DR.

RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY

SEMESTER – IV
(SESSION: 2019-20)

SUBJECT: CONSTITUTION LAW II

PROJECT TOPIC: USE OF ARTICLE 131 TO CHALLENGE
CONSTITUIONAL VALIDITY OF LEGISLATIONS
SUBMITTED BY SUBMITTED TO

Mitali Kshatriya Mr. Atul Kumar

Tiwari
 Roll No. 180101082 Associate Professor (Law)
Section – A

Contents
Acknowledgement...........................................................................................................................3

Introduction......................................................................................................................................4

Article 131...................................................................................................................................4

Limitation as to the Parties......................................................................................................5

Limitation as to subject-matter of the dispute.........................................................................5

The Pending Reference before the Supreme Court...................................................................10

Maintainability of challenge to constitutional validity CAA under Article 131...........................10

Applicability of Parens Patriae Doctrine..............................................................................12

Maintainability of challenge to constitutional validity of NIA Act under Article 131.................12

Conclusion.....................................................................................................................................14
 ACKNOWLEDGEMENT

I would like to use this opportunity to extend my heartiest gratitude to all the
people who have helped me develop this project.

First and foremost, I would to thank Dr. Atul Kumar Tiwari, who have been
constantly supporting me, guiding me and helping me with all my queries
and difficulties regarding this project since its fledgling stage. Without
their enthusiasm, inspiration, and efforts to explain even the toughest of
jargons in the most lucid manner, the successful inception of this project
would have been a Herculean task.

Next, I would like thank the librarians of Dr. Madhu Limaye library for
helping me find the correct resources for my research and for helping
me enrich my knowledge.

Finally, I would like to extend my gratitude to my batch mates and

seniors for providing me some unique ideas and insights which helped
me make this project even better.

I know that despite my sincerest efforts some discrepancies might have

crept in, I hope and believe that I would be pardoned for the same.

Thanking You
Mitali
 INTRODUCTION

In the month of January, 2020 state governments of Kerala and Punjab, filed a case challenging
constitutionality of Citizenship Amendment Act, 2019 under Article 131. Around the same time
Chhattisgarh government challenged the constitutional validity of the National Investigation Act,
2008 under Article 131. The primary question to be answered through this paper is whether or
not such challenges can be sustained under Article 131. Before answering the question, it is
important to understand the various parts of Article 131.

ARTICLE 131
The Supreme Court is conferred with original jurisdiction of settling disputes between two or
more states and between center and state(s). This implies that Supreme Court is the court of first
instance when it comes to redressal of disputes between two state governments or between center
and states. Under Article 131, the Supreme Court has exclusive original jurisdiction in any
dispute between-

(i) the center and a state

(ii) the center and a State on one side, and a state on the other side;
(iii) two or more states.

Under Article 131, the Supreme Court is only concerned to give its decision on questions of law
or of fact on which the existence or extent of a legal right claimed depends.

The Supreme Court’s jurisdiction under Article 131 is subject to two limitations, viz,

1) As to the parties;
2) As to the Subject matter

Bhagwati, J., has observed in State of Karnataka v. Union of India 1 defining the scope of Article
131; “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”.

1
AIR 1978 SC 131.
Limitation as to the Parties
Article 131 cannot address disputes involving parties other than central government and state
governments. The word state here does not purport the same meaning as that acquire by state
under Part III of the constitution.

Meaning of the word ‘State’

Article 131 talks about State disputes, but the word ‘State’ does not have the same meaning like
that in Article 12 of the Indian Constitution. Under Article 12 there are many organizations that
can be qualified as a State if they fulfill the 6 conditions given in Ajay Hasia v Khalid Mujib
Case.2 However, the expansive definition of state in Part III is not applicable to cases under
Article 131.

