Challenging the Citizenship (Amendment) Act and calling it “discriminatory” and a “colourable legislation”, the Kerala government became the first state to move the Supreme Court Tuesday, urging it to declare the law enacted by Parliament violative of the Constitution, its basic structure rule and secular principles.
The petition was filed two weeks after the Kerala Assembly passed a resolution demanding that the new citizenship law be scrapped.
Citing the original and exclusive jurisdiction of the Supreme Court, the plea filed under Article 131 of the Constitution said that “in accordance with the mandate of Article 256 of the Constitution, the Plaintiff State will be compelled to ensure compliance of Impugned Amendment Act and the Rules and Orders, which are manifestly arbitrary, unreasonable, irrational and violative of fundamental rights. Thus, there exists a dispute, involving questions of law and fact, between the Plaintiff State of Kerala and the defendant Union of India, regarding the enforcement of legal rights as a State and as well for the enforcement of the fundamental, statutory constitutional and other legal rights of the inhabitants of the State of Kerala”.
Article 131 states that “subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute (1) between the Government of India and one or more States; or (2) between the Government of India and any State or States on one side and one or more other States on the other; or (3) between two or more States, if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends: Provided that the said jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant, engagements, and or other similar instrument which, having been entered into or executed before the commencement of this Constitution, continues in operation after such commencement, or which provides that the said jurisdiction shall not extend to such a dispute”.
Importance of Article 131
Art 32 on enforcement of rights has been cited in other CAA petitions. Only Art 131 gives SC original and exclusive jurisdiction to resolve disputes between the Centre and one or more States; between Centre and any State or States on one side and one or more other States on the other; between two or more States.
The plea said a suit in terms of Article 131 “impugning the vires of a Central Legislation at the instance of a constituent State of the Union is maintainable in view of the law laid down by” the Supreme Court in State of Jharkhand vs State of Bihar and Another in 2015.
Kerala has also challenged the Passport (Entry to India) Amendment Rules, 2015; Foreigners (Amendment) Order, 2015; Passport (Entry to India) Amendment Rules, 2016; and, Foreigners (Amendment) Order, 2016.
The plea said the CAA and amendments to the Passport Rules and Foreigners Order are “class legislations harping, interalia, on the religious identity of an individual, thereby contravening the principles of secularism, which has been recognised repeatedly by this Honourable Court as a basic structure of the Constitution”.
“The same make religion and the country of origin of the person criteria for grant of citizenship and result in classifications based on religion and based on country, both classifications being apparently and manifestly discriminatory, arbitrary, unreasonable and have no rational nexus with the object sought to be achieved”.
A legislation discriminating on the basis of an intrinsic and core trait of an individual cannot form a reasonable classification based on an intelligible differentia, the state said, adding that 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”.
The plea contended that the CAA, Passport Rules and Foreigners Order “is a colourable legislation; in as much as there is a Constitutional prohibition to makes the said legislation in violation of the secular nature of the Constitution; but despite the same, the Legislature has enacted it”.
It said there is no rationale in grouping together, for the purposes of the amendments, the three countries of Pakistan, Afghanistan and Bangladesh. “Such grouping is not founded on any rationale principle justifying a separate special treatment for the irrationally chosen class of religious minorities facing persecution on the basis of religion therein.”
“There is no rationale in not extending the rights conferred to a class of minorities from Pakistan, Afghanistan and Bangladesh to religious minorities belonging to the said countries of Sri Lanka, Myanmar, Nepal and Bhutan” and this, it said, was violative of Article 14.
The provisions were “discriminatory in so far as it covers only a class of minorities from a class of countries sharing borders with India and to which and from there have been trans-border migration”. They “overlook other reportedly persecuted religious minorities/minority sects therein such as Ahmaddiyas, Shias and Hazaras”.
They also overlook the issues of the Rohingya in Myanmar and Muslims in Sri Lanka who, it said, are also miniscule minorities in the two countries.
The Kerala government said “all persecutions are not solely based on religious grounds alone and are for varied reasons like ethnicity, linguistics etc” but the amendments “do not cover the persecutions on the grounds of ethnicity, linguistics etc even in the said class of three countries”.
“They do not cover the ethnic issues of Balochs, Sindhis, Pakhtuns and Mohajirs in Pakistan and the Biharis in Bangladesh… Further, the Impugned Act does not cover the ethnic and linguistic issues of Tamils in Sri Lanka. The Impugned Amendment Act and Rules and Orders further overlook the issues of ethnic Indians in Malaysia and Fiji. The Indian Diaspora in Malaysia and Fiji are descendants of those Indians who migrated there in search of work or brought therein as indentured labourers when those were British colonies”.
The amendments, the state said, also “violate India’s international obligations under Articles 14 (which provides that everyone has the right to seek and enjoy in other countries asylum from persecution) and 15 (which provides that everyone has the right to a nationality and that no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality) of the Universal Declaration of Human Rights and Article 26 (which provides that all persons are equal before the law, that all persons are entitled without any discrimination to the equal protection of the law and that the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status) of the International Covenant on Civil and Political Rights”.