Somasekhar Sundaresan

A Bench of the Supreme Court is reported to have criticized the Government of West Bengal and its advocate for filing a writ petition challenging the mandatory introduction of Aadhaar.

According to news reports, a judge is reported to have asked the lawyer how a state can challenge law made by Parliament. Taking the cue, it is learnt that West Bengal Chief Minister Mamata Banerjee’s lawyer agreed to get the individual who is the Chief Minister to be the petitioner instead of the state government.

According to this report in Bar and Bench, the judges are reported to have asked:

“How can a State challenge a law made by the Parliament? You are challenging the vires of the Act.”

To protect the litigation in substance, finding fault with form, the Court is reported to have suggested,

“Let an individual come, let Mamata Banerjee come. But how can the State come? Tomorrow, what if the Centre challenges a law made by a State?”

This exchange may have been handled expeditiously had petitioner not displeased the Court by countering its observations. The move would have also suited the West Bengal Chief Minister, as it would give her direct political mileage. However, it begs the question if there is indeed any basis for a perception of illegality or impropriety in a state government challenging a law made by Parliament.

Interestingly, the answer, subject to some nuance, is clearly in the negative. There is no bar on a state government challenging law made by Parliament in the Supreme Court. On the contrary, under Article 131, the Supreme Court has exclusive original jurisdiction, to the exclusion of all other courts, over disputes amongst Central government and state governments, as indeed between state governments, where questions determinative of the existence or the extent of legal rights are involved.

In fact, the notion that challenges to law made by Parliament should be circumscribed, came up during the Emergency when Article 131A was inserted to provide that only the Supreme Court could deal with challenges to such legislation. Right after the Emergency, this provision was repealed. That temporary limitation was one of the forum, and not of the eligibility of the party who could litigate.

Then there is the age-old issue of whether a writ petition under Article 32 can be pursued by a non-individual, but that does not seem to have been the basis of the change of form of the challenge to Aadhaar by the West Bengal government. The discomfiture appears to have been the seeming impropriety of a state government taking on law made by Parliament. That concern, even from the standpoint of propriety, appears misplaced.

Besides, if public interest litigation filed by individuals can be considered to be “appropriate proceedings” under Article 32, it would stand to reason that a state government (which would be held to a greater standard of propriety in its conduct) too should be able to move court. Of course, a petition without merit can be thrown by the court as it would throw out any petition that is without merit. A state government would be taking serious political risk if the apex court were to stricture it for indulging in frivolous litigation.

In fact, the recent history of the United States is rich with examples of states challenging law made by the Centre. Early this year, US President Donald Trump issued an executive order banning entry of persons from specified Muslim nations into the United States. A total of fifteen state governments – California, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Massachusetts, New Mexico, New York, Oregon, Rhode Island, Vermont, Virginia and Washington – chimed in with the state government of Hawaii, to challenge it.

Even the equivalent of a “Union Territory” – the District of Columbia (Washington DC, which is like our National Capital Region) – challenged the travel ban. By a sleight of hand, the US President’s team replaced the travel ban under challenge with a new ban, adding a couple of non-Muslim nations to the list of banned sources of travellers and the fight has been reset to the first round again.  Hawaii is leading the fight again, and there is no reason why the other states would not join hands.

A state initiating litigation against the Centre in a court of law, over a constitutional issue, would embellish the robustness of the health of a federal democracy. Likewise, if for example, a State Legislature were to make law that is in the domain of Parliament, it would be a matter of robust federalism that the Central government challenges such law. The Supreme Court would be the right forum for resolving such disputes.

Indeed, there are various types of inappropriate use of judicial time for inter-governmental disputes and propriety would demand that those are not indulged in. For example, the income-tax department often files writ petitions challenging decisions of the Settlement Commission; the Enforcement Directorate is known to have challenged the Reserve Bank of India’s decision to compound offences under exchange controls; a former Union Finance Minister announced to the media that he had advised the capital market regulator and the insurance regulator to approach a court of law to litigate and resolve a turf war over unit-linked insurance schemes that were accused of also being mutual funds.

Last year, the state governments of Bihar and Jharkhand were rebuked by the Supreme Court for a dispute going back to 2004, over sharing of the guest house and state government office between the two states after the separation of Jharkhand from Bihar.

But a challenge to legislation made by Parliament by a state government, or for that matter, a challenge by the Central government to law made by a State Legislature hardly appears inappropriate.

The author is an advocate practising as an independent counsel.