SC will have to set up a larger bench to hear Kerala’s plea against CAA

The other petitions filed in the SC challenging CAA have invoked the court’s writ jurisdiction under Article 32, which allows enforcement of fundamental rights. 

Published: 15th January 2020 05:26 AM  |   Last Updated: 15th January 2020 11:19 AM   |  A+A-

Supreme Court

Supreme Court (Photo | PTI)

Express News Service

NEW DELHI: With the Kerala government challenging the CAA in the Supreme Court, the biggest challenge before the Chief Justice of India is to constitute a larger bench to hear the case as there are contrasting previous judgments on Article 131.

Article 131, allows a state to file a suit in the SC in case of any dispute that it may have with the Union government, invoking the court’s “original jurisdiction”. Moreover, filing of the suit, as against a petition, essentially permits more rigorous examination of documents and witnesses by the top court, giving it a greater scope of inquiry. 

The other petitions filed in the SC challenging CAA have invoked the court’s writ jurisdiction under Article 32, which allows enforcement of fundamental rights. 

In 1977, a five-judge SC bench held that when the states and the Centre differ on a question of interpreting the Constitution and if the result of such differences may affect the states, the dispute will fall under Article 131.

The two judgments that interpreted Article 131 differently came in the last decade. In 2011, in a case of State of MP vs Union of India, the SC held that validity of central laws can be challenged under Article 32 and not under Article 131.

But in 2015, a two-judge bench hearing the case of State of Jharkhand vs the State of Bihar held that Article 131 could be used to examine the constitutionality of a statute. The question was then referred to a three-judge bench and is still pending.

As per legal experts, the Kerala government has invoked Article 131 by asserting that the dispute involves enforcement of legal rights as a State as well as for the enforcement of fundamental, statutory, constitutional and legal rights of Kerala’s inhabitants.

Currently, Article 32 cases are being heard by a three-judge bench led by CJI S A Bobde. If the SC wants to club Kerala’s suit with these petitions, it has to form a larger bench of at least five judges that will then also decide on the issue raised in 2015. 

According to legal experts, states have no recourse but to file suits under Article 131 if they have differences over a law passed in Parliament. The suit can’t be dismissed without admission and examination of evidence has to be done in full.

Experts point out that the three-member SC bench that is to hear over 60 writ petitions under Article 32 against the CAA on January 22, cannot bunch Kerala’s under Article 131 with them straight away because the latter filed a plaint.

One option is to set up a separate bench for Kerala’s plaint, but it would mean two hearings on the same subject. The other way is to set up a five-member bench to club the plaint with the writs.

The plaint said, “The religious classification brought forth violates the twin test of classification under Article 14, the protection of which is not limited or restricted to citizens alone and extends to all persons.”

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