RSTV: THE BIG PICTURE- ARTICLE 13- SPECIAL POWERS OF

SUPREME COURT
insightsonindia.com/2020/02/02/rstv-the-big-picture-article-13-special-powers-of-supreme-court

February 2,
2020

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https://youtu.be/BdLb_HMiEGU

Introduction:

The Pinarayi Vijayan-led LDF government in Kerala, on Tuesday, moved the Supreme
Court against the Citizenship Amendment Act (CAA), a first by any state
government. They sought that the act be declared as violative of the basic
structure—principle of equality, freedom and secularism. The Kerala Assembly was
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also the first in the country to pass a resolution against the Act. The CAA grants Indian
citizenship to non-Muslim minorities who migrated to India from Afghanistan, Pakistan
and Bangladesh, following persecution over their faith. The Kerala government has said
in its suit that there is no rationale in grouping together the three countries for the
purpose of the CAA. In its suit, the state referred to Article 131 of the Constitution .

Article 131:

Under Article 131 of the Constitution, the Supreme Court has original jurisdiction to
deal with any dispute between the Centre and a state; the Centre and a state on the one
side and another state on the other side; and two or more states.

Criteria:

For a dispute to qualify as a dispute under Article 131, it has to necessarily be

between states and the Centre, and must involve a question of law or fact on
which the existence of a legal right of the state or the Centre depends.
In a 1978 judgment, State of Karnataka v Union of India, Justice P N Bhagwati
had said that for the Supreme Court to accept a suit under Article 131, the state
need not show that its legal right is violated, but only that the dispute
involves a legal question.
Article 131 cannot be used to settle political differences between state and
central governments headed by different parties.

Supreme court’s stance on article 131:

There have been two conflicting judgments from the Supreme Court on whether a
State can file an original suit under Article 131 to challenge the constitutionality of a
central law.
The first judgment reported in 2012 – State of Madhya Pradesh vs Union of India
– held that States cannot challenge a central law under Article 131.
The second judgment – State of Jharkhand Vs State of Bihar – took the opposite
view in 2015 and referred the question of law to a larger Bench of the Supreme
Court for final determination. Kerala’s plaint relies on the 2015 verdict.
However, in the West Bengal government’s case in 2017, the SC proclaimed that
the State government cannot ask for any remedy related to Fundamental rights.
The case was filed under Article 32 of the Constitution challenging the validity of
the ‘Aadhaar Act’. The Court also held that, “Fundamental rights are available to
individuals: citizens or non-citizens against the State (under Article 32 or Article
226) and not to the State entities.”

How is Kerala Government’s petition different from other petitions?

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 Kerala Government’s writ petition is not the same as the other challenges that are
scheduled to be heard before the apex court on January 22. Kerala has filed its
petition challenging the constitutional validity of the CAA act by invoking article 131
of the Indian constitution hence it is an original suit. The petition invokes the
mechanism for the states to challenge the centre.
Several petitions have been filed against the CAA act in the Supreme Court. The
apex court may hear the petitions separately or club them together but Kerala
Government’s petition cannot be clubbed with those petitions.

Can SC declare the act unconstitutional?

A 2012 dispute between Bihar and Jharkhand that is currently pending for
consideration by a larger Bench of the court will answer this question. The case
deals with the issue of liability of Bihar to pay pension to employees of Jharkhand
for the period of their employment in the former, undivided Bihar state.
Although earlier judgments had held that the constitutionality of a law can be
examined under Article 131, a 2011 judgment in the case of State of Madhya
Pradesh v. Union of India ruled otherwise.
Since the 2011 case was also by a two-judge Bench and was later in time, the court
could not overrule the case. However, the judges did not agree with the ruling.
“We regret our inability to agree with the conclusion recorded in the case of State
of Madhya Pradesh v. Union of India and Anr. (supra), that in an original suit under
Article 131, the constitutionality of an enactment cannot be examined. Since the
above decision is rendered by a coordinate Bench of two judges, judicial discipline
demands that we should not only refer the matter for examination of the said
question by a larger Bench of this Court, but are also obliged to record broadly the
reasons which compel us to disagree with the above-mentioned decision,” the
court ruled in 2015, referring the case to a larger Bench.

