Why Kerala Has Gone to Supreme Court Against the CAA

'The Centre's new citizenship law imperils India’s constitutional values. No person who wants democracy to flourish can afford to be silent in this struggle against communalism.'

India’s history in the first half of the 20th century is immortalised by our glorious national struggle against colonialism. In these early years of the 21st century, it will be our ‘national struggle against communalism’ that would define us and our history.

The fact that so many of us are out there on the streets, and that gatherings such as this are happening across the country, are indicators of what our nation thinks at this point of time. We do not have an iota of doubt, that India’s secular structure is facing a profound crisis, that our constitution is under threat, and that our democracy itself is sought to be fundamentally undermined, by the communal forces.

While a series of interventions with a communal agenda, have been made by the ruling dispensation, it is the Citizenship Amendment  Act, 2019, that has proved to be last weapon which has strongly pierced the secular mind  of our people. It has rekindled the spirit of our nationalist movement. Unity of people who comprise the vastness that is India is in full display against forces which narrows our vision.

When the central government seems  determined to go ahead with a legislation that is counter to the basic tenets of our constitution, the people of the country have a historical responsibility to ensure that the lofty values enshrined in the Preamble of our constitution are preserved and protected. It is in line with this spirit that the Government of Kerala and the Legislative Assembly have taken a strong stand in defence of the secular principles intrinsic to our constitution.

When the values envisioned in our constitution are flouted, it is quite natural that the people as a whole react to it in protest.  Protests are to be carried forward in many realms.

One, by brining issue before the Courts of law competent to determine the constitutionality of the new move. Yet another one is to move resolutions in  the Legislative Assemblies seeking withdrawal of the CAA 2019.

Last but not the least, are the peaceful protesters articulating the feelings of the vast masses of our society. All these are happening in our country today. I am happy to say that the state of Kerala has championed this cause, by making all these things happen there in the initial days itself.

Protest against the CAA and NRC in Kota, Rajasthan. Photo: PTI

The state government has filed a suit before the Supreme Court invoking its  original jurisdiction under Article 131 of the constitution, challenging the validity of the CAA,2019. The Kerala Legislative Assembly unanimously adopted a resolution stating that the amendment is detrimental to the basic tenets of the constitution. Apart from all these, all the non BJP political parties who have representation in the assembly, other democratic parties and the socio religious formations stages satyagraha as a sequel to the passing of the Citizens Amendment Act.

The LDF held rallies and organised a massive human chain across the state on Republic Day.

The rallies, conferences and the human chain had a rich representation of the cultural diaspora and this was noted all over the country. Instead of seeing this as a problem confined to one or another religious formation, we have chosen to adopt a stand that this is an issue confronting every citizen of this country regardless of religion, caste, creed etc. It is against this backdrop that we made it sure that no communal outfit hijacks  the protests lest it should help the Hindutva forces to defend  the indefensible.

We have taken care that the agitation should be  peaceful and there should not be any sort of violence. We have strictly adhered to the slogans that are raised in defence of our constitution. In this context it is worth mentioning that the state of Kerala has been able to persuade some other states to adopt a similar stand in defence of our constitutional values and secular fabric of our polity.

In the light of Kerala taking the lead in this national struggle against communalism, orchestrated campaigns which seek to cast aspersions on the efforts of the Government of Kerala are being waged. The constitutional validity of the government of Kerala’s interventions – the resolution adopted by the KLA, the suit in the SC, our cabinet  decision, and so on – is being questioned. Therefore, it is imperative to present the constitutional validity of our actions. I deem it essential, as it is required to counter the disinformation campaigns being run across the country, as well.

State ministers take the oath as prescribed in the Third Schedule of the Indian constitution. It begins with, ‘I solemnly affirm that I will bear true faith and allegiance to the constitution of India as by law established’ and ends with ‘I will do right to all manner of people in accordance with the constitution and the law without fear or favour, affection or ill-will’. Our duty is to stand by the constitution, to protect it and to uphold it, in all our actions. That is precisely what the government of Kerala is doing right now.

