New Delhi: Do opposition-ruled states have a legal option to refuse to implement the Citizenship (Amendment) Act (CAA) and National Population Register (NPR) even as some of them have invoked the exclusive jurisdiction of the Supreme Court in their dispute with the Centre? The Wire attempts to break the issue down in this explainer.
Q1: There is uncertainty over whether states can challenge the constitutionality of a Central law under Article 131 of the Constitution. What does the law say in this regard?
Under Article 131 of the Constitution, the Supreme Court has exclusive original jurisdiction in any dispute between the Government of India and one or more states; or between the government of India and any state or states on one side and one or more other states on the other; or between two or more states, if and insofar as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends. As the opposition states’ differences with the Centre on the CAA and the NPR constitute a “dispute”, and these differences are not just political, but involve legal questions, there is no bar on the states invoking Article 131 of the Constitution to resolve the same.
Q2: The uncertainty is due to the case law on the subject, which points to two different conclusions of the Supreme Court. Therefore, can states insist on a declaration of law, before the dispute is resolved one way or the other?
A dispute can be heard under Article 131 only if it is federal in nature. In State of Jharkhand v State of Bihar (2014), the Supreme Court was concerned with I.A. No.5 filed by the state of Jharkhand. In this suit, Jharkhand prayed for a declaration that the basis of “ratio of number of employees of each successor state” for apportionment of pension liability contained in Clause 4 of the Eighth Schedule to the Bihar Reorganisation Act, 2000 was ultra vires Article 14 of the Constitution, or in the alternative, to read down the aforesaid words contained in Clause 4 of the Eighth Schedule to the Bihar Reorganisation Act, 2000 to mean “population ratio”.
The Bihar Reorganisation Act, 2000 had brought into existence the State of Jharkhand by carving out certain areas from the territory of Bihar. As a necessary sequel to this bifurcation, provisions were required to be made with reference to the various aspects of the rights and liabilities of the state of Bihar as well as the newly formed state of Jharkhand. One of the provisions dealt with the apportionment of pensionary liabilities of the former employees of the original state of Bihar. I.A. No.5 was filed seeking amendments to the original suit.
When the matter was taken up before the Supreme Court in 2014, a preliminary objection was raised by Bihar to the maintainability of the suit, relying on the Court’s decision in State of Madhya Pradesh v Union of India and another (2011). The state of Bihar contended that the suit which in substance seeks an examination of the constitutionality of certain provisions of the Bihar Reorganisation Act, 2000 is not maintainable for the reason that a question of vires of an enactment could not be examined in an original suit under Article 131, but could only be examined in the proceeding under Article 226 or Article 32 of the Constitution.
In State of Madhya Pradesh v Union of India, Madhya Pradesh sought to amend the Original Suit No.6 of 2004 pending before the Court praying inter alia that certain sections of the Madhya Pradesh Reorganisation Act were violative of Article 14 of the Constitution of India.
The State of Chhattisgarh objected to this on the ground that the same is totally misconceived and untenable in law and no recourse whatsoever is permitted to challenge the validity of a Central law under the exclusive jurisdiction of the Supreme Court under Article 131.
Q3: Why did the Supreme Court agree in 2011 with Chhattisgarh in this case and rule that a state cannot challenge the validity of a law passed by Parliament under Article 131?
As Article 131 envisages exclusive jurisdiction by the Supreme Court, no other forum, including the high court, can deal with a similar question being dealt by the Supreme Court under this provision. During the Emergency, by way of the 42nd Amendment, Parliament inserted Article 131-A of the Constitution to provide for exclusive jurisdiction to the Supreme Court in regard to questions as to the constitutionality of Central laws. As this was viewed as substantially curtailing the power of judicial review of the writ courts, that is, the high courts under Article 226 and the Supreme Court under Article 32, the Janata government, during the post-Emergency period, deleted 131-A through the 43rd Amendment Act, 1977.
The Supreme Court, therefore, held in 2011 that when Central laws can be challenged in the state high courts as well and also before the apex court under Article 32, normally, no recourse can be permitted to challenge the validity of a Central law under the exclusive original jurisdiction of the Supreme Court under Article 131.
Q4: Why did another Supreme Court bench in 2014 disagree with what the court had earlier decided in 2011 and rule that the validity of a Central law can indeed be challenged by a state under Article 131?
In 2014, however, the State of Jharkhand, relying on a constitution bench decision of the Supreme Court in 1964 (State of West Bengal v Union of India), argued that the question whether the vires of an enactment by parliament could be examined in an original suit under Article 131 was no more res integra, i.e. undecided. Curiously, the 1964 precedent was not brought to the notice of the Supreme Court when it was considering the objections of Chhattisgarh in 2011.
In the 1964 case, the constitutionality of the Coal Bearing Areas (Acquisition and Development) Act, 1957, passed by Parliament, was under challenge. Although the Supreme Court held the Act to be constitutionally valid, the question of whether in an original suit under Article 131 the constitutional validity of an enactment could be examined was actually not before the court in that judgment.
Noting this, the Supreme Court observed in State of Jharkhand v State of Bihar in 2014: “Perhaps nobody thought it fit to raise such an objection! (in 1964). Therefore, the said judgment is not an authority for the proposition that this court could examine the constitutional validity of an enactment in a suit under Article 131”.
Having said that, however, the 2014 bench – comprising Justices J. Chelameswar and S.A. Bobde (currently the CJI) – nevertheless concluded that a state can indeed challenge a Central law under Article 131 and cited two reasons for this.
