Millennium Post

State v. Union

This week, not unexpectedly, the state of Kerala challenged the controversial Citizenship Amendment Act before the Supreme Court. While Kerala had been vociferously expressing its discontent with Parliament's enactment of the aforementioned legislation, the Centre had little to worry due to the latter's sweeping powers to ensure compliance. Protests apart, Kerala even saw its assembly pass a resolution demanding to scrap CAA ten days prior to government's official implementation of the law on January 10, 2020. But the step to challenge CAA in Supreme Court is where it has drawn first blood. The legal route that the southern state has traced to put its point forward and demand relief has garnered much attention. Kerala has filed a suit under Article 131 of the Constitution. Article 131 is perhaps Kerala's strongest chance to exact remedy to what it perceives Centre's arbitrariness in the form of CAA. Article 131 of Constitution holds the provision under which the Supreme Court can exercise 'original jurisdiction' to deal with any dispute between the Centre and a state, Centre, state(s) and state(s) or between two or more states. It is the original jurisdiction that needs to be understood here. The Supreme Court enjoys three kinds of jurisdictions — original, appellate and advisory. In the advisory jurisdiction, the President holds the power to seek an opinion from the Supreme Court under Article 143 while in the oft-used appellate jurisdiction, the apex court hears appeals from the lower court. The less-heard and even less utilised original jurisdiction is where the current matter has arrived. In its exceptional original jurisdiction, the top court has the power to adjudicate upon disputes involving fundamental rights or elections of President, Vice President and others in state and Centre. Necessarily, the requirement for a dispute to invoke Article 131 must have conflicting parties in Centre and state, and it must involve a question of legality on which a legal right of the Centre or state depends. In the 1978 judgment in the state of Karnataka v. Union of India, Justice PN Bhagwati had hailed that for the Supreme Court to accept a suit under Article 131, the state need not show that its legal right is violated but rather only that the dispute involves a legal question. Thus, Kerala's suit fits the narrative to invoke Article 131 in challenging the CAA. Arguments like Article 131 being used to settle political scores between state and Centre are baseless since the very acceptance of such a suit invoking Article 131 depends on a legal question in consideration. While the apex court already has 60 petitions challenging CAA pending before it, those invoke Article 32 of the Constitution that provides power to the Supreme Court to issue writs when fundamental rights have been violated. Since Article 32 can only be invoked by citizens who can claim fundamental rights, states cannot move the court under the same. But both petitioners of those 60 cases as well as the state of Kerala seek the exact same relief — abrogation of the CAA on being unconstitutional. While Kerala has filed suit, this is not the first time Article 131 has been invoked and so the previous cases serve as pointers for the apex court to consider when hearing Kerala's suit. A 2012 dispute between Bihar and Jharkhand — currently pending for consideration by a larger bench in 2 weeks — can be instrumental. While prior judgments have been of the opinion that the constitutionality of a law can be examined under Article 131, one judgment stands out for stating otherwise. In the state of Madhya Pradesh v. Union of India (2011), a two-judge bench asserted that the constitutionality of an enactment cannot be examined under Article 131. Naturally, the Bihar and Jharkhand dispute was referred to a larger bench owing to judges' inability to agree with the conclusion of the Madhya Pradesh case, however, it very much holds the key to Kerala's case.

While Parliament enactments are presumingly constitutional, the Court can hold otherwise. That was the very purpose of inserting the original jurisdiction of the Supreme Court in the Constitution. The Constituent Assembly was conscious of the fact that inter-governmental disputes in India's quasi-federal structure would be a likely affair and hence provided the provision under Article 131 for a path to resolution. That is the path that Kerala has chosen for its suit. Interestingly, Chhattisgarh also invoked Article 131 in its suit filed on Wednesday, challenging the NIA Act. Chhattisgarh argues that the NIA Act encroaches upon the state's powers to maintain law and order. The state asserts that the said act goes against the state's sovereignty in granting the Centre police powers when the police is a state subject mentioned under Entry II, List II of Schedule 7. Congress-led Chhattisgarh has challenged an act that was ushered by Congress-led UPA II back in 2008. Even here, the Supreme Court has to first answer the question of whether it can examine the constitutionality of legislation or not. Should it arrive at a comprehensive 'aye' based on the vision of Constitution framers who inserted Article 131 in the first place, both Kerala and Chhattisgarh will seek relief under their pleas to declare CAA and NIA unconstitutional respectively. While the Supreme Court cannot club Kerala's suit with other pending petitions against CAA, it also has to take cognisance of the fact that both cases seek the same relief. Everything, therefore, rests on the apex court's shoulders whether it finds the law(s) unconstitutional or not and whatever the court opines, the case will serve as a precedent for future disputes between states and the Centre.

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