Is invoking Article 131 justified? Can protests against parliamentary enactments be labelled ‘disputes’ with the Centre?

The story so far: Amid nationwide protests against the Citizenship (Amendment) Act, 2019, or CAA, 2019, and the threat of non-cooperation by some States with the Central government’s plan to update the National Population Register (NPR) and possibly establish a National Register of Indian Citizens, Kerala has filed a suit in the Supreme Court of India seeking to declare the CAA as unconstitutional. Meanwhile, Chhattisgarh has also filed a similar suit, challenging the constitutional validity of the National Investigation Agency Act. Both have invoked Article 131, which confers exclusive jurisdiction on the top court to adjudicate disputes between two or more States, or between States and the Centre. Punjab has also decided to challenge the CAA in the Supreme Court.

What does Article 131 say? Why is it necessary?

Article 131 confers exclusive jurisdiction on the Supreme Court in disputes involving States, or the Centre on the one hand and one or more States on the other. This means no other court can entertain such a dispute. It is well-known that both High Courts and the Supreme Court have the power to adjudicate cases against the State and Central governments. In particular, the validity of any executive or legislative action is normally challenged by way of writ petitions — under Article 226 of the Constitution in respect of High Courts, and, in respect to fundamental rights violations, under Article 32 in the Supreme Court.

What happens when a State feels its legal rights have been violated by another State or by the Centre?

Unlike individuals, State governments cannot complain of fundamental rights being violated. Therefore, the Constitution provides that whenever a State feels that its legal rights are under threat or have been violated, it can take the “dispute” to the Supreme Court. States have filed such cases under Article 131 against neighbouring States in respect of river water sharing and boundary disputes. There have been instances of such cases being filed against the Centre too.

What does Kerala’s suit ask for?

Kerala’s suit asks for a declaration that the CAA, 2019, is violative of the Constitution, and against the principle of secularism that is a basic feature of the Constitution. Simultaneously, it challenges the validity of notifications issued under the Passport (Entry into India) Amendment Rules and the Foreigners (Amendment) Order, in 2015-16, as being contrary to the Constitution.

The notifications of 2015 had given exemption to persons belonging to minority communities in Bangladesh and Pakistan — namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who were compelled to seek shelter in India due to religious persecution or the fear of religious persecution and entered India on or before December 31, 2014, without valid documents — from the purview of the laws against illegal entry of foreigners into India. In 2016, further notifications were issued to add those who arrived from Afghanistan too. As these notifications formed the basis for creating the categories of people who were not to be treated as illegal migrants, and as the CAA chooses the same groups for conferment of citizenship on a fast-track mode, the Kerala government has challenged the validity of these notifications too. Another reason is that the term “religious persecution” is not found in the CAA, but it mentions that those exempted from the Foreigners’ Act under the 2015 and 2016 notifications will not be treated as “illegal migrants”.

What is the prayer in Chhattisgarh’s suit?

Chhattisgarh has sought a declaration that the NIA Act, 2008, is unconstitutional on the ground that it is “beyond the legislative competence of Parliament”. It argues that ‘Police’ is a subject reserved for the States, and having a central police agency, which has overriding powers over the State police, with no provision for consent from the State government for its operations, is against the division of legislative powers between the Centre and the States. And that it is against the federal spirit of the Constitution.

Is such a suit maintainable?

There are two conflicting opinions of the Supreme Court on this point. In 2011, in State of Madhya Pradesh v. Union of India and Another, the court said: “...when the Central laws can be challenged in the State High Courts as well and also before this Court under Article 32, 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.”

However, in State of Jharkhand vs. State of Bihar and Another (2014), another Bench said it was unable to accept the view that the constitutionality of a law cannot be raised in a suit under Article 131. Therefore, the matter was referred to a larger Bench for an authoritative pronouncement.

One of the issues to be decided is whether such a suit involves a question “on which the existence or extent of a legal right depends”. Does Kerala’s objection to the CAA involve one of its “legal rights”? Bharatiya Janata Party leader Kummanam Rajasekharan has sought to intervene in the matter against the Kerala government’s plea, contending that Kerala has raised a dispute that does not involve any legal right, but is only a political question. And that, therefore, it cannot file a suit under Article 131 based on political questions. However, possibly in anticipation of such an objection, Kerala’s suit points out that under Article 256 of the Constitution, the State would be compelled to comply with the CAA and rules and orders passed by the Centre. As it believes that these laws and rules are arbitrary, unreasonable, and violative of fundamental rights, a dispute involving law and fact has indeed arisen between Kerala and the Centre. This dispute involves both the legal rights of the State and the fundamental rights and other legal rights of its inhabitants.

What is likely to happen?

Given the reference by a two-judge Bench, the Supreme Court may have to constitute a larger Bench to decide the question whether the suits challenging central laws are maintainable.

If the suits are declared maintainable, the same Bench may also adjudicate the disputes.