The Parliament enacted the controversial The Citizenship (Amendment) Act, 2019 ('CAA') in December last year. This triggered a heated public debate, as many viewed the CAA as discriminatory. It provides a path to citizenship to illegal migrants from a set of religious communities, thereby explicitly excluding others.
The State of Kerala was one of the first states to vocalise its opposition to the CAA. It even went as far as filing a case against the Centre. In January, it challenged the constitutionality of the Amendment before the Supreme Court of India. As we summarised in our Case Background, it contends that the CAA violates various fundamental rights, including the right to equality.
In order to approach the Court, Kerala invoked the Supreme Court's original jurisdiction under Article 131 of the Constitution. It remains to be seen whether a State can successfully challenge the constitutionality of a central law via Article 131. In this two-part series, we explore the constitutional history and scope of Article 131, and how the legal precedents inform the Kerala suit.
Constitutional History and Scope of Article 131
Article 131 delineates the scope of the Supreme Court's original jurisdiction. In effect, it describes the cases that can be filed in the first instance before the Court. Accordingly, to invoke jurisdiction under this Article two conditions must be met. First, the dispute must be amongst State(s) and/or Centre. Second, the dispute must revolve around the question of law or fact of a legal right.
The provision laying down original jurisdiction was not unique to the Draft Constitution of India, 1948 – the document based on which the Constituent Assembly debated and adopted the Constitution of India, 1950. When we look beyond this, we find that several Historical Constitutions before 1950 articulate this idea.
The Commonwealth of India Bill (National Convention, India, 1925), a nationalistic effort to draft an Indian Constitution, had envisioned a more expansive original jurisdiction for the Supreme Court. In addition to the disputes amongst Provinces, it covered issues arising out of the treaty, admiralty and maritime cases, cases in which the State was a party. It did not cover disputes between the Provinces and the ‘Commonwealth’ i.e. Centre.
Three years later, in Nehru Report (Motilal Nehru,1928), an initiative of the All Parties Conference led by the Indian National Congress, had a similar understanding of the original jurisdiction as that of the Commonwealth Bill. In that, the Report too excluded cases arising out of disputes between the Provinces and the ‘Commonwealth’.
We can notice a departure from this thinking in the Government of India Act, 1935. Section 204 of the Act grants the Federal Court, original jurisdiction. Unlike the Bill or the Report, it narrowed down the parties to only Federation or States. Further, the Act qualified the jurisdiction with the ‘existence of a legal right’ – a condition that was amiss in the Bill and the Report.
In the Constituent Assembly, one can argue that Draft Article 109 (Article 131) bore more resemblance to Section 204 of the Government of India Act than its earlier Indian predecessors. The debates around this provision were not heated or extensive. However, remarks by Brajeshwar Prasad seem noteworthy. Prasad believed that ‘the provincial Governments are subordinate Governments’. Favouring a unitary government, he insisted on empowering the Central Government to adjudicate disputes between two States.
The Constituent Assembly did not purchase Prasad’s predilection to a unitary framework. Through Article 131 it retained original jurisdiction of the Supreme Court in a similar vein to that of Section 204 of the Government of India Act, 1935.
In the next post, we examine the key supreme court judgements around Article 131 that clarify its contemporary scope and application.