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The Legislature of State of Kerala passed a resolution at the State Assembly against the Citizenship (Amendment) Act, 2019 (“CAA”) on December 31, 2019. The official stance of the State was never unclear. They have since the beginning opposed the CAA.
However, their stance on the Central Act was further made crystal clear when on January 14, 2020, the State through Adv. G. Prakash invoked the original jurisdiction of the Supreme Court under Article 131 of the Indian Constitution, to file a suit challenging the constitutional validity of the CAA.
The State of Kerala prayed not only for the CAA to be scrapped, but also that the amendments brought to the Passport (Entry to India) Rules and Foreigner’s Order, 2015, be held invalid on the grounds of being ultra vires the Indian Constitution.
The state also expressed its amazement at the way in which the word “persecution”, which appears in the text of the CAA’s “statement of objects and reasons”, does not reach the main body of the law.
Now, the SC stands head-on with not only multiple private suits filed against CAA, but also the suits so initiated against the Act by various states of the country.
On 22nd January, 2020, the Supreme Court said that the petitions challenging the constitutional validity of the CAA will be heard by a five-judge constitutional bench. The court also gave the Centre 4 weeks to respond to the petitions and further stated that it will not grant any stay on the CAA and the exercise of the National Population Register (NPR), till the Centre replies.
This article analyses precedents and the current scenario to deliberate upon the situation wherein states challenge central acts, which according to the Constitution, they mandatorily have to abide by.
Article 131 – Original jurisdiction of the Supreme Court of India
Article 131 of the Indian Constitution enshrines the original jurisdiction of the SC. It lays down that in case of any ‘dispute’ between the Government of India, and State(s) or between two or more States, wherein, no other court has jurisdiction, the SC shall hear and decide upon the said matter. Therefore, in cases of any dispute between the above parties, the SC has the authority by law to adjudicate upon the matter first-hand.
It is necessary to understand the difference between the authority of the SC to adjudicate under Article 32 and 131. Article 32 is the ‘writ jurisdiction’ of the SC, by which it has the authority to pass orders of the five writs. However, under Article 131, the SC follows a civil suit procedure and has the authority to pass a decree and not a writ.
Where, Article 32 is a fundamental right and no maintainability of a suit is required to be argued upon, Article 131 is not a fundamental right and the parties in dispute must plead maintainability before the Court for the suit to be admitted/disposed.
Therefore, Article 131 is a remedy available for any ‘dispute’ to be decided upon, between the Government of India and the State(s). However, the point of interpretation is the scope of the term ‘dispute’. Since the Indian Constitution does not explain the same, it is left for evolution and interpretation at the hands of the SC.
State of Madhya Pradesh v. Union of India (2012)
Usually, the State Legislatures do not differ in opinion w.r.t. need of laws, from the Parliament. This is because ultimately the objective of both the institutions is welfare of the people. Therefore, in the case of State of Karnataka v. Union of India (1977), the SC opined that whenever the state(s) or the Union differ on a question of interpretation of the constitutionality of a law, the said dispute can be brought forth to the SC under Article 131.
However, in the case of State of Madhya Pradesh v. Union of India (2012), the term ‘dispute’ was brought to extensive discussion to understand whether the states had the authority by law to challenge a central act, if in its own opinion, the said act violated the Constitution.
The SC in the 2012 case held that since, constitutionality of a law can be challenged by the state under Article 32 and 226 of the Constitution, there was no requirement to interpret the same within the scope of ‘dispute’ under exclusive original jurisdiction of the SC within Article 131. Hence, the SC overruled the 1977 precedent to establish the new position of law.
However, in the case of State of Jharkhand v. State of Bihar (2015), a two-judges bench of the SC opined in their order that it was unable to accept the view wherein a dispute upon constitutional validity of a law between the Centre and the State could not be raised in a suit under Article 131. Thus, the bench referred the said issue to a five-judges constitutional bench of the SC.
Therefore, as of now, the issue of whether challenge to constitutional validity of a law comes within the scope of Article 131 or not, is unclear and yet to be decided by the SC of India.
Significance of the current petition
The significance of the current petition lies w.r.t. the urgency of the restoration of the basic tenets of our Constitution: secularism and democracy.
Several states, politicians, NGOs, advocates and law students have filed petitions challenging the constitutional validity of the CAA. The petitioners argue that the law selectively welcomes “illegal immigrants” to India based on their religion and expressly excludes Muslims.
The CAA shares an “impure link” with the National Citizens Register (NRC) and is contrary to the principles of secularism, the right to equality and dignity of life enshrined in the basic structure of the Constitution.
Arguments presented by Kerala
The State of Kerala has submitted in their plaint that the CAA and the amendments so brought to the Passport (Entry to India) Rules, 2015 and the Foreigner’s Order, 2015 are violative of Article 14 (Right to Equality), 21 (Right to Life) and 25 (Freedom of conscience and free profession, practice and propagation of religion) of the Indian Constitution.
According to the petition, the amendment also violates India’s international obligations based on:
Article 14 of the Universal Declaration of Human Rights (which states that everyone has the right to seek and enjoy asylum of persecution in other countries).
Article 15 of the Universal Declaration of Human Rights (which states that everyone has the right to a nationality and that nobody will be arbitrarily deprived of their nationality or denied the right to change their nationality) and
Article 26 of the International Covenant on Civil and Political Rights (which establishes that all people are equal before the law, that all people have the right without discrimination to equal protection of the law and that the law prohibits any discrimination and guarantees all protection equal and effective of people against discrimination for any reason, such as race, color, sex, language, religion, political or other opinions, national or social origin, property, birth or other state).
They state that the said amendments are ‘unreasonable, having no rational nexus with the object sought, apparently and manifestly discriminatory’ to a minority class of individuals which follow Muslim religion. Such a discriminatory law is against the very basic structure of the Indian Constitution as well as the International law.
The Central Government in no time submitted that there has been no ‘legal right’ violation of the State of Kerala and therefore the suit does not stand on merits. However, Kerala stands firm on their argument that since it shall be compelled by the Central Government under Article 256 of the Indian Constitution to comply and implement the CAA, which is inherently an arbitrary and discriminatory law, the State does not support the same.
The State has argued that the dispute under Article 131 includes not only the legal rights of the states but also the fundamental rights of the individuals to be protected by the state and thus, consequently it has filed the present suit.
Therefore, it is concluded that the constitutional validity of States challenging Central Acts under Article 131 is yet to be decided by the SC. However, this jurisdictional issue of the SC might become a major delay-causer in deciding the suit filed by the State of Kerala against the CAA and the other amendments made by the Parliament.
Authors: Harshita Kapoor from Symbiosis Law School, Pune and Aman Srivastava from ICFAI Law School, Hyderabad.
Editor: Farsana Sadiq from Faculty of Law, Jamia Millia Islamia.