Thus, under this Article 131 of the Constitution the court cannot take a dispute which involves a
private party and a Government on the other side. So, in the case of State of Bihar v Union of
India3 the State Government had filed a case against the Central Government on behalf of the
Railways and a company which was treated as a State under Article 12 of the Indian
Constitution. But the court said that the case could not be brought under the jurisdiction under
Article 131 as the meaning of the word ‘State’ did not include any private citizen, company or a
Government department even if it had filed a complaint along with any State Government.4

Limitation as to subject-matter of the dispute

Article 131 can only address those matters which affect the ‘legal right’ of the state. Such right
can be a question of law or fact. However, parliament can make laws to confer power of solving
dispute between two states to other bodies. Moreover, for the purpose of dilatating legal right the
court has to carefully look, if the question put in front of the court is a matter state/center’s legal
right or just a question with vested political interests.

Nature of disputes addressed under Article 131 usually include constitutional disagreements over
the anticipated imposition of President’s Rule, dissolution of State Legislative Assemblies,
division of assets post-State Reorganisation, territorial disputes between States and distribution
of legislative powers under Schedule VII of the Constitution.

2
AIR 1981 SC 487.
3
2014 AIR 147.
4
M.P Jain, Indian Constitutional Law, (226), (Lexis Nexis Butterworths Wadhwa, Nagpur, 6th edition, 2010)
Meaning of legal rights
The  Supreme Court, vide its law settling judgments in State of Rajasthan  v. Union of India5   as
well as State of Jharkhand  v. State of Bihar6 have authoritatively established that ‘dispute’ must
involve the assertion and/or vindication of a legal right of the Government of India and/or that of
a constituent State of the Union. A caveat in that regard is that a genuine legal right must have
been asserted by way of the suit concerned and any issue merely touching upon political
concerns would be outrightly rejected by the Supreme Court.

The Article itself starts with the phrase “Subject to the provisions of this Constitution…” which
means that Parliament can make laws which will actually effect the jurisdiction of the court, like
it has done in the case of inter-State water disputes (Article 262 of the Constitution). So, by the
commencement of the Inter-State Water Dispute Act, 1956 the parliament actually gave the
powers to the tribunal to resolve the conflicts between the States but when the time comes for the
binding of the award then the Supreme Court gets the powers as now the dispute is between the
States and the water conflict has been solved and it is no longer within the ambit of Article 262.

In the case of State of Rajasthan v Union of India 7 it was said that the Supreme Court has got the
power to give any kind of relief if it is necessary to enforce the legal right of any State on dispute
if such legal right has been established by the Government of the State, and for such enforcement
Article 142 of the Constitution can be invoked.

Article 131 suffers from two kinds of limitations and one of them being the subject matter of the
dispute i.e. only those case between the Governments can be entertained by the Supreme Court
which are based on the legal rights of the State Government or the Union Government. As it has
been said by Salmond that a “a legal right is an interest recognised and protected by the rule of
legal justice – an interest the violation of which would be a legal wrong done to him whose
interest it is, and respect for which is a legal duty”.

The definitions of legal rights by Holland is as follows-“If irrespectively of his having, or not
having, either the right, or moral right on his side, the power of the State will protect him in so
carrying out his wishes, and will compel such acts or forbearance on the part of other people as

5
1977 AIR 1361.
6
2014 AIR 147.
7
1977 AIR 1361.
may be necessary in order that his wishes may be so carried out, then he has a “legal right” so to
carry out his wishes.”

Thus, for any case to be entertained by the Supreme Court under Article 131 of the Constitution
what has to be kept in mind is that the controversy which is arising or the question which is
asked must be based on the legal rights of someone (only a State Government or the Central
Government) and any kind of non-legal questions is not maintainable.

This is what was also held in the Rajasthan Dissolution case8 that the suit filed was maintainable
because of the fact that the suit was trying to enforce the legal right of the State as there had been
a gross in violation of their legal rights due to the power (unconstitutional exercise of power)
used by the President under Article 356 of the Constitution which lead to the infringement of the
rights of the individual members of the Legislative Assembly and the rights of the State as well.
Another question that was asked in this case was whether the word State Government was
included within the meaning the ‘State’? So, the majority in this case said that whenever there is
a case under this Article 131 then it means that there is a dispute between the Central
Government and the State Government and it does not mean that there is a dispute between the
offices in the Government. It is not the political parties that should be fighting, it is the whole
Government per se that is fighting against the violation of some of their legal rights. Article 131
gives both the Governments a forum to fight on legal issues and not on mere political issues.
Thus, the order given by the Government of India to the State Governments ordering the Chief
Minister to tender advice to the Governor of the State is not a mere political issue but a legal
right.

