CAA protests: Kerala

CAA protests in Kerala: On collision course

Print edition : February 14, 2020

Governor Arif Mohammed Khan. He brushed aside as irrelevant the Assembly resolution against the CAA. Photo: PTI

The Kerala Governor spares no opportunity to hinder the State government’s efforts to register its opposition to the Citizenship (Amendment) Act and the moves to implement it.

PERHAPS the loudest, most emphatic, but lonely, support for the Citizenship (Amendment) Act (CAA), 2019, amidst widespread protests across Kerala against it, came rather surprisingly, not from the State unit of the Bharatiya Janata Party (BJP) but from the Governor of the State, P. Arif Mohammed Khan.

Uncharacteristically for a Governor, and claiming that he was duty-bound to speak in support of a law passed by Parliament (and the Constitution), he welcomed the Central government’s move to enact the CAA. He said the government, through this Act, had upheld the promise made by “Mahatma Gandhi, Pandit Nehru and the Congress to the people who were leading deplorable lives in countries such as Pakistan”.

Even as the ruling and opposition parties in the State joined hands initially in launching protests against the new law, with several sections of society participating jointly and independently in it, the Governor made several controversial public statements, describing the new law as an “extraordinary solution” to the problem of minorities from neighbouring countries fleeing religious persecution. He cited figures to claim that the percentage of minorities had drastically gone down in Pakistan, Bangladesh and Afghanistan while it had increased significantly in India.

Protests against the Governor too increased in the streets and some public venues as a result, even as Arif Mohammed Khan began inviting the protesters themselves for a debate with him on the issue. On December 29, 2019, he was heckled and shouted down for his pro-CAA comments and forced to stop his inaugural speech at the 80th edition of the Indian History Congress held at Kannur University.

But ever since then, and after the Assembly passed a unanimous resolution on December 30 urging the Centre to repeal the new citizenship law, his critics say, the Governor has spared no opportunity to hinder the State government’s efforts to register its opposition to the moves of the Central government.

In the wake of widespread protests all over Kerala against the Central government’s decision to implement the CAA and the National Population Register (NPR), the Chief Minister Pinarayi Vijayan convened a meeting of leaders of political parties and social, religious and community organisations in the State on December 29. Almost all participants, except those of the BJP who walked out, raised several concerns about the CAA and the NPR.

Resolution in Assembly

Following this, the Assembly passed a unanimous resolution (with the lone BJP MLA O. Rajagopal refraining from voting after speaking against the resolution) urging the Centre to repeal the new citizenship law, which, it said, “leads to religious discrimination in the matter of granting citizenship” and “destroys the ideals of secularism enshrined in the Constitution”. The resolution, it said, was adopted “taking into consideration the widespread apprehensions that have risen among a large section of the people”.

The resolution further said: “When citizenship is decided on the basis of religion, it suggests that an approach towards religious nationalism is inherent in such a move. Since it is entirely contradictory to the secular ideals of the Constitution, the proposed law is not in tune with the basic structure of the Constitution.”

The Chief Minister, who moved the resolution in the Assembly, said that India had been able to survive despite its diverse geography and different languages and cultures because secularism and unity in diversity formed its foundation. “When secularism is threatened it will weaken the very existence of the nation.”

The Chief Minister also wrote letters to the Chief Ministers of 11 non-BJP-ruled States seeking similar action from them and stressing the need for joint efforts to strengthen the demand for the repeal of the CAA and the proposed National Register of Citizens (NRC) in order to protect and preserve the cherished values of democracy and secularism and to help preserve the basic tenets of the polity, which form the cornerstone of Indian democracy.

Challenging CAA in court

Subsequently, in an unusual move, the Kerala government filed an Original Suit under Article 131 in the Supreme Court challenging the validity of the CAA—the first State to approach the apex court thus and the fifth instance in history when a case has been filed under Article 131 by a State against a Central law.

Article 131 of the Constitution gives the Supreme Court, “to the exclusion of any other court, original jurisdiction in any dispute between the Government of India and one or more States, if and insofar as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends”.

The Kerala government has argued in its suit that if the Act is not annulled, in accordance with Article 256 of the Constitution the State will be forced to implement it as well as the related notifications under the Passport (Entry into India) Amendment Rules, 2015 and 2016, and the Foreigners (Amendment) Order, 2015 and 2016, promulgated by the Central government, which are all “manifestly arbitrary, unreasonable, irrational and violative of fundamental rights under Articles 14, 21 and 25”.

It said that it was filing the Original Suit under Article 131 as “thus, there exists a dispute, involving questions of law and fact between the Plaintiff State of Kerala and the defendant Union of India regarding the enforcement of legal rights as a State and as well for the enforcement of the fundamental, statutory, constitutional and other legal rights of the inhabitants of the State of Kerala”.

