New Delhi: The Kerala Assembly resolution urging the Centre to repeal the new citizenship law is "not unconstitutional" and it does not breach Parliament's privilege, former Lok Sabha Secretary-General P D T Achary said Friday, a day after Governor Arif Mohammed Khan asserted it has no legal validity.
"There is nothing unusual for a state assembly to pass a resolution expressing its views, opinions and feelings against a legislation approved by Parliament. There is nothing unconstitutional or illegal in it. Because the Constitution does not prohibit any state from adopting a resolution in the interest of its people," Achary told PTI.
On Thursday, the Kerala Governor said the resolution "has absolutely no constitutional or legal validity". "Citizenship comes exclusively in the domain of the Central List. The state government has no role. So why these people engaged in something which is a non-issue for Kerala," Khan had asked.
Achary said Khan's comment was "legally and constitutionally incorrect".
The resolution was only a "request" to the Centre to repeal Citizenship Amendment Act, he said. "A request is a request. Constitution does not say state governments should not make such a request."
The constitutional law expert also said the Kerala government need not send the resolution to the Centre through the governor.
"When a state government feels a law approved by Parliament will be detrimental to the interests of its people, it has only two options either go to the Supreme Court, challenging the law, or ask the Centre to repeal the law. Kerala has utilised the second option to express its views and opinions as per the democratic principles. Anybody can make such a request to the Centre including a common man," said Achary.
Article 256 of the Constitution says a law passed by Parliament should be strictly enforced in all the states and the state governments have to ensure its compliance. If the state government refuses to enforce it then "it is unconstitutional", he said.
On objections by some leaders over the use of words "illegal, unconstitutional" in the resolution, Achary said there was nothing wrong in it. "It is usual to use such words even in the affidavits filed in the courts".
On a BJP MP's letter to the Rajya Sabha chairman seeking action against Kerala Chief Minister Pinarayi Vijayan vis-a-vis the resolution for "breach of privilege" of Parliament, he said no privilege was breached as the assembly had only performed its constitutional function.
"When Parliament approves a legislation, it is not doing anything as enforcement of its privileges or part of its privileges. It is only performing its constitutional function. So where is the breach of privilege involved in this? I don't think so," he said, adding, "If at all a breach of privilege issue is to be raised it has to be against the assembly speaker who admitted the resolution and not the CM."
The Parliament and the state assembly are two independent constitutional bodies and one cannot control the other and they cannot discuss about the members or functions of the other House, he pointed out.
According to the new law, members of Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities who have come to India from Pakistan, Bangladesh and Afghanistan till December 31, 2014, after facing religious persecution there will not be treated as illegal immigrants and be given Indian citizenship.
The bill to amend the law was adopted by Parliament during the just-concluded winter session. It became an Act after President Ram Nath Kovind gave his assent on December 12, 2019.