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The Kerala Government has presented a challenge to the constitutional validity of the Citizenship (Amendment) Act 2019 (CAA) and certain allied laws before the Supreme Court under Article 131 of the Constitution.
In the suit filed in the Apex Court, the state government has argued that CAA and related laws fall foul of the principle of secularism and the fundamental rights guaranteed under Article 14, 21 and 25 of the Constitution.
What makes the litigation instituted by the state government unique and different from the other cases challenging CAA is that a ‘state’ - a unit of the federation - has questioned the validity of parliamentary legislation under the original jurisdiction of the Supreme Court. The oddity is not as much in the substantive challenge to CAA as it is the election of the original jurisdiction of the Supreme Court to impugn the legislation. It reignites some vexed issues in constitutional law on Centre-State Relations and judicial settlement of the so-called federal disputes under Article 131 of the Constitution.
The Pending Reference before the Supreme Court
In 2014, a two-judge Bench of the Supreme Court, in State of Jharkhand v. State of Bihar, was faced with a question about the maintainability of a petition challenging the vires of the Bihar Reorganisation Act, 2000 under Article 131 of the Constitution. Dealing with the objection raised by State of Bihar that a suit challenging the constitutional validity of a legislation is not maintainable under Article 131, the Court disagreed with the Supreme Court’s earlier ruling in State of Madhya Pradesh v. Union of India & Another, where it had held that the validity of a Central Law should “normally” not be challenged under Article 131.
In the latter case, the Court had observed that the party impugning the validity of the legislation should instead invoke the extraordinary jurisdiction under Article 32 and 226 rather than the exclusive original jurisdiction. In view of its disagreement with the law stated by the bench in State of Madhya Pradesh’s Case, the Bench, after briefly recording its reasons, referred the question to a larger bench of three judges.
Facially, there is nothing in the language of Article 131 to suggest that a statute cannot be challenged thereunder. To resolve the controversy about the jurisdictional boundaries of Article 131, in respect of a suit, where legislation is under challenge, one must look to the language of Article 131.
A plain reading of the provision would show that there are two conditions under Article 131 that one must fulfill, in deciding the maintainability of a suit. First, is in relation to the parties to the dispute and, the other, is in relation to the nature of the dispute. When a State challenges a law under Article 131, where the Union is the defendant, there would not be much difficulty in fulfilling the first requirement. As to the second requirement, the conclusion may not be as straightforward.
In determining the nature of the dispute, and whether it qualifies for adjudication under Article 131, the effect of the impugned legislation on the “legal rights” of the plaintiff-State would be an important question. If the legal rights of the plaintiff-State have been affected, the suit would be maintainable. However, the examination should only be done on a “prima facie” basis to see if any “legal rights” have been implicated, in fact, or if the suit is a mere sham in the name of such rights.
If the question is examined in the manner just explained the observations made by the Court in State of Madhya Pradesh v. Union of India (supra) may not be entirely incorrect. In the said case, the Court merely stated,
“...normally, no recourse can be permitted to challenge the validity of a Central law under the exclusive original jurisdiction of this Court provided under Article 131”.
These observations should not be interpreted to expound an absolute rule providing for a blanket prohibition on the challenge to a law under Article 131. The conflict arising out of the divergent views expressed by the two benches, to that extent, may, therefore be seen as resolved.
131. Original jurisdiction of the Supreme Court - Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute
(a) between the Government of India and one or more States; or
(b) between the Government of India and any State or States on one side and one or more other States on the other; or
(c) between two or more States, if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends: Provided that the said jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant, engagements, and or other similar instrument which, having been entered into or executed before the commencement of this Constitution, continues in operation after such commencement, or which provides that the said jurisdiction shall not extend to such a dispute.
The Principle of “Legal Right”
Article 131 of the Constitution is an exclusive jurisdiction conferred on the Supreme Court for deciding disputes between the Centre and States provided that the dispute involves a question of law or fact on which the existence and extent of a legal right depends.
Operating to the exclusion of all other courts in the country, the constitutional rationale for creating an exclusive jurisdiction to hear and decide disputes between the federating units was simple. Disputes touching upon their legal rights should only be tried by the highest court of the country. The founding architects of the Constitution wanted such disputes to remain beyond the pale of influence of the constituent units.
In invoking this extraordinary jurisdiction, the party i.e. the federating unit approaching the Supreme Court must overcome the textual jurisdictional hurdle of the “existence or extent of a legal right” engrafted in Article 131. It goes to the root of the maintainability of the suit before the Court.
In establishing maintainability of a suit Article 131, the Supreme Court has laid down the test of “vindication” before it assumes jurisdiction. It means that the States in resorting to Article 131 must endeavor to vindicate their legal rights. According to settled case-law, the expression “legal right ” under Article 131 can manifest itself in the form of a matter on the federal structure envisaged under the Constitution. This can arise when the Centre and the State differ on the interpretation of the Constitution that would have “the inevitable effect of defining the governmental powers or legal competence of the State”.
