[This is a guest post by Amlan Mishra.]
The question of whether Article 131 of the Constitution can be used by states to challenge the vires of a Central legislation was referred to a larger bench of the Supreme Court in State of Jharkhand v. State of Bihar. With Kerala and Jharkhand challenging the constitutionality of Central laws, this question has come to the limelight again. In this piece I put forward a structuralist interpretation of the Constitution, to argue that states have such a right. ‘Structural interpretation’ here is taken to indicate the use of multi-provisional implications which are sensitive to the context and purpose of the provisions of the constitution.
Legal position so far
Article 131 provides that the Supreme Court shall have original jurisdiction to try cases between different federal units, if the dispute involves ‘any question of law’ on which the ‘existence or extent of a legal right depends’. The reference to a larger bench is for the interpretation of the words ‘legal right depends’. Two cases of the Supreme Court propose contradictory interpretations to this question. Both cases fail to offer any substantial philosophical or structural reading of the constitution in arriving at their conclusions.
First, consider State of Karnataka v. Union of India, where the Supreme Court held that ‘legal right’ here does not just mean the ‘legal right of the state’, but includes any legal right of State government or of other people. This case identified two ingredients that are necessary for an original suit under A. 131, a) the two parties (states or centre) and b) a substantial question of law arising out of ‘some legal right’. The interpretation of ‘legal right’ was delinked from the concept of a ‘cause of action’, such that the legal right of the ‘plaintiff’ (in this case, the state) need not be violated to move an original suit under this Article. The absence of a ‘legal right of the plaintiff’, the court held, should not stop the court from hearing the parties on merits. J. Chandrachud stressed on the ‘delicate relationship’ between the centre and the state to point out that the constitutional capacity of the litigants under Article 131 should not be narrowly limited. J. Bhagwati in his opinion undertook a textual reading of the Article, by noting that it does not explicitly say ‘legal right of the plaintiff only’. In absence of such a clear indication in the article, he was unwilling to read the concept of ‘cause of action’ into it.
The second case is State of MP v. Union of India wherein the constitutionality of a legislation was held to be unassailable by a state government moving a suit under Article 131. It gave a strained explanation which hinged on the 42nd Amendment and its subsequent repeal. It held that the amendment had, in the past, weakened writ jurisdiction under Articles 32 and 226 by giving exclusive jurisdiction to the Supreme Court, to adjudge constitutionality of central laws by inserting Art. 131A. So the latter repeal of Art. 131A, the court held, should be understood to mean that constitutionality of central laws are now to be decided solely under the writ jurisdiction of the courts. State of Madhya Pradesh does not, however, articulate as to why an additional challenge to constitutionality of statute cannot be moved under Article 131 (as is the case in Kerala’s challenge to the Citizenship (Amendment) Act, 2019), alongside other petitions under Art. 32. A petition under one need not limit the other.
In what follows I propose that using a structural interpretation of the Constitution, states have the right to challenge Central laws under Article 131.
Structuralist reading of Article 131: Basic structure as supra-statutory duty
The immutability of the key provisions of the Constitution, in the face of executive or legislative action, is a crucial facet of liberal democratic Constitutions. For example, the US Constitution provides under Article IV that the federal government shall guarantee a ‘republican form of government’. Deriving from this (see Ambedkar’s statement drawing the parallel), the Indian Constitution under Article 356 provides that the President’s rule can be invoked if the administration of the state is ‘against the provisions of the Constitution’.
In SR Bommai v. Union of India, Article 356 was invoked in 3 BJP ruled states, on the grounds that the state governments were acting against secular principles during the Babri Masjid demolition. The Supreme Court observed that ‘administration according to the provisions of the Constitution’ includes within its ambit more than mere ‘governance in accordance with electoral democracy’. It also includes fidelity to fundamental values of the Constitution, such as secularism. Accordingly, the test of ‘government in accordance with the Constitution’ demanded adherence to the ‘basic structure’ of the Constitution. Consider these statements by the judges.
Justice Sawant observed:
Any profession and action that go counter to [secularism] are a prima facie proof of the conduct in defiance of the provisions of the Constitution.
Similarly, Justice Reddy observed:
[I]t is clear that if any party or organisation seeks to fight the elections on the basis of a plank which has the proximate effect of eroding the secular philosophy of the Constitution it would certainly be guilty of following an unconstitutional course of action.
It is to be noted that SR Bommai did not hold merely that anti-secular actions were a violation of basic structure, (thereby integrating basic structure considerations into the review of a higher executive’s action). It also established concomitantly, as Gary J. Jacobson argues in The Wheel of Law (2003), that the Union government has the power to take positive action to uphold the basic structure. Thus ‘electors’ and ‘courts’ were not the only decision-makers as to whether a government was working ‘against the provision of the Constitution’. The centre could also invoke Article 356 to put forward its version of the Constitutional truth and the courts, by reviewing such an exercise, could adjudicate if that reading of the Constitution was correct. In Bommai, the courts rooted this power of the Centre – in the duty of elected governments to not only abide by the basic structure but also to positively enforce it. Consider this by J. Ramaswamy in Bommai:
Secularism . . . is a part of the fundamental law and basic structure of the Indian political system to secure to all its people socio-economic needs essential for man’s excellence with material and moral prosperity and political justice.
