Does A “Union Territory” Fall Under Word “State” of Article 131 for Invoking Original Jurisdiction of the Supreme Court: A Legal Analysis

Article 131 of the Constitution of India confers original jurisdiction on the Supreme Court to adjudicate disputes: (a) between the Government of India on one side and one or more States on the other side, (b) between the Government of India and any State or States on one side and one or more States on the other side, (c) between two or more States. No other court in the country can exercise this jurisdiction. The jurisdiction of the Supreme Court can be invoked only when the question either of law or fact on which the existence or extent of a “legal right” depends. This provision has been borrowed, with few modifications, from Section 204 of the Government of India Act, 1935 which provided original jurisdiction to the Federal court. No private party can invoke the original jurisdiction of the Supreme Court under Article 131.¹

This original jurisdiction of the Supreme Court comes with few riders. D.D. Basu, in his magnum opus Commentary on the Constitution of India wrote that the Supreme Court does not enjoy original jurisdiction in few of the disputes in which Union and States are involved, like (i) disputes specified in proviso to Articles 131 and 363(1), (ii) inter-State water disputes under Article 262, (iii) Matters referred to the Finance Commission under Article 280, (iv) Adjustment of certain expenses as between the Union and State under Article 290, (v) a reference to the Supreme Court under Article 143(2) read with the proviso to Article 131.²

The subject-matter of this Article’s discussion is: does a “Union Territory” fall under word “State” of Article 131 for invoking the original jurisdiction of the Supreme Court. This legal question has not yet been decided by the courts also. In fact, the courts had the opportunity to decide this issue, but they did not decide. In State (NCT of Delhi) v. Union of India³, when writ petitions were filed before the Delhi High Court by the private individuals challenging certain actions of Delhi’s Lieutenant Governor which involved interpretation of Article 239-AA of the Constitution, the Government of Delhi sought a stay of proceedings by Delhi High Court on the ground that it has filed original suit before the Supreme Court under Article 131 of the Constitution⁴ as the subject- matter involved dispute of a federal nature.⁵ On the contrary, it was argued on behalf of the Union of India that the Government of Delhi is not a “State” but a “Union Territory” hence the Supreme Court will not have original jurisdiction under Article 131 of the Constitution.⁶

The High Court, without answering whether Delhi is a Union Territory or a State for the purposes of Article 131, had refused to stay the proceedings on the ground that the dispute did not involve a question of federal nature.⁷ When the matter went on in an appeal before the Supreme Court, it also did not discuss this issue of whether Delhi is a Union Territory or a State for the purposes of Article 131 and decided the matter on merits.⁸ Whereas, the original suit filed by the Government of Delhi was dismissed⁹ as withdrawn as the special leave petition is already filed from order of the High Court. While dismissing the original suit as withdrawn, the Supreme Court made it clear that it has not gone into the issue as to whether the suit at the instance of the Government of Delhi is maintainable or not under Article 131 of the Constitution. As the courts have not decided the issue, this Article discusses the same by relying on settled principles and through the tools of interpretation.

The territory of India comprises of the States and Union Territories.¹⁰ Till date, there are total of eight Union Territories in India, namely Delhi, Andaman & Nicobar Islands, Lakshadweep, Dadra & Nagar Haveli and Daman & Diu, Puducherry, Chandigarh, Jammu & Kashmir and Ladakh.¹¹

In our Constitution, the expression “State” changes itself to suit different contexts in the Constitution. Part VI of the Constitution deals with the States. The expression “State” is defined under Article 12 for the purposes of Parts III (Fundamental Rights) and IV (Directive Principles of State Policy) of the Constitution. However, the word “State” is not defined for the purpose of Article 131. Nonetheless, Article 367(1) states that unless the context otherwise requires, the provisions of the General Clauses Act, 1897 shall apply for the interpretation of the Constitution. As per Section 3(58) of the General Clauses Act, 1897, after the commencement of the Constitution (Seventh Amendment) Act, 1956, “State” shall means a “State” specified in the First Schedule to the Constitution and shall include a “Union Territory”. Going by this inclusionary definition, one would assume that it is clear as a cloudless sky that a “Union Territory” falls under the word “State” of Article 131 for invoking the original jurisdiction of the Supreme Court. But that is not so.

