Challenge to CAA: Why Kerala is wrong

In a surprising move, the Kerala government has moved the Supreme Court challenging the constitutional validity of the Citizenship Amendment Act (CAA), invoking Article 131 of the Constitution. Chhattisgarh, similarly, has challenged the National Investigation Agency Act (NIA Act). Meanwhile, Punjab has also decided to challenge the CAA. These moves have profound implications for the federal structure envisaged in the Constitution.

Article 131 of the Constitution confers original jurisdiction on the Supreme Court, to the exclusion of any other court, to try disputes between the Government of India and any one or more states and disputes between states. Before this exclusive jurisdiction under Article 131 could be invoked, the following conditions need to be satisfied:

a) With respect to parties: It is a dispute between the Government of India and one or more states or between two or more states.

b) With regards to subject-matter: It must be the act of the state and not any authority of the state. Further, it flows from the expression in Article 131, “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” that the dispute must be one affecting the existence or extent of a legal right and not a dispute on the political plane.

In State of Bihar vs Union of India, it was laid down that every dispute which may arise between a state, on the one hand, and the Union of India, on the other, in discharge of their respective executive powers, cannot be construed as a dispute arising between the state and the Union of India attracting Article 131 of the Constitution.

It is also clear that Article 131 of the Constitution is attracted only when a dispute arises between or amongst the states and the Union in the context of the constitutional relationship that exists between them and the legal rights flowing therefrom. This was clarified by the SC in State of Rajasthan vs Union of India, where it was held, “It can be invoked … whenever a state and other states or the Union differ on a question of interpretation of the Constitution so that a decision of it will affect the scope or exercise of governmental powers which are attributes of a state.”

Noteworthy is that infringement of legal right is in the nature of federalism set up by the Constitution. It is only when the Government of India infringes upon the powers of the state to either legislate or execute certain laws that Article 131 can be invoked.

In the present scenario, Kerala and Chhattisgarh have challenged the CAA and the NIA Act, respectively, on the grounds of violation of fundamental rights. It is asserted by the state of Kerala that CAA is manifestly arbitrary, unreasonable, irrational and violative of fundamental rights under Article 14, 21 and 25 of the Constitution.

Similar arguments have been advanced by Chhattisgarh as well. It is pertinent to note that a state government, being a juristic entity, does not have fundamental rights conferred on it. It has certain legal rights. Therefore, there can be no question of violation of fundamental rights when they have none.

The CAA is a central legislation, passed validly by Parliament and assented to by the President. There is no claim from the state of Kerala that Parliament lacked the competency to do so, which would have otherwise involved a federal dispute. Violation of fundamental rights does not involve a federal dispute, which is sine qua non for invocation of Article 131 of the Constitution.

In the State of Madhya Pradesh vs Union of India, Madhya Pradesh had challenged the constitutional validity of a central law. The Supreme Court had declined to entertain the petition on the ground that the same could be challenged before the High Court or the Supreme Court under Article 32. Notably, a dispute between the states of Bihar and Jharkhand is pending before the Supreme Court on the question whether the constitutionality of laws can be challenged by the states.

In 2017, the West Bengal government had filed a writ petition under Article 32 of the Constitution against the Aadhaar Act. But the challenge was withdrawn after a bench of Justices A K Sikri and Ashok Bhushan orally asked, “How can a state challenge a law passed by Parliament?”

These challenges by state governments have far reaching implications for federalism. Federalism is one of the basic features of the Constitution. Federalism signifies division of powers between states and Centre. Framed in the background of Partition and subsequent violence, the Constitution provides for distribution of powers to the states along with strong unifying powers to the Centre. Federalism also lays down that every legislative field is accorded to a certain entity, which must not be breached.

However, a state challenging the laws of the Centre amounts to infringing on the system of distribution of power in the federal set-up. Parliament was well within its competence to pass the law and the states cannot question it thereafter. Challenges against the validity of the law may nevertheless be brought by the citizens of India.

If the arguments of the state of Kerala were to be accepted, it would open a Pandora’s box and courtrooms would become battlefields for political rivalries. Potentially, a state could bring the working of the central government to a halt by challenging every legislation that it feels is inappropriate.

In this regard, the states must refrain from such moves which have potential to jeopardise the constitutional scheme of power division. Put very aptly by the late Justice YV Chandrachud in State of Rajasthan vs Union of India, “Mere wrangles between governments have no place under the scheme of …Article [131].” They should be resolved in a place less sacrosanct than the courts.

(The writer is a student at Keshav Mahavidyalaya, Delhi University)