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Last Updated : Jan 21, 2020 06:02 PM IST | Source: Moneycontrol.com

Explained | CAA protests: Can states actually challenge constitutional validity of central laws?

Kerala and Chhattisgarh have challenged constitutional validity of CAA and NIA Act in the Supreme Court, respectively. The two cases have been filed by invoking Article 131 of the Constitution


In the last few weeks, at least two states have moved the Supreme Court of India (SC) challenging central laws.

The Left Democratic Front (LDF) government in Kerala moved the apex court challenging the contentious Citizenship Amendment Act (CAA) and sought the amended citizenship law be declared unconstitutional and in violation of Article 14, 21 and 25 of the Indian Constitution.

According to the amended law, members of Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities who came from Pakistan, Bangladesh and Afghanistan till December 31, 2014 and facing religious persecution there will not be treated as illegal immigrants and will be eligible for Indian citizenship. The law excludes Muslims.

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Those opposing the amended law say it discriminates on the basis of religion and violates the Constitution. They also allege that the CAA, along with the proposed pan-India National Register of Citizens (NRC), is intended to target India’s Muslim community.

However, the Bharatiya Janata Party (BJP)-led central government has dismissed the allegations, maintaining that the law is intended to give citizenship to the persecuted people from the three neighbouring countries and not take away citizenship from anyone.

Former Mizoram Governor and BJP leader Kummanam Rajasekharan has also moved the top court seeking dismissal the suit filed by Kerala government against CAA.

His plea says the state government’s suit wrongly tries to convey that all people of Kerala are against CAA. "Here the situation is totally different. Majority of the people of the State are supporting the Act," Kummanam said.

In his application, Kummanam has claimed that there was no dispute regarding the law between Kerala and the Centre but that the “only dispute that exist is a political dispute”.

Congress leader and senior lawyer Kapil Sibal has said that states can pass resolutions against CAA and take the matter to court. However, he added that if the Supreme Court upholds the amended citizenship law, the states will have to implement it.

Reports suggest that the Punjab government will also be moving the Supreme Court against CAA.

The Congress government in Chhattisgarh also moved the Supreme Court seeking to declare the National Investigation Agency (NIA) Act, 2008 as unconstitutional. It is the first state government to challenge the Act. It is to be noted that the Act was passed under the previous Congress-led United Progressive Alliance (UPA) dispensation at the Centre.

The suit has sought declaration of the NIA Act as unconstitutional on the ground that it is “beyond the legislative competence of Parliament”.

It argues that ‘Police’ is a state subject, and a central agency overriding powers of state police with no provision for the state government’s consent for such operations, works against the division of powers between the states and the Centre.

The two above mentioned cases in the Supreme Court have been filed invoking Article 131 of the Constitution.

What is Article 131?

Article 131 gives the Supreme Court the “original” and exclusive jurisdiction to decide on matters between two or more states, or between the Centre and a state or states.

In addition to Article 131, 131A was also inserted through the Constitution (Forty- second Amendment) Act of 1976. This was regarding challenges to constitutional validity of central laws. However, 131A was repealed by the Constitution (Forty-third Amendment) Act, 1977.

As India follows a federals structure, Article 131 was envisaged to end disputes between states and the Centre.

Meaning, Article 131 can only be invoked if the matter is between the Government of India and a state/states, or between two or more states.

How does Article 131 come into play?

There have been many instances where states have filed cases under Article 131 against other states. These include those fought over river water sharing and inter-state boundary disputes.

There have been instances of such cases being filed against the Centre too.

In fact, Kerala challenging CAA is the fifth instance of a state invoking Article 131 to questioning a central law.

The Rajasthan Dissolution Case (State of Rajasthan versus the Union of India, 1977) is key in understanding Article 131.

In its decision in this case, the top court had clarified what Article 131A stood for. It said that the under Article 131, the “dispute” should not be about the difference of opinion between the state and the Centre, but the motive of the provision was to conclude disputes related to questions of law or facts on which the existence or extent of a legal right depends. It also said that the “dispute” matter must not be political in nature.

There have been other instance were such challenges have not been accepted by the top court. In 2017, the Trinamool Congress government in West Bengal had filed a writ petition under Article 32 against the Aadhaar Act. However, the petition was withdrawn after a bench of Justices AK Sikri and Ashok Bhushan orally asked "How can a state challenge a law passed by the parliament?"

The bench said that Chief Minister Mamata Banerjee could approach the court as an individual and challenge the law.

Therefore, for maintainability of a challenge invoking Article 131, the nature of relation between the involved parties (in this case the states and the Centre) and the nature of the dispute (if it is solely political or not) is key.

What happens next?

In the State of Jharkhand versus State of Bihar (2014) case, a two-judge Supreme Court bench comprising Justice Jasti Chelameswar and then Justice SA Bobde had said it saw Article 131 as an appropriate tool to test the constitutionality of a central law.

The matter was later referred to a larger bench headed by Justice NV Ramana. The petition is challenging powers of the Bihar Reorganisation Act, 2000, and is still pending.

In doing so, the court had disagreed with its earlier ruling in the State of Madhya Pradesh versus Union of India (2011) case, in which it had held that the constitutional validity of a central law should cannot be “normally” challenged under Article 131.

Based on this precedent, the apex court may have to constitute a larger bench to hear these petitions and decide if they are maintainable. If yes, the Supreme Court may then move to pass a judgement on the matter.

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First Published on Jan 21, 2020 06:02 pm
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