Kerala Government’s decision to Challenge CAA under article 131 before Supreme Court.

Politics in India is never a low key affair.

Citizenship Amendment Act has become a law by which persecuted minorities from three neighbouring countries shall get citizenship after in naturalization period of 6 years instead of normal 12 years.

The Kerala government which is a communist and islamist combine had passed a resolution in the state assembly calling upon the union government to withdraw the aforesaid law. It was a vane act targeted at vote banks. If the resolution had to be no legal effect, why was it passed after so much fan fair?

Now the same Kerala government has approached the Supreme Court under article 131 challenging the citizenship Amendment Act. But it’s roadblocks are hard to surmount. Article 131 of the Constitution is as under:

131. Original jurisdiction of the Supreme Court Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute

(a) between the Government of India and one or more States; or

(b) between the Government of India and any State or States on one side and one or more other States on the other; or

(c) between two or more States, if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends:

Provided that the said jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant, engagements, and or other similar instrument which, having been entered into or executed before the commencement of this Constitution, continues in operation after such commencement, or which provides that the said jurisdiction shall not extend to such a dispute

The problematic area for the Kerala government is highlighted in bold in above article 131. The citizenship Amendment Act grants a legal right in favour of certain persons who are not yet citizens of India. But article 131 is limited to those questions of law and fact which effect legal rights of the state.

So the first question is how does the impugned law affect the legal rights of state of Kerala? Even by exercising wildest imaginative flight I have failee to understand how can accelerated grant of citizenship to certain persons can affect legal rights of state of Kerala.

There is another problem. India is a union of States. It is not a federation of autonomous States. The difference is well known in constitutional law.

In a federation different states come together and join them in one federation. The sovereignty of state remains paramount, subject to the sovereignty of federation limited to the powers extended to the federal government.

In case of union of States, creation of state does not give geographical autonomy but it is only an administrative arrangement in which certain powers are exercised by the subordinate State Government and legislature. The union Parliament remains Supreme sovereign authority.

In the scheme of constitution of India, as also in its working in 70 years creation or abrogation of state is a prerogative of union parliament. Very recently by creation of union territory of Jammu and Kashmir and a separate union territory of Ladakh is an example of sovereign powers of the union parliament. Therefore even though the state governments have been conferred a remedy under article 131 to agitate for its legal right does not confer the state government the power to question exercise of sovereign powers of Parliament to legislate on any subject.

It is extremely doubtful that the Kerala government would be able to satisfy the supreme court as to how its legal rights are affected by impugned legislation.

There is another problem of the policy. The state governments run by different political parties cannot be permitted a forum before courts to agitate political questions. If the State governments are permitted to challenge every legislation by the parliament the system cannot work. Very purpose of creation of a unitary system of states was to prevent this kind of uprising by the states which has been a historical fact being repeated again and again for thousands of years.

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