CAA: Federalism is not a one-way street

Satya Prakash

Last week witnessed quite unusual politico-legal developments that have serious implications for federal polity in India. First, the CPI (M)-led Kerala Government filed a petition in the Supreme Court challenging the Citizenship Amendment Act, 2019. Then the Congress-ruled Chhattisgarh moved the top court against the National Investigation Agency Act, 2008. The Punjab Government also announced that it would approach the top court against the CAA.

Terming the CAA manifestly arbitrary, the Kerala Government urged the Supreme Court to declare it unconstitutional for violating Articles 14 (right to equality before law), 21 (Right to life and personal liberty) and 25 (right to freedom of religion).

The Chhattisgarh Government contended that the NIA Act completely took away its power to investigate offences categorised as “scheduled offence” under the Act even if committed within the jurisdiction of the state.

It’s not for the first time that states have challenged laws enacted by Parliament before the Supreme Court. Starting with 1960s, there have been several instances of states invoking the original jurisdiction of the Supreme Court under Article 131 of the Constitution which provides a mechanism for adjudication of disputes 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. But the dispute must involve a question of law or fact on which the existence or extent of a legal right (of the state/s) depends.

Earlier, in State of West Bengal versus Union of India (1963), State of Karnataka versus Union of India (1977), State of Madhya Pradesh versus Union of India, (2011) and State of Jharkhand versus State of Bihar (2015) when the Supreme Court entertained petitions under Article 131, the disputes somehow related to states’ legal rights.

In the first case, a six-judge Bench of the Supreme Court upheld the validity of the Coal Bearing Areas (Acquisition and Development) Act, 1957. But maintainability of the petition was not questioned in this case. In the 1977 case, a seven-judge Bench of the Supreme Court ruled that the suit was maintainable. However, it dismissed Karnataka’s plea against the Centre’s decision to set up a judicial inquiry commission to probe corruption charges against the then Chief Minister.

The 2011 verdict came on a suit filed by the Madhya Pradesh Government challenging certain provisions of the MP Reorganisation Act, 2000, on various grounds, including violation of Article 14 (right to equality). A two-Judge Bench refused to entertain it saying a law enacted by Parliament can’t be challenged under Article 131.

However, doubting the correctness of the 2011 verdict, a two-Judge Bench referred the issue to a larger Bench in 2015 while dealing with a suit filed by the Jharkhand Government, which challenged certain provisions of the Bihar Reorganisation Act, 2000.

A law can be declared unconstitutional either for legislative incompetence, or violation of fundamental rights or violation of basic structure of the Constitution.

So far as the CAA is concerned, the legal position is amply clear. “Citizenship and naturalisation” falls under Entry 17 of the Union List under the Seventh Schedule, and therefore, Parliament is thoroughly competent to enact a law on the subject.

Under Article 245 of the Constitution, Parliament has power to make laws for whole or any part of the territory of India. Also, there is presumption of validity in favour of laws enacted by Parliament, unless declared otherwise by a constitutional court.

Article 256 makes it obligatory for states to implement laws enacted by Parliament and the Centre can issue directions to states in this regard.

First, fundamental rights are guaranteed to individuals against the state and a state government can’t claim fundamental rights. In fact, a state government is also “State” within the meaning of Article 12 of the Constitution. If a state government is allowed to challenge a law enacted by Parliament on the ground of violation of fundamental rights, the entire constitutional scheme will get disturbed. It was for this reason that the Supreme Court in 2017 refused to entertain West Bengal Government’s petition challenging the validity of the Aadhaar Act.

Second, federalism is not a one-way street where the Centre has all obligations and the states have none. States have been complaining about the Centre misusing Article 356 against them and rushing the top court, and rightly so, for arbitrary use of constitutional powers by New Delhi. It’s high time they respected the Centre’s rights and laws enacted by Parliament.

Third, opposition-ruled states have all right to play politics on issues of their interest. But it must be within the boundaries drawn by the Constitution. There are already 60 plus petitions pending against the CAA in the top court. They should wait for the judicial outcome instead of attempting to disturb the Constitutional scheme.

No wonder senior Congress leaders and former law ministers Kapil Sibal and Salman Khurshid have said a state cannot say no to a law made by Parliament.

So far as the Chhattisgarh Government’s petition is concerned, it’s quite interesting that a Congress-ruled state has challenged a law enacted by Parliament during the rule of Congress-led UPA in 2008. There may be certain grey areas, but there are several entries in the Union List and the Concurrent List which give leeway to Parliament to enact laws on subjects that have been categorised as “scheduled offences” under the NIA Act. Further, one must not forget that unlike the US, all residuary powers in India rest with Parliament.

Today, the highly polarised political environment leaves very little room for the middle ground. But those occupying constitutional positions must draw a line between politics and their constitutional obligations. Passing a resolution against the CAA by an assembly can be understood. But state governments can’t refuse to implement a law enacted by Parliament, unless it has been declared unconstitutional. The only elbow room available to them is to delay it on the ground of law and order situation and wait for the SC verdict.

Break quote: So far as the CAA is concerned, the legal position is amply clear. ‘Citizenship and naturalisation’ falls under Entry 17 of Union List under Seventh Schedule, and therefore, Parliament is thoroughly competent to enact a law on the subject