File photo: Kerala CM and Governor in a conversation
File photo: Kerala CM and Governor in a conversation|Photo credit: Twitter
Kerala

Is Kerala On The Brink Of A Constitutional Crisis?

With the Left government and the Governor playing political one-upmanship over CAA, the state is in turmoil

Naveen Nair

Naveen Nair

While the Citizenship Amendment Act (CAA) continues to cause a stir across the nation, in Kerala it is more than just protests that is taking shape, giving the impression that the state is moving towards a possible constitutional crisis.

On Wednesday when the Governor arrived to deliver his policy address at the state legislative assembly on the first day of the budget session, he was physically obstructed near the well of the house by the opposition parties led by the Congress, protesting against the CAA. It was an unprecedented situation in the history of the state legislature.

The government had no option but to deploy the Watch & Ward staff to physically evict protesting opposition MLAs and clear the way for the Governor to reach the Chair and read his address.

The address was read out by the Governor amidst a protesting opposition walking out. Further embarrassment for the House was however averted as the Governor Mohammad Arif Khan acceded to reading out that part of the address which protested about CAA but not before openly saying in his address that he “did not agree to that portion as a state policy but was reading it out as per the request of the Chief Minister.”

Matters might have come to a parity inside the House for now but certainly the stalemate continues as the letter submitted by the Leader of Opposition to the Speaker of the Assembly seeking permission to move a resolution to ask the Union Government to recall the Governor is still under the Speaker’s consideration.

Early this month the state assembly in Kerala passed a near unanimous resolution appealing to the union government to consider repealing the law.

Though constitutional experts had no doubt that the state was well within its rights in passing such a resolution against a law enacted by the Indian Parliament, the intent of such a resolution was doubted even by the staunchest of CAA critics with many calling it only as an attempt to play to the galleries.

But the events over the last two weeks gives the impression that the state could be hurtling towards a constitutional crisis with the state legislature, the ruling and the opposition parties on one side and the office of the state Governor on the other side drawing swords for what looks like a long drawn out battle.

The latest bone of contention is that the state government has filed an ‘original suit’ at the Supreme Court against the Union Government on CAA calling the Act unconstitutional and violative of the Fundamental Articles 14, 21 and 25 of the Indian Constitution without the knowledge of the state Governor or involving his consultative role.

Though the move by the state government to approach the Apex Court, on an issue which comes under the Centre’s List is unprecedented, many legal experts say that the state is very much within its rights in doing so and that the suit could get admitted to start off with.

But what has set the government on a collision course with the Governor is the sheer audacity with which the state kept the Governor in the dark while moving the suit.

The Governor says it is a blatant violation of the House of Business Rules – Section 34(2) subsection 5 which clearly say that the state needs to inform the Governor on every matter pertaining to its relationship with the Union government.

“It is clearly a breach of rules which state that the state government is supposed to inform me on matters affecting relations between the state and the centre. They have gone to the Supreme Court without even informing me about it. You cannot break rules as per your wish,’’ Arif Mohammad Khan told the media when he met them in Delhi.

The state government was quick to hit back and said that it had neither broken any rules nor legality when it went to the apex court.

“The government has not broken any rules and it does not need to take any permission from the Governor. Only in matters relating to a dispute with the Union government the state needs to inform the Governor. There is no such fight between the state and the centre. The state government has no such intentions,’’ Law Minister AK Balan told media persons at Thiruvananthapuram.

The Law Minister’s reaction was quite contrary to what was happening on the ground. For one, the Governor had never talked about the state seeking permission from him. He was only upset about him not being informed.

Secondly it was clear that the state was at complete loggerheads with the Union government over CAA. The resolution passed in the state legislative, the protest conducted by the government across the state and finally going to the apex court asking for the Act’s repeal are all indications of the growing animosity between both.

An irked Governor summoned the Chief Secretary and sought an explanation. Having failed to find any merit in his explanation, Arif Mohammad Khan finally took the legal route and decided to approach the Supreme Court which many perceive as an unprecedented and unwise step by the state Governor.

Is Governor Provoking The State?

With this one move of the Governor, constitutional experts in the state are openly putting the onus on the Governor for vitiating the atmosphere.

Senior Supreme Court lawyer Kaleeswaram Raj who is based out of Kochi says that they very idea of the Governor going to the Supreme Court against the state government is in itself an unhealthy trend and that he should not have even thought of making such a litigative move.

“The basic scheme of the Constitution will have to be conceived properly by the Governor which clearly says that the Governor is bound by the cabinet decision and he will necessarily have to abide by what the elected government choses to do. So, the very attempt to go into a litigation will only ran counter to this constitutional scheme,’’ Advocate Kaleeswaram Raj told The Lede.

Raj goes on to cite the example of a case – Shamsheer Singh V State of Punjab 1974 in which the constitutional bench of the Supreme Court including Justice VR Krishna Iyer had clearly laid down the law that the “Governor being the nominee of the President can only abide by the decision which the cabinet or the government takes”.

Legal experts point out that the 1974 verdict is an indisputable proposition and when the Governor says he would go to the Supreme Court he only ends up taking an opposing posture that embarrasses his own government.

The Governor has also maintained that the decision of the government to unilaterally go to the Supreme Court against CAA is a violation of the Business Rules.

But here too constitutional experts differ with Khan.

“Rules by themselves are not equal to a constitutional provision. Going by the rules he can only advice the government, but ultimately will have to go with the decision taken by the government. Although the source of power of the business rules is Article 166 of the constitution, the rules by itself it does not have the veracity of any article of the Indian Constitution,’’ Raj reiterated.

