Maintainability Before Merit: The Prerequisite in States’ Suits Against the Union Under Article 131

INTRODUCTION

In January 2020, the State of Kerala instituted a suit in the Supreme Court under Article 131¹, challenging the constitutional validity of the Citizenship (Amendment) Act, 2019, the Passport (Entry to India) Amendment Rules, 2015 and Foreigners (Amendment) Order, 2015.² According to the State of Kerala, these are class legislations which harp on the religious identity and country of origin of an individual; the State of Kerala has prayed that all these legislations be declared null and void, as they violate the principle of secularism, a basic feature of our Constitution, as also Articles 14, 21 and 25. The State of Chhattisgarh has challenged the National Investigation Agency Act, 2008 before the Supreme Court under Article 131, alleging that it usurps the power of investigation vested with the police under Schedule VII List II Entry 2 to the Constitution of India, thus violating the federal structure.³

Recently, the Kerala High Court dismissed⁴ a writ petition challenging the executive decision of the Union of India and Airports Authority of India to hand over Trivandrum Airport to private entities by holding that the appropriate remedy is to institute a suit under Article 131. In appeal, the Supreme Court remanded⁵ the matter to the High Court by a non-speaking order, leaving the issue on applicability of Article 131 open.

In all these suits, the first question would be of their maintainability under Article 131. It is debatable whether the grounds on which these suits have been instituted give rise to a question “on which the existence or extent of a legal right depends” (a requirement under Article 131), and what is the nature of the precise legal right in question.

Unfortunately, the contrary stands taken by the Supreme Court in State of M.P. v. Union of India⁶ and State of Jharkhand v. State of Bihar⁷ do not leave this issue free from doubt. In State of M.P.⁶, the Supreme Court observed: (SCC p. 276, para 20)

20. … when the Central laws can be challenged in the State High Courts as well and also before this Court under Article 32, normally, no recourse can be permitted to challenge the validity of a Central law under the exclusive original jurisdiction of this Court provided under Article 131.

In contrast, the Supreme Court in State of Jharkhand⁷ expressed its inability to agree with these observations in State of M.P.⁶, and referred the matter to a larger Bench.

In this backdrop, this article seeks to explore the contours of Article 131 of the Constitution of India, to determine the appropriate forum for adjudication of such disputes. To do so, the different capacities in which a State may invoke the jurisdiction under Article 131 shall be first discussed briefly, and thereafter, the scope and extent of Article 131 shall be traversed.

CAPACITIES IN WHICH A STATE MAY INSTITUTE A SUIT

A State institutes a suit in the following capacities:

1. For or on Behalf of its Inhabitants — as “Parens Patriae” or in representative suits

2. For Vindicating its own Rights

For or on Behalf of its Inhabitants

Parens patriae

A welfare State acts as parens patriae of its inhabitants and has long been considered as a proper party to represent and defend its citizens’ rights, when their health, comfort, prosperity or property are endangered.⁸ In a suit under Article 131 against the Union, can a State act as parens patriae of its inhabitants?

A similar question was examined by the United States Supreme Court in Massachusetts v. Mellon⁹. The Commonwealth of Massachusetts challenged the constitutionality of the “Maternity Act” enacted by the US Congress, alleging inter alia, invasion of the rights of its citizens. The United States Supreme Court observed as under: (SCC OnLine US SC para 17)

17. … It cannot be conceded that a State, as parens patriae, may institute judicial proceedings to protect citizens of the United States from the operation of the statutes thereof. While the State, under some circumstances, may sue in that capacity for the protection of its citizens … it is no part of its duty or power to enforce their rights in respect of their relations with the federal government. In that field it is the United States and not the State, which represents them as parens patriae, when such representation becomes appropriate; and to the former, and not to the latter, they must look for such protective measures as flow from that status.

