Kerala is the first state to move SC against new law
GS Paper II
Topic: Indian Constitution- historical underpinnings, significant provisions and basic structure.
Prelims: importance of article 131
Mains: doctrine of colourable legislation
What’s the News?
Challenging the Citizenship (Amendment) Act and calling it “discriminatory” and a “colourable legislation”, the Kerala government became the first state to move the Supreme Court, urging it to declare the law enacted by Parliament violative of the Constitution under Article-131.
Article 131 states that “subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute
(1) Between the Government of India and one or more States; or
(2) Between the Government of India and any State or States on one side and one or more other States on the other; or
(3) 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.
Importance of Article 131:
Art 32 on enforcement of rights has been cited in other CAA petitions. Only Art 131 gives SC original and exclusive jurisdiction to resolve disputes between the Centre and one or more States; between Centre and any State or States on one side and one or more other States on the other; between two or more States.
The Citizenship (Amendment) Bill (CAB), 2016:
- With this, the government plans to change the definition of illegal migrants. The Bill, introduced in the Lok Sabha on July 15, 2016, seeks to amend the Citizenship Act, 1955 to provide citizenship to illegal migrants, from Afghanistan, Bangladesh and Pakistan, who are of Hindu, Sikh, Buddhist, Jain, Parsi or Christian extraction. However, the Act doesn’t have a provision for Muslim sects like Shias and Ahmediyas who also face persecution in Pakistan.
- The Bill also seeks to reduce the requirement of 11 years of continuous stay in the country to six years to obtain citizenship by naturalisation.
Its criticism:
India’s secular structure faces a profound crisis. The Citizenship (Amendment) Act, 2019, must be rejected for three reasons.
- First, it is against the letter and spirit of our Constitution.
- Second, it is divisive, deeply discriminatory and violative of human rights.
- Third, it seeks to impose the politics and philosophy of Hindutva, with its vision of a “Hindu nation”, on our entire people and on the basic structure of our polity.
- Our constitutional values are in peril, and no person who has faith in our democracy can afford to be silent and uninvolved in what is happening around us.
- India has several other refugees that include Tamils from Sri Lanka and Hindu Rohingya from Myanmar. They are not covered under the Act.
- Despite exemption granted to some regions in the Northeastern states, the prospect of citizenship for massive numbers of illegal Bangladeshi migrants has triggered deep anxieties in the states.
- It will be difficult for the government to differentiate between illegal migrants and those persecuted.
Prerogative of States:
The Kerala Assembly’s resolution calling upon the Centre to repeal the Citizenship (Amendment) Act, 2019, reflects the widespread unease and disquiet the legislation has caused.
- The work in the NPR gets halted since it is the State government which provides personnel for the enumeration and verification process. Kerala and West Bengal have announced that they are suspending the NPR process in their States.
- Other State Governments should also do so. If the Central Government stands by the announcement that the NRC process has not begun, then it should withdraw the July 31, 2019 notification for the updation of the NPR.
Rather than treat it as a controversy over the question whether a State Assembly is competent to question the law on a matter under the Union government’s domain, the Centre should reflect on the core issue: that the CAA may be in violation of the equality norm and secular principles enshrined in the Constitution.
The doctrine of colorable legislation:
The literal meaning of Colorable Legislation is that under the ‘color’ or ‘guise’ of power conferred for one particular purpose, the legislature cannot seek to achieve some other purpose which it is otherwise not competent to legislate on.
The Primary Function of the legislature is to make laws. Whenever, Legislature tries to shift this balance of power towards itself then the Doctrine of Colorable Legislation is attracted to take care of Legislative Accountability.
Conclusion:
- The chief opposition to the Citizenship (Amendment) Bill is that it discriminates on the basis of religion by identifying only non-Muslims refugees as those who would be eligible for Indian citizenship.
- While any foreigner can still apply for Indian citizenship, he/she has to follow the normal process of naturalisation – which takes 11 or more years.
- The CAB is seen by many as a quick move to change the demographics and voters-profile in favour of the ruling party by selective admission of illegal migrants.
- As per the critics, Citizenship (Amendment) Bill violates Article 14 of the Indian Constitution – the fundamental right which guarantees equality to all persons. This is part of the basic structure of the Constitution and hence cannot be reshaped by any Parliament laws.
- It is yet to be seen if the Supreme Court allows the selective fast-tracking for Indian Citizenship. The apex court has power even to declare the bill as unconstitutional.
The policy towards illegal migrants and refugees needs wider debates and deliberation. However, religion can never be the basis of Indian Citizenship