Kerala on Tuesday became the first state to move the Supreme Court to challenge the Citizenship Amendment Act. Passed by Parliament in December, the law provides a gateway to undocumented migrants from Pakistan, Bangladesh and Afghanistan to obtain Indian citizenship – except if they are Muslim.
The passage of the law sparked widespread protests that have continued for over a month. By excluding Muslims from its purview, the law introduces a religious criterion to citizenship requirements and is discriminatory, critics say. This violates the equality clause under Article 14 of the Indian Constitution, in addition to undermining the ideal of secularism.
On Tuesday, Kerala moved a suit of declaration against the law under Article 131 of the Constitution, which gives the Supreme Court exclusive jurisdiction to hear cases between the Centre and the states.
Kerala’s petition argues that the law is unconstitutional as it violates fundamental rights and secularism. It says the law has a federal impact as it will force the state to implement what it believes is an unconstitutional enactment.
Kerala’s decision to move the petition under Article 131 does not guarantee its success. The question of what the jurisdiction of the Supreme Court under Article 131 entails is highly disputed, with different benches having taken contrasting views on the matter. In addition, the Supreme Court will be faced with the question of how to engage with Kerala’s petition: will the court club the suit with over 60 petitions that have been moved by individuals under Article 32 of the Constitution, which allows aggrieved parties to ask for their rights to be enforced? Will it be urged to form a larger bench so that it can also decide on the width of Article 131 when it comes to adjudicating on the constitutionality of a law?
We explore the possible scenarios.
Article 131 suit
Unlike Article 32, which comes under the extraordinary writ jurisdiction, suits under Article 131 fall under the original jurisdiction of the Supreme Court. That is, suits filed under Article 131 come directly to the Supreme Court and not through appeals from the lower courts.
A suit under Article 131 assumes the process of a civil suit whereas a petition under Article 32 follows the writ procedure. This is why, in a plaint under Article 131, the state asks for the issue of a decree rather than a writ.
K Chandru, former judge of the Madras High Court, said that the discretion of the Supreme Court in admitting the cases is curtailed under Article 131. “They can dismiss Article 32 petitions without admission,” he said. “However, a suit under Article 131 has to be admitted. The maintainability question will have to be argued.”
Chandru said the process of the suit will demand an examination of evidence in its full breadth.
Over and above these differences, the Supreme Court will have the task of deciding how to hear the matters. In this, contrasting previous judgements on the jurisdiction of Article 131 suits will pose a difficulty.
Constitutionality of a law
Over the decades, the Supreme Court has taken contrasting decisions on whether it can decide on the constitutionality of a law under a suit of declaration under Article 131.
In 1977, a five-judge bench of the court held that when states and the Centre differ on a question of interpreting the Constitution and if the result of such differences may affect the states, such a dispute will fall under Article 131. The Citizenship Amendment Act is clearly one such law.
However, later judgements took a contrasting view. Thus, in State of Jharkhand vs State of Bihar in 2015, the court cited previous judgements which had said that constitutionality does not fall under an Article 131 suit and disagreed with them. It then referred the matter to a larger bench.
The two-judge bench said:
“The Constitution of India invests this Court with jurisdiction, both original and appellate, under various provisions of Part V, Chapter V of the Constitution. Such jurisdiction of this Court is in addition to the jurisdiction created under Art.32 of the Constitution of India for the enforcement of fundamental rights.
We are unable to agree with the proposition that this Court cannot examine the constitutionality of a statute in exercise of its exclusive original jurisdiction under Art.131. We, therefore, deem it appropriate that the question is required to be examined by a larger Bench of this Court. We direct the Registry to place the matter before the Hon’ble the Chief Justice of India for appropriate orders in this regard.”
This reference to a larger bench is now pending. How will this impact cases against the Citizenship Amendment Act?
It is important to understand that there is no doubt over the court’s competence to test the constitutionality of a law under Article 32. This confusion is only in the context of Article 131.
It is also relevant to note that as the Constitution stands today, states have no recourse but to file suits under Article 131 in case they have differences over a law passed by Parliament.
Currently, the Article 32 cases are being heard by a three-judge bench headed by Chief Justice of India SA Bobde. If the Supreme Court wants to club Kerala’s suit with the Article 32 petitions, it has to form a larger bench of at least five judges, which alone will be competent to address the 2015 reference. Without deciding on the referral, it will not be possible for the Supreme Court to decide on Kerala’s suit.
Even if the court wants to deal with Kerala’s suit separately, it has to form a five-judge bench to first decide on the reference and then let a smaller bench take up the suit. This would be cumbersome for two reasons. First, this would mean parallel proceedings on the same questions on CAA as the Kerala suit is also based on violation of fundamental rights.
In case the court decides that a five-judge bench will determine both the reference and the suit against CAA as a separate proceeding from the Article 32 petitions, this will lead to a clash in the process undertaken by two separate benches.
Since the Article 32 petitions are before a three-judge bench, a separate proceeding for Kerala’s suit with a five-judge bench would mean the larger bench would be able to reconsider the three-judge bench verdict if it is delivered earlier. This would be a needless additional round of litigation.
Therefore, the ideal way for the court to deal with these cases would be to form a larger bench of five judges and bring all matters, whether under Article 32 or Article 131, under one umbrella. This bench could decide on the 2015 reference and on the question of constitutionality of the Citizenship Amendment Act.
