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In an ongoing case challenging the centre's decision to make Aadhaar mandatory for government welfare schemes, the Supreme Court bench asked the West Bengal state counsel:

"In a federal structure, how can a state file plea challenging Parliament’s mandate? We know it is a matter which needs consideration but you satisfy us how a state can challenge it?"

“You satisfy us how the state has challenged it. We know it is a matter which needs consideration,” the bench said, adding that the Centre’s move can be challenged by an individual but not by states.

The bench, instead, asked Chief Minister Mamata Banerjee to submit a plea before it as an individual. “Let Mamta Banerjee come and file. We will entertain her as an individual,” it said.

Source: Aadhaar case: Supreme Court pulls up West Bengal govt, says ‘how can State challenge Parliament’s mandate’, The Indian Express, October 30, 2017

This strikes me as preposterous. The government is not a military organization where people must follow their superiors' orders without challenge. Further, during a dispute between a state and the centre, who else can adjudicate other than the Supreme Court?

The Supreme Court has original, appellate and advisory jurisdiction. Its exclusive original jurisdiction extends to any dispute between the Government of India and one or more States or between the Government of India and any State or States on one side and one or more States on the other or between two or more States, if and insofar as the dispute involves any question (whether of law or of fact) on which the existence or extent of a legal right depends.

Is the bench correct in asking the state government to justify its right to challenge the central government? Clearly the Court's problem is not with the subject of the challenge, but merely about who is raising the challenge.

  • That something seems to be just and fair, does not automatically mean it will or should be legal. There must be a legal basis for making the challenge - otherwise the entire system would be mired in Etty disputes. – Nij Oct 31 '17 at 8:18
  • @Nij and what constitutes a legal basis for such a challenge? – muru Oct 31 '17 at 8:32
  • I've only commented because that's the general principle. I don't know nearly enough details of either Indian law or this case to say more about what might be a sufficient legal basis, to give an answer. Also an error in the original comment, "petty disputes \Etty" – Nij Oct 31 '17 at 8:38
  • In Australia one does not sue or be sued by the "state", one sues or is sued by the Hon. X, Minister for Y. For example, one can't sue the Parliament of NSW but one can sue the Attorney-General in their role as responsible minister. – Dale M Oct 31 '17 at 20:37
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Indian Constitution provides for a Federal government in which power of states and centres are clearly enunciated. If there is a dispute over any issue Supreme Court can decide whether State government is correct, or whether Central government is correct.

Any law of Parliament affects the entire population of India, and so all states are affected by that law. If any state government considers that the law is not as per constitutional norms, it can easily go to the Supreme Court for decision.

So, the observation of the Supreme Court that a state is bound by the law of Parliament, is incorrect. If an individual can file such a case, a state is also entitled to file it. The Supreme Court should decide it on the basis of merit.

So I think the observation of Supreme Court in this case is not correct.

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The legislative powers have been demarcated between the Union (Parliament) and the States (Legislative Assemblies) by the Article 246 of the Indian Constitution.

The laws made in the respective List matters by the Parliament are valid for the whole of (but not limited to) Indian territory, while those made by the state legislatures are valid only in the respective state territories.

The Aadhar law made by Parliament is binding in the whole of the Indian territory, and thus there is no case of abrogation of power of the State Government - making the challenge by the West Bengal Government untenable.

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  • Who said that only abrogation of power can be a cause of dispute between a State and the Centre? – muru Nov 13 '17 at 20:26

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