Now what the majority of the judges say in this case is that it is not necessary that in every case
being filed under this Article that the State Government or the plaintiff has to prove that their
legal right is being violated but they can also question the legal right or the Constitutional
validity of any action taken by the Union Government or the State Government or the defendant
per se.

The minority in this case had a different view and they said that the word “State” didn’t include
within itself the State Government. They said that a dispute between the Government of India

8
1977 AIR 1361.
and any State Government will not come under the purview of Article 131 as even after the
Assembly is dissolved, still the State will continue to have a Government.

According to Article 300 of the Indian Constitution it has been explicitly mentioned that the
Government of India will be sued or will sue under the name of the Union of India and that the
State Government will be sued or will sue under the name of the State only. The explanation of
this Article says that there is a difference between the terms Union of India and Government of
India and that the latter is not a legal entity and that the former is, which is like a corporate body
with rights and obligations. The same way even the State has been given a juristic personality
with power to sue and to be sued. It also mentions an exception that except in Article 131 of the
Constitution every suit involving the Government and its employees will be seen by the other
ordinary courts.

Again, in the case of State of Karnataka v Union of India 9 J. Bhagwati emphasises on the point
that all the cases which are under Article 131 of the Constitution should only talk about the legal
rights of either of the parties, any kind of non-legal aspect will not be entertained. Thus, defining
the scope of Article 131 the hon’ble judge said “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.”

In this above-mentioned case, the main contention of the State Government was that under the
Commissions of Enquiry Act, the Central Government did not have the power to constitute any
inquiry commission which would look into the matters of a State legislation and executive. Thus,
the inquiry commission looked into the behaviour of the Chief minister of the State along with
the other ministers, thus it was a question of Centre-State relationship. But the union
Government said that the Supreme Court will not have the power to look into this matter as there
was jurisdiction under Article 131 of the Constitution as it was a matter of the centre and State
Government. But the Supreme Court said otherwise and said that the Government of India and
the Union will be the one and the same and that the ‘State’ would include the Government of the
State. J. Bhagawati also mentions that the State Government is nothing but the agent of a State

9
AIR 1978 SC 131.
the words State and Government of a State can be used interchangeably. The case also tells us
that a legal right is that which are enforceable by an action in a court of law.

In the case of State of Bihar v Union of India 10, when the State of Bihar had filed a suit against
the Central Government on behalf of the Railways wanting some kind of compensation then the
Supreme Court said that this case was not maintainable as the question of legal rights of a private
consignor was risen thus it was outside the jurisdiction mentioned under Article 131.

Meaning of the word “Cause of Action” that has been used in Order 23 Rule 6(a) of the Supreme
Court Rules 1966 means the same, i.e. all the types of disputes that have been mentioned from
(a) to (c) under Article 131 of the Constitution. That is, it must involve a question on legal rights
of either of the parties to the suit and that if the cause of action is somewhat different, then it
would not be maintainable under this order. This was mentioned in the State of Haryana v State
of Punjab.

What it seems is that under this article the Supreme Court acts as an interpreter and a platform to
determine the rights of the Federation and the units of the Federation. Thus, such disputes are
determined on the bases of the legal rights of either of the parties.

Exclusion of private parties

The main reason as to why the court wants to exclude the private parties or in other words all
those entities termed as States under Article 12 are not within the meaning of State under Article
131 is that the settling of the inter-Governmental disputes should be at the Highest forum of any
country and it should be done as quickly as possible. In a country like India where there are 28
States then there will be 28 different State Governments which in turn means that there will be a
huge possibility that inter-Governmental disputes will always be present at some point or the
other, thus to reduce the burden on the Apex court of our country the meaning of State under
Article 131 is restricted11. And also, the fact that when there is a dispute which arises between 2
State Governments then it would be difficult to decide as to which State’s High court will get the
matter to resolve, thus only the Supreme Court will have the exclusive jurisdiction.

