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Kerala Assembly resolution against CAA its opinion, hasn’t asked people to disobey law, says Supreme Court

A three-judge bench of Chief Justice S.A. Bobde and Justices A.S. Bopanna and V. Ramasubramanian has asked the petitioner to do more research on the subject matter.

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The Supreme Court has deferred the hearing on a plea challenging the legislative competence of state Assemblies in adopting ‘Resolutions’ against central statutes like the Citizenship (Amendment) Act and farm laws which fall under the Union List of the Seventh Schedule.

A three-judge bench of Chief Justice S.A. Bobde and Justices A.S. Bopanna and V. Ramasubramanian has asked the petitioner to do more research on the subject matter. 

The PIL addressing the question of law as to whether within the constitutional framework, under Article 213(2)(a) and Article 246(1), any State Legislature can adopt ‘Resolution’ adversely criticizing a Central Statute.

During the hearing on Friday, the Chief Justice asked the petitioner if he’s ready with the law? To which Senior Advocate Soumya Chakraborty, appearing on behalf of the petitioner said they are ready with the law.

CJI Bobde said the court just want to know the provisions.

Chakraborty said Article 212 (1) of the Constitution- force not to enquire in the validity of the legislature…Artice 105(2) and 122 are both in regards to the Parliament, now Article 194(3) has been called into question repeatedly before your lordships except (1) &(2), 194(2) has to be read with 194(1) & 194(2) speaks about the freedom of Speech, there is no immunity given to the legislature.  

CJI Bobde asked, “What is the resolution Chakraborty is objecting to?” 

Reading out the resolution, Chakraborty said the Citizenship Amendment Act.

CJI Bobde said, “This is the majority opinion of the Kerala Assembly, they have not told people to disobey the law, they have just made an opinion to the Parliament. The court can be with the petitioner if it says Kerala Assembly do not have power to set aside the law passed by Parliament, but are they doing that?”

Sr. Adv. Soumya Chakraborty replied that this state legislature cannot even make or unmake laws.

Thereafter, the CJI adjourns the proceeding of this matter for further hearing after 4 weeks.

The Court was hearing the PIL filed under Article 32 of the Constitution impugning the Legislative actions of four different State Legislative Assemblies which have infringed Fundamental Rights of all Indian citizens.

The question of law of general importance is if any State Legislature can adopt ‘Resolution’ adversely criticizing a central Statute which addresses an entry in List I of the Seventh Schedule.

The petition has stated, “Even as the Citizenship (Amendment) Act, 2019 was passed by both Houses of the Parliament, received Presidential assent and was duly notified in the Gazette of India thus coming into effect on or from 12.12.2019 and even as about sixty purported Writ Petitions challenging the constitutional validity of the said Legislation were filed and pending adjudication before this Hon’ble Court, wherein notices were also issued, the State Legislatures of Rajasthan, Kerala, Punjab and West Bengal purportedly adopted Resolutions condemning/adversely criticizing the same.”

It further stated, “Moreover, the Legislative Assembly of West Bengal has of late again adopted a Resolution against three other recently passed central Legislations (farm laws) emanating from List I which have also been challenged before this Hon’ble Court by way of Writ Petitions.”

The petitioner stated that the Rules of Procedure of the aforesaid Legislative Assemblies framed under Article 208 contain inter alia chapters titled ‘Resolutions’ and the same, apart from imposing a precondition upon the Hon’ble Speakers to decide the admissibility of the Resolution before allowing the same to be placed in the Assembly, also prohibits subjects which are not primarily the concern of the State Government and on which litigations are pending.

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It said, “that the impugned Resolutions and the process leading to their purported adoption are patently illegal, arbitrary and unsustainable in law for inter alia the following reasons:

(a) The said Resolutions target a central Legislation impinging upon entry 17 of the Union List, and as such are in breach of the Constitutional embargo set out in Article 246(1);

(b) By their arbitrary and motivated incursion into the Union List under the Seventh Schedule, the participating legislators of the four aforementioned states infringed Fundamental Rights of the people thus manifestly violating the ‘oath of office’ administered by them while being made members of the respective Legislative Assemblies.