Jacobson reads this as “[g]overnment is being invited to act in furtherance of the basic features of the Constitution, not simply to refrain from acting in situations where fundamental rights have been threatened or violated.”(Pg. 150)
Is this invitation to act in furtherance of the Constitution a one way street? Surely, no counterpart of Article 356 exists for the states to move against the Centre. However, Article 356 is useful to see how one unit’s interference in the sphere of another is justified if it is to further the basic structure of the Constitution. The centre, by virtue of its more dominant position, can discipline the states if they don’t follow the basic structure.
But states also have a similar, albeit less explicit obligation to defend the Constitution in their respective spheres. This is by virtue of the oath a Governor takes where he swears to ‘preserve, protect and defend’ the Constitution. The Chief Minister of a state similarly swears to act ‘according to the Constitution’. In Manoj Narula v. Union of India the court read the oath to confer a ‘constitutional expectation’, albeit non-binding, upon the Prime Minister and the Chief Minister, to not include criminals in their cabinets. The oath of these functionaries, read with Jacobson’s idea that states have a positive duty to enforce the basic structure, raises a strong Constitutional expectation in the state government to defend and work in furtherance of the basic structure. What happens when their constitutional obligation/expectation to protect and defend the Constitution is in the opinion of the state in conflict with any act of the centre?
To illustrate this let me draw an analogy between the basic structure of the Constitution and Radbruch’s idea of ‘Supra- Statutory authority’. Evolved after the carnage of the holocaust, the principle says that actions of any government functionary should not be tested just on the ‘positive law’/’orders of superiors’ but also against some basic supra-statutory principles like human rights. The oath of a Governor can be said to test the action of a State Government (acting under his name) on the touchstone of the Constitution. This cannot, however, mean that the states should dissent when confronted with an unconstitutional act by the Centre. The Constitution, as I discuss below, forbids such dissent. There should be an alternative mechanism to voice this disagreement.
Enforcing unconstitutional directions?
Crucially, Article 247 under the Indian Constitution provides that directions can be issued to the State government, inter-alia to not impede the Centre’s executive functioning. Article 365 provides that non-adherence to instructions of the Centre is enough to invoke Article 356 in the states. Such a compulsory direction from the Centre cannot exist in absence of the right to challenge the constitutionality of the Central government legislation on the ground that it goes against the duty of the centre to act in furtherance of the basic structure. For example, if during the enforcement of the recently enacted Citizenship (Amendment) Act, 2019, the Centre directs State Government to make its machinery available for verifying the documents of refugees in India for eligibility for citizenship, the state may have to enforce what it feels is an unconstitutional act of the centre.
The states then should have a mechanism to clarify if it is indeed a violation of the Constitution. It can be done only by challenging it with reference to the Constitution.
Integrating text with structure
Let us see if we can apply the aforesaid structural reading to the text of Article 131. Article 131 uses in clear terms the phrase: ‘legal rights depends’. What I propose is to look closely at J. Chandrachud’s opinion in State of Karnataka. He stressed the ‘delicate federal relationship’ of India to read the words ‘legal right depends’ liberally. Inherent in this idea is the understanding that ‘the legal right’ should arise in the course of the federal relationship, which admittedly is incapable of precise description. On similar lines, in the case of State Bihar v. Union of India the court noted that ‘the legal right [under Article 131] should arise in the context of the constitution and the federalism it sets up’.
What is important to note here is that the Indian Constitution does not provide ‘rights’ (claim rights) to constituent units against each other (in the strict Hohfeldian sense). Instead it gives them ‘power to legislate’ (see Article 246). In addition to this the Constitution provides for immunities (enjoyed by constitutional functionaries), duties, privileges (enjoyed by legislators), and expectations (arising out of oaths) to/on constituent units [jural relationships]. More often than not, all constitutional provisions confer on constituents a fusion of these ‘jural’ terms. For example Article 356, as Jacobson’s exposition shows, confers on the central government a ‘power + duty’ to enforce provisions of the Constitution in a state.
Let us imagine these ‘jural relationships’ as spheres inside of which the units must operate, with occasional access to each other’s sphere as laid down in the Constitution [jural spheres]. It is the unconstitutional encroachment into each other’s ‘jural spheres’ that must be at stake for a dispute to fall under Article 131. Each unit, as I have established above, enforces the Constitution in its own sphere. [See a similar characterisation of the word ‘rights’ in J. Bhagwati’s opinion in State of Karnataka]
For the Centre, enforcement of the Constitution maybe mean incursion into the state’s sphere through the invitation in Article 356 to act in furtherance of the Constitution. This is an issue squarely under the jurisdiction conferred by Article 131 as illustrated by State of Rajasthan v. Union of India, wherein Article 131 was used to challenge the dissolution of State Legislative Assembly. Similarly a duty/expectation to defend the Constitution in a state is also incumbent on the States acting in the name of their higher functionaries. A violation of core constitutional values by the centre may then infringe the higher functionaries ability to ‘defend the Constitution’, thereby infringing on the sphere of action of the state.
Such a conflict of ‘legal rights’ may not seem as obvious a conflict as the issue of ‘who can try the Chief Minister of the state for corruption’ (a question involved in State of Karnataka). But this is definitely a question arising out of the federalism set up by the Indian Constitution. Thus the phrase ‘legal right depends’ can be read to mean competing jural relationships in the Constitution which arise from the obligation of each constituent unit to enforce and uphold the Constitution in its respective sphere.
In sum, therefore, if the states hold a good faith belief that the enforcement of the CAA or the NRC (for example) runs contrary to core constitutional tenets, Article 131 ought to be read as granting to them the right to challenge this before the Court, and contest the centre’s understanding of what the Constitution allows.