The legality of legislative resolutions: Do they have no right to express an opinion?

The legislature in any constitutional democracy creates many things. A legislative resolution is only one of them. This short article discusses the purpose and function of a legislative resolution in light of the Citizenship (Amendment) Act, 2019.

A number of state legislatures have passed resolutions both against and in favour of this law. Citizenship is a matter under the Central List, and the issue is pending before the Supreme Court as well. We move a step forward and discuss whether any legal implications could arise out of such resolutions.

The CAA quagmire

The enactment of the Citizenship (Amendment) Act, 2019 by Parliament evoked mixed responses in the country. The opponents assailed the legislation on account of illegality based on manifest arbitrariness, unreasonable classification and violation of the basic rights under the Constitution. However, those in favour argued that the infiltration of migrants is a threat to the security of the nation and its territory and, therefore, the Act stands justified.

While the political challenge to the Act saw nation-wide demonstrations, protests, dharnas and eventually violence throughout the country, the legal challenge was simultaneously instituted before various judicial offices, including the Supreme Court of India. The first petition against the Act was filed by the Indian Union Muslim League in the apex court, on the same day the Act received Presidential assent (IUML v. Union of India). Around 144-odd writ petitions came to be filed under Article 32 of the Constitution of India challenging the constitutionality of the Act.

Legislative resolutions against the CAA

In addition to the political agitation and the legal representation before the courts, CAA also ignited debates within state legislative bodies. On January 1, 2020, following the widespread protests in the country, Kerala became the first state to pass a resolution requesting the Central government to abrogate the law. Following Kerala’s example, other states including Punjab, Rajasthan, West Bengal, Madhya Pradesh, Chhattisgarh (Cabinet resolution) and Telangana [also against National Population Register (NPR) and National Register of Citizens (NRC)] passed resolutions against the CAA. While the Union Territory of Puducherry passed a resolution against the Act, the State of Meghalaya passed resolution to be kept out of the ambit of CAA. Additionally, Andhra Pradesh, Delhi and Jharkhand passed resolutions against NPR and NRC.

Gujarat and Goa passed resolutions along with a “congratulatory note” in favour of the Act. Most recently, Tamil Nadu became the eighth state to pass a resolution against CAA, on September 8, 2021. While moving the resolution, Chief Minister MK Stalin argued that the CAA was “not in tune with the secular principles laid down in our Constitution, and also not conducive to the communal harmony that prevails in India.”

This act of passing a resolution by the State Legislative Assembly was debated by the Supreme Court in the case of Samta Andolan Samiti v. Union of India (March, 2020). The petitioner vehemently argued that the state legislative assemblies have no jurisdiction to have any opinion on or debate/discuss/make any resolution against a statute passed on a matter under List I of the Seventh Schedule of the Constitution. The petitioner further argued that this need not be allowed, especially once a matter has already come under judicial scrutiny. While the first objection is what this piece discusses, the second saw the government itself flouting the constitutional standards when it invited citizenship applications by way of a notification dated May 28, 2021.

Regardless of the petitioner’s disapproval of the passing of the resolutions, then Chief Justice of India SA Bobde commented that the “Kerala Assembly has no jurisdiction to disobey the law by the Parliament.” However, it was acknowledged that “they are only expressing an opinion here.” Moreover, he observed that through these resolutions, the state legislatures “have not asked the people to disobey. They have only called upon the Parliament to abrogate the law.”

The arguments forwarded by the petitioner revolved mostly around the point that since the state assemblies cannot make laws on the subjects in the Union List, they cannot also have a casual opinion on them. Upon which CJI Bobde inquired:

“But do they have no right to express an opinion?”

What is a legislative resolution?

At the outset, it is important to know what a resolution means and how it is passed. Basically, items of parliamentary or legislative business are taken up in the form of a ‘motion’. The motion is then discussed and put to vote. The decision arrived at vis-a-vis the motion reveals the resolution; in other words, the decision changes the motion into a resolution.

British constitutional theorist AV Dicey maintains that “the Resolutions of neither House is law”. However, Justice PB Mukharji, former judge of the Calcutta High Court, argues that Dicey’s opinion on the character of a resolution is mistaken and that his stand comes with certain qualifications in the Indian scenario. According to him, a resolution can have as many as three effects, in India:

(1) Resolution with a legal effect - Those are resolutions to which the Constitution or statutes passed by Parliament or the state legislature attach certain consequence(s). For instance, removal of the President or Vice-President by way of a resolution or ratification of constitutional amendments under Article 368 by way of a resolution of the state legislature are all examples of certain resolutions that carry specific legal effects.

(2) Resolution with quasi-legal effect - These are resolutions regarding the control over the proceedings of the House itself. Although resolutions on procedure and conduct of business of the House are not acts/statutes, they nevertheless have a binding effect only on the House and the courts cannot enforce them.

(3) Resolutions which are merely an expression of an opinion having no legal effect - These are resolutions that do not have any legal effect, but are sometimes capable of having a political effect.

The correct interpretation that evinces from CJI Bobde’s observation is that the states can certainly express their opinion (having no force of law), but cannot disobey the law. This aligns with Justice Mukharji’s classification and also finds corroboration both in the Rules of Procedure and Conduct of Business in the Rajya Sabha (Rule 155) and Rules of Procedure and Conduct of Business in the Lok Sabha (Rule 171).

In nutshell, we may safely conclude that the resolutions passed by the state legislatures against the CAA 2019 form only an opinion in the eyes of law and have no legal effect or consequences.

Nizamuddin Ahmad Siddiqui is Senior Research Fellow and PhD Candidate at Jindal Global Law School.

Abu Zar Ali is currently pursuing BA.LLB. from WBNUJS, Kolkata.

Disclaimer: The views and opinions expressed in this article are those of the authors' and do not necessarily reflect the views of Bar & Bench.