First, the Constitution invested the Supreme Court with both original and appellate jurisdiction in addition to the jurisdiction created under Article 32 for the enforcement of fundamental rights.
Secondly, the bench pointed out that it could be seen from the language of Article 131 that the exclusive jurisdiction of the Supreme Court extends to “any dispute between the Government of India and any one or more states and the disputes arising between two or more States in various possible combinations specified in it”.
Relying on a decision of another constitution bench of the Supreme Court in State of Karnataka v Union of India (1977), the 2014 bench underlined that the sole condition which is required to be satisfied for involving the original jurisdiction of the Supreme Court is that the dispute between the parties referred to in Article 131 must involve a question on which the existence or extent of a legal right depends.
In the 1977 judgment, Justice P.N. Bhagwati explained the rationale of Article 131 thus:
“The object of the article seems to be that since in a federal or quasi-federal structure, which the Constitution seeks to set up, disputes may arise between the Government of India and one or more States, or between two or more States, a forum should be provided for the resolution of such disputes and that forum should be the highest Court in the land, so that final adjudication of such disputes could be achieved speedily and expeditiously without either party having to embark on a long, tortuous and time-consuming journey through a hierarchy of courts.”
Justice Bhagwati added: “The dispute must be one affecting the existence or extent of a legal right and not a dispute on the political plane not involving a legal aspect.”
In State of Rajasthan v Union of India, the then Justice Y.V. Chandrachud observed: “Mere wrangles between governments have no place under the scheme of that article (131)….”
The 2014 bench, therefore, disagreed with the proposition that the Supreme Court cannot examine the constitutionality of a statute in exercise of its exclusive jurisdiction under Article 131.
Q5: Since the Supreme Court has given contradictory judgments, how is the question to be resolved?
The 2011 and 2014 judgments were both rendered by a bench of two judges so judicial discipline demanded that the subsequent two-judge bench in State of Jharkhand v State of Bihar in 2014 had to refer the matter for examination of the question by a larger bench of the Supreme Court.
Though the Chelameswar-Bobde bench referred the matter for consideration by a larger bench of the Supreme Court on November 25, 2014, successive chief justices of India since then have not given the priority it deserves and constituted a suitable bench for deciding the same. So the question is still pending.
Q6: In 2016, the Delhi government withdrew its original suit in the Supreme Court under Article 131, to resolve its dispute with the Centre on the question of statehood for Delhi. Why did it do so?
The Delhi government had first challenged the Lieutenant Governor’s authority vis-a-vis the Delhi chief minister before the Delhi high court. The high court disagreed with the Delhi government stand that the issues in the case are federal in nature, and therefore, must be litigated under Article 131 before the Supreme Court. Having lost the case in the high court, the Delhi government had no option but to appeal against it in the Supreme Court. Had the Delhi government not done so, the Delhi high court judgment favouring the Centre would have attained finality. Therefore, to avoid parallel proceedings on the same subject, the Delhi government withdrew the original suit under Article 131 against the Centre. The Supreme Court had no problem with that, and it finally heard the Delhi government’s appeal against the high court’s judgment on the subject and delivered a judgment through a constitution bench.
Q7: Can the states refuse to implement the CAA and the NPR in view of their dispute with the Centre on the issue?
A dispute between the Centre and the states on any issue is clearly envisaged by the Constitution. Therefore, the states can well ask the Supreme Court to decide whether they can refuse to implement the CAA and NPR during the pendency of the case in the Supreme Court. Needless to add, the Supreme Court’s decision on this will be binding on the states as well as the Centre.
Q8: The Supreme Court has refused to stay the CAA. What does this mean for the states challenging the law, and the Centre?
On January 22, the Supreme Court declined a stay on the CAA and the states thus have no option not to implement it. But if they refuse to implement the CAA because it is pending before the SC, the issue will have to be tested by the Centre before the SC for its interim directions. During pendency, even without a stay, the court will expect the Centre not to implement the CAA on its own. In the NJAC matter, the bench didn’t stay the law, but the then CJI refrained from participating in the meetings in view of the pendency, and the Centre could not misuse the lack of stay in its favour.
A stay requires assessment of irreversible damage to either side as on date. The Supreme Court didn’t think there is a likelihood of irreversible damage, but the propriety is implied. When there was a challenge to imposition of President’s rule, the court expected the Centre not to lift it and facilitate the installation of a puppet regime during the pendency, even though there was no restraint on the Centre.
Q9: Can state assemblies pass resolutions against CAA and NPR? Will they be valid, in view of the suits being filed under Article 131 by the same states in the Supreme Court?
State assemblies can pass resolutions on any subject, to express the collective opinion of their members. But they will be bound by what the Supreme Court eventually decides on the matter. The resolutions are perfectly valid, but they will have no effect if the Supreme Court favours the Centre, after hearing the petitions filed by the states on the subject.
The CAA has attracted several writ petitions under Article 32 of the Constitution. Therefore, what do the states gain by opting to challenge it under Article 131 if the issues in these petitions are similar?
Article 131, by implication, requires the Supreme Court to hear the case on priority, as it impinges on federalism, a basic feature of the Constitution. That is the reason why the Supreme Court is endowed with exclusive jurisdiction, so that precious time is not wasted in high courts which could delay conclusion of the dispute.
It is another matter, however, that cases under Article 131 have been pending in the Supreme Court for years without resolution.