IUML moves Supreme Court for stay on CAA rules, terms them ‘prima facie unconstitutional’

Petitions challenging the Act

The Citizenship Amendment Act, passed by the Parliament in 2019, enables non-Muslim migrants from Pakistan, Bangladesh, and Afghanistan to escape religious persecution and seek Indian citizenship.

Those belonging to the Hindu, Sikh, Buddhist, Jain, Parsi, or Christian communities from these countries who entered India on or before 31 December, 2014, can seek citizenship under the CAA.

IUML national general secretary PK Kunhalikutty, a former Kerala Industry Minister, claimed he was among the first to challenge the law in 2019 because it discriminates against a particular community.

He said the latest move is a continuation of the original petition filed in 2019, which contended that not including Muslims in the list of those eligible for citizenship violates the right to equality under Article 14 of the Constitution.

He said the latest move was made according to the decision of the top IUML leadership, which entrusted him as the petitioner in the case.

Other than IUML, over 250 petitioners challenge the validity of the Act in the apex court, including DYFI (Democratic Youth Federation of India), the youth wing of Kerala’s ruling CPI(M).

According to Kunhalikutty, on Tuesday, the IUML filed an interlocutory application in the pending writ petition, demanding an immediate stay of implementing the CAA.

Also Read: Modi govt notifies CAA rules ahead of Lok Sabha elections

Legislation manifestly ‘arbitrary’

The application said that “the normal rule of presumption of constitutionality of a statute will not operate when the legislation is manifestly arbitrary”.

The petitioner argued that the Act is “prima facie unconstitutional” and that the Supreme Court should stay it because it connects citizenship to religion and introduces a classification solely based on religion, the Law News portal reported.

Earlier, in its original petition, the IUML sought to pause the implementation of the Act.

Still, the Union government had told the court that the law would not come into force immediately because the rules had yet to be notified.

The petition said that the implementation of CAA rules must be paused until the Supreme Court rules on 250 pending petitions against the constitutional validity of the Act. The Preamble of the Constitution envisages that India is a secular country, and, therefore, any law passed has to be religion-neutral, the petition stated.

The petitioner now argues that since the CAA was not implemented for 4.5 years, no prejudice will be caused if its implementation is deferred until the final decision of the court.

On the contrary, the application reminded that if people who got citizenship under the CAA are ultimately stripped of their citizenship in the event the court finds the law unconstitutional, it will create a strange situation.

IUML Lok Sabha member ET Mohammed Basheer told South First that the party is not against granting citizenship to migrants.

He said the IUML was only opposing the singling out and exclusion of Muslim migrants.

Basheer said the party has concerns about migrants from all communities and feels the issue must be viewed beyond religion. He said that excluding a right from one particular community is against the spirit of the Constitution and the concept of equal justice.

“Since the CAA discriminates based on religion, it strikes at the root of the concept of secularism, which is the basic structure of the Constitution,” he said. Therefore, according to the Live Law quotes from the fresh application, one way to implement the Act would be to make it religion-neutral and grant citizenship to all immigrants regardless of their religious affiliation.

In the application, the IUML also sought an order directing the Union government that, in the meantime, pending adjudication of the writ petition, members of any religion or denomination who have been excluded on account of their religion(s) from the purview of the CAA, may not be subjected to any coercive action under the Citizenship Act, 1955, Passport Act, 1920, and Foreigners Act, 1946.

It also asked that the Respondent (the Union government) not take any action against Muslim community members who have been denied the chance to apply for citizenship under the Rules until the writ petition was decided. It also asked that the respondent Union government temporarily allow Muslim community members to apply for citizenship and submit a report on their eligibility.

The writ petitions were last listed before the Supreme Court on 31 October, 2022.

Though passed by the Parliament in 2019, the law’s implementation was put on hold due to the massive country-wide protests against it. The government’s proposal to implement the CAA and the creation of a National Register of Citizens (NRC) exacerbated the protests.

Also Read: What the notified CAA rules say

Case background

Critics of the law object to the religion-based exclusion of refugees from the benefit of CAA, arguing that linking Indian citizenship with religion undermines the country’s secular character.

The Supreme Court, while agreeing to hear the matter, declined to stay the operation of the Act.

In its counter-affidavit, the government defended the Act, stating that the law did not affect the citizenship of any Indian citizen and that mere under-inclusion of a category while granting benefits was not a ground to strike down a law.

Yesterday, the Union government notified the rules to implement the CAA and notified the formation of committees at the state/UT level to process the applications under the Citizenship.

In its original petition, the IUML argued that by treating Muslims as “second class citizens”, the CAA also violates the principle of secularism. In the SR Bommai vs Union of India case, the court held that secularism is a basic feature of the Constitution, as the petition reminded.

The IUML argued that it violates the Refugee Convention of 1951, which prohibits religious discrimination. The same right is available more broadly in Article 26 of the International Covenant on Civil and Political Rights and Article 7 of the Universal Declaration of Human Rights, 1948 (UDHR).

Further, Article 15 of the UDHR provides that “everyone has a right to nationality”. The IUML argued that an emerging principle under international law is that statelessness should be avoided. This constrains the discretion of a state to grant citizenship to ensure that immigrants are not rendered “stateless” without good reason.

(Edited by VVP Sharma)