This Article will only be applied when there is question on the legal rights of the State or the
Union vis-à-vis the other States. Thus, in the case of Tashi Delek gaming solutions Ltd v State of
10
1970 SC 1446.
11
Id.
Karnataka12, the lottery agents of the States Sikkim and Meghalaya challenged the banning of
lottery games by the State of Karnataka. The Karnataka High Court held that this dispute held
the legal rights of all the three States, hence the remedy will be under article 131 only. But the
Supreme court held otherwise and said that these agents were given the right to represent the
State Governments and hence were private parties thus not coming under the jurisdiction of
article 131. Such an agent had the right to sue and be sued in his own name and thus it would not
come under this article 131.

THE PENDING REFERENCE BEFORE THE SUPREME COURT

In 2014, a two-judge Bench of the Supreme Court, in State of Jharkhand v. State of Bihar13, was
faced with a question about the maintainability of a petition challenging the vires of the Bihar
Reorganisation Act, 2000 under Article 131 of the Constitution. Dealing with the objection
raised by State of Bihar that a suit challenging the constitutional validity of a legislation is not
maintainable under Article 131, the Court disagreed with the Supreme Court’s earlier ruling
in State of Madhya Pradesh v. Union of India 14, where it had held that the validity of a Central
Law should “normally” not be challenged under Article 131.

In the latter case, the Court had observed that the party impugning the validity of the legislation
should instead invoke the extraordinary jurisdiction under Article 32 and 226 rather than the
exclusive original jurisdiction. In view of its disagreement with the law stated by the bench
in State of Madhya Pradesh’s Case15, the Bench, after briefly recording its reasons, referred the
question to a larger bench of three judges.

MAINTAINABILITY OF CHALLENGE TO CONSTITUTIONAL VALIDITY CAA UNDER

ARTICLE 131
The Kerala Government has presented a CAA and certain allied laws before the Supreme Court
under Article 131 of the Constitution. In the suit filed in the Apex Court, the state government
has argued that CAA and related laws fall foul of the principle of secularism and the fundamental
rights guaranteed under Article 14, 21 and 25 of the Constitution.

12
AIR 2005 Kant 261
13
2014 AIR 147.
14
(2011) 12 SCC 268.
15
Id.
As we know a suit must fulfill two conditions be maintainable under Article 131- First, is in
relation to the parties to the dispute and, the other, is in relation to the nature of the dispute. In
this case it is clear that both the parties are state entities. The second requirement, requires a
deeper analysis.

In determining the nature of the dispute, and whether it qualifies for adjudication under Article
131, the effect of the impugned legislation on the “legal rights” of the plaintiff-State would be an
important question. If the legal rights of the plaintiff-State have been affected, the suit would be
maintainable. This examination is to be done only on a “prima facie” basis to see if any “legal
rights” have been implicated or the suit is just filed for political interests.

In State of Madhya Pradesh v. Union of India16 the Court merely stated,

“...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 invoking this extraordinary jurisdiction, the party i.e. the federating unit approaching the
Supreme Court must overcome the textual jurisdictional hurdle of the “existence or extent of a
legal right” engrafted in Article 131. As discussed above, the expression legal right under Article
131 can manifest itself in the form of a matter on the federal structure envisaged under the
Constitution. This can arise when the Centre and the State differ on the interpretation of the
Constitution that would have the inevitable effect of defining the governmental powers or legal
competence of the State.

A challenge to the constitutionality of the CAA and other legislations does not fall within the
category of disputes that have any bearing on the federal relationship between the Centre and
States. With Parliament alone having the competence to enact a law under Article 11 and Article
246 read with Entry 17 of List I on the acquisition of citizenship, any doubts about the legislative
competence of the Parliament are ex-facie unfounded and unwarranted. CAA and the allied laws
are not even remotely affecting the federal character.

The public statements made by the Kerala Chief Minister Pinarayi Vijayan and Punjab Chief
Minister Capt. Amrinder Singh on CAA demonstrates that the resistance to the citizenship law is

16
(2011) 12 SCC 268.
purely a political disagreement. Seeking judicial intervention for settlement of same is uncalled
for.

