(Rishav Sen is a third year student at Jindal Global Law School)
Featured Artwork: ‘In the Assembly of Nobility’ by Konstantin Yuon
Introduction
In 2020, effective collaborative governance has become a cornerstone for federal relations across the world. This forms a marked shift from the traditional model of ‘dual federalism’ to a cooperative model where the Constitution is not just seen as an instrument to mitigate conflict between the Centre and States, but as an instrument to ensure effective collaborative governance between them.In the Indian Constitution, Article 246 clearly demarcates the legislative powers of the Centre and states respectively. However, Article 252 acts as an exception to it by introducing flexibility to the strict demarcation between the legislative powers of the Centre and States. Article 252, which acts as a ‘cooperative legislation’ lays down two key provisions:
a) Pursuant to a resolution passed by two or more States, the Parliament is allowed to make laws on a subject matter that does not come under its legislative powers, which then become applicable to the States that passed the resolution or adopted it afterwards; and
b) Any law passed by the Parliament under Article 252 cannot be amended or repealed by an Act of the State Legislature and such powers only lie with the Parliament.
The need for legislative co-operation of the kind envisaged under Article 252 was even recognised in the Constituent Assemble Debates in the pre-independence era, and post-independence several important legislations have been passed in pursuance of Article 252.However, the lack of legislative co-operation between the Centre and States has recently come into focus when the Farm Bills were passed by the BJP-led Union government in the Rajya Sabha without any attempts at engaging in debate with the Opposition. With the subsequent stand-off between the Centre and protesting farmers well into the third month now, Shekhar Gupta concluded that “as far as the farm laws are concerned, the Modi government has already lost the battle”. In response to the widespread protests, the BJP government has made it clear that the Farm Bills will not be repealed under any circumstances. However, Prof. Khagesh Gautam has suggested that the Centre could take recourse to the Article 252 mechanism by convincing two or more State Legislatures to pass a resolution which would allow the Parliament to enact a ‘Recalling Act’, instead of repealing the Farm Bills. Nevertheless, before understanding Prof. Gautam’s solution to the Farm Bills dilemma, we first need to look at the existing jurisprudence on Article 252 which has shifted the balance of power heavily in favour of the Centre. Accordingly, we will suggest possible amendments to the provision in order to restore this balance of power, which would eventually make Professor Gautam’s suggestion more feasible.
Addressing the Flawed Interpretation of Article 252
Moving forward, we will be analysing the following key issues which have been raised regarding the interpretation of Article 252: a) How to resolve the conflict between a pre-existing state law, on a subject matter covered by a subsequent resolution of the State Legislature, and a Central Act passed pursuant to it? (“first issue”); b) Can States impose conditions on the legislative powers of the Parliament while passing a resolution under Article 252? (“second issue”); c) Can States recall the power transferred to the parliament, by revoking the resolution passed by the State Legislature? (“third issue”).
Now, coming to the first issue, the Supreme Court in such a situation has tried to interpretthat the Central Act came under a legislative entry which was covered by the resolution of the State Legislature. However, the State Act, while having a similar subject matter, came under a separate legislative entry which thus avoided any conflict. This could be explained in the following manner. The Central Act came under Entry X of the State List which was transferred through a resolution of the State Legislature. However, the pre-existing State Act was interpreted to come under Entry Y of the State List, which was not covered by the resolution. Therefore, there was no conflict between the legislative competence of the Centre and the State and both the Central and State Act could co-exist, despite the apparent similarity in their subject matter. However, in a situation where the subject matter of the Central and State Act leaves no scope for avoiding conflict, the Supreme Court has adopted an “abdication or surrender” approach, wherein the subject matter covered by the resolution comes under the exclusive domain of the Parliament as if it had been “lifted out of List II and placed in List I of the Seventh Schedule of the Constitution”.
However, this creates the possibility of a distinct problem which was possibly not foreseen by the Supreme Court. It is settled law in India, that the Parliament cannot be compelled to pass, amend, or repeal a legislation since it would run contrary to its plenary powers of legislation. Therefore, there can be no remedy in a court of law to compel the Parliament to pass a legislation pursuant to a resolution passed by the State Legislature. This could lead to a unique scenario where the State loses its power to legislate on a subject matter which it has ‘abdicated or surrendered’ through a resolution and subsequently the Parliament refuses to act upon it, thus leading to a legislative gridlock on the subject matter in question.
In order to resolve this potential paradox which could arise, reference needs to be drawn to Section 51 (xxxvii) of the Australian Constitution, based on which Article 252 of the Constitution was modelled upon.It has been interpreted by the courts in Australia that following a referral, the legislative power with regard to the matter referred becomes concurrent between the State and the Commonwealth. This displays a clear departure from the ‘abdication or surrender’ approach adopted by the Indian Supreme Court. Applying the Australian approach during a legislative gridlock would ensure that States can still exercise their legislative powers on a subject matter, subsequent to a resolution passed by the State Legislature, in case the Parliament is unwilling to act on it. Therefore, an amendment needs to be made to Article 252 in order to incorporate such an approach in case of a conflict between a Central and State Act.
