Kerala became the first State to join citizens across the country's spectrum to challenge in the Supreme Court the constitutionality of the Citizenship (Amendment) Act (CAA), which fast-tracks grant of citizenship on the basis of religion.
The State has approached the Supreme Court nearly 15 days after its Legislative Assembly unanimously requested the Centre to abrogate the CAA on December 31, 2019. And it comes just three days after the CAA came into effect on January 10.
The original suit has been filed under Article 131 of the Constitution. The Supreme Court has “original” jurisdiction in disputes between States or the Centre and State(s). The Article allows it to directly take cognisance of such a dispute.
Kerala said in its suit thatit would be compelled under Article 256 to comply with the CAA, which was “manifestly arbitrary, unreasonable, irrational and violative of fundamental rights”.
The suit, represented by senior advocate Jaideep Gupta and G. Prakash, submitted, “Thus, there exists a dispute, involving questions of law and fact, between the State of Kerala and the 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.”
However, there has been two conflicting judgments from the Supreme Court by coordinate Benches on whether a State can file an original suit under Article 131 to challenge the constitutionality of a central law. The first judgment reported in 2012 - State of Madhya Pradesh vs Union of India - held that States cannot challenge a central law under Article 131. The second judgment - State of Jharkhand Vs State of Bihar - took the opposite view in 2015 and referred the question of law to a larger Bench of the Supreme Court for final determination.
The Centre may object to the maintainability of the Kerala suit when it comes up for hearing.
Besides the CAA, the suit also challenges other laws that affect citizenships, including Passport Rules and Foreign Order Amendments as “class legislations which harp on the religious identity of an individual, thereby contravening the principles of secularism”.
It said the CAA, by making concessions for grant of citizenship to illegal migrants who flee persecution from Afghanistan, Pakistan and Bangladesh, was discriminatory and irrational.
Linking Indian citizenship with the country of origin and religion of an illegal migrants was manifestly discriminatory and unequal. “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 suit argued.
The State of Kerala expressed its wonder at how word “persecution”, which appears in the text of 'statement of objects and reasons' of the CAA, fails to make it to the main body of the Act itself. This would suppose that illegal migrants from these countries and from select religions would get priority in grant of Indian citizenship.
“Such grouping is not founded on any rationale principle justifying a separate special treatment for the irrationally chosen class of religious minorities facing persecution. 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,” the suit said.
The petitioners, from all walks of life across the country, have argued that the law welcomes “illegal migrants” into India selectively on the basis of their religion and pointedly exclude Muslims. They have contended that the CAA shares an “unholy nexus” with the National Register of Citizens (NRC) and is against principles of secularism, right to equality and dignity of life enshrined in the Basic Structure of the Constitution.