Kerala has now become the first state to move the top court in the backdrop of nationwide protests against the religion-based citizenship law. After the Kerala Assembly passed a resolution against the Citizenship Amendment Act, the state government has moved the Supreme Court challenging the amended law.
The Supreme Court is already seized of the matter with more than 60 petitions challenging the law and a hearing on the matter is scheduled on January 22. The Left-led Kerala government in the petition termed the new law violation of several Articles in the Constitution, which includes right to equality, and cited that this law is against the basic principles of secularism enshrined in the Constitution.
The Kerala government urged the apex court to pass a judgment declaring the law to be ultra vires the Constitution and void. Challenging the Citizenship (Amendment) Act and calling it “discriminatory” and a “colorable legislation”, the Kerala government became the first state to move the Supreme Court. The petition was filed two weeks after the Kerala Assembly passed a resolution demanding that the new citizenship law be scrapped. The plea filed under Article 131 of the Constitution said that “in accordance with the mandate of Article 256 of the Constitution, the Plaintiff State will be compelled to ensure compliance of Impugned Amendment Act and the Rules and Orders, which are manifestly arbitrary, unreasonable, irrational and violation of fundamental rights.
The Supreme Court has three kinds of jurisdictions: original, appellate and advisory. Under its advisory jurisdiction, the President has the power to seek an opinion from the apex court under Article 143 of the Constitution. Under its appellate jurisdiction, the Supreme Court hears appeals from lower courts.
In its extraordinary original jurisdiction, the Supreme Court has exclusive power to adjudicate upon disputes involving elections of the President and the Vice President, those that involve states and the Centre, and cases involving the violation of fundamental rights.
For a dispute to qualify as a dispute under Article 131, it has to necessarily be between states and the Centre, and must involve a question of law or fact on which the existence of a legal right of the state or the Centre depends.
The other petitions challenging the CAA have been filed under Article 32 of the Constitution, which gives the court the power to issue writs when fundamental rights are violated. A state government cannot move the court under this provision because only people and citizens can claim fundamental rights. Under Article 131, the challenge is made when the rights and power of a state or the Centre are in question.
Article 32 provides the right to Constitutional remedies which means that a person has right to move to Supreme Court (and high courts also) for getting his fundamental rights protected.