A protestor is being roughed up by the Police. Photo: PTI

An anti-CAA protester roughed up by police in Kerala. Photo: PTI

The only provision in the constitution that limits discussion in the Legislature is the Article 211 of the constitution, which curtails discussions on the conduct of judges in the Supreme Court or high court. It states, ‘No discussion shall take place in the legislature of a state with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties.’ Apart from that, state legislatures can discuss any issue that it deems fit and pass resolutions as well. The Kerala Legislative Assembly has passed a resolution demanding the Central Government to repeal the Citizenship Amendment Act, 2019. constitutionally, a state assembly can do so; it is well within its constitutional powers.

Even the act of challenging the CAA in the Supreme Court is based on the Indian constitution. The suit is instituted under Article 131 of the constitution which essentially states that, the Supreme Court has original jurisdiction in any dispute between the government of India and a state; if the dispute involves any legal or factual question on which the existence or extent of a legal right depends.

Kerala has prayed before the Supreme Court to declare the CAA to be void as it is ultra vires our constitution, against its basic structure and violative of Article 14 – equality before law, under the Right to Equality, Article 21 – protection of life and personal liberty, under the Right to Freedom, and Article 25 – freedom of conscience and free profession, practice and propagation of religion, under Right to Freedom of Religion, of the Indian constitution.

Also read: As States Battle Centre on CAA, a Guide to the Issues Before the Supreme Court

Taking a cue from the actions of the Kerala society and the state’s government, many other state governments have also opined that the CAA is blatantly unconstitutional and that the CAA-NRC combine is fundamentally discriminatory. Some have stalled the NPR process. Some have passed resolutions in their Legislative Assembly against the CAA. Many Chief Ministers have called for its repeal and said that the CAA-NRC won’t be implemented in their states. When the Left has been in Government we have made every effort  to use the machinery at our command to preserve communal harmony; and otherwise, we have organised the masses to ensure such harmony. The LDF Government in Kerala is privileged that the nation has bestowed the mantle of this struggle against communalism on us.

The CAA, 2019, has imperilled the nation’s constitutional values, and it must be rejected for three reasons. First of all, it is against the letter and spirit of our constitution. Secondly, it is divisive, deeply discriminatory and violative of human rights. And third, it seeks to impose the politics and philosophy of Hindutva, with its vision of a ‘Hindu rashtra’, on our entire people and on the basic structure of our polity.

The attacks against rationality and scientific temper are also part of their larger game plan. It will only aid their efforts to divide and rule. Therefore, our resistance against such divisive agenda should foster the scientific temper and promote a rational approach as well. We cannot postpone our united resistance against their assault on secularism and democracy. No person who would like our democracy to flourish and emerge more inclusive, can afford to be silent and uninvolved in this struggle against communalism.

What do we mean by the spirit of the constitution? We associate the drafting of our constitution with the rich debates of the Constituent Assembly, and the wisdom of its members, amongst whom Babasaheb Ambedkar stands tall. It is often not recognised, however, that it was the heroism of millions of unsung freedom fighters that made our constitution a reality. These men and women, who came from the working class, peasantry, and socially marginalised groups – whatever was their religious persuasion, challenged the colonial authorities in their struggle for human rights and economic justice.

A portrait of BR Ambedkar is seen at a Bhubaneswar anti-CAA rally. Photo: Priya Ranjan Sahu

The CAA, 2019, is divisive, deeply discriminatory and violative of human rights. I need not go into the details of the dangers associated with questioning the idea of equality under law, especially in a country such as ours, where systemic inequality has been perpetuated for centuries.

As I have mentioned earlier, our national unity was won through struggle; the CAA is one of the many threats to its survival. Our constitution, which we have given to ourselves recognises individual and social differences, and that we must weave the cord of unity by creating a sense of belonging and inclusiveness for all.These values emerged from the nationalist movement which was a long and arduous struggle against colonialism.The CAA, 2019, attempts to create and deepen communal division and social polarisation in the country which are alien to the fabric of polity we made for ourselves in the early years of our attaining hard won freedom.