The Indian context differs from the United States’ — ours is a quasi-federal structure and single citizenship¹⁰; in this backdrop, these observations apply with even greater force to India. Individual States cannot rely on the doctrine of parens patriae to institute suits against the Union of India under Article 131, though they may well have this right when it is another State that they have a grievance against.

Representative suits

Citizens can challenge a Parliamentary legislation or executive action by filing individual petitions before the High Court. To prevent multiplicity of litigation, a State may take up their cause and institute a suit before the Supreme Court. In this circumstance, when the State consolidates their claims in a single representative suit, it does not contend that a legal right of the State is at risk, but is only representing the grievances of its inhabitants. In such a scenario, is recourse to the Supreme Court’s original jurisdiction permissible?

The nature of the parties that can invoke the Supreme Court’s jurisdiction under Article 131 would preclude a State from instituting such suits. In State of Bihar v. Union of India¹¹, the State of Bihar prayed for a money decree citing short delivery of materials under a construction contract. The Court was required to determine if the suit was maintainable under Article 131 when not only the Union, but companies it owned were also arrayed as the defendants. The Supreme Court observed that apart from the framers of the Constitution not having contemplated a dispute involving a private party as amenable to the original exclusive jurisdiction of the Supreme Court, the express words of Article 131 clauses (a), (b) and (c) also exclude the idea of a private citizen, a firm or a corporation figuring as a disputant, either alone, along with, or in the alternative with a State or the Union of India.

Untwalia, J. in his opinion in State of Karnataka v. Union of India¹², outlines the adverse consequences in allowing such suits to be instituted under Article 131: (SCC p. 715, para 216)

216. … If a restricted meaning were not to be given to the scope of the suit which can be filed under Article 131, very anomalous, and sometimes absurd, results may follow and it will be difficult to put a dividing line and a stop to the very wide scope of the suit resulting from such an interpretation. … The argument that the State is interested in protecting its people and officers when their legal right has been illegally invaded by the Central Government and, therefore, it has a locus to invoke Article 131, in our opinion, is too obviously wrong to be accepted.

American jurisprudence similarly holds that a State may invoke the US Supreme Court’s original jurisdiction only where the offending statute affects the property or the powers of the complaining State in its sovereign or corporate capacity,¹³ but not for the benefit of individuals.¹⁴

It follows that for a legal right in dispute to be amenable to the exercise of jurisdiction under Article 131, the legal right has to be of the State, and not of private individual(s).

For Vindicating its own Rights

A State can institute a suit on its own accord, on grounds similar to those adopted by the State of Kerala and the State of Chhattisgarh while instituting their suits. When considering this independent challenge, two remedies are available to a State — it can either institute a suit under Article 131 or approach the High Court under Article 226 of the Constitution of India. The right recourse would depend on the sphere in which Article 131 operates.

ARTICLE 131: SCOPE AND EXTENT

Article 131: Its historical antecedents

The Joint Committee on Indian Constitutional Reform in its 1933-1934 Session first contemplated about the Federal Court (Supreme Court’s predecessor) and its original jurisdiction. The Committee envisaged this jurisdiction to be an exclusive one, since in its opinion it would be altogether inappropriate if proceedings could be taken by one Unit of the Federation against another in the Courts of either of them. It further opined that the jurisdiction ought to include not only the interpretation of the Constitution Act, but also the interpretation of Federal laws enacted by the Federal Legislature.¹⁵ The Sapru Committee concurred with the view of the Joint Committee.¹⁶

Consequently, Section 204 of the Government of India Act, 1935,¹⁷ enabled the Federal Court to determine disputes between the constituent units of the Federation and also specified the nature of the disputes that the Court could be called upon to examine and decide.

As noticed in State of Rajasthan v. Union of India,¹⁸ the object of conferring exclusive original jurisdiction on the Federal Court was that the disputes of the kinds specified between the Federation and the Provinces should be adjudicated upon only by the highest Court of the land, which would be beyond the influence of any one constituent unit. The original jurisdiction of the Federal Court was not to provide a special forum to the constituents of the Federation to resolve ordinary disputes capable of being decided by other courts, but was meant for the adjudication of a special category of disputes arising between them. The jurisdiction conferred was not on account of the parties alone, but due to the unique combination of the parties and the subject-matter involved.

