ISSUE 1

WHETHER THIS PETITION IS MAINTAIBABLE OR NOT?

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.

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.

In a significant development, the United Nations Human Rights Commissioner (OHCHR) is

set to intervene in the Supreme Court in one of the petitions challenging the constitutional

validity of the Citizenship Amendment Act 2019.

The Ministry of External Affairs on Tuesday criticized this move by the UN body.

In a press release, the MEA spokesperson said that India's Permanent Mission in Geneva

was informed on Monday evening by the UN High Commissioner for Human Rights that her

Office had filed an Intervention Application in the Supreme Court of India.

The MEA said that the Citizenship Amendment Act is an "internal matter" of India and

concerns the "sovereign right of the Indian Parliament to make laws".

"We strongly believe that no foreign party has any locus standi on issues pertaining to

India's sovereignty", MEA spokesperson Raveesh Kumar said.

Ground of application

The intervention application is filed in the writ petition filed by retired IFS officer Deb

Mukharji challenging the CAA.

The intervention application filed by Ms Michelle Bacehelet Jeria, states that the UN body

wished to intervene as "amicus curaie" in the matter by virtue of its mandate to "protect and

promote all human right and to conduct necessary advocacy in that regard... pursuant to UN

General Assembly resolution 48/141".

The OHCHR acknowledged that the CAA can potentially benefit thousands of migrants and

that it had a "commendable purpose". The applicant also clarified that its intervention

should not be seen as an endorsement of the allegations raised by the petitioners in the

proceedings before the SC.

At the same time, it said that the CAA raised certain important questions on international

human rights law and its application to migrants, especially refugees.

Referring to the International Covenant on Civil and Political Rights (ICCPR), International

Covenant on Economic and Social Rights (ICESR), the applicant said:

"Under international human rights law,States must respect and ensure that migrants in their

territory or under their jurisdiction or effective control receive equal and non- discriminatory

treatment, regardless of their legal status and the documentation they possess".

The enjoyment of Covenant rights is not limited to citizens of States Parties but must also

be available to all individuals, regardless of nationality or statelessness, such as asylum

seekers, refugees, migrant workers and other persons.

Further,

"States must ensure that their legislation, policies, and practice regulating access to

citizenship and its application comply with the obligations enshrined in article 26 of the

ICCPR, by providing migrants in the same situation equal protection as well as protection

from discrimination, including on the basis of religion".

The OCHR stated that question also arises as to "whether the differentiation made with

regard to persecution on religious grounds, as opposed to other grounds, is  sufficiently

objective and reasonable, in particular taking into account the prohibition of refoulement and

India's obligations under international human rights law".

In this regard, it observed that while reducing the risk of refoulement for certain

communities, the CAA unequally places other communities at such risk.

"the narrow scope of the CAA, which extends protection from return only on religious grounds

and limited to the specific ethno-religious groups, may not be sufficiently objective and
reasonable in light of the broad prohibition of refoulement under international human rights

law",  the OCHR stated.

"Without prejudice to the power of States to establish migration policies as a manifestation

of their sovereignty, including.measures in favour of migrants that may be subject to

persecution and other serious human rights violations/irreparable harm in their countries of

origin or previous residence, States must ensure migration governance measures are in

accordance with international human rights law, including the right to equality before the law,

equal protection of the law and the right to nondiscrimination and the absolute and non-

derogable principle of non-refoulement. Measures adopted that constitute a difference in

treatment ought to be in conformity with the law, pursue a legitimate objective, and be

proportional to the objective pursued".

The differences in treatment based on religion or immigration status would constitute

discrimination if the criteria for establishing that difference, judged in the light of the

objectives and purposes of the rights enshrined inhuman rights treaties, do not apply to

achieve a legitimate objective and are not proportionate to the achievement of that

objective., stated the application.

Citing several UN reports, it was stated that the categories of persons excluded from the

CAA, such as Ahmadi, Hazara and Shia Muslims, would warrant protection on the same

basis as that provided in the preferential treatment proposed by the CAA.

In this backdrop, the UN body said that it seeks to assist the Court in examining the

compatibility of the CAA with India's Constitution, in light of India's obligations under

international human rights law. It said that it was inviting the Court to take due account of

the of the "collective experience of the United Nations and its human rights mechanism

UN body's immediate response to CAA

Immediately after the Act was passed by the Parliament in December last year, the

UNHRC had issued a statement against it saying that it was "fundamentally discriminatory

in nature".

"We are concerned that India's new Citizenship (Amendment) Act 2019 is fundamentally

discriminatory in nature", said the statement issued by Jeremy Laurence the Spokesperson

of UN High Commissioner for Human Rights.

"The amended law would appear to undermine the commitment to equality before the law

enshrined in India's constitution and India's obligations under the International Covenant on

Civil and Political Rights and the Convention for the Elimination of Racial Discrimination, to

which Indian is a State party, which prohibit discrimination based on racial, ethnic or religious

grounds. Although India's broader naturalization laws remain in place, these amendments will

have a discriminatory effect on people's access to nationality".

It called for providing protection to all persecuted groups without discrimination based on

identity:
"While the goal of protecting persecuted groups is welcome, this should be done through a

robust national asylum system that is premised on the principle of equality and non-

discrimination, and which applies to all people in need of protection from persecution and

other human rights violations, with no distinction as to race, religion, national origin or other

prohibited grounds".

#India: We are concerned that the new #CitizenshipAmendmentAct is fundamentally

discriminatory in nature. Goal of protecting persecuted groups is welcomed, but new law

does not extend protection to Muslims, incl. minority

sects: https://t.co/ziCNTWvxc2#FightRacism #CABProtests pic.twitter.com/apWbEqpDOZ

— UN Human Rights (@UNHumanRights) December 13, 2019

The law cleared by the Parliament this week liberalizes the grant of citizenship to non-

Muslim migrants from Pakistan, Afghanistan and Bangladesh who had entered India before

December 31, 2014.

The Act is under severe criticism for excluding Muslims from its purview and for linking

religion with citizenship. The passage of the Act has triggered mass protests across the

country.
As many as 140 petitions have been filed in the Supreme Court challenging the

constitutional validity of the Act. On January 22, the SC had asked the Central Government

to reply to the petitions within four weeks.

The State of Kerala has filed an original suit against the Act.