Constitutionally speaking: Why states can’t deny implementation of CAA

2019 was full of Constitutional challenges before the Supreme Court. Kerela’s Legislative Assembly by passing Anti-CAA-NRC-NPR resolution on the last day of 2019 ensured that there won’t be a dearth of Constitutional challenges before the Supreme Court in 2020. The resolution has resulted in an original suit filed by the State of Kerela against the Union Government under Article 131 of the Constitution of India. In this short piece, I’ll be focusing on the Constitutional provisions regarding:

1. Whether a State Assembly can pass a resolution against the implementation of Central Law? And if yes to what extent.
2. What is the scope of the term “dispute” under Article 131?
3. Whose “legal rights” can be implemented?

Article 1(1) of the Constitution provides that,
“1. (1) India, that is Bharat, shall be a Union of States”
In this background, Kerela is one of the constituent states of India. Part XI of the Constitution deals with RELATIONS BETWEEN THE UNION AND THE STATES. Article 246 gives distribution of legislative powers and provides for the subject-matter of laws made by the Parliament and by the State Legislatures. These subject matters are scheduled in the Seventh Schedule of the Constitution. In case of subject enumerated under List I it’s the exclusive domain of Parliament, List II is the exclusive domain of State Legislatures and List III is the concurrent list. On the subject in the concurrent list both state and centre can enact a law, however, in case of repugnancy- the centre law will prevail.

The recently amended Motor vehicles Act is a subject matter of List III or concurrent list. Many states have yet not implemented the higher penalties fixed by the Union Government. The penalties fixed by the Union Government is the maximum penalty and as the subject matter is of List III, the State Government can fix their own penalties for violations. Once the Presidential accent is received the modified state law is a valid constitutional law. This distinction is important to bring out as many are confusing implementation of the Citizenship issue with the Motor Vehicles Act. This is like comparing cheese with chalk. Now, coming on the subject matter of Citizenship, under the Constitutional Scheme, it’s the exclusive domain of the Union. Entry 17 List I clearly provides for it following terms:

“17. Citizenship, naturalisation and aliens.”
No such right is accorded to State Government under List II or List III. The subject matter of Citizenship, naturalisation and aliens is an exclusive domain of the Union.
It’s also important to note Article 11 of the Constitution which expressly provides that only the Parliament has the power to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship.

Thus, one clarity is there that only and only the Parliament of India can legislate on the issues relating to Citizenship.

This leads to the next question, whether the State Government can refuse to implement a Central law? The answer is provided within the Constitutional Scheme itself. Chapter II of Part XI of the Constitution deals with the Administrative Relations between Union and States. Article 256, casts an obligation on every State Government to ensure compliance with the laws made by Parliament. It further empowers the Union Government to give directions to a State as it deems necessary for compliance of Central Law. Further in this piece, I shall discuss implications for State for not implementing Central legislations.

Coming to the context of this piece, this leads to a question whether the Kerela Legislative Assembly could pass such a resolution? Now, passing a resolution after following the Procedure of the Legislative Assembly is core functioning of a legislature- centre as well as State. The Constitutional Scheme puts an embargo on the issue on which resolution cannot be passed. Article 211 provides that no discussion can take place in the legislature of State regarding the conduct of a High Court or Supreme Court Judge. Rules of Procedure of Kerela Legislative Assembly deals in detail about resolution. Now, this particular resolution against CAA-NRC-NPR was moved by the Chief Minister and seconded by Leader of the opposition. It was passed by the assembly with a lone dissenter. Rule 118 of the Rules of Procedure of Kerela Legislative Assembly provides that,”….a Member or a Minister may move a resolution relating to a matter of general public interest.” Thus, if the issue is perceived of general public interest, a resolution can be moved. However, it’s a different ball game if the resolution can be admitted or not. However, Rule 119(c) provides that:
119.. In order that a resolution may be admissible, it shall satisfy the following conditions, namely:—
(a)….
(b)…..
(c) it shall not relate to a matter which is under adjudication by a court of law, and
(d) it shall not relate to any matter which is not the concern of the State Government.

