The Congress government in Rajasthan moved the Supreme Court on Monday, 16 March, challenging the validity of the Citizenship (Amendment) Act, saying it is violative of the principle of secularism, which is part of the "basic structure" of the Constitution, and fundamental rights of equality and life.
It became the second state after Kerala to move the top court invoking Article 131 of the Constitution under which a state is empowered to directly move the Supreme Court in case of a dispute with the Centre.
The newly amended law seeks to grant citizenship to migrants belonging to Hindu, Sikh, Buddhist, Christian, Jain and Parsi communities who came to India from Pakistan, Bangladesh and Afghanistan on or before 31 December 2014 due to religious persecution in those countries. It excludes Muslims.
‘CAA Contravenes Principles of Secularism’
"Pass a judgement and decree that the Citizenship (Amendment) Act, 2019 is violative of Article 14 (right to equality) and Article 21 (right to life) of the Constitution of India as well as violative of basic structure principle of secularism. Thus Act 47 of 2019 (CAA) be declared as void under Article 13 of the Constitution," said the plea filed through lawyer DK Devesh.
Article 13 of the Constitution says any law "inconsistent with or in derogation of the fundamental rights" can be held unconstitutional to the extent of its contravention of fundamental rights.
The plea said the CAA be declared "ultra vires" to the provisions of the Constitution of India.
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 the Foreigners 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 impugned Amendment Act makes 'Religion' and the 'country of origin' of the person sole yardstick for grant of citizenship. If a law discriminates an individual on the basis of religion it cannot be termed as a reasonable classification based on an intelligible differentia," the plea contended, adding it was "patently erroneous".
It said the language of the statute conferring benefit on 'illegal immigrants' is not based on persecution alone, but on religion. Therefore, the classification becomes bad in the eye of law, and falls foul of Article 14 of the Constitution.
It said the Statement of Objects and Reasons seems to suggest that the rationale is religious persecution in neighbouring countries of Afghanistan, Pakistan and Bangladesh.
"The impugned law is selective in picking 'Religion' as well as 'countries'. This pick and choose based on irrational criteria of particular religion from a particular place of origin, cannot muster the core principles of equal protection of laws guaranteed under Article 14 of the Constitution," it said.
‘No Rationale in Depriving Minorities in Sri Lanka, Myanmar, Nepal, Bhutan’
The plea added that the Act is 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, but depriving religious minorities belonging to countries of Sri Lanka, Myanmar, Nepal and Bhutan, it said.
The plea alleged that he Act has resulted in religion based exclusion of Muslims from the benefit of acquiring citizenship through naturalisation, and such exclusionary law contravenes Article 14 of the Constitution.
The plea said that the Rajasthan government has opposed the amended Act and the State Legislative Assembly has also passed a resolution on 25 January, 2020 for repeal of the amended Act.
The Rajasthan chief minister also wrote a letter to the prime minister on February 17 to have a relook into the matter and withdraw the amended Act.
Earlier, the CPI(M)-led Kerala government had become the first state government to challenge the CAA in the Supreme Court.
The Kerala Assembly was also the first in the country to pass a resolution against the Act.
The Kerala government had 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 had said.
On December 18, 2019, the top court 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 court is hearing 59 anti-CAA petitions, including those filed by the Indian Union Muslim League (IUML) and Congress leader Jairam Ramesh. RJD leader Manoj Jha, Trinamool Congress MP Mahua Moitra and AIMIM leader Asaduddin Owaisi have also filed pleas against the act.
The anti-CAA petitioners include the Jamiat Ulama-i-Hind, All Assam Students Union (AASU), Peace Party, CPI, NGOs 'Rihai Manch' and Citizens Against Hate. Several law students have also approached the apex court challenging the Act.
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