This historical background of Article 131 was noticed by the Supreme Court in State of Bihar¹¹. Article 131 had its precursor in Section 204 of the Government of India Act, 1935, and is a remnant of federalism found in the Government of India Act, 1935.¹² As noted by Chandrachud, J.,¹⁹ Article 131 proceedings are an expedited dispute resolution process not subject to an appeal as the two sovereigns should not be in protracted litigation with each other.

Nature of disputes under Article 131

Limitations while exercising jurisdiction under Article 131

Article 131 seems to have borrowed from Section 204 of the Government of India Act, 1935, two limitations on the exercise of jurisdiction:

1. Limitation as to parties mentioned in clauses (a), (b) and (c) of Article 131.

2. Limitation as to the subject-matter.²⁰

The first limitation is fairly clear through the decision in State of Bihar,¹¹ and has been discussed previously in this article.

With regard to the limitation as to the subject-matter, Article 131 does not specifically limit the kind of right that can be the subject-matter of dispute. In fact, the Federal Court in United Provinces v. Governor General in Council,²¹ interpreted the similarly phrased Section 204 of the Government of India Act, 1935 to encapsulate all disputes involving the existence of any legal right recognised by law and capable of being enforced. In this judgment, the Federal Court interpreted “legal right” broadly, and without regard to the history of Section 204. The Court relied on authorities that considered the meaning of “legal right” from the perspective of private parties in a dispute,²² without regard to the specific context in which the term is used. The interpretation did not take into account the special nature of parties i.e. the Union and the State(s), which invoke the jurisdiction of the Court. As would follow from the immediately following discussion in the article, such an interpretation of the term “legal right” does not accord with the role that Article 131 plays in the Indian Constitution.

Role of Article 131 and connotation of “Legal Rights”

Under the Constitution of India, Article 131 plays a seminal role in ensuring that the Union and the States act within the spheres of their authority and do not trespass upon each other’s constitutional functions or powers.¹² As elaborated earlier, Article 131 was not meant for the adjudication of ordinary disputes, but for a special category of disputes having a bearing on the legal rights of the constituent units of the Federation.

While dealing with Article 131 and disputes over which it has jurisdiction, the Supreme Court specifically noted in State of Bihar¹¹: (SCC p. 73, para 10)

10. Although Article 131 does not define the scope of the disputes which this Court may be called upon to determine in the same way as Section 204 of the Government of India Act, and we do not find it necessary to do so this much is certain that the legal right which is the subject of dispute must arise in the context of the Constitution and the Federalism it sets up.

Applying the same principle, the Madras High Court²³ repelled the argument against maintainability of the State of Tamil Nadu’s challenge to the constitutional validity of Sections 60(4), (5), (6) & (7) of the Prevention of Terrorism (Amendment) Act, 2003 in a petition under Article 226. The ground of challenge was that the impugned provisions violated the separation of powers between the executive and judicial branch of the Government. The High Court rejected the suggestion that a suit under Article 131 was the more appropriate remedy by observing: (State of T.N. case²³, SCC OnLine Mad para 12)

12. (b) … it is not each and every kind of dispute between the above disputants that the Supreme Court tries exclusively on its original side. The resolution of dispute is confined to only such questions whether on law or on fact on which the existence or extent of a legal right depends. Materially, the said disputes touch upon either Centre-State relations or inter-State relations.

(emphasis supplied)

The consistent position of the Supreme Court is that the right agitated in a suit instituted under Article 131 should have some bearing on the constitutional relationship that exists between the parties to the dispute, that is the State and the Union. This articulation is central to the interpretation of the phrase “legal right” occurring in Article 131.