Analysis:

The real question is whether the state can challenge a law enacted bu the
parliament under article 131.
Article 13 of the Constitution of India contains an inclusive definition of “law”. One
of the major legal sources is ‘enacted law’.
Article 246 confers exclusive power to make laws with respect to any of the
matters enumerated in list One in the seventh schedule. Entry seventeen (17) of list
I pertains to citizenship, naturalisation and aliens.
Article 246 (2) confers power upon Parliament and also State legislatures to make
laws with respect to any of the matters enumerated in list III.
Article 246(3) confers power on the legislature of the States to make laws in respect
of any matters enumerated in list II of the seventh schedule only.
And, therefore, a State cannot make any legislation in respect of the matters
enumerated in list I of the seventh schedule.

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The Citizenship Amendment Act, 2019, is a legislation made by the Parliament and
therefore a “law in force”.
The CAA has been already challenged before the Supreme Court under Article 32
of the Constitution. Now, the Government of Kerala has filed a suit invoking Article
131 of the Constitution.
In this context now, it is necessary to examine the scope and ambit of Article 131 of
the Constitution.
A reading of Article 131 shows that the apex court has got original jurisdiction in
any dispute between the Government of India and one 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 legal right depends.
A plain reading of the Article shows that the dispute should involve an infringement
of legal right of the State government.
Legal right means a right derived from a statute or the Constitution. Therefore,
primarily, the State government has to establish its legal right, which is likely to be
infringed upon by the Citizenship Amendment Act, so as to invoke Article 131 of
Constitution.
The Citizenship Amendment Act, 2019, was duly enacted by Parliament by virtue of
its power under Article 246(1) of the Constitution.
The State legislatures do not have any power to make any legislation in respect of
“citizenship” and, therefore, the cannot claim infringement of such non-existent
rights. In short, the States cannot refuse to implement the said Act.
Article 256 of the Constitution mandates that the executive power of every State
shall be exercised so as to ensure compliance with the laws made by Parliament
and any existing laws which apply in that State and the executive power of the
Union shall extend to the giving of such directions to a State as may appear to the
Government of India to be necessary for that purpose.
The State government does not have any power to make any legislation relating to
Citizenship, and the same is within the exclusive domain of the Centre. Any law
that is made by the Centre has to be implemented, since it is a constitutional
mandate.
In order to invoke Article 131 of the Constitution, the State has to invariably
establish either a legal right or a Constitutional right.
Article 256 mandates compliance of the Central legislation and, therefore, there is
no constitutional right available to the State to invoke Article 131 of the constitution
and filing of a suit under Article 131 may also amount to violation of Article 256 of
the Constitution.
The Citizen Amendment Act does not violate any legal right vis-a-vis the State so as
to enable the State to approach the Supreme Court under Article 131 of the
Constitution.
It is only the individuals who may be affected by the legislation, and the recourse
would be to challenge the same under Article 32 of the Constitution, which, in fact,
has been done.

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There was a nexus between the Act of the Central government and the grievance of
the State. The apex court also held that the words contained in the said Article
clearly indicate that the dispute must be one affecting the existence or the extent
of legal right and not a dispute on the political plane.
In this case also, there was a nexus between the grievance of the State and the
notification/orders.
However, in all these cases, the respective States which had invoked Article 131 of
the Constitution had certain grievances vis-a-vis the legislation/orders and their
legal rights under a statute were alleged to have been infringed.
But presently, the States do not have any legal right derived from any statue or the
Constitution of India so as to challenge the constitutional validity of the Citizenship
Amendment Act, 2019 under Article 131 of the Constitution.
A State’s legal right is not infringed in any manner by implementation of the
Citizenship Amendment Act, 2019. The above referred cases stand on a different
footing than the present case.

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