Admittedly, it’s a known fact that CAA-NRC-NPR issue is pending before the Hon’ble Supreme Court and the Supreme Court has issued a notice on the same. Further, some High Courts have also taken cognizance of the issue. Thus, the subject matter of the resolution is pending adjudication by a court of law. Thus, under Rule 119(c) the resolution should not be admitted.
This leads us to examine the language deployed in the resolution passed. The resolution merely states that it request the Union Government, not to implement Citizenship Amendment Act and re-consider its implementation.

Thus, the resolution is only a request to the union government to consider the resolution. There’s no obligation on the Union Government to consider or even give its opinion on the same. It’s completely within its power to simply ignore such resolution or if it chooses it can conduct sessions to educate the members of the legislative assembly on the merits of the legislation.

It’s critical to note that the resolution passed by the Kerela Legislative Assembly nowhere states that it will not implement the Citizenship Amendment Act. It only makes requests to re-consider the implementation of CAA. If it has said that it will not implement it then it will be a completely different issue. In the Co-operative Federalism, that India follows, the States and the Union have to co-operate. Thus, if there’s a union law on which only Parliament has the power to legislate than States cannot say they will not implement it. It’s the Constitutional obligation of the State to implement the Union Act. If it does not do so then the consequences will follow.

The Constitutional Scheme itself provides for the consequences. Article 365 of the Constitution deals with such situations. Article 365 provides that where State fails to comply with or to give effect to, directions given by the Union in the exercise of its executive power under any of the provisions of this Constitution then it shall be lawful for the President to hold that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution. This effectively means that there is a breakdown of Constitutional machinery in the State and this will pave way President’s Rule under Article 356. It’s interesting to note that Article 365 was introduced just 11 days before the adoption of the Constitution.

Now, the argument of the Kerela Government can be that the directions given to implement CAA is not under any of the provisions of the Constitution as it fails to adhere to the basic structure of the Constitution and hence the CAA is unconstitutional. Now, to declare an Act unconstitutional it should infringe upon Fundamental Rights. This leads to the next question, whose Fundamental Rights can be infringed. Or to re-phrase it, who can claim breach of Fundamental Rights? The Constitution of India grants certain Fundamental Rights to the citizens and certain Fundamental Rights to all persons. Now, all persons include non-citizens and even artificial legal persons like companies. But is a State Government a person under the Constitutional Scheme?

To the best of my knowledge and understanding, a state government is not a person under the constitutional scheme. Since the state government is not a person- it cannot have Fundamental Rights. The grievances are always against the government for violation of Fundamental Rights but can a state government pleads that’s its Fundamental Rights are breached? Does it have a Fundamental Rights? Considering that the State or State Government is not even a person. This ousts it to make a case under Article 32 or 226 of the Constitution.

This leads to issue of what remedies does a State or State Government as? Does it have a remedy to challenge the central legislation by way of filing Original Suit before the Supreme Court of India under Article 131 of the Constitution as done by the State of Kerela? Before proceeding further, Art. 131-A was inserted by the 42nd Amendment by which only the Supreme Court had the authority to adjudicate on the constitutionality of Central legislation. This Art 131A was repealed by the 43rd Amendment. Thus, the constitutionality of central legislation can be challenged by a person before High Courts also. With this background, let’s come back to the filing of Original Suit by the State of Kerela against the Union of India under Art 131.

Article 131 provides that to the exclusion of all courts only Supreme Court shall have the original jurisdiction to adjudicate on the dispute between State(s) and State(s); State and Union, States v Union. The disputes can involve any question of law or question of fact. on which the existence or extent of a legal right depends.

This leads us to analyse two terms dispute and “legal right”. However, the first hurdle that the State of Kerela has to cross in this anti-CAA suit is maintainability. To do so it has to justify the existence of its “legal right”. Now, the dispute must be one which affects the existence or extent of a legal right. It must not merely be a dispute on the political plane not involving a legal aspect. Justice YV Chandrachud in State of Rajasthan v Union of India[1] eloquently put it as:”‘Mere wrangles between Governments have no place under the scheme of that article….’