In State of Karnataka,¹² the State challenged the decision of the Union of India to set up a Commission to inquire into allegations of corruption against the Chief Minister of Karnataka. Bhagwati, J.’s concurring opinion explained the meaning of the term “legal right” in the context of Article 131 as under: (SCC p. 710, para 205)

205. It would also be convenient at this stage to consider what is the meaning of the expression “legal right” as used in Article 131. It is obvious that the word “right” is used here in a generic sense and not according to its strict meaning. “Right” in its narrow sense constitutes the correlative of duty, but in its generic sense it includes not only right stricto sensu, but “any advantage or benefit conferred upon a person by a rule of law”. … What has, therefore, to be seen in order to determine the applicability of Article 131 is whether there is any relational legal matter involving a right, liberty, power or immunity qua the parties to the dispute. If there is, the suit would be maintainable, but not otherwise.

(emphasis supplied)

In Union of India v. State of Rajasthan,²⁴ the Supreme Court decided whether a suit for recovery of compensation filed by the State of Rajasthan for the loss caused by Railways is maintainable in an ordinary civil court, or could be filed under Article 131. Delving into the nature of legal rights under Article 131, the Court observed: (SCC p. 244, para 12)

12. … we feel that Article 131 of the Constitution is attracted only when a dispute arises between or amongst the States and the Union in the context of the constitutional relationship that exists between them and the powers, rights, duties, immunities, liabilities, disabilities, etc. flowing therefrom. Any dispute which may arise between a State in the capacity of an employer in a factory, a manufacturer of goods subject to excise duty, a holder of a permit to run a stage carriage, a trader or businessman carrying on business not incidental to the ordinary functions of Government, a consumer of railway services, etc. like any other private party on the one hand and the Union of India on the other cannot be construed as a dispute arising between the State and the Union in discharge of their respective executive powers attracting Article 131 of the Constitution. It could never have been the intention of the framers of the Constitution that any ordinary dispute of this nature would have to be decided exclusively by the Supreme Court.

(emphasis supplied)

Adopting this principle, the Andhra Pradesh High Court in R. Krishnaiah v. Union of India,²⁵ observed that the State cannot invoke this jurisdiction except when the dispute arises between the Governments in their sovereign capacity.

This makes it clear that the scope of “legal right” under Article 131 is restricted to the rights arising out of the relationship between the State and the Centre i.e. rights having a direct bearing on the federal structure of Indian polity, and does not encompass any and all legal rights that are enforceable in a court of law. In this background, the suit instituted by the State of Chhattisgarh challenging the National Investigative Agency Act, 2008 for the reason that the Union cannot unilaterally usurp the power of investigating a crime which otherwise falls in the domain of the “police” under Schedule VII List II Entry 2 of the Constitution, would be one that the Supreme Court would have to examine on merits. This suit involves the interplay of legislative and executive powers of the Union vis-à-vis the States, and touches upon the constitutional relationship between them.

In its suit challenging the constitutional validity of the Citizenship (Amendment) Act, 2019, the Passport (Entry to India) Amendment Rules, 2015 and Foreigners (Amendment) Order, 2015, the State of Kerala has attempted to hold the Union of India accountable to the principle of secularism, the tests of Articles 14, 21 and 25 and its obligations under certain International Conventions and Laws. As mentioned in the plaint, the State of Kerala does not wish to enforce these legislations as part of its obligations under Article 256 of the Constitution.²⁶ But applying Bhagwati, J.’s tests in State of Karnataka¹², can one say that the validity of these legislations involves “a right, liberty, power or immunity” qua the State of Kerala? Or would the broader understanding in Union of India v. State of Rajasthan²⁴ apply, where the legal right is to be examined “in the context of the constitutional relationship that exists between them and the powers, rights, duties, immunities, liabilities, disabilities etc. flowing therefrom.”²⁷