Kerala has said that the Amendment Act, Passport (Entry into India) Amendment Rules, and Foreigners (Amendment) Order that are being challenged “are class legislations harping on the religious identity of an individual, thereby contravening the principles of secularism, which has been recognised repeatedly by the Supreme Court as a basic structure of the Constitution. Making religion and the country of origin of the person criteria for grant of citizenship results in classifications that are apparently and manifestly discriminatory, arbitrary, unreasonable and have no rational nexus with the object sought to be achieved and that the Act has resulted in religion-based exclusion of Muslims from the benefit of acquiring citizenship through naturalisation.”

It has also said that such religious classification violates the twin test of classification under Article 14, the protection of which is not limited or restricted to citizens alone and extends to all persons; that there is no rationale in not extending the rights conferred to a class of minorities from Pakistan, Afghanistan and Bangladesh to religious minorities belonging to Sri Lanka, Myanmar, Nepal and Bhutan or to other minorities who faced religious persecution in Afghanistan, Pakistan and Bangladesh, such as the Ahmadiyas and Shias from these countries, or Rohingyas in Myanmar and Muslims in Sri Lanka who are also minuscule minorities in the said countries.

Among other things, Kerala has also argued that the Act and the rules that it has challenged are also discriminatory because it covers only religious persecution but ignores persecutions that are based on other reasons such as ethnicity or language; and that the Amendment Act and related rules and orders violate India’s international obligations under Articles 14 (which provides that everyone has the right to seek and enjoy in other countries asylum from persecution) and 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) of the Universal Declaration of Human Rights, and Article 26 of the International Covenant on Civil and Political Rights (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 guarantees 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).

Controversial steps

Meanwhile, in successive controversial steps, Governor Arif Mohammed Khan continued to make headlines. First, he brushed aside the resolution passed by the Assembly as irrelevant since “citizenship is purely a Central subject and the State has no role in it and it is a waste of time to debate on an issue not affecting the State in any way” as the “Assembly is functioning with public funds, which should not be misused”. He also raised the doubt, without dwelling on it much, whether an Assembly could pass a resolution against an Act passed by Parliament.

His statements came even as huge anti-CAA rallies and protests were taking place in many parts of Kerala and leaders of many political parties were demanding that he stop acting like the State president of the BJP (a post which had been lying vacant for months now after P.S. Sreedharan Pillai was appointed Governor of Mizoram).

His second act had been to refuse to sign an ordinance delimiting the wards in local bodies (where elections are to be held in a few months) reportedly telling Minister for Local Self Government A.C. Moideen, who met him, that if the State government could find the time to convene a special session of the Assembly to pass a resolution against the CAA, then the House could have been convened as well to pass a law for the delimitation of the local body wards instead of the government seeking to achieve its purpose through an ordinance.

“I have not said I will not sign the ordinance but have only raised some queries and they are to come back with explanations,” the Governor said, while pointing out that he was “not a rubber stamp” and that the Constitution expected him to apply his mind on such issues. “I need time to go through the ordinance and will act only as per the Constitution.”

Things seemed to come to a boil when the Chief Minister, while addressing a “Constitution Protection Rally” in Malappuram the same day, said that when the British ruled India, Residents used to be appointed above rulers of the princely states. “But everyone should keep in mind that there are no such Residents now, who have more power over the State Assembly.”

Soon after the State government approached the Supreme Court with its Original Suit under Article 131, the Governor was quick to register his displeasure once again, this time more menacingly, in not being informed beforehand either about the Assembly resolution or about the State’s decision to move the Supreme Court against the CAA.

In several impromptu interactions with the media, the Governor said that the State government had flouted rules, with the Chief Minister not informing him about the State’s decision to approach the Supreme Court challenging the CAA.

He told mediapersons: “This is not a personal fight between me and the State government. I am not important. But what is important is the Constitution and the law of the land. The rules for the transaction of business of the government are framed by the Cabinet. The Governor only approves them. All I am saying is that the government go by the rules of business. The Assembly frames its own rules. Assembly Rule 119 says that the House shall not discuss any matter which is not the concern of the State government. You are violating rules and laws which you yourself have created. Don’t try to use constitutional institutions and authority to violate the letter and spirit of the very document which has given you this authority.”

He also said: “The Supreme Court has said that Clauses 1 and 2 of Article 166 of the Constitution are of a directorial nature. But rules framed under Clause 3 of the Article are of mandatory nature. Therefore, my view is that the Governor’s approval is needed [for the government to approach the Supreme Court], but even if, for the sake of argument, I accept the claim that the Governor need only be informed about it, it is a fact that the State Government has gone to the Supreme Court without informing me. That is an unlawful act; not legally correct. So, none of the explanations provided can satisfy me.”

He summoned Chief Secretary Tom Jose to the Raj Bhavan demanding a report and promptly rejected whatever explanation the State government provided.

Arif Mohammed Khan also said he would like to make a comment about the Communist Party of India (Marxist) general secretary Sitaram Yechury’s statement at a public meeting in Thiruvananthapuram marking the culmination of the party’s Central Committee meeting. “He talked about the abolition of the office of the Governor. It proves only one point. He has not been able to point out anything that I have done is wrong. He is only asking that you abolish the office so that there is nobody to oversee whether rules are being followed or the Constitution is being followed or not. But the authority [to abolish the post of the Governor], that only the people of India can give them.”

