Kerala invokes Article 131 to challenge CAA in Supreme Court

Pilot had on Monday approached the top court challenging her brother's detention under the Public Safety Act, saying the detention order was "manifestly illegal" and there was no question of him being a "threat to the maintenance of public order". Photo: PTI

Amid a growing dissent among states against the Citizenship (Amendment) Act, political parties and governments opposing the new law, have found new hope in Article 131 of the Constitution, to protest against the law that seeks to grant citizenship on the basis of religion.

Article 131, empowers the Supreme Court to hear disputes between the Indian government and one or more states. While the Kerala government filed a suit against CAA in the Supreme Court by invoking Article 131, Welfare Party of India, a right-wing party, has written to governments of 16 non-BJP ruled states, to reject CAA and the National Register of Citizens (NRC) by invoking the same article.

The Kerala government’s use of Article 131 is a form of “nullification” or “interposition”, which has been used for the first time in India. Nullification, in United States’ constitutional history, is a legal theory under which a state has the right to nullify, or invalidate, any federal law which that state has deemed unconstitutional with respect to the United States Constitution.

When we look at the Indian Constitution, it does not contain any article or clause expressly providing that the states have the power to declare federal laws unconstitutional.

Supporters of nullification argue that the states’ power of nullification is inherent in the nature of the federal system. The passing of a separate ordinance in the Tamil Nadu Assembly for Jallikattu was an example of nullification.

Kerala blazes trail

While Congress-ruled states and those including Bihar and Maharashtra have declined to implement CAA, Kerala is the first ever state to have registered its dissent in a legal way.

More than 60 such petitions are currently pending with the apex court, which will be heard on January 22.

Also read: ‘Bury alive’, ‘shoot like dogs’: BJP leaders’ solution to CAA dissent

The Kerala government in its petition has said that the CAA among other things violates Article 14 of the Constitution, right to life under Article 21 and freedom to practise religion under Article 25.

According to reports, the government has also questioned the validity of the Passport (Entry to India) Amendment Rules 2015 and the Foreigners (Amendment) Order 2015 which regularise the stay of non-Muslim migrants from Pakistan, Bangladesh and Afghanistan who came to India before 2015.

Also read: 32,000 listed: UP begins identifying potential citizens under CAA

Earlier, the Kerala Assembly had passed a resolution calling CAA an un-secular law. Chief Minister Pinarayi Vijayan recently wrote to 11 chief ministers seeking support for its protest against CAA.

The development comes a day after, leaders from different religious, social and political groups held a consultative meeting to discuss the status of the nationwide protests against CAA-NRC-NPR and launch a Samvidhan Suraksha Andolan (movement for the protection of Constitution), in New Delhi.

The meeting presided by Maulana Muhammad Wali Rahmani, general secretary, All India Muslim Personal Law Board was attended by leaders of several organisations including Lokshasan Andolan, Bhim Army, Muslim Personal Law Board, United Christian Forum, The Buddhist Society of India and Ambedkar Samaj Party among others.

The new law seeks to grant Indian citizenship to persecuted minorities hailing from Buddhist, Hindu, Sikh, Jain, Parsi and Christian communities from Pakistan, Bangladesh and Afghanistan.