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Kerala becomes first state to challenge CAA in apex court

January 15, 2020 05:27 AM

COURTESY HT JAN 15
Murali Krishnan

letters@hindustantimes.com

New Delhi : Kerala has become the first state in the country to mount a legal challenge to the controversial Citizenship (Amendment) Act, 2019, or CAA, after it approached the Supreme Court by way of a suit under Article 131 of the Constitution.

The article empowers the Supreme Court to hear disputes between the central government and states.

CAA, which was passed on December 12, 2019, amends Section 2 of the Citizenship Act, 1955, which defines “illegal migrants” by adding a proviso to Section 2 (1)(b). As per this new proviso, any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian communities from Afghanistan, Bangladesh or Pakistan, and who has been exempted by the central government under the Passport (Entry into India) Act, 1920, or the Foreigners Act, 1946, shall not be treated as “illegal migrant”. Consequently, such persons shall be eligible to apply for citizenship under the 1955 act.

The exclusion of Muslim community from the proviso has led to widespread protests across the country, as has the linking of citizenship with religion. There have also been protests against a proposed all-India National Register of Citizens (NRC) and the potential problems in the two working in combination. At least 60 petitions were filed in the Supreme Court challenging CAA over the past month, and they are likely to be heard on January 22. The government has since clarified that a nationwide NRC isn’t in the works for now.

The Kerala assembly on December 31, 2019 passed a resolution stating that the CAA is against the secularism envisaged by the Constitution of India and urged the central government to repeal the law. The ruling Communist Party of India (Marxist)-led Left Democratic Front and Congress-headed United Democratic Front Opposition came together to pass the resolution at a special session of the House.

Chief minister Pinarayi Vijayan, who has been at the forefront of opposing the law, also wrote to 11 non-Bharatiya Janata Party (BJP) chief ministers to come together to oppose the CAA.

Kerala submitted in the Supreme Court petition that consequent to CAA, persons belonging to the Hindu, Sikh, Buddhist, Jain, Parsi or Christian communities in Afghanistan, Bangladesh or Pakistan have been excluded from the scope of illegal migrants so as to enable them to acquire citizenship by registration under Sections 5 of the 1955 Act or by naturalisation under Section 6 of the 1955 Act.

The CAA harps, inter alia, on the religious identity of an individual, thereby contravening the principles of secularism, which has been recognised by the Supreme Court as a basic feature of the Constitution, Kerala stated in its petition.

The CAA, Kerala argued, makes religion and country of origin of the person criteria for grant of citizenship and results in classifications based on religion and country. Such classifications are discriminatory and violate the right to equality under Article 14 of the Constitution, it said.

“There is no rationale in grouping together for the purposes of the Impugned Amendment Act the three countries of Pakistan, Afghanistan and Bangladesh. Such grouping of Pakistan, Afghanistan and Bangladesh 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,” the petition said.

It further argued that CAA is discriminatory because it covers only a class of minorities from a class of countries sharing borders with India.

“While the Hindus from Pakistan, Afghanistan and Bangladesh are covered by the Impugned Amendment Act, the defendant did not consider the issues of the Hindus, primarily of Tamil descent, in Sri Lanka and Hindu Madhesis in Terai of Nepal, whose ancestors migrated to Sri Lanka and Nepal respectively in the eighteenth Century from the then British India,” Kerala government’s petition stated.

It argued that CAA covers certain religious minorities of Pakistan, Bangladesh and Afghanistan, while overlooking other persecuted religious minorities and sects, such as Ahmaddiyas, Shias and Hazaras.

It was Kerala’s case that if the object of CAA was to protect the minorities who faced religious persecution in Afghanistan, Pakistan and Bangladesh, then the Ahmaddiyas and Shias from these countries would also be entitled to the same treatment extended to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities.

The Kerala unit of the BJP termed the state government’s decision a “gimmick”. “We all know such a plea won’t sustain in a court of law. The state government wants to give an impression that it is leading the anti-CAA protest in the country. It is nothing but a gimmick. The state is showing enough signs that it is against the federal polity of the country,” party spokesperson JR Padmakumar said.

The state also challenged the validity of Passport (Entry to India) Amendment Rules, 2015 and Foreigners (Amendment) Order, 2015. These amendments enabled persons who are Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Pakistan and Bangladesh to stay in India provided they were compelled to seek shelter in India due to religious persecution or fear of religious persecution and had entered the country on or before December 31, 2014.

Senior advocate Sanjay Hegde said it was a good step on the part of the Kerala government to challenge the CAA. “It is a good step by the state of Kerala more so because original suits cannot be dismissed in the first instance. The scope of Article 131 is quite wide and the Supreme Court as a constitutional court can certainly examine if legal issues arise between centre and state. Various states had resorted to it in the past. If I remember correctly, the state of Tamil Nadu under Jayalalithaa had challenged then central government’s decision to enter General Agreement on Tariffs and Trade,” he told HT

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