(c) The Constitution of India approves of ‘Resolution’ within the limited context of Article 213(2)(a). When an Ordinance is brought, but before the expiration of six weeks from the reassembly of the legislature, the members of the Legislative Assembly want to disapprove the contents of the Ordinance and when the said disapproval is agreed to by the members of Legislative Council, the same is liable to be done by way of passing a Resolution by the Legislators to that effect. The facts and circumstances of the present case fall way beyond the narrow confines of Article 213(2)(a) and the whole process complained of herein is unknown to, disapproved by and in violation of the Constitution of India.

(d) While interpreting the scope and purports of Article 194 of the Constitution, in Powers, Privileges and immunities of State Legislatures Re, Special Reference No.1 of 1964 (1965) 1 SCR 413: AIR 1965 SC 745, it was held inter alia that the freedom of speech of the legislator contained in the said provision relates only to the regulation of the procedure of the Legislation and as such is independent of the freedom of speech guaranteed under Article 19(1)(a). It was further held inter alia that the said freedom of speech with regard to legislative procedures only is absolute and unfettered and the Legislators are immune from any action in a Court of law. It is submitted that the said perception of immunity has purportedly encouraged the Respondent nos.3 to 6 to facilitate passing of the impugned resolutions. Ostensibly, the said immunity protects Legislators who misuse their limited freedom of speech and purposely violate provisions of the Constitution from disqualification for membership within Article 191 of the Constitution. Thus, no disciplinary action can be taken by the Hon’ble Governor under Article 192 against the said legislators even in the face of blatant legislative overreach offending Article 246 and the Union List in the Seventh Schedule.

(e) The Hon’ble Speakers of the concerned Legislative Assemblies did not apply their mind to the fact that:

(i) The State Assemblies had no jurisdiction to make laws on the subject matter of the central statute in question which did not per se concern any particular State Government and as a corollary, could not discuss/debate and/or pass Resolutions against the said central legislation;

(ii) Umpteenth number of Writ Petitions challenging inter alia the Constitutional validity of Citizenship (Amendment) Act,2019 were pending adjudication before this Hon’ble Court as on the dates of the said Resolutions were passed and as such the proposed Resolutions should have been rejected outright by the Hon’ble Speakers.

The petition has mentioned that, “In the case of Powers, Privileges, it was also held inter alia as under: “39. Our legislatures have undoubtedly plenary powers, but these powers are controlled by the basic concepts of the written Constitution itself and can be exercised within the legislative fields allotted to their jurisdiction by the three Lists under the Seventh Schedule; but beyond the Lists, the legislatures cannot travel. They can no doubt exercise their plenary legislative authority and discharge their legislative functions by virtue of the powers conferred on them by the relevant provisions of the Constitution, but the basis of the power is the Constitution itself. Besides, the legislative supremacy of our legislatures including the Parliament is normally controlled by the provisions contained in Part III of the constitution. If the legislatures step beyond the legislative fields assigned to them, or acting within their respective fields, they trespass on the fundamental rights of the citizens in a manner not justified by the relevant articles dealing with the said fundamental rights, their legislative actions are liable to be struck down by courts in India…”

It further submitted that in Raja Ram Pal Vs. Hon’ble Speaker, Lok Sabha (2007) 3 SCC 384 it was also held inter alia that the action of the Hon’ble Speaker on the floor of the Legislature is open to judicial review.

It is submitted that in State of W.B. Vs. C.P.D.R. (2010) 3 SCC 571 it was held inter alia by a Constitution Bench that judicial review is otherwise essential for resolving the disputes regarding the limits of constitutional power and constitutional limitations as an ultimate interpreter of the Constitution.

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