Kerala CM Pinarayi trains guns on CAA from his southern 'red fort'

Kerala Chief Minister Pinarayi Vijayan has raised the political stakes by asking 11 counterparts to emulate the action of the state legislature in passing a resolution against the Citizenship (Amendment) Act (CAA).

He said the Act was unconstitutional, untenable and discriminated against some minorities. Already, many states have rallied behind him to defy Prime Minister Narendra Modi and Home Minister Amit Shah, who had said they would not yield an inch to the opposition and ensure that they would go ahead with the CAA and eventually the National Register of Citizens.

Vijayan’s move has also put him on a collision course with state governor Arif Mohammad Khan and through him, the BJP. Both Khan and the Communist coalition, along with the opposition Congress, have escalated their verbal battles in the past few days.

Moving the resolution, Vijayan said the Act promoted religion-based discrimination in granting citizenship. He said that his government would not implement the Act as it went against the secular values of the Constitution.

The lone voice of dissent in the legislature was that of BJP MLA O. Rajagopal, who said the Act was ‘misinterpreted’ and lies were being propagated by the government. He described the resolution as ‘illegal and unconstitutional.’ Rajagopal’s comment was seen as a weak defence, and analysts said he failed to seek a vote in the legislature, which would have helped him record his dissent.

His views were echoed by the Governor, who has often been accused of interfering in the administration – a similar charge has been made repeatedly against Governor Kiran Bedi in Puducherry. Khan said that matters relating to citizenship are dealt with by the Centre and that states have no role to play in them.

He even went a step further and said, “This exercise doesn’t serve any purpose and is only a waste of public money. Opinions can be registered outside the assembly. However, when the assembly has been chosen for the same, you are wasting the resources, which should be spent on public welfare.”

Did the governor exceed his constitutional brief by criticising the legislature?

CPM state secretary Kodiyeri Balakrishnan accused the governor of engaging in low-level politics and accused him of playing the role of the state BJP chief (the post has been vacant for several months). “RSS leaders with at least a bit of sense should advise him that such actions will not have any impact in Kerala. The governor’s blabber is not in line with the Constitutional spirit.”

In 2016, the Supreme Court ruled that the governor has no right to intervene in the proceedings of the legislative assembly. At that time, the governor of Arunachal Pradesh had meddled in the disqualification issue of legislators and advanced the Assembly session.

Governor Khan and the BJP say that the state legislature’s resolution is unconstitutional. Kerala Assembly speaker P. Sreeramakrishan counters: “Nowhere in the Constitution is it mentioned that a state assembly cannot move such a resolution.”

The Kerala Assembly had adopted similar resolutions in the past. In 1975, it asked for the repeal of MISA or Maintenance of Internal Security Act. In 2006, it sought the repeal of the Income Tax Amendment that affected cooperatives. In 2019, it passed a resolution seeking removal of section 194 of the Income Tax Act dealing with tax deductions at source.

Observers say that several countries, notably the United States, have adopted resolutions against India in the past. While India has criticized these resolutions, it has not declared them illegal.

Rajya Sabha MP G.V.L. Narasimha Rao has filed a petition with the upper house chairman seeking breach of privilege proceedings against Kerala for passing such a resolution. But state politicians have said that Parliament cannot interfere in the proceedings of the state legislatures. Nine states have said that they will not implement the National Registry of Citizens, which flows from the National Population Register, work on which has begun in some states.

Opposition parties and many social activists say that these steps are all aimed at eventually discriminating against the Muslim minorities in India.

States could refuse to implement CAA by arguing that Parliament has no authority to pass a law that violates its basic principles of the Constitution and curbs the fundamental rights of the people. Punjab Chief Minister Capt. Amarinder Singh has said: “How can you leave out a large section of the Indian population from the protection they have been getting since we declared India a sovereign, socialist, secular, democratic republic, assuring its citizens justice, equality and liberty?”

Lawyers are divided on whether states have the right not to implement the Central law. Some say that states are duty-bound to do so and that refusal could entail dismissal of the state government. Perhaps keeping this in mind, Vijayan decided to make the opposition so widespread that Modi would find it difficult to dismiss a large number of state governments.

While the CAA is an act of Parliament, it is the states that implement it. Just as national elections are called by the Election Commission but conducted by the state officials, this act will also have to depend on the cooperation of local officials. If they do not bother about it or delay the process, the Centre cannot do anything about it.

Retired IAS Officer M.G. Devasahayam says that while states can pass any resolution, if a state law is in conflict with a central law, the latter will prevail. They could argue that since this is a sensitive subject, with law and order being maintained by the states, there should be widespread consultation before any decision is taken. The first step is to register their protest, which is what they have done.

The issue will be eventually decided by the Supreme Court. If the court says it is legal, states will have to implement it, whether they like it or not. However, they could make sure that official support is not available and thereby negate the whole process.

Parties allied with the BJP but opposing the CAA, such in Meghalaya could give a political twist to the situation. Chief Minister Conrad Kongkal Sangma has said he will pull his National Peoples Party out of the NDA if asked to implement CAA.

At a time when the BJP is growing in strength in the NorthEast, it would be foolish to antagonise the regional parties. Modi perhaps hopes that adopting an inflexible stand will project him as a strong leader who will not be cowed down by the states. Vijayan’s move effectively shatters it.

(G Krishnan has reported on politics in Indian and international publications for 40 years.)