The Citizenship Amendment Act and the Farm Laws have proven to be two of the most widely ridiculed policies of the National Democratic Alliance-led Government at India's Centre. The passing of these laws resulted in widespread protests across the nation, which included student unions, farmer's unions and the general public rallying in to oppose these draconian legislations which result in discrimination on the basis of faith or supposed protection of Corporates' interests without taking heed to the ground level stakeholders. These protests were accompanied by widespread activism, violence and police brutality. The questions of Constitutionality and political motives aside, certain states have taken a rather defiant stance to these laws. This article seeks to explore the defiant stances and how far these stances can stand, constitutionally.

Defiant States and the Clash with the Centre: the Backdrop

A few of the states ruled by opposition parties had taken a strong defiant stance against both of these laws. The State of Kerala passed resolutions against both the laws, and the Chief Minister of the state branded these laws as "unconstitutional" and as an attempt to "divide India on religious lines". The farm laws were met with protests by farmers at Delhi, which continues to date.

The matter of Citizenship is contained under the 7^th Schedule of the Indian Constitution, leaving it completely up to the Central Government to decide what should happen in this. The Union can exercise their power in this matter, and can even resort to coercive measures such as fund allocation reductions to states. However, for practical purposes the enumeration processes involved in the implementation of the Citizenship Act should require the cooperation of states. The states may choose to move the Supreme Court under Article 131 of the Constitution.

With respect to the farm laws, agriculture is on the Concurrent List in the Constitution [Entry 33] which gives both the Centre and the States the power to control industries, including agriculture, in their respective states. The farm laws seem to have the objective of eliminating State interference in agricultural trade by creating a list of industries at the State level below the list of concurrent industries. The States may choose to enact a negating legislation under Article 254. However, this requires the assent of the President.

 

The Supreme Court had called for more research on the issue, asking whether or not State lawmakers have the right to express their views on key laws. The Supreme Court heard a lawsuit by a non-governmental organization seeking to challenge the legislative authority of various federal assemblies by passing the CAA and the Farm Act, which are supposed to fall under the Union List of Seventh Schedule.

The decision of the CJI-led bench was to suspend agricultural legislation, and a number of high-profile judgments have been made on the CAA and agricultural law. On January 9, 2020, when he was considering a petition regarding the CAA, Judge Bobde noted that there was no presumption against the constitutionality of the law. Twelve states have refused to implement both the CAA and the NRC because they have concerns about the constitutional validity of their provisions. They have also suspended work for the National Population Register (NPR) because NPR will ultimately lead to the NRC.

The Parliament is not, however, prevented from passing laws on the same matter at any time, including the addition, amendment, or repeal of laws passed by the legislature of a state. This allows a State Government to pass a law that is subject to the list of simultaneous applications, which may contradict or contradict a Central law, provided it receives the approval of the president. The Rajasthan Government has taken the Article 254 route by making the Industrial Strikes Act a law that later received the approval of the President, not the Prime Minister.

Constitutional Perspective on the Defiance

Here, political partisan opinions, defiance, and retaliation aside, the Constitutional perspective on these acts of defiance seems like a pertinent issue which needs to be answered in order to logically conclude the end result which these legislations might encounter.

At the outset, with respect to the Citizenship Laws it has to be understood that the states have no power to refuse implementation of Central Laws, albeit creating issues on a practical level. Approaching the Supreme Court could be interpreted on the basis of State Of Karnataka v. Union Of India, where it was proposed that the Article may apply only when a permanent body in any state is affected by the Central Law. The court interpreted that only when a case has the legal right as an issue involved can this article be invoked and the same cannot be used to address political differences.

However, the lines may be a bit blurry since the court also reasoned that the term "legal right" has to be interpreted in a strict sense as well as in a conventional sense, including matters on liberty, power and immunity as well. [1]The state of Kerala, for instance, took the interpretation that the Citizenship Law affects “enforcement of legal rights as a State and as well for the enforcement of the fundamental, statutory, constitutional and other legal rights of the inhabitants of the State of Kerala”.

Certain States had passed resolutions against the controversial farm laws as well, and the same has been listed under the concurrent list, as mentioned above. The INC the major opposition party in the country, said in a statement that "Congress President has advised the Congress-ruled states to explore the possibilities to pass laws in their respective states under Article 254(2) of the Constitution, which allows the State legislatures to pass a law to negate the anti-agriculture Central laws encroaching upon the state's jurisdiction under the Constitution." The laws made in the particular states shall prevail over the central law, if the President assents to the same. This is to incorporate different interests in a large and diverse country like India. In the 2019 case of Forum for People’s Collective Efforts (FPCE) vs. State of West Bengal, the Supreme Court had interpreted that in the event of a repugnancy, the Parliamentary legislation shall prevail and the State law shall “to the extent of the repugnancy” be void. The Court also stated that the states receiving the assent of the President can cure such repugnancy. However, here it has to be noted that the Central Legislature can legislate further to come up with a law that furthers their interest[2], even if such state laws are assented to by the President.

Bottom Line

Here, the conclusion from a constitutional standpoint is largely a resounding "no" to the prospects of any state act of defiance. However, the Central Government's further policies, considering the repercussions they may have to encounter on the international level or on a local electoral level, still remains a grey area. The Home Minister's public statement that these laws shall be implemented once the COVID crisis subsides pushes any final conclusions on the end results of these matters further away from clarity.

[1] https://www.jusdicere.in/state-karnataka-v-union-india/

[2] https://thelawcommunicants.com/concept-of-repugnancy-under-article-254-supreme-court-explains/