Applicability of Parens Patriae Doctrine

Parens Patriae doctrine grants the inherent power and authority on the state to protect persons
who are legally unable to act on their own behalf. This doctrine is well reflected in India’s Public
Interest Litigation Jurisprudence, where requirements of locus standi has been relaxed to the
greatest extent possible. This was done in order to protect the constutional rights of those who
cannot approach the court themselves due to reasons of povery, education-backwardness and
ignorance.

It would be unprecedented if Kerala and Punjab invoke the doctrine to knock the doors of the
Supreme Court under Article 131.

However, applicability of this doctrine on the present case will only amount to stretching the
doctrine too far. More than 60 petitions have already been filed before the Supreme Court under
the more potent provisions of Article 32 of the Constitution to challenge the validity of CAA.
This demonstrates that there are better-situated petitioners such as people claiming
discriminatory treatment to agitate the constitutionality of the citizenship law in judicial forums.
In such a scenario, it seems very difficult for the State to argue that it is acting as a guardian on
behalf of those refugees who cannot defend their rights. The very application of parens
patriae to maintain Kerala’s suit under Article 131, therefore, comes under a heavy cloud.

The petition might just end up amounting to nothing but multiplicity of claims, and only add to
Supreme Court’s ever inflating number of petitions.

MAINTAINABILITY OF CHALLENGE TO CONSTITUTIONAL VALIDITY OF NIA ACT

UNDER ARTICLE 131
Chhattisgarh has sought a declaration that the NIA Act, 2008, is unconstitutional on the ground
that it is “beyond the legislative competence of Parliament”. According to their petition the
National Investigation Agency (NIA) Act of 2008 gives arbitrary police powers to the Centre and
remains a threat to the federal structure of governance.

It is clear from the preceding discussion, that Article 131 has to fulfil two conditions- as related
to the parties (either center or state) and as related to subject-matter, i.e. there should be a
question relating to legal right of the state. It is clear that the first criteria is fulfilled in the
present case, one party is central government and the other is Chhattisgarh government. The
second question needs prima facie examination as to whether legal right of state is affected or
not.

. The Supreme Court has authoritatively established that ‘dispute’ must involve the assertion
and/or vindication of a legal right of the Government of India and/or that of a constituent State of
the Union. In the case of State of Rajasthan v Union of India 17 it was said that the Supreme Court
has got the power to give any kind of relief if it is necessary to enforce the legal right of any
State. This will also include going into the constitutionality of an act, given there is a purported
infringement of legal right of one of the parties involved in the suit.

‘Police’ is a subject reserved for the States under List-II of the seventh schedule, and having a
central police agency, which has overriding powers over the State police, with no provision for
consent from the State government for its operations, is against the division of legislative powers
between the Centre and the States. And that it is against the federal spirit of the Constitution.

The question raised by the Chhattisgarh government is essentially a question that has a bearing
on the federal relationship existing between the center and state. In this case, Chhattisgarh
government is likely to pass this requirement, as there is a question as to who should be able to
exercise powers of police such as investigation and arrest by police.

17
1977 AIR 1361.
 CONCLUSION
After analyzing Article 131, it is clear that for maintainability of a suit under this article – two or
more state parties have to be involved and there should be a question of existence of legal right.
The state party does not include the expansive definition of state as under Part III, and only
restricts to the state and center governments. The second requirement mandates that there should
be a question regarding the ‘existence of a legal right’.

In the first case, that is, challenge to CAA under Article 131, the case will not be maintainable as
there is no question of legal right of the state of Kerala and Punjab. This is mostly because states
have no power to legislate on matter relating to citizenship. Moreover, Parens patriae
jurisdiction cannot be exercised as more than 60 petitions on the same matter have been filed,
making it unnecessary for the state to raise this issue.

In the second case, the Chhattisgarh government will be able to pass the maintainability rest
under Article 131. As is amply clear the parties are state and center, therefore passing the first
stage. The plaintiff will pass second stage too, as it questions the powers of Centre to legislate an
act which has supervening effect on states power in matters relating to police and public order.