The Kerala Assembly has passed a resolution demanding that the newly amended citizenship law be scrapped.
Bengaluru: The Kerala government led by Pinarayi Vijayan demanded that the law ratified by both the Lok Sabha and Rajya Sabha be scrapped immediately. Vijayan said that the law was part of a larger agenda and was against the Muslim community. He was backed by Congress leader, Ramesh Chennithala.
Posturing:
The resolution amounts to nothing but posturing. The Citizenship Law is a central subject and the states have no powers under it. Vijayan should have consulted his advocate general on the subject before going ahead with this move.
Only the Parliament of India has the powers to pass any legislation relating to the Citizenship Law. No state assembly has the powers to interfere with this law or even pass a resolution against it. Several legal experts that MyNation spoke with too said that this move by the Kerala Assembly amounts to posturing and has no legal sanctity.
Vijayan made it clear with his statement that this law is part of a larger agenda. He said that it was against the Muslim community, which in reality is not true.
In contempt:
The move by Vijayan is also clearly in contempt of the Parliament. When both Houses of Parliament have passed the Bill, no state assembly has the power to interfere with it. Passing a resolution against a decision that has been taken by the Parliament amounts to contempt. It is only the Supreme Court that can examine the correctness of such a decision. The court can, however only examine whether it is violative of Article 14 of the Indian Constitution or not.
BJP leader and Rajya Sabha MP, GVL Narasimha Rao has already filed a petition with the Rajya Sabha chairman, Venkaiah Naidu to initiate contempt proceedings against Vijayan for stating that the law was unconstitutional. Action was further sought against Vijayan for stating that the law will not be implemented in Kerala. Rao has sought for a meeting on January 3 when the Committee of Privileges in the Rajya Sabha meets.
Not violative of Article 14:
Vijayan while passing the resolution said that the law has been created without considering secularism in the country. Its religious and linguistic diversities would have far-reaching effects. He also went on to suggest that it is violative of Article 14 of the country, while adding that if unity in diversity, a value that has been upheld is lost, then such a situation would lead to the collapse of the country.
However, what Vijayan needs to realise is that the law is not violative of Article 14, which guarantees a fundamental right. The new law recognises those who have been persecuted religiously. It also speaks about the equality before law, but also adds that equality must be among equals.
This law clearly makes a reasonable classification. It says that the religiously persecuted minorities (Hindus, Sikhs, Buddhists, Jains, Parsis and Christians) from the three Islamic countries,
Afghanistan, Bangladesh and Pakistan will be granted citizenship in India. This means that a reasonable classification has been made and hence the law is intra vires and not ultra vires of the Indian Constitution.
The amendment further only provides a relaxation to the six minority communities from the three Islamic nations. The amendment does not overrule an existing provision and this means that Muslims are not prevented from applying for citizenship. Neither does it declare freshly foreign Muslims as illegal immigrants. The amendment is restricted to the three countries where Islam is the official state religion.
This amendment also falls under the category of a policy decision and is not the subject of Article 14. This makes is amply clear that the amendment easily passes the test laid down in Article 14.
In the Ram Krishna Dalmia vs Justice R Tendolkar case, the Supreme Court said that
Article 14 permits classification, so long as it is reasonable, but forbids class legislation.
The Supreme Court also said that a classification of groups of people is considered to be reasonable when the classification is based upon intelligible differentia that distinguishes persons or things that are grouped from others that are left out of the group, and the differential has a rational relation with the objective of the act.
Article 11 of the Constitution says that Parliament is empowered to make any law relating to the acquisition or termination of citizenship and all other matters relating to citizenship. Hence, the Citizenship (Amendment) Act is well within the rights of the Parliament and will stand the test of judicial scrutiny.
None of Vijayan’s business:
When the Bill was enacted, it was done under the Union List of the Seventh Schedule of the Constitution. The 7th Schedule deals with the constitutional provisions in India on the subjects of distribution of legislative powers between the Union and the States.
Under the Union List, the Union Government or the Parliament has the exclusive powers to legislate on matters relating to matters under this list. Naval, military and air forces; any other armed forces of the Union, admission into, and emigration and expulsion from, India; passports, pilgrimages to places outside India, war and peace, foreign jurisdiction, citizenship, naturalisation and aliens and extradition are some of the matters that fall under the Union List.
This clearly suggests that citizenship falls under the purview of the Union List. There is also a state and concurrent list, which deals with the powers of the states. While the state list is exclusive to the state governments, the concurrent list deals with the distribution of legislative powers of both the state and centre. Citizenship does not fall under either the state or concurrent list and this once again would mean that the Kerala Assembly did not have the powers to pass such a legislation.
Binding:
Vijayan said that the new law would not be implemented in Kerala. He is wrong once again here and would do well to get better legal advice. First and foremost, the law does not apply to any Indian Muslim and hence Vijayan’s claims of discrimination are false and misplaced.
Further if there are any persons who are part of the religiously persecuted minority, it is not the Kerala government which would take a call on whether or not grant citizenship. In fact if Vijayan’s government did have the power to not implement the new law, then he would only be causing a great amount of disservice to the religiously persecuted minorities.
Union Law Minister, Ravi Shankar Prasad said that the law is binding on the entire country. It is legal and constitutional and is not related to any Indian Muslim, much less to any Indian citizen. It is applicable only to six persecuted communities in the three countries who have been singled out due to their faith, he also said.
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