A man holds a placard 'No CAB, No NRC' at a protest against the amended citizenship law in old Delhi on 20 December 2019 | Suraj Singh Bisht | ThePrint Photo
Protests against the amended citizenship law were held in Old Delhi on 20 December 2019 | Suraj Singh Bisht | ThePrint Photo
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It seems almost trite to suggest that India’s federal structure is heavily skewed in favour of the central government. Yet, it is, ultimately, this simple fact that appears to be forgotten in the maelstrom of states’ opposition to the Citizenship Amendment Act and forthcoming National Population Register.

Earlier this week, Rajasthan joined Kerala to become the second state to challenge the constitutional validity of the CAA, invoking the Supreme Court’s original jurisdiction under Article 131. On the same day, the Telangana assembly passed a resolution opposing the implementation of the NPR, joining 20 other states that have adopted identical positions.

As unsavoury as the CAA might be, and as compelling the need to forestall its sinister alter-ego – the NRC – one must not hesitate in assessing the constitutionality of these acts that seek to resist it. Two wrongs don’t make a right. A second constitutional breach does not repair the first but further erodes an already-crumbling framework.


Also read: CAA is a ‘benign’ law, scope for judicial review is limited, Modi govt tells SC


The misuse of Article 131  

Article 131 assigns jurisdiction to the Supreme Court over disputes between the Government of India and one or more states if “the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends”. What constitutes an actionable ‘legal right’ under this provision, however, proves controversial.

In State of Karnataka v. Union of India, the Supreme Court read this broadly to encompass the rights of individuals, and not just those of the state. However, this was contradicted by a second bench in State of Madhya Pradesh v. Union of India, where the court read Article 131 restrictively, as only applicable to the rights of a state. This question is crucial in the context of the CAA, since Kerala has not challenged the Centre’s competence to enact the law (that is, as treading on its own rights), but only its transgressions against individuals’ fundamental rights.

An effective interpretation of Article 131 supports a restrictive reading. The provision’s qualifying phrase “existence or extent of a legal right” carries little purpose if read to mean any right; indeed, if that were the intended purpose, the provision could simply have read as applicable to “any legal dispute”. The reference to rights carries far more value when understood as an allusion to legislative competence, providing an effective forum for states to challenge a usurpation of their power by the Centre.

Moreover, conferring an extended power to challenge central legislation makes little sense in a federal structure that otherwise provides overriding authority to the Centre on most other questions of import, as the Indian Constitution does. Finally, a broader reading of Article 131 also offers little additional utility: a violation of individual rights is already actionable under Articles 32 and 226 (where the parens patriae doctrine even permits states to represent the interests of their citizens).

With the CAA, there exist over a hundred writ petitions challenging the constitutionality of the legislation. The only plausible justification for an additional challenge by states under Article 131 is that cases under such jurisdiction are heard on a priority basis, thereby promising relief more swiftly.

However, the controversy over the interpretation of this provision has hindered a prompt resolution of such disputes, negating even this slight benefit. The case of State of Jharkhand v. State of Bihar, for instance, has been in hiatus for over seven years, awaiting clarification from a larger bench on the scope of Article 131. As such, one must conclude that the use of this provision to contest a centrally-enacted legislation like the CAA on individual rights not only undermines the framework of the Constitution but does so for little additional utility.


Also read: As Delhi joins the list, 12 Indian states & UTs now stand in opposition to NPR


Stonewalling the NPR  

The past few weeks have witnessed snowballing momentum favouring a second alternative for states: of refusing to implement the National Population Register (NPR). This route offers more strategic promise. The creation of such a register relies on door-to-door surveys that inevitably draw heavily on state administration for fieldwork, coordination and publication: a fact acknowledged by the NPR 2020 Instruction Manual and confirmed by past Census practices.

A coordinated effort by states denying the Centre such administrative support might well break the spine of any NPR exercise. Yet, the constitutionality of such measures lies on frail footing.

Schedule 7 of the Constitution locates the subject of citizenship (and, consequently of the NPR and NRC) squarely within the domain of central competence. Article 256 mandates that states act in compliance with the laws passed by the Centre in such domain, and even allows the Centre to issue directions to states for such purpose. If a state were to ignore such directions, Article 365 deems that constitutional governance is no longer possible in that state, permitting a declaration of President’s rule as per Article 356. While the viability of imposing President’s rule simultaneously in over 20 states seems slight, thereby supporting the efficacy of this strategy, it is undeniably a breach of the constitutional framework.

It is also an unnecessary breach. The Constitution permits the Supreme Court to review the validity of the CAA and the NPR. If found suspect, they will be struck down; if it were necessary to halt their implementation in the interim, the court can order a stay. There exist sufficient measures within the Constitution to ensure compliance with its terms. Seeking its protection through acts that themselves violate this framework is paradoxical. In attempting to uphold the Constitution of India, we must not throw the baby out with the bathwater.

The author is a DPhil candidate and Rhodes Scholar at the University of Oxford. Views are personal.

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5 Comments Share Your Views

5 COMMENTS

  1. When you talk about constitution talk about anti Hindu articles. And amendments too. You are blind to such articles. Majority rule is confined to no game.divising Hindus as sc,at,bc,etc and siding Christian and Muslims.
    Is this democracy and secularism. If you have any ethics write on these topics.

  2. A very good write up. The issue has also been brought out very clearly and i also agree to the broad point. And yes we cannot protect constitution by further putting it at risk. However, given the present state of judicial uncertainty in the present times, this move by states has helped bolster the courage and morale of those who are rising up against it.

  3. Varsha Jain what is the use of education at Oxford University when you and all BJP illiteraters not able to understand the simple logic of NO BODY CAN MAKE ANY LAW, ACT on basis of majority which oppose the CONSTITUTION OF INDIA. ALL BJP ILLITERATERS CAN’T WRITE THE CONSTITUTION OF INDIA IN WHAT WAYS DR. BHIM RAO AMBEDKER WROTE WITH LOT OF PATIENTS AND SACRIFICE.

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