When asked if the state government could have exercised more caution in at least informing the Governor before moving the suit in the Supreme Court Raj says “Absolutely not. This is an unprecedented case where the Governor has come up in public and uttered his disagreement with what an elected government has done right from the beginning which tilts the balance in the government’s favour. In the wake of this, no sane government will be able to seek his concurrence because he has already taken a contradictory posture which has been put in public domain.’’

Hence the over-riding emotion in the state is that the state government might have been technically wrong but since the Governor himself had breached the ‘rules of the game’ initially he now has little locus standi to preach about the rules himself.

Playing Into The Governor’s Hands?

That the Governor went out to the media with open criticism of the actions of the state legislative has not gone down well with both the government as well as the opposition parties.

Many feel that the Governor had only succeeded in adding to the drama of political one-upmanship that has been playing in Kerala since the Parliament passed the CAA between the ruling LDF (Left Democratic Front) and the opposition UDF (United Democratic Front).

“State governments and Governors having a tiff is not the first time in Kerala. But here the action of the Governor gives an impression that his office is being led by a political ideology which is reflected in the way he has been talking to the media about the issue. Nobody has a doubt here that Governors should not be rubber stamps. That has been reiterated by courts too. But here it goes beyond that when the Governor’s office becomes the centre of a political controversy which is against the constitution,’’ Kerala’s renowned RTI activist and lawyer DB Binu told The Lede.

But Binu goes on to add that it was not just the Governor that had crossed the line of impropriety. He says that the state government, by refusing to inform the Governor of its actions in an issue of confrontation involving the Union government, had perhaps purposefully played a political one-upmanship game eyeing rich political dividend in the future.

“The question of propriety comes in when both sides maintain some ethics. Both parties are playing politics which certainly gives the impression that ultimately the state moves towards a constitutional deadlock. Everyone knows what will finally happen when such a breakdown takes place. The Left government is playing this nicely by giving a stick to the Governor hoping to play the victim card as the first government to be thrown out for opposing the CAA if such a situation arises. Just imagine the magnitude of the political mileage the Left could derive from it,’’ points out Binu.

Political One-Upmanship At The Core

The state government and the Governor having set up the one-upmanship game nicely, the opposition led by the Congress is now making a desperate attempt to grab some space in it.

This is clearly reflected in the resolution that senior Congress leader and Leader of Opposition Ramesh Chennithala had proposed to bring asking the Union government to recall the Governor.

Chennithala had also sent a letter to the Speaker of the Kerala Legislative Assembly seeking permission to move such a resolution.

“I brought in this resolution because the Governor had used very strong language to criticise the resolution that the state legislative had passed against CAA which is an insult to the elected house. I have sought permission to move a resolution as per the rules. Such resolutions have been moved before also,’’ Chennithala told media persons.

But the state government decided to tread cautiously this time round and the Law Minister AK Balan went to extent of calling the opposition leader’s action as a classic case of one-upmanship. He also said that the government was not on a collision course with the Governor and had no intentions of doing so too.

From then the focus had openly shifted from this being a united front against the CAA to ‘who takes the cake’ approach in obvious game of appeasement politics.

“If there is no problem between the Governor and the state government as claimed by the Law Minister then why is the Governor asking the state to make changes in his address to the state assembly? Why has the Governor spoken so harshly against the government even after the chief secretary met him and explained that the state had done nothing wilfully wrong by approaching the Supreme Court on CAA. This Governor is only playing a game on the behest of Modi and Shah to lead the state to a constitutional break down. If the state government and the CM does cannot see through this game, it is sad,” Chennithala told media persons in Thiruvananthapuram.

Chennithala might be spot on when he says that the Governor and the state’s relationship have soured like never before but political analysts say that Chennithala and his party’s desperation to get one step ahead of the Left in targeting the Governor stems from a definite desperation.

“See the Congress in Kerala is desperate because suddenly the Left led by the CPM and Pinarayi Vijayan seem to be fighting the minority cause here. If only the Congress leadership in Delhi had taken up the CAA protest earnestly then whatever Pinarayi Vijayan & Co could have done might not have set the panic button for the Congress in Kerala and they would have gone with the tide they manged to create post Lok Sabha elections among the Muslim voters. But now people like Ramesh are desperate since Pinarayi has suddenly become the voice for the Muslim community,’’ noted political commentator Joseph C Mathew told The Lede.

Most of the political protests in Kerala surrounding the CAA over the last few days had also given the indication that the initial unity between the ruling Left and the opposition led by the Congress and Muslim League has been torn apart and a united protest is now out of question.

This is reflected in the most recent human chain that the LDF had created across the entire length of the state from Kasaragod to Thiruvananthapuram from which the UDF wilfully kept away.

Surely the UDF did not want to be seen playing second fiddle to the Left in the fight against CAA at least in the eyes of their main minority vote bank.

“Somewhere the essence of the protest is being lost in the political one-upmanship that is now being played by both the LDF and the LDF. See the people of the state clearly are against CAA in big numbers, let there be no doubt in that. But they have also understood the political agenda of both the fronts. So it will never be easy to say which side reap the benefits of these protests,’’ well known political analyst and Left ideologue NM Pearson told The Lede.

All eyes will be now on the state legislative assembly that kicks off its budget session this week. While it is most likely that the Governor would skip that portion of his address which refers to CAA, it remains to be seen what kind of protest it will evoke from the house.

Also, in the line is the proposed resolution by the opposition that calls for the recall of Mohammad Arif Khan from the post of the Governor.

Though its unprecedented to move such a resolution given the present circumstance of political one-upmanship one could not be surprised if the speaker allows such a resolution.

It will only give more ammunition to both sides that could further weaken the already struggling federal set up.

The Lede
www.thelede.in