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Last Updated : Jan 16, 2020 03:57 PM IST | Source: Moneycontrol.com

Legal Matters | Why anti-Centre petitions in SC won’t hold water

The petitions by the governments of Chhattisgarh and Kerala in the Supreme Court against the central government may serve the purpose as a means of political posturing, but the challenge to the competence of Parliament to frame laws does not seem to be destined to achieve any success.

Moneycontrol Contributor @moneycontrolcom

K Raveendran

There have been instances in the past of petitions being filed in the Supreme Court under Article 131 in matters relating to dispute between the Centre and state governments. However, the suits questioning the legislative competence of Parliament in increasing frequency mark a new phase.

On January 15, the Chhattisgarh government has filed an original suit in the apex court challenging the National Investigating Agency Act of 2008, asserting that it violates the Constitution. A day earlier, the Kerala government approached the Supreme Court against the controversial Citizenship Amendment Act (CAA), maintaining that the new law hurts the fundamental rights of the citizens granted by the Constitution.

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There may not be any issue with the maintainability of both suits because similar pleas challenging the action of the central government have been filed in the past as well.

The suits may serve the purpose as a means of political posturing, but the challenge to the competence of Parliament to frame laws does not seem to be destined to achieve any success. For, unlike the past such instances, which mostly involved subjects where the state government concerned had a reason to get agitated about their impact on the state per se and therefore had locus standi, the prayers in both suites exceed their domain as the issues raised are more national in nature rather than provincial.

In simple terms, the crux of the Chhattisgarh argument is that the NIA Act creates a ‘national’ police, which under the division of powers between the Centre and the states is a state subject. However, post-Independence experience with issues such as terrorism has shown that there may be situations where solutions lie beyond the responsibility of any state or group of states, warranting effective central intervention. In such cases, the role of the Centre becomes unquestionable.

There is no immediate provocation for the Congress government is Chhattisgarh to move the court other than to build up pressure on the Modi government in the wake of the widespread agitation against the new citizenship law. Fighting terror is as much a concern for the state as it is for the Centre, and a conflict of interests in this respect can only be seen as political.

The Kerala petition is even more curious, although it can be seen as part of grandstanding by the Pinarayi Vijayan-led Left Democratic Front (LDF) government against the CAA. In fact, Kerala has been in the forefront of the anti-CAA campaign, with the state assembly passing a resolution calling upon the Modi government to scrap the law. This even inspired some other Opposition-ruled states, including Punjab, to contemplate similar moves.

The Supreme Court move by the state government is indicative of Chief Minister Pinarayi Vijayan’s ambition to emerge as a national champion in the fight against CAA. He was the first Opposition Chief Minister to declare that the new population law will not be implemented in his state. Even within the Opposition, there is a section of the United Democratic Front (UDF), particularly the Congress, which feels Vijayan is hijacking the anti-CAA campaign to consolidate his party’s support among the minorities, which have traditionally been supporters of the UDF. This had even caused distrust among Congressmen about their joint participation in the campaign.

Apart from scoring political points, it is difficult to see the Kerala government prayer to the court to strike down CAA going any distance. The plaint argues that the law violates the provisions of the Constitution and is in breach of the fundamental rights of the ‘inhabitants of the state’. While the Muslim minority angle in the argument is obvious, there is nothing in the new law that applies specifically to Kerala as opposed to other states. So it does not give any pre-eminence to the state to claim grievance.

A major fault-line with the Kerala argument is that it confuses between favour and right. Any state can demand that its citizens must not be discriminated against in terms of religion; it cannot demand that favours be bestowed uniformly. It may be morally wrong to exclude any section, but in terms of law and constitutionality, nobody can demand a favour as a matter of right. This is where Kerala’s prayer, like the one made by Chhattisgarh, fails to hold water.

K Raveendran is a senior journalist. Views are personal.

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First Published on Jan 16, 2020 03:57 pm
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