Moving on to the second issue, Article 252 (2) restricts the State’s power to amend or repeal an act passed by the Parliament following a resolution passed by the State Legislature. Furthermore, any condition or limitation imposed by the State Legislature in its resolution cannot bind the Parliament in its decision to exercise its legislative power pursuant to the resolution. Therefore, this could lead to a situation where the States’ interests are not served by the decisions of the Parliament pursuant to the resolution, which would be contrary to the principle of co-operation as envisaged under Article 252.
In order to resolve this issue, there are two possible solutions which will be proposed moving forward. First, any condition or limitation imposed by the State in its resolution should be binding on the Parliament. In support of such a view, reference should again be drawn to the Australian Constitution, wherein Section 51 (xxxvii) has been interpreted to allow the States to impose any restriction on the resolution which would be binding on the Commonwealth. This is based on the understanding that the Commonwealth’s power to legislate is in essence derived from the resolution passed by the States.Second, in accordance with the recommendations of the Sarkaria Commission Report, any decision of the Parliament to introduce or amend an Act, pursuant to a resolution passed by the States, needs to be made in consultation with an inter-State Council established by the President under Article 263. Due to the severely skewed balance of power in favour of the Parliament, it was noted during the Constituent Assembly Debates that Article 252 could end up being inoperative “because no State would like to get into a noose from which it cannot get out at all.”Therefore, implementing the aforementioned solutions could help Article 252 stay true to its principle of co-operation and accordingly it must be amended.
In the third issue, an argument in favour of allowing the State Legislature to revoke the reference can be made by carefully looking at the provision of Article 252 (1) itself. As a result of the ‘abdication or surrender’ approach adopted by the Indian Supreme Court, Article 252 in essence creates a massive change in the legislative relations between the Center and State, since the State loses its legislative powers on a given subject matter once a resolution is passed in favour of it. Now, if the Constituent Assembly had intended for such a change to be permanent in nature, it would have introduced an amending procedure in Article 252. However, Article 252 (1) requires only a resolution to be passed by the State Legislature, which has been interpreted by the Supreme Court to be merely an “act of legislature” rather than a “legislative act”. Therefore, in the absence of any amending procedure involved, it is argued that States should be allowed to revoke a resolution made to the Parliament, thus leading to a change in the legislative powers between the Parliament and State Legislature back to status quo. Even drawing reference to the Australian Constitution shows us that the balance of authorities is in favour of such a view. Furthermore, in the absence of an amending procedure, a State Legislature should not bound by a resolution of its predecessor, which in essence cannot be revoked.
Herein, a possible concern could also be raised that India can be transformed into a unitary state if a State Legislature transfers all of its legislative subjects to the Centre through the Article 252 mechanism, which would then become permanent in nature due to the ‘surrender and abdication’approach adopted by the Indian Supreme Court. This could be particularly likely with the political climate in India, where the BJP government holds power at the Centre as well as in a majority of States. Therefore, the only defence to this would be for the courts to step in and term such a move as unconstitutional for being an affront to federalism which is a part of the ‘basic structure‘ of the Indian Constitution. However, a resolution passed by the State Legislature should not be allowed to be arbitrarily revoked, which would defeat the purpose of effective co-operation between the Center and State. Therefore, in accordance with the recommendation of the Sarkaria Commission Report, Article 252 needs to be amended to allow for a resolution to be in effect for a fixed period of time, following which it will be subject to a periodical review.
Conclusion
The Article 252 mechanism argued by Prof. Gautam in his article would involve convincing two or more State Legislatures to pass a resolution on Entry 14 of the State List which includes “agriculture, including agricultural education and research, protection against pests and prevention of plant diseases”. This would allow the Parliament to pass a ‘Recalling Act’ which would recall the Farm Bills, following which it would be subject to due deliberations in the Parliament. Moving forward, the Parliament can enact the Farm Bills in a suitable form for the State Legislatures that passed the resolution, which can be later adopted by other State Legislatures as and when they deem fit. Now, prima facie this would seem to be an unique solution to end the deadlock between the Centre and protesting farmers since it avoids the possibility of having to repeal the Farm Bills. However, the existing interpretation of Article 252 makes it highly unlikely that a State Legislature would pass such a resolution. This is because, passing such a resolution would lead to the State Legislature losing its legislative competence under Entry 14 of the State List permanently. Furthermore, there is no obligation on the Parliament to implement any conditions or restrictions imposed by the State Legislature while passing such a resolution. Therefore, this would leave the State Legislature with no remedy if the Parliament acts contrary to their interests. Hence, this would be an opportune time to take note of the issues highlighted above and amend Article 252 accordingly to not only resolve the farmers protest but also encourage effective use of this provision in the future.
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