One can argue that ensuring that the basic structure of our Constitution is implemented in letter and spirit is the responsibility of both the Union and the States, and the States have no less of an obligation to defend the Constitution, and its core values.²⁸ However, this argument is prefaced on the responsibility/role of the States to defend the Constitution. Once this role/responsibility is accepted, can one say that the validity of the legislations itself is a “relational legal matter involving a right, liberty, power or immunity qua the parties to the dispute”. Similarly, even though one can argue that the responsibility of the State to defend the Constitution is its duty, it will be stretching it to say that the ability/responsibility of the State, as constituent of a Federation, to keep the Union alive to its duty of upholding the basic structure and constitutional provisions flows from its constitutional relationship with the Union. One can also argue that the obligation (or lack thereof) of a State to enforce an allegedly invalid legislation under Article 256 is a question on which the extent of the right or immunity of a State depends.²⁹ However, giving such a broad interpretation to the scope of Article 131 would mean that anytime a State disagrees with or differs from a course of action proposed/undertaken by the Union (whether in the legislative sphere or the executive³⁰), recourse under Article 131 would be permissible. This would expose Article 131 to precisely the same dangers as were expressed by Untwalia, J. in State of Karnataka¹², and make it very difficult to put a dividing line to prevent recourse to Article 131 by the States at will.

However, recently, the Kerala High Court in Mahesh G.⁴ observed that the question of existence of the right of the State of Kerala and of the Kerala State Industrial Development Corporation to challenge decisions of the Union of India and Airports Authority of India is itself a question on which the existence or extent of legal right depends. The High Court dismissed⁴ the writ petition by holding that a suit under Article 131 ought to be instituted for challenging the policy decision taken by the Union of India to invite private bodies in the airport management sector. This judgment fails to consider the true meaning of “legal rights” as enunciated by the Supreme Court in State of Karnataka¹² and Union of India v. State of Rajasthan²⁴.

Suits under Article 131 stand in contrast with petitions for vindication of Part III Rights

Besides the distinction relating to the parties and their inter se relationships between ordinary suits and a suit under Article 131, the subject-matter and method of adjudication under Article 131 is also different from proceedings under other courts of law. As pointed out in State of Bihar¹¹: (SCC p. 70, para 2)

2. … The other distinguishing feature is that the Court is not required to adjudicate upon the disputes in exactly the same way as ordinary courts of law are normally called upon to do for upholding the rights of the parties and enforcement of its orders and decisions.

The very nature of the disputes arising under Article 131 is different, both in form and substance, from the nature of claims which require adjudication in ordinary suits¹². In disputes between the Centre and the State in their sovereign capacity, the question is who the power rests with. In such a proceeding, the assertion of its rights/powers by the plaintiff inheres in itself the absence of the right/power of the defendant. This is so because the executive or legislative right/power has to be with either the Union or the State. This was noticed in State of Karnataka¹², when it was observed that whereas in a civil suit, the right claimed by the plaintiff may reside neither in him nor in the defendant but in a stranger, in a proceeding under Article 131, one of the parties (plaintiff or the defendant) would possess the constitutional power to act.³¹ However, given the context in which the opinion was delivered, this can only apply where the dispute is between the State and the Union, and not when the dispute is between two States.

Additionally, in proceedings for vindication of fundamental rights or other legal rights, the right in question must be that of the plaintiff; for the suit or petition to be maintainable, the petitioner(s)/plaintiff(s) must demonstrate that their right exists and how the respondent-defendant threatens to or invades that right. In suits instituted under Article 131, the legal right in question need not be of the plaintiff. As observed in State of Karnataka,¹²³²: (State of Karnataka case¹², SCC p. 709, para 204)

204. It may also be noted that, on a proper construction of Article 131, it is not necessary that the plaintiff should have some legal right of its own to enforce, before it can institute a suit under that article. … What Article 131 requires is that the dispute must be one which involves a question “on which the existence or extent of legal right depends”. The article does not say that the legal right must be of the plaintiff. It may be of the plaintiff or of the defendant. … We cannot construe Article 131 as confined to cases where the dispute relates to the existence or extent of the legal right of the plaintiff, for to do so, would be to read words in the article which are not there.

