Context: Centre-State relations and the recent move by Kerala government against CAA.
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- The state of Kerala has approached the Supreme Court challenging the Citizenship Amendment Act, 2019 thereby becoming the first State to challenge the contentious law made by the central government.
- Kerala filed a plea as an original suit under provisions of Right to Equality granted by the Indian Constitution.
- The petition states that CAA violates Right to equality under Article 14 of the Constitution of India, right to life under Article 21 and freedom to practise religion under Article 25.
- The original suit has been filed under Article 131 of the Constitution which empowers the Supreme Court to hear disputes between the States or the Government of India and States.
- The state government has also challenged the changes made in the Passport Act and Foreigners Act Rules.
- The petitioner has claimed that the amendments to the passport rules and the foreign order results in classifications based on religion and that the classification is “apparently and manifestly discriminatory, arbitrary, unreasonable and having no rational nexus with the object sought to be achieved”.
| Article131 of Indian Constitution: 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 between the Government of India and one or more States; or between the Government of India and any State or States on one side and one or more other States on the other; or 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. |
How is Citizenship (Amendment) Act or CAA is discriminatory?
- Trans-Border Migrants: Kerala argues that CAA is discriminatory because it covers only a class of minorities from a class of countries sharing borders with India and to which and from there have been trans-border migration.
- Hindus from other Neighbouring countries: The petition says, “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 descend, 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”.
- Other religious minorities: Petition further says that CAA covers certain religious minorities of Pakistan, Bangladesh and Afghanistan and overlook other reportedly persecuted religious minorities and sects such as Ahmaddiyas, Shias and Hazaras.
- Ethnic and linguistic Minorities:
- The Kerala government said “all persecutions are not solely based on religious grounds alone and are for varied reasons like ethnicity, linguistics etc” but the amendments “do not cover the persecutions on the grounds of ethnicity, linguistics etc even in the said class of three countries”.
- “They do not cover the ethnic issues of Balochs, Sindhis, Pakhtuns and Mohajirs in Pakistan and the Biharis in Bangladesh”.
- The Impugned Amendment Act and Rules and Orders further overlook the issues of ethnic Indians in Malaysia and Fiji.
- Violate India’s international obligations:
- Universal Declaration of Human Rights:
- Articles 14: which provides that everyone has the right to seek and enjoy in other countries asylum from persecution.
- Article 15: which provides that everyone has the right to a nationality and that no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.
- International Covenant on Civil and Political Rights:
Article 26: which provides that all persons are equal before the law, that all persons are entitled without any discrimination to the equal protection of the law and that the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
CAA as Centre-State dispute:
- In Indian Constitutional set up, the Union government has overriding powers. The relation between the Centre and states is so structured that the laws made by Parliament have to be carried out and enforced. Therefore, while CAA is legally binding on states, the NPR is not.
- As far as CAA is concerned, states cannot say no. Because they are bound to act in compliance in the law passed by Parliament. The Constitution is clear on that. Central government has the power to direct the states to implement a law. The consequence of not complying is that the the Constitution gives the Centre the power to impose President’s rule.
- NPR is a ‘legal orphan’ without backing, and is not provided for in the Citizenship Amendment Act. States can refuse to carry it out.
- The plea, without articulating how the CAA became a Centre-state dispute, said since the Act was “manifestly arbitrary and unconstitutional” as it violated secularism and right to equality, “thus, there exists a dispute involving questions of law and facts between the state of Kerala and the Union of India, regarding the enforcement of legal rights as a state and as well as for the enforcement of fundamental, statutory, constitutional and other legal rights of the inhabitants of the state of Kerala.
|Difference between NPR and Census: Census is an exercise carried out under the Census Act, 1948. Census data is based on self-declaration made by the persons without verification. NRC/NRIC: NRC/NRIC means National Register of Indian Citizens.This has its base in Section 14A of the Citizenship Act, which says, among other things, that:The Central Government may compulsorily register every citizen of India and issue national identity card to him.The Central Government may maintain a National Register of Indian Citizens and for that purpose establish a National Registration Authority.|
Other Centre-State issues:
- A number of states have gotten into political slugfests with the Centre on the powers of investigative agencies, with West Bengal and Andhra Pradesh even withdrawing the general consent given to Central Bureau of Investigation in the past, to carry out investigations in those states.
- Maharashtra and Odisha assemblies passed a resolution urging the Centre to conduct a socio-economic caste enumeration along with the general census 2021, something the central government has disliked to do.
- Resource Crunch: Analysts predict that due to the economic slowdown, gross tax revenues for 2019-20 can see a shortfall in excess of Rs 3 trillion, and about 35-42 per cent of that shortfall will be borne by states, because lower tax collections means lower distribution of the divisible pool to states.
- A number of states have complained about Goods and Service Tax compensation dues not been released or being delayed by the Finance Ministry.
- The upcoming budget, which will incorporate recommendations from the 15th Finance Commission, may also create a situation where certain states are not happy with the distribution of resources.
In the time of economic slow-down and the protest against the moves of the ruling government, it is important for the government to tackle the situation in a more participative manner. The concept of cooperative federalism just in words cannot help. The government must come forward and take states alongside to help India achieve its development growth back on track.