Later, the Governor brought more sharpness to his statement, when he was asked once again about Yechury’s comment about the post of the Governor being superfluous: “Let them [the CPI(M)] ask the people of India to give them their trust so that they can do with the Constitution what they want to do. But today, they are not in a position to do that.”

Asked what he intended to do, now that he had rejected the State government’s explanation, Arif Mohammed Khan said: “I shall not discuss the next step now. But one thing I can assure you, I will not allow constitutional machinery to collapse in the State. That cannot be allowed to happen. The very fact of going to the Supreme Court without submitting the case to the Governor is unlawful. The case can be closed if the unlawful action is withdrawn.”

The Governor, who was leaving for Ayodhya to attend a seminar at Awadh University, was again asked whether he felt the constitutional machinery was collapsing in Kerala. His reply was: “Well, I will take whatever you are saying also into consideration when I finally make my decision.”

The BJP’s only representative in the Assembly, former Union Minister and senior party leader O. Rajagopal, had at one point advised the Governor (and the Chief Minister) to exercise restraint and cautioned them against making acrimonious public statements when legitimate avenues were open to settle such disputes between a Chief Minister and a Governor whose roles were clearly defined by the Constitution.

“The Governor may have his own opinions. But is it something which he should declare in public?” Rajagopal asked in reply to questions from a prominent television channel and suggesting he could intervene to try and settle such an unwanted dispute.

With an Assembly session about to be convened on January 29 and the Governor scheduled to address the House with the government’s policy statement, the members of the Left Democratic Front (LDF) Cabinet have been generally soft in their tone while responding to the Governor’s statements.

According to Law and Parliamentary Affairs Minister A.K. Balan, the State government made no deliberate attempt to bypass or belittle the office of the Governor and with the help of legal experts hoped to address satisfactorily the apprehensions he had raised.

However, the Minister made it clear that the State government had no constitutional obligation to secure the permission of the Governor before approaching the Supreme Court challenging the validity of the CAA.

Similarly, the Governor’s permission was not required for passing a resolution in the Assembly on the issue. Only the Assembly Speaker’s approval was required for a resolution to be taken up. The Minister said that it was the government’s view that it had not violated the Constitution, rules of the Assembly or rules of business by approaching the Supreme Court or passing a resolution in the Assembly against the CAA.

The issue of invoking Article 131 was now before the Supreme Court. If the court said the Governor was right, we would accept the court’s decision on it, he said.

Another battlefront

Meanwhile, opening another battlefront against the Central government on the issue, the State Cabinet formally decided on January 20 to inform the Registrar General and Census Commissioner under the Ministry of Home Affairs that it was not possible to cooperate with or conduct activities relating to the revision of the NPR in Kerala.

The Chief Minister had already reiterated the government’s stand, for instance, while addressing the Constitution Protection Rally at Malappuram on January 17, that the State would not allow any agency to conduct activities linked to the revision of the NPR in the State nor allow the CAA to be implemented in the State.

“The decision has been taken because it is the constitutional duty of the government to remove apprehension among the people and ensure that law and order is maintained in the State,” an official statement issued by the government after the Cabinet meeting said. The Kerala government, however, clarified that it would cooperate fully with the Census operations in the State.

“NPR is a process that leads to the National Register of Citizens (NRC). This has caused much apprehension among the people. If NPR and NRC are implemented in Kerala it will create widespread uncertainty in the State. The experience of a State which has already prepared NPR is an example. The police has reported that if the Kerala government went ahead with the NPR revision, it will adversely affect the law and order situation in the State,” the statement said.

District Collectors, too, have informed the government that if an attempt was made to revise the NPR along with the population census, it might not be possible to conduct the Census operations themselves properly. The State government has approached the Supreme Court questioning the constitutional validity of the CAA and has already put a stop to activities in connection with the revision of the NPR in the State. Minister A.C. Moideen said directions would be issued to enumerators in the State to exclude questions regarding date of birth and details of parents from the Census questionnaire and that the Census directorate would be informed accordingly.

No stay on implementation

At the time of filing this report, the Supreme Court had just granted four weeks’ time for the Central government to respond to 143 petitions challenging the validity of the CAA filed by various groups and individuals, including the Muslim League and its four MPs from Kerala. The court denied requests for a stay on the implementation of the Act but indicated that the petitions may eventually be heard by a five-judge Constitution Bench.

It left an immediate resolution of the plea filed by the State government in the apex court as well as the Governor’s challenge against the State government with some uncertainty for a while at least. The leaders of the ruling CPI(M)-led LDF, however, expressed confidence repeatedly, like the Chief Minister did at a huge rally in Kozhikode: “The people of Kerala can rest assured that there will be no need for anybody here to run around searching for the place and date of birth of their aged parents or grandparents. All of those who are born here are citizens of our country. We do not need certificates from anyone. I can say with certainty that the National Population Register that the Central government is trying to implement cleverly as a prelude to the preparation of a National Register of Citizens will not be implemented in the State.”

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