(emphasis in original)

In this light, it would be untenable to conclude that proceedings can be instituted under Article 131 for the vindication of Part III rights. Moreover, as is evident, States of Kerala and Rajasthan, while challenging the constitutional validity of the Citizenship (Amendment) Act, 2019, the Passport (Entry to India) Amendment Rules, 2015 and Foreigners (Amendment) Order, 2015 for violating Part III rights and the basic structure of the Constitution, do not, and cannot, assert that it is not the Union but they who have the competence to enact those legislations (which may or may not violate the basic structure or constitutional provisions). For this reason as well, these suits would not get to attract scrutiny under Article 131.

Alternate construction of Article 131 in relation to rights to which Article 226 extends

Article 226 provides a speedy and effective legal remedy to individuals for protecting their rights. The scope of Article 226 also extends to legal rights that are not fundamental rights. The rights enforceable through Article 226 are of an individual nature.³³

While resolving a river water dispute (which are typically of an inter-State nature) in State of Karnataka v. State of A.P.³⁴, the Supreme Court examined the relative scope of Articles 131 and 262 of the Constitution of India. The Court held that where Parliament has enacted a law for the resolution of water disputes, the jurisdiction under Article 131 would be ousted by Article 262 as the two overlap and the former is “subject to the provisions of the Constitution”. This would be the position notwithstanding the fact that the dispute is between the Centre and the State(s) or between two States.

The same principle would apply if one extends the jurisdiction under Article 131 to the entire spectrum of legal rights. As Article 131 and Article 226 would then operate in overlapping spheres, Article 131 would also be subject to Article 226. This would make Article 131 nugatory and take away the jurisdiction of the Supreme Court, when Article 131 explicitly confers upon the Supreme Court exclusive jurisdiction over certain disputes involving the constituents of our Federation. Moreover, it cannot be argued that the jurisdiction exists only by virtue of parties, as the subject-matter and nature of proceedings under Article 131 are unique.

CONCLUDING THOUGHTS

It clearly emerges that the jurisdiction of the Supreme Court under Article 131 extends only to those disputes that satisfy the limitation as to parties and the limitation as to the subject-matter of the dispute. A State may institute a suit under Article 131 challenging legislative or executive actions of the Union only if the subject-matter of the dispute relates to the federal structure of the Constitution i.e. the distribution of legislative or executive power or rights involving its relationship qua the Union or another State; the dispute remains outside the scope of Article 131 when grounds relate to violation of fundamental rights, contractual rights, etc.

Suits instituted under Article 131 by the State of Kerala and the State of Rajasthan challenging the constitutional validity of the Citizenship (Amendment) Act, 2019, cannot be said to involve a question on which the existence of a legal right of the State depends and would not be maintainable. It is indeed the duty and responsibility of all to uphold constitutional values and follow constitutional provisions, and even of individuals to ensure that the Union and the States do not violate them through their legislative or executive actions. However, the historical antecedents of Article 131 make it clear that its role is not to ensure adherence with every constitutional provision/value by the Union, but to ensure that the sovereign units of the Federation do not tamper with the delicate structure of the Indian polity and their inter se relationship. These suits do not fall in this category, and the questions raised therein would be more appropriately examined in a petition under Article 226.

It is also clear that the reasoning of the Kerala High Court in Mahesh G.⁴ failed to consider the true import of the term “legal right” and also the ratio of State of Bihar¹¹, which forbids any entity other than the State from being a party to a suit under Article 131.³⁵ However, one can say that the suit instituted by the State of Chhattisgarh challenging the National Investigation Agency Act, 2008, as being ultra vires Schedule VII List II Entry 2 would have to be examined on merits under Article 131.

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*The article has been published with kind permission of SCC Online cited as (2021) 5 SCC J-9