In that context, the nature of disputes initiated before the Supreme Court under Article 131 is self-explanatory and speaks to the contours of the original jurisdiction of the Supreme Court. They include constitutional disagreements over the anticipated imposition of President’s Rule, dissolution of State Legislative Assemblies, division of assets post-State Reorganisation, territorial disputes between States and distribution of legislative powers under Schedule VII of the Constitution.
Encroachment of powers through legislative and executive action and federal interference in the sphere of authority allotted to a State has, therefore, been a common feature to the disputes initiated under the original jurisdiction of the Supreme Court. A challenge to the constitutionality of the CAA and other legislations does not fall within the category of disputes that have any bearing on the federal relationship between the Centre and States.
With Parliament alone having the competence to enact a law under Article 11 and Article 246 read with Entry 17 of List I on the acquisition of citizenship, any doubts about the legislative competence of the Parliament are ex-facie unfounded and unwarranted. CAA and the allied laws are not even remotely affecting the federal character.
The public statements made by the Kerala Chief Minister Pinarayi Vijayan and the resolution passed by the State Legislative Assembly on CAA without any constitutional basis demonstrates that the resistance to the citizenship law is purely a political disagreement. Seeking judicial intervention for settlement of such ideological wrangles sets an outrageous precedent where States can challenge presumably constitutional legislations for extraneous motives and without cause of action.
The Original Jurisdiction and Parens Patriae Doctrine
As a general rule, only a person directly affected by the infringement of a legal right or protection can initiate action before Courts of law. Depending on the nature of rights, a person affected by the infringement has the ‘locus standi’ to maintain an action against the alleged action in judicial forums.
However, the situation is altered where the aggrieved person is unable to represent his or her interests. In such a situation, a government can sue on behalf of the persons under disability for the protection of their rights. In Charan Lal Sahu v. Union of India, the Supreme Court invoked the concept of parens patriae to sustain the powers of the Central Government in maintaining suits on behalf of the victims of Bhopal Gas Tragedy against a multinational corporation for its negligent actions before domestic courts.
Applying the doctrine, Justice KN Singh, in his concurring opinion, ruled that the doctrine is an aspect of sovereign and inherent power enjoyed by the State for the protection of the health, peace, morals, economic and social well being of its people.
Theoretically, Kerala can use the doctrine to sustain the institution of suit under Article 131 of the Constitution. This would, however, be quite unprecedented and States have never invoked the doctrine to knock the doors of the Supreme Court under Article 131.
The State of Kerala, in the suit, has contended that CAA and other allied laws violate the principle of secularism and Article 14, 21 and 25 of the Constitution. Conceivably, the interests characterized by the State have a sovereign flavor. Fundamental Rights and the concept of secularism is not the exclusive domain either of the Centre or the States under the Indian Constitution. They are rather restrictions operating against both and impose a duty upon them to respect and preserve these constitutional directives.
Therefore, the interest identified by Kerala might pass muster under the first prong of the twin test. The said statement, however, applies with the caveat that the constitutionality or otherwise of the legislation is not the same as identification of the interest.
Under the second prong i.e. the test of redressability, the suit fails for the simple reason that the State of Kerala does not have legislative competence to undo any action or legislation enacted by the Parliament concerning citizenship and admission into or expulsion from India. These are matters that fall exclusively within the competence of the Parliament under List I of Schedule VII to the Constitution. The CAA or the other legislations impugned in the suit have no implications on the legislative powers, responsibilities and local laws of the State.
With the concept of single citizenship contemplated under the Indian Constitution, where Parliament enjoys exclusive jurisdiction, States cannot sue in the capacity of a surrogate to challenge laws where it has no interest or role to perform. The powers of the Parliament in this area can be beautifully summed up in the words of Justice Holmes who said, “It has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air.”
As many as 60 petitions have already been filed before the Supreme Court under the more potent provisions of Article 32 of the Constitution to challenge the validity of CAA. This demonstrates that there are better-situated petitioners such as people claiming discriminatory treatment to agitate the constitutionality of the citizenship law in judicial forums. In such a scenario, it seems very difficult for the State to argue that it is acting as a guardian on behalf of those refugees who cannot defend their rights. The very application of parens patriae to maintain Kerala’s suit under Article 131, therefore, comes under a heavy cloud.
In adjudicating the suit, the Court should seriously consider the original intention of the framers behind Article 131 at the time of the founding of the Constitution. Even though fundamental rights and secularism are ostensibly involved, these considerations must not deter the Court in deciding the true purpose of Article 131.
Preservation of the federal structure is an equally important constitutional incident, the Court should keep in mind in a case of such great moment and importance, for the suit filed by Kerala, is an omen of the future dangers to federalism where political battles would be fought under the banner of original jurisdiction of the Supreme Court.
The author is an Advocate practising at the Supreme Court of India.
Disclaimer: The views and opinions expressed in this article are those of the author's and do not necessarily reflect the views of Bar & Bench.