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(Shubham Jindal, a PCLS Member, is a first year student at Hidayatullah National Law University, Atal Nagar)
The Citizenship Amendment Act, 2019, (“CAA”) has created a stir in the entire country since its inception. The new Act has sparked a raging controversy across the country. People agreeing and disagreeing have, in most cases failed to harmonize their respective outlooks. Disagreements have taken all possible forms, including violent protests and clashes. Whether or not the new Act violates the basic principles of equality, is not the question this article aims to find an answer to. Instead, a legal provision, which still has clouds of ambiguity hovering over it, was recently invoked by the State of Kerala in a bid to get the CAA struck down by the Supreme Court of India[1]. Interestingly, the State of Chhattisgarh also invoked the same provision when it wanted to challenge the constitutional validity of the National Investigation Agency Act.[2] Both the states intend to put the constitutionality of the respective legislations to test by invoking original jurisdiction of the Hon’ble Supreme Court under Article 131 of the Constitution of India. Article 131 has been stated as under: 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 It is under this provision that both the central legislations have been challenged. The impugned legislations and the challenges thereto have been discussed in the following paragraphs. State of Kerala’s challenge to the Citizenship Amendment Act, 2019 Four days after it was notified, the CAA was challenged by the State of Kerala in the Supreme Court of India. In its suit filed in the apex court, the Kerala government had sought to declare the Citizenship (Amendment) Act, 2019 as violative of Articles 14, 21 and 25. It said the CAA was also violative of the basic principle of secularism enshrined in the Constitution. Following the State of Kerala, various other states such as Rajasthan and New Delhi have challenged the legislation. The CAA, which was notified on January 10, 2019 grants Indian citizenship to non-Muslim minorities who migrated to India from Afghanistan, Pakistan and Bangladesh till December 31, 2014, following persecution due to their faith. The State of Kerala said, “The CAA and the other rules being challenged are manifestly arbitrary, unreasonable, irrational and violative of fundamental rights under Articles 14, 21 and 25.”[3] This, according to the State of Kerala, qualifies as affecting the legal rights which is sine qua non for invoking the jurisdiction under Article 131. State of Chhattisgarh’s challenge to the National Investigation Agency Act, 2008 After the State of Kerala challenged the Citizenship Amendment Act, the State of Chhattisgarh also filed a suit in the Supreme Court under Article 131 challenging the National Investigation Agency Act 2008 stating that it is ultra vires the Constitution. The plaint stated that the Act is beyond the "legislative competence of the Parliament" and is against the "federal spirit" of the Constitution. The Act makes the National Investigation Agency the only truly federal agency in the country. It gives the NIA powers to take suo motu cognisance of terror activities in any part of India, register a case, enter any state without permission from the state government, and to investigate/ arrest people. According to the state, the 2008 Act allows the Centre to create an agency for investigation, which is a function of the state police. "Police" is a State subject as per Entry 2 of List II of the Seventh Schedule of the Constitution. Hence, giving police powers to the Centre is against the Constitution, argues the State of Chhattisgarh. Historical Background of Article 131 The Article finds its origin in Section 204 of the Government of India Act, 1935. The said section provided that the Federal Court should have exclusive original jurisdiction to decide disputes between the federation; any of the Provinces; and any of the ‘Federated states.’ The federal scheme under the 1935 Act never came into existence. Therefore, there was no scope for a ‘Federated state’ being a party before the original jurisdiction of the Federal Court. But, after the passing of the Indian Independence Act, 1947, amendments were made in Section 204 by the India (Provisional Constitution) Order, 1947. It substituted the word ‘Federated states’ with ‘Acceding states’ with certain consequential provisions. After the above amendment, a dispute to which an Acceding state was a party would come within the original jurisdiction of the Federal Court, but only if the dispute related to:
