With netas fishing in CAA troubled waters, fissures in federalism may cost India

In the land of the Mahatma, violence is on the throne today. Its victims, among others, are helpless passengers in trains, loyal workers in strike-bound factories, and innocent citizens on riotstricken roads when the bandh-mongers claim the freedom of the city.”
This is not a view on the present atmosphere in the country riddled with anti-CAA protests.This was said by Nani A Palkhivala, the unparalleled legal luminary, way back in 1982 referring to the situation prevailing in India then. But these words are apt for today’s India, embittered by violence and political games. Palkhivala’s description of the 1980s India continues to hold even now. “Not since abolition of thuggery by Lord William Bentick in the 1830s has violence characterised our national life on a scale so widespread and so unchecked as today. Our legal system has made life too easy for criminals and too difficult for law-abiding citizens. A touch here and a push there, and India may become ungovernable under the present constitutional set-up,” he had said.
Right to protest is undeniably a fundamental right. But this right does not extend to destruction of public property, or to laying siege to roads to violate right to free access of people and rendering India ungovernable. This right does not extend to incite communal feelings. Sadly, these are methods often adopted by protesters and their sympathisers. Worse, even state governments have lent support to such activities.
The Kerala government has filed a suit under Article 131 making the Citizenship Amendment Act a Centre-state dispute. Punjab intends to follow suit. Is this in consonance with the federal structure envisaged by our Constitution?
Law teachers often said ‘India is a federal republic with a unitary bias’. In state of Rajasthan vs Union of India [1977 AIR 1361], a seven judge SC bench explained, “A conspectus of provisions of our Constitution will indicate that, whatever appearances of a federal structure our Constitution may have, its operations are certainly judged both by the contents of power which a number of its provisions carry with them and the use that has been made of them, more unitary than federal.”
Constitution’s principal architect BR Ambedkar, considered India to be “both unitary as well as federal according to the requirements of time and circumstances”. Over the years, the SC has settled the law and most political parties will agree with Palkhivala, who had said, “We do need a strong Union. But a strong Union is in no way inconsistent with strong states. On the contrary, by definition, a strong Union can only be a Union of strong states.”
The Left parties and Congress traditionally have had seasoned legal brains. When not in office, these two parties sink their differences and sniff for brewing troubles. Then they do their best to fan it. Remember the unprecedented press conference of ‘senior’ Supreme Court judges led by Justice Jasti Chelameswar in 2018?
Left leaders took full advantage of the chinks in the judiciary. They roped in willing legal brains of Congress to peddle canards in active connivance with activist lawyers and intellectuals. Together, they left no stone unturned to ridicule the judiciary, chisel down its stature and make every judge an object of suspicion.
The protests against CAA, as long as there is absence of a design to destabilise India through perpetration of violence, must get due space. But what we are witnessing is worrisome as violence has invariably accompanied protests.
When India was on the path of industrialisation under Prime Minister Jawaharlal Nehru, the then Union government through Parliament enacted a law in 1957 to acquire privately held coalfields, most of which were in West Bengal, to increase coal production. The Bengal government, claiming sovereign control over its land and minerals, moved the apex court with an Article 131 suit challenging the law.
The Bengal government argued, “States have within their allotted field full attributes of sovereignty and exercise of authority by Union agencies, legislative or executive, which trenches upon that sovereignty is void.” Rejecting the state’s suit against the Centre [1963 AIR 1241], the SC had said, “The executive power of every state has to be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that state, and not to impede or prejudice the executive power of the Union.”
In 2004, when Congress-led UPA was in office at the Centre, the BJP government in Madhya Pradesh had filed a suit under Article 131 in the SC challenging the validity of Parliament-enacted MP Reorganisation Act on the issue of division of electricity board assets and dues after carving out of Chhattisgarh from Madhya Pradesh.
Disapproving a state government challenging the validity of a Parliament-enacted law through Article 131, the SC in ‘State of MP vs Union Of India’ on August 17, 2011, had said, “Normally, for questions relating to validity of central or other laws, the appropriate forum is the extraordinary writ jurisdiction under Articles 32 and 226 of the Constitution of India in a writ petition and not an original suit filed under Article 131 which vests exclusive jurisdiction of this court as regards disputes enumerated therein.”
The Supreme Court will again decide whether suits under Article 131 filed by Kerala challenging CAA, and Chhattisgarh challenging the National Investigation Agency Act, are maintainable in our federal structure of governance.