It is settled canon of law that in an interpretation of a statute or a constitutional provision, resort has to made to internal aids in the statute itself and only in case there is some ambiguity in the statute, resort can be made to external aids like Constituent Assembly Debates,¹² etc.¹³ There was no discussion in the Constituent Assembly regarding this subject. Hence, to come out of this legal conundrum, we have to resort to internal aids and interpret and analyse different provisions of the Constitution and other laws as: (SCC p. 59, para 37)

37. … No provision, and indeed no word or expression, of the Constitution exists in isolation — they are necessarily related to, transforming and in turn being transformed by, other provisions, words and phrases in the Constitution.¹⁴

Article 367(1) starts with the words “unless the context otherwise requires”. Justice G.P. Singh in his seminal work, Principles of Statutory Interpretation has noted that:

where the context makes the definition given in the interpretation clause inapplicable, a defined word when used in the body of the statute may have to be given a meaning different from that contained in the interpretation clause.¹⁵

The Supreme Court in RBI v. Peerless General Finance & Investment Co. Ltd.¹⁶, has observed that: (SCC p. 450, para 33)

33. Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context.

Justice G.P. Singh in the same book by citing the judgments of the Supreme Court has noted that:

the word “State” in Article 3¹⁷ and Entry 80¹⁸ of the Union List in the Constitution includes Union Territories. But as the context otherwise requires the word “State” in Article 246 does not include Union Territories¹⁹.²⁰

Hence, we have to look at the context in which the expression “State” includes “Union Territory” for the purposes of Article 131.

It is well known to everyone that the States that are enlisted in Part I of Schedule I to the Constitution consist of an elected Government and enjoy executive and legislative powers as are allotted to them under Parts VI and IX, respectively under the Constitution. Whereas, as per Article 239 of the Constitution (Part VIII), the Union Territories are administered by the President of India acting through the administrators appointed by him and as per Article 240 it is the President who has powers to make Regulations for Union Territories of Andaman & Nicobar Islands, Lakshadweep, Ladakh,²¹ Dadra & Nagar Haveli and Daman & Diu. In other words, it is the Central Government which administers a Union Territory and makes Regulations for it. Hence, when the Union Territory itself is being administered by the Government of India, then the Union Territories of Andaman & Nicobar Islands, Lakshadweep, Dadra & Nagar Haveli and Daman & Diu, Puducherry, Chandigarh and Ladakh do not fall under the expression “State” of Article 131(a) to raise a dispute against the Government of India. But same is not the case with the Union Territories of Delhi, Puducherry and Jammu & Kashmir.

A glance at Article 239-AA would reveal that Delhi, although a Union Territory, is conferred with powers to have a legislature and an elected Chief Minister. The Delhi Legislative Assembly is conferred with power to make laws for the whole or any part of the National Capital Territory of Delhi with respect to any of the matters enumerated in the State List or in the Concurrent List except matters with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List insofar as they relate to the said Entries 1, 2 and 18.²² Therefore, in case of the clash between the Government of Delhi and the Union Government as to who holds power to legislate over any of the subject,²³ or any dispute pertaining to any of the executive action,²⁴ or challenging the validity of a law of the Union or State,²⁵ or any other legal right, then either of the party has to approach the Supreme Court by invoking its original jurisdiction. Also, if we see that in case of the failure of the elected the Government of Delhi to administer according to provisions of Article 239-AA, then, as per Article 239-AB, the President of India can take over the affairs of the Delhi. This power is similar to the one under Article 356. In State of Rajasthan v. Union of India²⁶, the majority Judges have held that the “State” has “legal right” to challenge the invocation of State Emergency by the Government of India. Therefore, based on the context and based on other provisions showing that the Government of Delhi has the features of a State, Delhi falls under the expression “State” of Article 131(a) to raise a dispute against the Government of India.

