Can States challenge the validity of central laws? "EMPOWER IAS"

In news:

• Kerala has filed a suit in the Supreme Court of India seeking to declare the CAA as unconstitutional.  The suit was filed for invoking Article 131, which confers exclusive jurisdiction on the top court to adjudicate disputes between two or more States, or between States and the Centre.

 

More from the news:

• Kerala became the first state to challenge the Citizenship (Amendment) Act (CAA) before the Supreme Court. However, the legal route adopted by the state is different from the 60 petitions already pending before the court.
• Pinarayi Vijayan-led government, the first state to challenge the law, filed a petition under Article 131 of the Constitution and asked for the law to be declared unconstitutional and in violation of Articles 14 (equality before law), 21 (protection of life and personal liberty) and 25 (freedom of conscience and free profession, practice, and propagation of religion).
• The Kerala government has moved the apex court under Article 131 of the Constitution.
• Recently, the Chhattisgarh government filed a suit in the Supreme Court under Article 131, challenging the National Investigation Agency (NIA) Act on the ground that it encroaches upon the state’s powers to maintain law and order.

 

Concerns raised by Kerala :

1. Persecution failed to make it to the main body of the act: The State of Kerala expressed its wonder at how the word “persecution”, which appears in the text of 'statement of objects and reasons of the CAA, fails to make it to the main body of the Act itself. 
2. Select religious groups getting priority: This would suppose that illegal migrants from these countries and from select religions would get priority in grant of Indian citizenship. Such grouping is not founded on any rationale principle justifying a separate special treatment for the irrationally chosen class of religious minorities facing persecution. 
3. Against principles of secularism: They have contended that the CAA shares an “unholy nexus” with the National Register of Citizens (NRC) and is against the principles of secularism, right to equality and dignity of life enshrined in the Basic Structure of the Constitution.

 

What does Article 131 say?

• Article 131 confers exclusive jurisdiction on the Supreme Court in disputes involving States, or the Centre on the one hand and one or more States on the other. This means no other court can entertain such a dispute.
•  It is well-known that both High Courts and the Supreme Court have the power to adjudicate cases against the State and Central governments.
• The validity of any executive or legislative action is normally challenged by way of writ petitions — under Article 226 of the Constitution in respect of High Courts, and, in respect to fundamental rights violations, under Article 32 in the Supreme Court.

 

Original jurisdiction

• Article 131 reads, “Original jurisdiction of the Supreme Court. — Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have 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 in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends:

 

What happens when a State feels its legal rights have been violated by another State or by the Centre?

• Unlike individuals, State governments cannot complain of fundamental rights being violated. Therefore, the Constitution provides that whenever a State feels that its legal rights are under threat or have been violated, it can take the “dispute” to the Supreme Court. States have filed such cases under Article 131 against neighbouring States in respect of river water sharing and boundary disputes.
• There have been instances of such cases being filed against the Centre too.

What does Kerala’s suit ask for?

• Kerala’s suit  asks for a declaration that the CAA, 2019, is violative of the Constitution, and against the principle of secularism that is a basic feature of the Constitution.
• Simultaneously, it challenges the validity of notifications issued under the Passport (Entry into India) Amendment Rules and the Foreigners (Amendment) Order, in 2015-16, as being contrary to the Constitution.
• The notifications of 2015 had given exemption to persons belonging to minority communities in Bangladesh and Pakistan — namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who were compelled to seek shelter in India due to religious persecution or the fear of religious persecution and entered India on or before December 31, 2014, without valid documents — from the purview of the laws against illegal entry of foreigners into India.
• In 2016, further notifications were issued to add those who arrived from Afghanistan too. As these notifications formed the basis for creating the categories of people who were not to be treated as illegal migrants, and as the CAA chooses the same groups for conferment of citizenship on a fast-track mode, the Kerala  government has challenged the validity of these notifications too.
• Another reason is that the term “religious persecution” is not found in the CAA, but it mentions that those exempted from the Foreigners’ Act under the 2015 and 2016 notifications will not be treated as “illegal migrants”.

 

What is the prayer in Chhattisgarh’s suit?

• Chhattisgarh has sought   a declaration that the NIA Act, 2008, is unconstitutional on the ground that it is “beyond the legislative competence of Parliament”.
• It argues that ‘Police’ is a subject reserved for the States, and having a central police agency, which has overriding powers over the State police, with no provision for consent from the State government for its operations, is against the division of legislative powers between the Centre and the States. And that it is against the federal spirit of the Constitution.

 

Is such a suit maintainable?

• There are two conflicting opinions of the Supreme Court on this point. In 2011, in State of Madhya Pradesh v. Union of India and Another, the court said: “...when the Central laws can be challenged in the State High Courts as well and also before this Court under Article 32, 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, in State of Jharkhand vs. State of Bihar and Another (2014), another Bench said it was unable to accept the view that the constitutionality of a law cannot be raised in a suit under Article 131. Therefore, the matter was referred to a larger Bench for an authoritative pronouncement.

 

Article 32: Article 32 contains the following four provisions: The right to move the Supreme Court by appropriate proceedings for the enforcement of the Fundamental Rights is guaranteed. The Supreme Court shall have power to issue directions or orders or writs any of the fundamental rights. Parliament can empower any other court to issue directions, orders and writs of all kinds (not HC, already under 226). The right to move the Supreme Court shall not be suspended except by President during a national emergency (Article 359). Supreme Court has been vested with the 'original' (direct approach with or without appeal) and 'wide' (not only orders, directions but also writs) powers for to provide a guaranteed, effective, expedious, inexpensive and summary remedy for the protection of the fundamental rights. Only Fundamental Rights can be enforced under Article 32 and not any other like non-fundamental constitutional rights, statutory rights, customary rights etc. Jurisdiction of the Supreme Court is original but not exclusive. It is concurrent with the jurisdiction of the high court Article 226. (direct approach to High Court or Supreme Court). Where relief through high court is available under Article 226, the aggrieved party should first move the high court.   Article 226: Article 226 of Constitution of India It empowers the high courts of India to issue orders, directions or writs, which includes writs in nature of habeas corpus, prohibition, mandamus, certiorari, and quo warranto (or any of them) to any concerned person or authority, including the government including the government (in appropriate cases).

 

Source) https://www.thehindu.com/news/national/can-states-challenge-the-validity-of-central-laws/article30595797.ece