A special session convened by the Kerala Legislative Assembly passed a Resolution terming the Citizenship Amendment Act (CAA) 2019 as “illegal and unconstitutional” and called upon the Union Government to repeal the law. Jointly supported by the LDF (ruling alliance headed by the CPM) and the Opposition UDF led by the Congress, it was opposed by the lone BJP representative in the House of 140 members. The Resolution rejecting the law as undermining the secular foundation of the Constitution was passed under a Rule of the Kerala Assembly that empowers a member or Minister to move a Resolution relating to any matter of general public interest. Kerala Governor termed the Resolution as “unconstitutional and legally tenuous”.
Though the Resolution may not invalidate the Central law, the move of the State Government may become a precedent and embolden others to follow, which will add to the woes of the CAA in implementation. Kerala Chief Minister has also urged 11 other CMs to follow the Kerala model to foster “unity among all Indians who wish to protect the country’s cherished democratic and secular values”.
The Constitution has not granted any power to State Governments to refrain from taking action for implementation of a Central law on a subject in the Union List. Union-State relation is now entangled in a serious problem in law-making and execution not due to overlapping of powers or differences over interpretations or any unforeseeable political developments, but due to bitter party politics and constant electoral fights.
Kerala Chief Minister dragged a non-governmental organisation, the RSS, in the issue accusing it as seeking to “racially purify Hindustan” by gradually ridding the country of religious, linguistic, and ethnic minorities. Speaking on the Resolution in the Assembly, he said that the RSS considered Muslims a hindrance to its bid to re-shape India into a Hindu majoritarian State wherein religion and caste of persons would determine their social status, line of work, and chances of social mobility.
The allegation, made in the style of a speech in a party forum and not as introduction of a Resolution in the Legislative Assembly overlooks the basic fact that the CAA is for granting citizenship to outsiders and not for taking it from any genuine citizens of India. However, the validity of any proceedings in the legislature of a State cannot be called in question on the ground of irregularity of procedure and courts cannot enquire into the proceedings.
Incidentally, it must be noted that the CAA aims at helping religious minorities persecuted in Bangladesh, Pakistan, and Afghanistan and seeking Indian citizenship. Kerala is far away from borders with these countries and was not much affected by Partition to have illegal migrants or infiltrators. Kerala Government’s stand confirms leftist support for anti-BJP stance and a relic of the still-born Mahagathbandhan rather than a pro-secular argument on the issue.
A petition seeking action against Kerala Government for breach of privileges and contempt proceedings have been initiated by a BJP member in the Rajya Sabha. It complains that the “unwarranted, baseless and motivated allegations against the CAA are in complete disregard to the parliamentary sovereignty and exclusive powers to deal with citizenship matters”.
By passing the Resolution, no State government can get authority to ignore the law or halt its implementation. It can convey its opinion and register its protest and delay the process of enforcement. The rules of State legislatures generally forbid passing of a Resolution on matters pending before a court or matters that do not concern the State. A Resolution in a legislative Assembly starts as a Motion and when adopted, becomes a Resolution. The House can also reverse it by rescission.
There are indications of Kerala being followed by Puducherry in this matter. The Chief Minister of this UT is reported to have commented that Kerala Assembly had jurisdiction to adopt the resolution on the new Central law. There is also a view that Kerala Assembly could move a Privilege Motion against the BJP member for disrespecting the Assembly and its sovereignty. Such debates indicate possible emergence of a new Union-State conflict over privilege motions that can be moved in the Rajya Sabha or in the State legislature.
There are many instances of State legislatures passing Resolutions discarding a Central decision. Kerala Assembly itself passed a Resolution in 1971 against the Maintenance of Internal Security Act (MISA). In 2006 and 2007, it rejected certain provisions of the Income Tax Act that brought cooperative banks within the ambit of the IT.
Tamil Nadu Government’s Resolution on two-language formula is often cited as an example for effectiveness. Adopted by the legislature in 1968, it requested the Union Government to convene a high-level conference of leaders of all political parties to re-examine the language problem and devise a method to remove the hardships caused by the Central resolution. TN Resolution categorically stated that the “three-language formula shall be scrapped and Tamil and English alone shall be taught and Hindi shall be eliminated altogether from the curriculum in all schools of Tamil Nadu”.
The West Bengal Assembly in recent years has passed three important Resolutions against Union Government’s decisions — one against privatisation of Central public sector enterprises in the State, another against demonetisation and a third opposing NRC in Assam.
In the current controversy, the Union Minister for Home Affairs has notified that State Governments have no powers to refuse implementation of a Central law after several non-BJP governments in power in West Bengal, Kerala, Punjab, Chhattisgarh and Madhya Pradesh announced their opposition to the CAA.
Such declarations of defiance are contrary to Article 256 of the Constitution under which “the executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament…” The Union Government’s executive power extends also to giving such directions to a State as may appear to it to be necessary for the purpose.
West Bengal Chief Minister has already declared that, “as long as we are here, nobody can impose anything on you,” which sounds like a strong regional political party’s challenge to a rival at the Centre and rejection of central authority in the federal system, but may only be a posture adopted for winning votes in the coming Assembly election. Work on the NPR is stopped in this State and also in Rajasthan, Maharashtra, and Andhra Pradesh. Telangana Chief Minister wants to unite parties opposed to the NRC. Chhattisgarh and Madhya Pradesh have also announced that they will not implement CAA. The Chief Minister of MP is reported to have said that “so long as Congress is running the government in Madhya Pradesh, no anti-Constitution, anti-people, and anti-religion law will be implemented here”.
But, the Constitution has not authorised State Governments to decide on the legality and constitutionality of any Central law, but has provided for the right to approach courts. Thus, the politics of Union-State relations, hitherto centred mostly around defining State powers, is now extended to defy Central authority ignoring in the process that under the Indian Constitution, States are created by the Union and not the other way.
The author is Former Director, ICSSR, New Delhi