The Kerala government has become the first state to move the Supreme Court against the Citizenship (Amendment) Act (CAA). The Pinarayi Vijayan-led LDF government has approached the top court to declare CAA unconstitutional.
The Kerala government has made this prayer under Article 131 of the Indian Constitution. Under the Constitution, 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.
In its suit to the court, the Kerala government has sought the SC to pass a judgment declaring CAA as violative of Articles 14 (Right to equality), 21 (Right to life and personal liberty), and Article 25 (Freedom of religion) of the Constitution as well as violative of the basic structure of and principles of secularism.
In addition to CAA, the Kerala 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 amednments 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.
Stating that CAA, the Passport Amendment Rules, 2015 and the Foreigners (Amendment) Order, 2015 contravene the principles of secularism by looking at the religious identity of a person, the Kerala government also goes on to note in its suit, “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. 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 also argues that there is no rationale in selecting the three countries, and is in fact discriminatory towards migrants from countries like Sri Lanka, Myanmar and Bhutan. “The Impugned Amendment Act and Rules and Orders are bereft of any standard principle or norm in discriminating migrants from other countries such as Sri Lanka, Myanmar and Bhutan, which are sharing international borders with India and to which and from which there has been trans-border migration. 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 arbitrary classification of the aforesaid three countries of Pakistan, Afghanistan and Bangladesh without any rationale or standard principles constitutes manifest arbitrariness and violates Article 14 of the Constitution.”
The state government's suit also states that CAA Passport Amendment Rules, 2015 and the Foreigners (Amendment) Order, 2015 are discriminatory on the grounds that it covers only religious persecution, and argues that persecutions are for varied reasons like ethnicity, linguistics etc.
The Kerala government has asked the court to pass a judgment and decree declaring the CAA violative of Articles 14, 21 and 25 of the Constitution, violative of the basic structure principle of secularism enshrined in it, and declare it to be as something that was done beyond the scope of authority, and hence be declared be void.
Furthermore, the Kerala government also asked the court that the Passport (Entry to India) Amendment Rules, 2015, the Foreigners (Amendment) Order, 2015, Passport (Entry to India) Amendment Rules, 2016 and Foreigners (Amendment) Order, 2016 be declared violative of Articles 14, 21 and 25, violative of secularism, and so, is ultra vires and void.
On December 31, 2019, the Kerala assembly had unanimously passed a resolution calling the Citizenship Amendment Act 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.