Though CAA, 2019, has been pushed through in both the  houses of the Parliament by the political formations that are part of, and allied to, the Hindutva forces, India’s young citizens have come together to reject the attempt to polarise our people on communal lines. They have denounced this Act as discriminatory and violative of human rights.

Also read: What Is Article 131, Under Which Kerala Has Challenged CAA?

The CAA, 2019, underlies the agenda of Hindutva and its ultimate goal of establishing a ‘Hindu rashtra’. It is well established both by past experience and the present actions of the Sangh Parivar. Madhav Sadashiv Golwalkar propounded his theory of India as a ‘Hindu Nation’, where other religious communities had no rights of citizenship. He had also put forth the creation of a unitary state as their goal, so that the plurality and diversity of our country could be undermined.

In We, Our Nationhood Defined, he stated:

“Germany shocked the world by her purging the country of the Semitic Races – the Jews. Race pride at its highest has been manifested here. Germany has also shown how impossible it is for Races and cultures, having differences going to the root, to be assimilated into one united whole, a good lesson for us in Hindusthan to learn and profit by.” (Chapter 3, page 88).

I am not elaborating on this further. Suffice it to say that this goes against what we have given unto ourselves and defended through mass movements.

Friends, we must ask the pertinent question as to why this communal agenda is being projected. The economic policies are playing  havoc with the lives of lakhs  of our citizens each day. Over the last quarter of a century, every half an hour, a farmer is forced to give up his life. The recently released NCRB data states that 10,349 farmers committed suicide in 2018 alone. However it is worth mentioning that the historic long march of the farmers in the recent past also happened here.

India’s GDP growth rate has plummeted, industrial production has slowed down considerably, unemployment is at a 45 year high, consumer spending has fallen for the first time in 40 years, millions are falling below the poverty line and there is a stark rise in inequality. Our economic situation is in such shambles that even international agencies like the IMF are faulting India for the global economic slowdown. Instead of taxing the super rich and undertaking welfare measures at this juncture, the Centre is more interested in eating up the RBI’s reserves. Just a few months back, revenue to the tune of  Rs 1,45,000 crore. was given up as corporate write offs.

Women at the sit-in protest against CAA at Lucknow’s Clock Tower. Photo: PTI

We are indeed in dire straits. Let me not go into further details owing to  want of time. We are warned that without structural interventions to address these systemic issues, there will be no turn around. Still, there is no course correction, as far as India’s overall economic trajectory is concerned.

The way forward is to intensify our peaceful yet forceful struggles.

In our our workplaces, in our homes, educational institutions, in our WhatsApp groups and even in public gatherings, discourses about the need to resist the communal onslaught need to take place. We should be able to expose the hollowness of the communal politics which sows hatred and reaps violence.

In the past, our  movement was against the colonisers. In the present our struggle against communalism is a movement against those who stood with the colonisers. Back then the colonisers tried to disrupt the people’s unity by dividing us on communal lines. Today, the communal elements are using the same strategy experimented by their previous masters. In the face of untold economic miseries and emerging people’s resistances, they seek to break the unity of workers, farmers, students, Dalits and adivasis, in the name of religion. We should be able to see through these sinister designs, and defeat them.

It  is heartening that I can see many young faces in front of me here today. Let me take this opportunity to salute them in particular, and express solidarity with their secular and democratic movements that seek to resist the communal onslaught on our secular, plural and democratic values, which we are committed to defend.

This is the struggle to protect our secularism, and to defend our constitution. The people united, shall always be victorious. We shall fight, we shall win.

This is a slightly shortened version of the talk Kerala chief minister Pinarayi Vijayan gave at the Y.B. Chavan Centre in Mumbai for the Mumbai Collective on February 2, 2020.