The Indian parliament passed the Citizenship Amendment Act 2019 on 11 December 2019. Many individuals, groups and parties have argued that the Act violates key provisions of the Constitution and have approached the Supreme Court to strike down the legislation. One such party was the State government of Kerala whose move to approach the Court was remarkable and distinct as it invoked Article 131 of the Constitution of India 1950, a provision that has now garnered public attention and curiosity.

Article 131 lays out the ‘original jurisdiction’ of the Supreme Court and allows the Court to adjudicate disputes between the government of India and one or more state governments,  or between two or more states.

Provisions similar to Article 131 appeared in constitutional documents before we framed our Constitution. The Commonwealth of India Bill 1925 and the Nehru Report 1928 provided for the federal court to have original jurisdiction over disputes between provinces but said nothing about those between the central government and the provinces. In the Government of India Act 1935, we find a provision – Article 204 -  that explicitly gave the Court the power to adjudicate disputes between the central government and state government.

Article 204 of the 1935 Act seems to have had some purchase in Indian constitutional thinking, as it appears in constitutional documents that came after it like the M.N. Roy’s Constitution of a Free India: A Draft, also in the committee reports part of the early stages of Indian constitution-making.  

The Draft Constitution of India 1948 contained an original jurisdiction clause almost identical to the 1935 Act and provided for the Supreme Court to dispute matters between the central government and state(s). The Draft Article came up for discussion in the Constituent Assembly on 3 June 1949.

The debate was a short one, and a majority of the Assembly members were fine with the Supreme Court role in settling disputes between the Centre and the States,  except for one member – Brajeshwar Prasad. He argued that if there was a dispute between the Centre and a State, the centre’s decision should be final – the Supreme Court should have no role to play. He felt that ‘The provincial Governments are subordinate Governments.’

Prasad’s views were not taken into consideration when the Assembly adopted the Draft Article in its final form. The Constituent Assembly’s view on the relationship between the Centre and States was quite different from the one that Prasad had in mind. The Assembly, and the final adopted Constitution, treated States and Centre more as equal units in the context of a dispute. And this underlines their decision to adopt Article 131.