Kerala Challenges Citizenship Act in Supreme Court, first state to do so

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NEW DELHI; The Kerala government has taken its opposition to the Citizenship (Amendment) Act (CAA) to the next level by challenging the law in the Supreme Court.

The state assembly had on December 31, 2019 unanimously passed a resolution calling the new law unconstitutional. It had become the first state assembly to do so. Later, Pinarayi Vijayan had written to 11 other Chief Ministers, asking them to take legal action against the Act.

In the suit filed against the Union of India, the state has prayed that the Supreme Court declare the Amendment as violative of Articles 14, 21 and 25 of the Constitution of India as well as violative of the basic structure principle of secularism enshrined therein.

The plaint, filed through standing counsel GP Prakash, and settled by Senior Advocate Jaideep Gupta, terms the Amendment, and allied rules and orders as "manifestly arbitrary, unreasonable, irrational and violative of fundamental rights," said a Bar and Bench report.

The crux of the objection registered by the State of Kerala to the Citizenship Amendment Act, 2019 concerns the restriction of its benefit to only the prescribed six religious minorities i.e. Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Pakistan, Bangladesh and Afghanistan.

The plaintiff has contended that extending such a benefit based on the religious identity of the individual amounts to a violation of secular principles, which form part of the Indian Constitution’s basic structure.

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 suit goes on to contend that there is also no rationale in restricting the benefit to the religious minorities prescribed in Pakistan, Bangladesh and Afghanistan alone, while ignoring persecuted minorities in countries such as Sri Lanka, Myanmar and Bhutan.

The state government has also challenged the Passport Amendment Rules, 2015 as well as the Foreigners (Amendment) Order, 2015 and sought the court to declare the two to be ultra vires the Constitution and to be void.

The Centre had in September 2015 made changes to the Passport Act and the Foreigners Act allowing the stay of minorities - Hindus, Sikhs, Buddhists, Jains, Parsis and Christians - belonging to Bangladesh and Pakistan, on the condition that they were fleeing religious persecution and had entered India before 31 December 2014.

A year later, the Centre made amendments to the two Acts to include Aghanistan to the list of countries, whereby non-Muslim refugees seeking shelter would be allowed to stay on in India, without threat of deportation.

The suit argued that these Impugned Acts 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.

“It is trite and settled law that 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 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 petition argued.

The plaint has been filed invoking Article 131 of the Constitution of India to challenge the validity of the Central legislation, which the State of Kerala asserts is maintainable in view of the law laid down in State of Jharkhand v. State of Bihar and Another (2015).

The state government has made the prayer under Article 131 of the Constitution, under which the states are not allowed to take any action which undermines or ‘impede’ the powers of the Centre. The Centre tells the States which laws to implement and how they are to be implemented. However, under Article 131 of the Constitution, the Supreme Court is given the power to step in between any dispute between the states and the Centre.

Last month, the Supreme Court had issued notice in a batch of 60 petitions filed challenging various aspects of the Citizenship Amendment Act, 2019. The Supreme Court is due to hear these petitions on January 22.

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