Likewise, if we see Article 239-A, Parliament has been conferred with the power to make a law for creation of local legislature or Council of Ministers or both in regard with the Union Territory of Puducherry. On the heels of such power, Parliament enacted the Government of Union Territories Act, 1963 to provide for Legislative Assemblies and Councils of Ministers for certain Union Territories and for certain other matters. Now the scope of the Government of Union Territories Act, 1963 is limited only to the Union Territory of Puducherry.²⁷ Subject to certain limitations, Section 18 of the Government of Union Territories Act, 1963 confers legislative power to the Puducherry Legislative Assembly, which means in case of conflict between the Puducherry and Union Government as to who holds power to legislate over any of the subject,²³ either one can invoke original jurisdiction of the Supreme Court under Article 131. Hence, Puducherry falls under the expression “State” of Article 131(a) to raise a dispute against the Government of India.

Coming to the Union Territory of Jammu & Kashmir, it was earlier a State and it was conferred with special powers under Article 370 of the Constitution. In the year 2019, the special powers were taken away and Jammu & Kashmir was made a Union Territory by virtue of Jammu & Kashmir Reorganisation Act, 2019. By virtue of Sections 13 and 14 of the Reorganisation Act, 2019, there shall be a Legislative Assembly for the Jammu & Kashmir. And on the basis of Section 32, Jammu & Kashmir Legislative Assembly is conferred with powers to make laws over any of the matters enumerated in State List except Entries 1 and 2 and over matters engrafted in the Concurrent List in the Seventh Schedule to the Constitution. Further, Section 73 empowers the President to impose constitutional emergency in the Union Territory of Jammu & Kashmir — a power which is akin to power under Article 356 of the Constitution. Besides this, there shall be an executive government.²⁸ In a nutshell, Jammu & Kashmir has similar provisions as are there with Delhi, with few modifications. Hence, “Union Territory of the Jammu & Kashmir” is also “State” under Article 131(a) of the Constitution of India.

Article 131(b) talks about the dispute between the Government of India and any State or States on one side and one or more States on the other side. Here again the context changes.

In State of H.P. v. Union of India²⁹, the State of Himachal Pradesh has instituted a suit under Article 131 against the Union of India, the State of Punjab, the State of Haryana, the State of Rajasthan and the Union Territory of Chandigarh over the issue pertaining to the power generated in the Bhakra-Nangal and Beas Projects. Although, the Supreme Court did not discuss the issue as to whether a Union Territory falls under the expression “State”, but from the entertaining of a dispute against the Union Territory of Chandigarh also, we can infer that for the purposes of Article 131(b) where the dispute involves multiple States including the Central Government, then the expression “State” includes all the present eight Union Territories.

Article 131(c) provides for resolution of disputes between two or more States. A Union Territory, which is administered by the Central Government, will have dispute with a State on one or the other issues. Hence, based on the context, all the Union Territories fall under the expression “State” for the purposes of Article 131(c) of the Constitution. In fact, in State of Punjab v. Assessing Authority³⁰, a matter came up before the Supreme Court from the Punjab & Haryana High Court. The issue pertained to levy of sales tax under Section 22(2) of the Punjab General Sales Tax Act. When the matter came up before the High Court seeking one direction, the High Court dismissed the case on a totally new ground that the Hospitality Organisation was a department of the State of Punjab, whereas the taxing authority was the Union Territory of Chandigarh, hence, the High Court held that in view of dispute being between two State Governments the petition lies before the Supreme Court under Article 131. When the State of Punjab went in an appeal before the Supreme Court, the Supreme Court without going into the aspect of whether Union Territory of Chandigarh is a “State”, had disposed of the case on merits. This goes on to imply that a Union Territory is a State under Article 131(c).

The conspectus of the above discussion is that the Union Territories of Andaman & Nicobar Islands, Lakshadweep, Dadra & Nagar Haveli and Daman & Diu, Chandigarh and Ladakh do not fall under the expression “State” of Article 131(a) to raise a dispute against the Government of India, but the Union Territories of Delhi, Puducherry and Jammu & Kashmir do fall under the expression “State” of Article 131(a) to raise a dispute against the Government of India and all the present eight Union Territories fall under the expression “State” for the purposes of Article 131(b) and Article 131(c).