THE JURISDICTION OF THE SUPREME COURT REGARDING REFUSAL BY STATES TO IMPLEMENT CITIZENSHIP AMENDMENT ACT, 2019


Introduction
Do states have an option to refuse to implement the Citizenship (Amendment) Act (CAA), 2019 even as some of them have invoked the exclusive jurisdiction of the Supreme Court in their dispute with the Centre? Under Article 131 of the Constitution of India, 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 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 civic but involve judicial questions, there is no bar on the states invoking Article 131 of the Constitution to iron out the same.

The Uncertainty Among the Decisions of the Supreme Court
In 2014, a two-judge Bench of the Supreme Court, in State of Jharkhand v. the State of Bihar [1], was posed with a question about the maintainability of a petition challenging the vires of the Bihar Reorganisation Act, 2000 under Article 131 of the Constitution. Dealing with the disapproval raised by the State of Bihar that a suit challenging the constitutional validity of legislation is not maintainable under Article 131, the Court contradicted its earlier ruling in the State of Madhya Pradesh v. Union of India & Another [2], where it had held that the validity of a Central Law should “normally” not be challenged under Article 131 and recourse to Article 32 should be taken.
In 2014, however, the State of Jharkhand, placing reliance upon a constitution bench decision of the Supreme Court in 1964 (State of West Bengal v. Union of India [3]), argued that the question whether the vires of an enactment by parliament could be considered in an original suit under Article 131 was no more res integra, i.e. undecided. Most importantly, the 1964 precedent was not brought to the notice of the Supreme Court when it was considering the objections of Chhattisgarh in 2011. Therefore, the said judgment is not a jurisdiction for the premise that this court could examine the constitutional validity of enactment in a suit under Article 131”.
However, the 2014 bench – comprising Justices J. Chelameswar and S.A. Bobde, however, concluded that a state can indeed challenge a Central law under Article 131 citing two cogent reasons for this.
Firstly, the Constitution has given the Supreme Court with both original and appellate jurisdiction in addition to the jurisdiction created by Article 32 for the enforcement of fundamental rights.
Secondly, the bench pointed out that it could be considered 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”. Placing reliance upon a decision of another constitution bench of the Supreme Court in State of Karnataka v Union of India (1977) [4], the 2014 bench underpinned that the sole condition which is required to be contended for involving the original jurisdiction of the Supreme Court is that the dispute between the parties referred to in Article 131 must concern a question on which the existence or extent of a legal right depends.
In one of the landmark judgments, Justice P.N. Bhagwati elaborated the rationale of Article 131 thus:
“The object of the article of the constitution seems to be that since in a 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 colloquium should be provided for the resolution of such disputes and that forum should be the highest Court in the land, so that final settlement of such disputes could be achieved speedily and expeditiously without either party having to embark on a long and time-consuming journey through a hierarchy of courts.”
In view of its difference with the law stated by the bench in State of Madhya Pradesh’s Case, the Bench, after concisely recording its reasons, referred the question to a larger bench of three judges but the dispute has never been resolved.

Can the states refuse to implement the CAA, 2019 in view of their dispute with the Centre on the issue?
A dispute between the Centre and the states on any issue is clearly visualized by the Constitution. Therefore, the states can well ask the Supreme Court to decide whether they can decline to implement the CAA during the pendency of the case in the Supreme Court. Needless to say, the Supreme Court’s decision on this will be binding on the states as well as the Centre. 
As a general rule, only a person directly affected by the infringement of a legal right or protection can launch an action before Courts of law. Depending on the nature of rights, a person affected by the infringement has the ‘locus standi’ to maintain an action against the alleged action in judicial colloquiums.
However, the situation is changed where the aggrieved person is unable to represent his or her interests. In such a situation, a government can sue on behalf of the persons under disability for the protection of their rights. In Charan Lal Sahu v. Union of India [5], the Supreme Court invoked the concept of parens patriae doctrine to sustain the powers of the Central Government in maintaining suits on behalf of the victims of Bhopal Gas Tragedy against a multinational corporation for its negligent actions before domestic courts.
Applying the doctrine, Justice KN Singh, in his coadjutant opinion, ruled that the doctrine is an aspect of sovereign and inherent power enjoyed by the State for the protection of the health, peace, morals, economic and social well being of its people.
Theoretically, Kerala can very well use the doctrine to sustain the institution of the suit under Article 131 of the Constitution. This would, however, be quite uncommon and States have never invoked the doctrine to knock the doors of the Supreme Court under Article 131.

Conclusion
In adjudicating the suit, the Court should consider the original intention of the framers behind Article 131 at the time of the founding and framing of the Constitution. Even though fundamental rights and secularism are seemingly involved, these considerations must not dissuade the Court in deciding the true purpose of Article 131. The conservancy of the federal structure is an equally important constitutional incident.

References
[1] I.A. No. 3&5 of 2014 in Original Suit No.1 of 2012 with I.A. No.7 2014
[2] I.A. No. 4 of 2009 in Original Suit No. 6 of 2004
[3] 1963 AIR 1241
[4] AIR 1978 SC 68
[5] 1990 AIR 1480

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