Kerala has become the first state to challenge the Citizenship (Amendment) Act, 2019, in the Supreme Court and sought that it be declared as violative of the basic structure - principle of equality, freedom and secularism.

The Kerala Assembly was the first in the country to pass a resolution against the Act. In its suit, the state government has referred to Article 131 of the Constitution.

“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. Hence, this original suit under Article 131 of the Constitution is being preferred,” the plea said.

What is Article 131?

It deals with the original jurisdiction of the SC. Subject to the provisions of the Constitution, the SC shall, to the exclusion of any other court, have original jurisdiction in any dispute

(a) between the government of India and one or more states; or

(b) between the government of India and any state or states on one side and one or more other states on the other; or

(c) 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.

It means that Article 131 gives the SC original jurisdiction - meaning the SC can hear the case first hand rather than reviewing a lower court’s judgment - to mediate disputes between states or between the Centre and states.

Previous cases under Article 131

In the 1977 State of Rajasthan vs Union of India case, the SC ruled that “the dispute must involve a question whether of law or fact, on which the existence or extent of a legal right depends. It is this qualification which contains the true guide for determining whether a particular dispute is comprehended within Article 131. Mere wrangles between governments have no place in the scheme of that Article”.

In 1977, the Centre appointed the Grover Commission to inquire into allegations against Karnataka chief minister Devraj Urs. The CM set up a state commission to forestall any inquiry by the Centre. He filed a suit under Article 131 that the appointment of the central commission is illegal.

The judgment, while upholding the ability of states to challenge the Centre under Article 131, said…

“Article 131 can be invoked whenever a state and other states or the Union differ on a question of interpretation of the Constitution so that a decision of it will affect the scope or exercise of governmental powers which are attributes of a state. When differences arise between the representatives of the state and those of the whole people of India, on questions of interpretation of the Constitution, which must affect the welfare of the whole people, and, particularly that of the people of the state concerned, it is too technical an argument to be accepted that a suit does not lie under Article 131 of the Constitution.”

In the 2011 State of MP vs Union of India case, where Madhya Pradesh sought to challenge certain aspects of its reorganisation after bifurcation into Chhattisgarh, the SC did not accept the plea under Article 131 and rather held that the challenge be under Article 32 (remedies for enforcement of fundamental rights).

This was, however, challenged in 2014. In the State of Jharkhand vs State of Bihar case, where, in a dispute after the bifurcation, the latter chose to challenge the maintainability of the former’s plaint under Article 131 - citing the 2011 Madhya Pradesh judgment - Justices J. Chelameswar and S.A. Bobde chose to disagree with the 2011 verdict and deferred the case to a larger Bench.

What are the arguments raised by Kerala?

The CAA, which was notified on January 10, grants Indian citizenship to non-Muslim minorities - Hindu, Sikh, Buddhist, Jain, Parsi and Christian - who migrated to India from Afghanistan, Pakistan and Bangladesh till December 31, 2014, following persecution over their faith.

The Kerala government has said in its suit that there is no rationale in grouping together the three countries - Pakistan, Afghanistan and Bangladesh - for the purpose of the CAA and rules and orders.

“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,” it said.

The Kerala government has sought from the apex court that the CAA be declared as violative of Articles 14 (equality before law), 21 (right to life and personal liberty) and 25 (freedom of conscience and free profession, practice, and propagation of religion). It said that CAA is violative of the basic principle of secularism enshrined in the Constitution.

Besides, the plea has stated that the Passport (Entry to India) Amendment Rules, 2015, and Foreigners (Amendment) Order are ultra vires the Constitution and be declared void. It said the CAA, the amended Passport Rules and Foreign Order are class legislations harping on the religious identity of an individual, thereby contravening the principles of secularism, which has been recognised by the court as a basic structure of the Constitution.

The suit claimed that these amendments make religion and a person’s country of origin a criteria for grant of citizenship and result in classifications based on religion and country, which are discriminatory, arbitrary, unreasonable and have no rational nexus with the object sought to be achieved.

“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,” it said.

The plea added that the CAA and rules and orders are bereft of any standard principle or norm in discriminating against 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.

It said if the objective of the CAA is to protect the minorities who faced religious persecution in Afghanistan, Pakistan and Bangladesh, then the Ahmadis and Shias from these countries are also entitled to treatment equal to that being now extended to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities.

On December 18, the SC had issued a notice to the Centre and sought its response by the second week of January on a batch of pleas challenging the CAA’s legality. The apex court has fixed January 22 for hearing 59 petitions.

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