By Dr GB Reddy, T Vijay Kumar
Prime Minister Narendra Modi announced on November 19, 2021, that his government would repeal the three controversial farm laws. Though the PM maintained that the government failed to make farmers understand the benefits of the laws, one important factor could be the States’ dissent and opposition to such laws. When the laws were passed, many aggrieved States also passed resolutions against them.
Similarly, when the Citizenship Amendment Act, 2019, was passed, starting with Kerala, seven State Legislative Assemblies passed resolutions condemning it. Recently, Kerala and Delhi Assemblies passed resolutions demanding the recall of Lakshadweep administrator Praful Khoda Patel and the orders he passed, and against the Centre’s decision to appoint Rakesh Asthana as Delhi Police Commissioner, respectively.
This atmosphere of State-centered dissent, something new in our Centre-State relations, is reminiscent of the State-centered dissent against the Patient Protection and Affordable Care Act in the US. Though the Affordable Care Act was labelled as the most significant reform in the healthcare system in decades, States unhappy with the law, passed resolutions, challenged it in their Supreme Court, and some even went to the extent of asking citizens to disobey the law. In any Federation, such State-centered dissent begs the need to relook at the federal setup in general and the role and status of State specifically.
The Constitution establishes a dual polity in the country, consisting of the Union government and State governments. The States are regional administrative units into which the country has been divided. Power distribution between these units is provided in the Seventh Schedule in the form of Union, State and Concurrent lists.
The division is such that only Parliament can make laws on the items in Union list, State Legislative assemblies alone can make laws on items in the State list. Both Parliament and State Legislative Assemblies can make laws on items in the Concurrent list. The executive power of the Union and State governments extends to those items on which Parliament and State Assemblies can make laws. However, the Central government is vested with extraordinary powers under a few circumstances like national emergency or President’s Rule.
Right to Dissent
It is evident that the State Assemblies are restricted from making laws with respect to matters/items in the Union list. Does this restriction disentitle them from dissenting with the Central laws too? Or don’t they have a right to express their opinion on Central laws?
While examining the virtues of dissent, Justice DY Chandrachud in Romila Thapar v Union of India (2018) held that dissent is the safety valve of democracy. Retired Supreme Court Judge V Gopala Gowda opined that dissent is the bedrock of a healthy democracy. These observations confirm the right to dissent as sine qua non in a democracy.
Article 1 envisages ‘India that is Bharat to be a Union of States.’ The States, therefore, are a cog in the wheel of India’s democratic setup and make them an integral and essential part of democracy. Hence, by extension, the States should possess the right to dissent or express their opinion.
The SC while hearing a PIL filed by Rajasthan based NGO, Samta Andolan, which contended that State Assemblies have no business passing resolutions against the Central laws that come under the Union List found no harm in Assemblies passing such resolutions. The then CJI Justice Bobde opined that the Assembly resolutions are an opinion of its majority and that it has the right to such opinions. Hence, it is clear that though Assemblies cannot legislate on items in the Union List, they can pass resolutions, dissenting with Central laws.
Virtues of Dissent
Since elections were due in Kerala, West Bengal and three other States when resolutions against the CAA were passed, they were dismissed as election-year gamesmanship. Others alleged that it was opportunistic federalism or petty politics. Even if the resolutions were opportunistic, State-centered dissent per se cannot be dismissed as baseless as it holds significant value in a federal setup.
Firstly, when the State government is in the opposition or has small representation or no representation in Parliament, it can make its stand known — express opinion or dissent — by engaging in an elaborate discussion in the Assembly and passing resolutions. It becomes its only tool when it is not given adequate time to discuss a Bill or voted upon without any discussion. In February 2020, Venkaiah Naidu, Chairman of the Rajya Sabha, refused to allow notices under Rule 267 to debates on the nationwide protests against CAA and NRC. Secondly, the Central government may take the ordinance route to enact a law. An ordinance is passed when Parliament is not in session, hence no discussion is held on that law.
Thirdly, State-centered dissent draws nationwide attention to that law. It can trigger discussions, televised debates. Subsequently, there is a better understanding and appreciation of the nuances of that law. It also brings out the specific challenges a State has while implementing that law. Fourthly, it gives a voice to the minority views. Fifthly, when the States dissent, the Central government may not be in a hurry to implement the contentious laws. Finally, it envisages them to be active agents by opposing contentious issues and not play second fiddle to the Centre.
While examining Article 239AA, the SC in Government of NCT of Delhi vs Union of India (2018) said, “the idea behind the concept of collaborative federalism is negotiation and coordination so as to iron out the differences which may arise between the Union and the State Governments in their respective pursuits of development. The Union Government and the State Governments should endeavour to address the common problems with the intention to arrive at a solution by showing statesmanship, combined action and sincere cooperation. In collaborative federalism, the Union and the State Governments should express their readiness to achieve the common objective and work together for achieving it.”
Hence, State-centered dissent, though lacking the force of law, has immense value in a federal setup. Rather than dismissing it as petty politics, the Centre should pay heed and accommodate it in its policy with due consideration.
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