‘Political Plank’ used as a weapon to cripple down Federal Structure?

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Kerala government is the first state to pass a resolution against the CAA (Citizenship Amendment Act, 2019). The government alleged that the CAA violates the basic structure as well as the principle of equality, freedom & secularism. The government invoked ’Article 131’ of Indian Constitution, in its petition.

What is ‘Article 131’ & what its condition of invoking? 

Article 131 refers to the ‘special power of the Supreme Court’. It is the original jurisdiction of the Supreme Court. The said article provides the redressal of any dispute between two or more states vs. state, state vs. state, state vs. union, two or more state vs. union. However, the first court to file the suit is High Court, but if the dispute is between the said party then directly approach to the apex court.

But, there is the division between legislature of state & union. Part 13 of the Indian Constitution draw such line of difference. It is clearly defined in the ‘Seventh Schedule’ of the Constitution, that what will be the subjects of state & union to form the law. The state list contains the subject matter on which state is responsible to make law. The union list contains the subject matter to which the union reserves the power to frame law. The concurrent list, on the other hand, provides the common subject to which state & union, both can frame law. 

The three condition to invoke ‘Article 131’:

  1. Provisions of Article 131 are subject to another provision of Constitution. It means, if there is any alternate remedy available then Article 131 will not be invoked. 

  2. The dispute must be between State vs. State, State vs. Union, States vs. States and States vs. Union. (It cannot be State entity; it should be state government & the central government.

  3. The dispute must relate to the question of fact or law relating to the legal rights of the parties. It is clear by the third circumstance that the right conferred should be of legal in nature not fundamental.  

‘Citizenship’ is the topic covered in the Union List. Therefore, it is a ‘misconceived petition’ by the state government of Kerala.

Are there any criteria, to which state can file suit directly to Supreme Court?

It’s the question of fact or question of law, between the dispute of state, two or more state, and union. The Supreme Court holds the Advisory Jurisdiction under Article 143.

However, the state cannot approach the Supreme Court directly under Article 131, without having the violation of legal right.

In 2017, the West Bengal government had filed the petition to the Supreme Court, challenging the validity of ‘Adhar Act’ & the government invoked the ‘Article 32’. In reply to the petition the court asked, does the state have the fundamental right?

The court further told the West Bengal government to file the petition in a personal capacity, not as the state.

The second instance, the validity of NIA Act, 2008 was challenged by Chhattisgarh Government recently. The act was enacted in 2008 with Indian National Congress at the central. However, the state has congress elected government challenging the validity of the Act.

It can be seen completely as the big political agenda to do so. This is because at the wider picture the Act was enacted by Parliament are challenged by the state government to not implement.

So, far as Kerala government is concerned, they included ‘Article 256’ binding nature in their petition. The said article talks about ‘the state government is bound to implement the law enacted by the parliament’. The Kerala government added that the CAA is arbitrary, manifestly & unconstitutional in nature, which is also violative of fundamental rights.

It is not open to the state to not to implement the law, on the basis of arbitrariness or manifestly implication or unconstitutional. There must be presumption for the validity of such law, until and unless declared unconstitutional by a court of law. 

Both the Chhattisgarh & Kerala are misconceived notion of Federalism. States are trying to poke their nose in area, which is constitutionally reserved for the centre. Both the subject of Nationality & Citizenship is governed under entry 17 of List 1 of the seventh schedule. Therefore, there should not be any question for legislature incompetency. Parliament is free to make law on subjects enumerated in ‘List 1’ of the seventh schedule.

The Union has so much power not just the entry 1 but entry 3 also. That is, even in the matter of ‘Concurrent List’ the laws made by parliament shall override the laws made by the state.

Even in the entry 2 i.e. State List, the parliament can make certain laws in special circumstances. When there is an emergency (President Rule) all the power of the state legislature is transferred to Union i.e. Parliament.

When Rajya Sabha has passed any resolution by the 2/3rd of majority, even in that case parliament makes laws on a subject enumerated in State List. Further, if two or more state together pass a resolution to request the parliament to make laws.

The unnecessarily raising certain issue which is political in nature & fighting such issue on the basis of the political plank is the new ideology for the current federal system of governance. Federalism is a one-way street, where the centre has the entire obligation but the states have none. 

Government vs. Fundamental Rights 

The government itself is the State entity. If for the violation of fundamental right any petition is filed, the right remedy is available to a person or to a citizen, by invoking either Article 32 or Article 226.

Any law can be challenged only if violates Part 3 of Constitution, no remedy available to state to challenge the constitutionality of the law which is violative of Fundamental Right. Therefore, this is nothing just ‘political posturing’.

There is no latitude, no liberty to any state to deny following the law made by or enacted by parliament.

The petition filed by the Kerala government, does really affect the legal right of the state? If it so, then the state is empowered to approach the apex court. 

Conclusion 

Constitutional framers were wise enough to lay down ‘Article 133’. This is the reason because if there is a dispute between two states then the High Court cannot deal with such dispute. So, it is necessary to approach or heard of by the apex court, without any biases or impartiality. 

Cases

In case of Motor Vehicle Amendment Act, 2019, the subject matter ‘Motor Vehicle’ is covered under Entry 3 i.e. Concurrent List, this means the state can modify the Act as they want but should have the assent of President to that enactment.

If there is a water dispute between two states, then the dispute will deal with ‘Article 262.’ Parliament can make law on that & is immune from the conditions of Article 131.

West Bengal challenged the ‘Rights of mines & coal area’. The SC entertained such petition under Article 131. The court held that the law passed by the parliament was arbitrary in nature & is upheld.