretion. In each given situation, the Governor uses all the wisdom he has, and the discretion he has, and the documents that are placed before him, and the facts that he comes to know, and on that basis, he takes decisions.

He may go wrong; as any human being or human institution, a Governor may also be wrong. He is entitled to make bona fide mistakes. I am not pronouncing on any particular action. Governors may go wrong. Any institution or individual can go wrong. But they act according to the information that is available to them and according to their best discretion.

Q. Along with central ministries instructing state governments, the President and the Vice-President have also interacted with Governors on Covid-19. Is this not duplication of work?

A. Coronavirus is above all party politics. The Governors and the President do not come in the open with any comments, individual or institutional, on political matters, or controversial matters, but Corona is a matter above party politics.

The whole nation is concerned about it. The heads of the states and the Head of the Union are concerned. If they did not come out, or perform any role, then perhaps you would criticise that the Prime Minister and the Chief Ministers are speaking, why are the President and the Governors not saying anything.

This is a matter in which, from the President downwards, everybody is concerned. Every institution should play a role.

Q. As chairman of the Drafting Committee of the National Commission to Review the Working of Constitution, what do you think about the Constitution’s main weak point?

A. That’s a delicate question. The Commission was heavily weighted in favour of the judiciary. It consisted of judges, former judges, advocates largely, while the Constitution establishes three organs, the executive, the judiciary and the legislature, and the Constitution establishes the principles of relationship among the three.

I had heard that the Commission was to be headed by former President R Venkataraman. If that had happened – I am not saying that Venkatachaliah was not an impartial Chairman – the Commission would have got a different aura, with better result.

Q. Did the Commission find the Constitution OK?

A. The feeling in the Commission was, and rightly so, that the Constitution depends upon how it works, and not on the letter of the Constitution. There is nothing wrong with the Constitution. In fact, I had a small role in the name of the Commission.

I pointed out that the name should not be to review the Constitution, there is nothing basically wrong with the Constitution, but to review the working of the Constitution. So, the working of the Constitution was more important. Rajendra Prasad and B R Ambedkar on the final day of the Constituent Assembly had made the point that whether the Constitution proves good or not would depend on who work it.

If they are honest and competent, people devoted to the good of the people, then the Constitution would be considered good. If they lack in integrity or competence, no Constitution can help the country.