War of resolutions

Published September 4, 2021
The writer is an author and lawyer based in Mumbai.
The writer is an author and lawyer based in Mumbai.

LEGISLATIVE assemblies of the states in India have now belatedly discovered a weapon that can be freely deployed without harming the opponent but which can win public applause. It is a resolution.

Over a century ago, an English court held that it is not law. A law must be passed by both Houses of Parliament and assented to by the Crown. Taxes for instance, cannot be imposed through a resolution of the House of Commons or, for that matter of both Houses of Parliament.

A state assembly cannot veto a law passed by parliament. But it can express its opposition to it. This has no legal force but has political weight. Many states oppose the three central laws on farmers.

In contrast to British scepticism, resolutions were common in the chambers of deputies on the European continent. On March 4, 1847, Lord John Russell spoke on the Treaty of Vienna and referred to the submitted resolution — “This House … views with alarm and indignation the incorporation of the free City of Cracow … into the dominions of the Empire of Austria … in manifest violation of the … Treaty [of Vienna].”

He said, “When there is a treaty made, or a correspondence takes place, upon which it is thought necessary that the opinion and concurrence of this House should be taken, it is usual then for the ministers of the Crown to ask for that general concurrence.

A mere resolution passed by parliament does not work.

“If a treaty of commerce or a treaty of subsidy is signed, that requires the intervention of parliament. It is usual for the minister of the Crown to ask for the sanction or concurrence of Parliament to that treaty.

“But to affirm a resolution which is not thus brought by necessity before the House of Com­­mons — to affirm a resolution merely declaratory of an opinion, that is not the correct nor the regular course of proceeding in this House.

“For my own part it appears to me, that while it is obviously incumbent on the secretary of state for foreign affairs, and on the advisers of Her Majesty, to declare their sense of any violation of treaty, or of any matter which concerns the foreign relations of this country with other countries, it is not advisable that the House of Commons should affirm resolutions with respect to the conduct of those foreign powers, unless it be intended to follow up those resolutions by some measures or actions on the part of the executive government.

“For my part I have never admired … the conduct of the French Chambers with regard to Poland.”

India felt deeply wronged by China’s attack on Oct 20, 1962. The Lok Sabha angrily but unwisely passed this resolution: “This House notes with deep regret that, in spite of the uniform gestures of goodwill and friendship by India towards the People’s Government of China on the basis of recognition of each other’s independence, non-aggression and non-interference, and peaceful coexistence, China has betrayed this goodwill and friendship and the principles of Panchsheel which had been agreed to between the two countries and has committed aggression and initiated a massive invasion of India by her armed forces…

“With hope and faith, this House affirms the firm resolve of the Indian people to drive out the aggressor … however long and hard the struggle may be.”

India has conducted many negotiations with China since, which tacitly conceded some territory to China. Now over 50 years later no one in his senses even refers to this resolution.

But wisdom dawns slowly. Three decades later when the BJP was in power, a resolution was adopted by parliament declaring the Kashmir dispute closed.

It did not prevent Jaswant Singh from secretly offering to the US, resolutions of the Kashmir dispute in the wake of the nuclear tests of 1998. India was prepared to accept Pakistan’s sovereignty over Azad Kashmir in settlement of the Kashmir dispute. This was just two years after the resolution.

If Article 370 cannot foreclose the Kashmir dispute nor can a mere resolution of parliament. The Kashmir dispute will be resolved only by the will of the people of Kashmir.

There is, however, one subject on which resolutions of parliament can have force. That is rules, conventions and practices.

On July 15, 1947, the House of Commons by resolution declared that it was “inconsistent with the dignity of the House, with the duty of a member to his constituents, and with the maintenance of the privilege of freedom of speech, for any member of House to enter into any contractual agreement with an outside body, controlling or limiting the member’s complete independence and freedom of action in parliament or stipulating that he shall act in any way as the representative of such outside body in regard to any matters to be transacted in parliament; the duty of a Member being to his constituents and to the country as a whole….”

This was because some trade unions sought to bind members who they had financed. This is different from the party whip. But it can apply to undertakings by outside elements.

The writer is an author and lawyer based in Mumbai.

Published in Dawn, September 4th, 2021



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