Justice Ruma Pal echoed the same view in State of Haryana v State of Punjab[2]
“It is only when a legal, as distinguished from a mere political, issue arises touching upon the existence or extent of a legal right that the article is attracted..”

The Supreme Court in State of M.P. v. Union of India[3],was faced with the situation if the validity of a central law can be challenged by way of suit under Article 131 of the Constitution. Supreme Court speaking through Justice P. Sathasivam held that validity of a central law normally can be challenged under writ jurisdiction under Article 32 or 226. It went to hold that, ”normally, no recourse can be permitted to challenge the validity of a Central law under the exclusive original jurisdiction of this Court provided under Article 131.”

However, a co-ordinate bench of the Supreme Court in its 2015 decision in State of Jharkhand v. State of Bihar[4], doubted the proposition laid down in 2011 decision in State of MP v Union of India and referred the matter to a larger bench. The matter is pending adjudication.

It’s equally important to look at Judgement of YV Chandrachud in State of Karnataka v. Union of India[5]. Justice Chandrachud Sr went on first principles and examined the scope and amplitude of Article 131. Justice Chandrachud Sr on scope and amplitude of Art 131 held:

  1. Article 131 undoubtedly confers ‘original jurisdiction’ on the Supreme Court.
  2. Article 131 does not use the term “suit”, doesn’t talk of “cause of action”. Though, the commonest form of a legal proceeding which is tried by a Court in the exercise of its original jurisdiction is a suit.
  3. Article 131 is a complete code for matters enumerated thereunder.
  4. The sole condition which is required to be satisfied for invoking the Original Jurisdiction of the Supreme Court that between the parties mentioned in Art 131 there exist a dispute which involves a question on which the existence or extent of a legal right depends.

Thus, there must a dispute on which legal right depends. This is the crux that is to be determined.

Now, the Article 131 doesn’t speak of “suit” under original jurisdiction. So, from where has the nomenclature “suit” has crept in? The answer lies in Part III of the Supreme Court Rules which provides for the Original Jurisdiction. Part A of Part III of the Supreme Court Rules deals with suit and provides the procedure for the same and here in the banality of Civil Procedure Code starts to creep in with terms like disclosure of “cause of action”. However, there is no express mention of Article 131 in Part A of Part III of the Supreme Court Rules. Other parts of Part III of the Supreme Court Rules deals with Writ Petition u/A32, Transfer Petitions, References and Election Petitions.

Coming back to the judgment in State of Karnataka, Justice PN Bhagawati[6] eloquently explained limitation regarding “dispute” under Art 131. His Lordship explained that the limitation is twofold. One regards parties to the proceedings and others regarding the subject matter. As far as parties are concerned there’s no issue. However, what can be a subject matter of the proceedings under Art 131 is debatable and it flows from the words: ‘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’.
Justice Bhagwati held that these words clearly indicate that 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.

Justice Bhagwati went on to hold that it’s not necessary that the plaintiff should have some legal right of its own to enforce before it can institute a suit under that article. He further held that it’s not a sine qua non of the applicability of Article 131 that there should be an infringement of some legal right of the plaintiff. What Article 131 requires is that the dispute must be one which involves a question “on which the existence or extent of legal right depends”.

In the present case, the resolution passed by the Kerela Assembly is merely a request to the Union Government to re-consider enforcement of the CAA. It nowhere states it’s not going to implement it. Art 365 mandates States to carry out the implementation of central legislation and if not Consequences will follow. Whether Courts will interfere under Article 131 or not will be interesting to see. Remember Justice Bhagwati in Minerva Mills[7] and as upheld in SR Bommai held that, “merely because a question has a political colour, the court cannot fold its hands in despair and declare ‘judicial hands off’ “. Certainly, interesting times ahead.

[1] (1977) 3 SCC 592
[2] (2004) 12 SCC 673 @692
[3] (2011) 12 SCC 268
[4] (2015) 2 SCC 431
[5] (1977) 4 SCC 608 @ 690-691
[6] (1977) 4 SCC 608] , SCC p. 706
[7] (1980) 3 SCC 625

Dr Charu Mathur, Advocate Supreme Court of India

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