Article 131: Manufacturing a ‘Dispute’ Where None Exists

Amid the din against the CAA-NRC combine, a fresh challenge under a seldom employed and much less provocative provision of the Constitution of India has emerged. As per ­­the ostensible remit of Article 131 of the Constitution, the challenge has emerged in the form of Governments of constituent States of the Indian Union challenging the constitutional validity of a lawfully enacted statute by Parliament. In challenging the validity of a law that has sharply divided public and political opinion, the move throws up some interesting questions as to the invocation of such a remedy under the scheme of our federal Constitution.

Ambit of Article 131

Article 131 is in many respects an anathema to the Government’s oft-quoted catchphrase ‘cooperative federalism’. The Constitution Framers were well aware that disputes between the Union and the constituent States is an inevitability for any federal polity and therefore provisioned for either the Government of India or a State Government to by-pass the judicial hierarchy and directly approach the Supreme Court under its original and exclusive jurisdiction. However, the remit of Article 131 is tempered on certain counts and the same assumes great significance vis-à-vis the issue at hand.

A bare perusal of Article 131 manifests that (1) exclusive jurisdiction vests in the Supreme Court of India to the exclusion of any other court, (2) there must exist a ‘dispute’, (3) said dispute must be between either the Government of India i.e. the Central Government and one or more constituent State or States or between two or more of such constituent States of the Union of India, and most importantly (4) the dispute must involve a question of law or a question of fact upon which the extent or the very existence of a legal right is predicated. Two integral constituents of Article 131 i.e. ‘dispute’ and ‘legal right’ must therefore be emphasised.

Maintainability of the Suit

The  Supreme Court, vide its law settling judgments in State of Rajasthan  v. Union of India[1]  as well as State of Jharkhand v. State of Bihar[2] have authoritatively established that ‘dispute’ must involve the assertion and/or vindication of a legal right of the Government of India and/or that of a constituent State of the Union. A caveat in that regard is that a genuine legal right must have been asserted by way of the suit concerned and any issue merely touching upon political concerns would be outrightly rejected by the Supreme Court.

It becomes absolutely fundamental to take into consideration that any invocation of Article 131 must concern itself with the rights, obligations, duties, powers, immunities and liberties only insofar as the parties to the suit are concerned. The Supreme Court has further established, vide the above cited judgments, that an original suit under Article 131 must not and cannot be likened to a civil suit in terms of the Code of Civil Procedure, 1908 (CPC) and therefore in the matter at hand it is not necessary that the plaintiff States must assert the ‘legal right’ unto themselves.

Evidently, Article 131 has been manifested to not be encumbered with any such narrow expositions and a suit thereof would be maintainable so far as it brings into question any dispute centred around the legal or constitutional right asserted by the defendant Government of India not in consonance with such rights and powers asserted by the plaintiff States. However, this is precisely where the plaintiff States’ suit falters for nowhere in the respective plaints, have the States of Kerala as also Rajasthan challenged or brought into question the constitutional power of the Government of India to enact the Citizenship (Amendment) Act, 2019. In fact, vide the respective plaints it has been submitted that by virtue of Article 256, the constituent States of the Union shall be constitutionally obligated and duty bound to implement the provisions of the Amendment Act, 2019 unless the Supreme Court deems it unconstitutional.

It is no one’s case that the validity of a Central legislation cannot be challenged by the Government of a State under Article 131. However, the same has to be tempered by way of the Constitution Bench judgment in State of Rajasthan[3]whereby two conditions were laid out as already exhibited hereinabove. For invoking Article 131 therefore, there has to be a dispute between the legal/constitutional right or authority or power asserted by the defendant vis-à-vis the plaintiff. The constitutional power of the Central Government to enact the Amendment Act, 2019 as per List I (Union List) of the VIIth Schedule having nowhere been challenged, the pre-requisite conditionalities under Article 131 are not satisfied.

In fact, the  Supreme Court, vide its judgment in State of Jharkhand[4]  furthered the abovecited position of law and came to the conclusion that there isn’t any bar to a test of constitutional validity of a statute under the original jurisdiction of the Supreme Court. However, the same has to concern a disputed question of law/fact that impinges, erodes, diminishes or even outrightly strips the legal right asserted by a ‘party to the proceedings’.

Notably, the plaintiff States have predicated the ‘dispute involving questions of law and fact’ on the alleged violation of the fundamental rights of their inhabitants. This is erroneous on two primary grounds; one, the Amendment Act, 2019 does not in any manner deem to take away or abridge the rights of Indian citizens for it is merely an enabling provision to speed up the grant of Indian citizenship for certain religious communities and two, the said averment is grossly dehors the constitutional scheme of our federal polity wherein the constitutional power to regulate affairs pertaining to ‘Citizenship, naturalisation and aliens’, ‘Extradition’ and ‘Admission into, and emigration and expulsion from, India; passports and visas’, vests with Parliament to the absolute exclusion of State Legislatures. Evidently thus, the State Governments are merely manufacturing a ‘dispute’ where none exists as per the scheme of the Constitution of India.

In conclusion, the reader must be apprised of the fact that the question pertaining to invocation of jurisdiction under Article 131 insofar as it concerns a challenge to the constitutional validity of a statute has in fact been referred to a larger Bench of the Supreme Court in light of the apparent conflict between the two judgments in State of Madhya Pradesh v. Union of India[5] and the abovecited State of Jharkhand v. State of Bihar[6]. Regardless, the same doesn’t alter or dilute the ambit and scope of Article 131 as laid out by State of Rajasthan[7]  judgment.


*Authors are practising Advocates in Delhi.

[1] (1977) 3 SCC 592

[2] (2015) 2 SCC 431

[3] State of Rajasthan v. Union of India, (1977) 3 SCC 592

[4] State of Jharkhand v. State of Bihar, (2015) 2 SCC 431

[5] (2011) 12 SCC 268

[6] (2015) 2 SCC 431

[7] State of Rajasthan v. Union of India, (1977) 3 SCC 592

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