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 that said jurisdiction shall not extend to such a dispute. Can a state challenge the constitutional validity of a central legislation under Article 131? Article 131 states that the dispute, involving the question of law or of fact should be one affecting the existence or extent of a legal right. The Supreme Court, in State of Madhya Pradesh vs Union of India and Another [4] held that the validity of a Central Law should “normally” not be challenged under Article 131. Thereafter, in 2014, a two-judge Bench of the Supreme Court, in State of Jharkhand v. State of Bihar[5], came across a question about the maintainability of a petition challenging the vires of the Bihar Reorganisation Act, 2000 under Article 131 of the Constitution. The State of Bihar contended that a suit challenging the constitutional validity of a legislation is not maintainable under Article 131. Dealing with the contention raised by State of Bihar, the Supreme Court disagreed with the earlier ruling in State of Madhya Pradesh vs Union of India[6] and referred the question of ‘whether or not can a legislation be challenged under Article 131?’ to a larger bench, A decision regarding the question is, at present pending. “Legal Right” Existence or extent of a legal right of the affected party is sine qua non for original jurisdiction of the Supreme Court to be invoked under Article 131. The expression “legal right” under Article 131 can be regarding 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 which would result in “the inevitable effect of defining the governmental powers or legal competence of the State.” In case of the state of Chhattisgarh challenging the constitutional validity of the NIA Act, 2008, the criteria for a legal right being violated is clearly met as the constitutional validity of the NIA act will determine “whether Chhattisgarh has a legal right to conduct its own investigations through its police, against the power of the Centre to conduct investigations in the State through the NIA. The State is directly affected by this matter, and whether or not it has the aforesaid right against the Centre’s power in this case depends upon the constitutional validity of the NIA Act. The same, however, cannot be said with equal certainty regarding the State of Kerala’s challenge to the Citizenship Amendment Act as unlike the USA, all Indians have a single Indian citizenship and the Centre has exclusive legislative and executive power over it (List I, Entry 17). Thus, a citizenship law, even if unconstitutional and violative of fundamental rights, does not directly affect any legal right of a State. In other words, no State has a legal right against the power of the Centre over citizenship. The question of law, ‘does the CAA violate fundamental rights?’, does not meet the subject-matter requirement of Article 131 as the existence of a legal right of any State does not depend on it.”[7] Conclusion Article 131 prima facie does not state that a central legislation cannot be challenged and as stated earlier, the apex court has not arrived at an undisputed interpretation either. The author believes that the challenge by the State of Chhattisgarh may qualify for Supreme Court’s original jurisdiction under Article 131 while the suit instituted by the State of Kerala may not. Now when Article 131 has been invoked to decide upon a monumental question, there are high chances of this shadow of doubt being eliminated and the law regarding challenge to constitutional validity of central legislations under Article 131 being settled. [1]Meera Emmanuel, ‘State of Kerala Moves original suit challenging Citizenship Amendment Act, 2019 in Supreme Court’ (Bar and Bench, 14 January 2020) <https://www.barandbench.com/news/litigation/breaking-state-of-kerala-moves-original-suit-challenging-citizenship-amendment-act-2019-in-supreme-court> accessed 30 March 2020. [2] Meera Emmanuel, ‘State of Chhattisgarh files plaint challenging constitutionality of NIA’ (Bar and Bench, 15 January 2020) <https://www.barandbench.com/news/litigation/breaking-state-of-chhattisgarh-files-plaint-challenging-constitutionality-of-nia-read-plaint> accessed 30 March 2020 [3] Meera Emmanuel, ‘State of Kerala Moves original suit challenging Citizenship Amendment Act, 2019 in Supreme Court’ (Bar and Bench, 14 January 2020) <https://www.barandbench.com/news/litigation/breaking-state-of-kerala-moves-original-suit-challenging-citizenship-amendment-act-2019-in-supreme-court> accessed 30 March 2020. [4] (2011) 12 SCC 268 [5] I .A. No. 5 of 2014 in Original Suit No. 1 of 2012 [6] (2011) 12 SCC 268 [7] Kevin James, ‘Article 131 and the Power of State Governments to Challenge Laws: A Response to Alman Mishra’ (Indian Constitutional Law and Philosophy, 27 February 2020) < https://indconlawphil.wordpress.com/2020/02/27/guest-post-article-131-and-the-power-of-state-governments-to-challenge-laws-a-response-to-amlan-mishra/> Accessed 30 March, 2020
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