Tamil Nadu's IPL overreach
Ministry of Home Affairs can regulate foreigners'
entry into India :
Designating the letter written by the Chief Minister of Tamil Nadu to
the Prime Minister as communicating a 'decision' to 'ban' Sri Lankan
players, officials and support staff from participating in any Indian
Premier League (IPL) cricket game in Chennai would be imprecise. Rather,
it is a putative ban; a statement of intent by the Government of Tamil
Nadu to ban the Sri Lankan nationals on a future date should they set
foot in the State.
The letter sought to justify the proposed ban on the grounds that the
presence of the Lankans would have aggravated the already surcharged
atmosphere in the State, and presumably, have affected the law and order
situation. This licences us to infer that at the appropriate time, the
Police Commissioner of Chennai would have invoked, that ubiquitous and
versatile tool, the prohibitory order under Section 144 of the Criminal
Procedure Code - something that was also recently invoked by the
Commissioner of Police, Chennai to delay the release of actor Kamal
Hassan's film 'Viswaroopam'.
Is a State Government in India's constitutional set up competent to
do what Tamil Nadu's did? It is difficult to see how that question could
reasonably be answered affirmatively as the Tamil Nadu Government's
actions seem to fly in the face of the division of powers between the
Union and the States contemplated in the Seventh Schedule of the
Constitution.
Under Central domain
Regulating the admission of foreigners into the country falls
exclusively within the purview of the Union Government's competence.
Entry 19 of List I (the Union List) of the Seventh Schedule authorises
the Union Government to regulate admission and emigration. Further,
entry 17 of List I, gives the Union Government the power to regulate
"citizenship, naturalization and aliens."
This Constitutional authority is statutorily exercised by the Union
Government acting under the Passport (Entry into India) Act 1920,
Passport (Entry into India) Rules 1950, Foreigners Act 1946 and the
Registration of Foreigners Rules, 1992.
The Constitutional and legislative regime in place gives the Ministry
of Home Affairs (MHA), the exclusive power to regulate the admission of
foreigners into India. If the State Government has concerns about the
movement of foreigners in a certain part of India, it is at liberty to
take up such concerns with the MHA. But the decision on which parts of
India, foreigners are free to move in, could finally be that of the MHA
alone. Once a decision to admit a foreigner without any geographical
restrictions on his movements has been reached, by the MHA, it is not
open to the State Government to refuse entry to a foreigner into the
State.
Blanket ban
Permitting the State Government to do so, would be to redraw the
division of powers in the Seventh Schedule. State Governments and
District Magistrates have the power to issue 'inner line permits' for
foreigners to visit 'protected' or 'restricted' areas. But it is the
Central Government which designates these as 'protected' or 'restricted'
areas, exercising powers under Section 3 of the Foreigners Act 1946.
Furthermore, the State Government owes its power to issue these permits
to the grant of the Central Government exercising its powers under the
Foreigners Act, 1946.
A blanket ban on all Sri Lankans solely on the ground of their
nationality adds another wrinkle to the problem.
The issue then ceases to be merely that of regulation of admission of
foreigners and passes over into the realm of foreign affairs. Denying
admission in a State, to nationals of a country, solely on the grounds
of their nationality, directly (not merely incidentally) affects the
relations between India and the other country. Entry 10 of the Union
List makes 'all matters which bring the Union into relations with any
foreign country,' a matter in which the Union Government alone is
competent to act.
The Constitution does not empower each State to work out its own
foreign affairs policy. Giving the Union Government the last word on
foreign affairs is absolutely imperative given the diversity of voices
in India's democracy and the disparate welter of interests they
represent.
This proposition has, of late, come under a lot of strain with
several State Governments seeking to reorient India's foreign policy in
line with their parochial interests. This result is somewhat odd since
the Constitution envisages a kind of federalism in which the Union
Government is generally meant to be the dominant constituent, and the
sole arbiter in matters of foreign affairs.
This is an area in which the Union Government must reassert its
Constitutional authority.
This is, of course, not to suggest that the States should have no say
in foreign affairs. To be sure, the States can bring to bear their
weight on foreign affairs through proper legal and political channels.
But all such channels stop well clear of exercising a de facto veto
power over foreign policy formulated by the Union Government.
What about the law and order concerns which ostensibly motivated the
Tamil Nadu Government? Such concerns, however justified, can never give
the Tamil Nadu Government legitimate grounds to deny the Sri Lankan
players entry into the State. The Union Government alone is competent to
take into account law and order considerations when it arrives at the
decision to permit admission to foreigners into the country. If the
State Government is dissatisfied with the Union Government's decision,
it can legally challenge the decision under Art 131 of the Constitution
by invoking the Supreme Court's original jurisdiction. However, the
State Governments have no power to render otiose a valid exercise of
Constitutional power by the Union Government on grounds of 'law and
order.'
If 'law and order' concerns are recognised as a sound justification
for the State Government to disregard the exercise of power by the Union
Government, the Seventh Schedule, at least in its present shape and
form, would become redundant.
If a State Government is to run the governmental machinery in
accordance with the Constitution, it must not be allowed to use 'law and
order' as a fig leaf behind which it can trump the powers of other
constituents of the federation and upset the distribution of powers in
the Constitution.
Courtesy: The Hindu
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