Farm Acts emasculate protective laws

The Supreme Court recently said that farmers have every right to protest the Farm Acts. On a different occasion, most recently SC expressed concern that farm agitation is going beyond reasonable time. The Centre after failing to break deadlock in talks with farmers, stated that the matter should be left to the Supreme Court. What is the Supreme Court expected to do? One possibility is that it can declare the three Acts unconstitutional, which should fulfil the demand for nullification of these laws.

Three Farm Acts could be unconstitutional because they are made by Parliament upon the subjects which are exclusively in the domain of states. This is the Constitutional truth. Centre used expression 'food stuff', which is placed amidst subjects of industry and industrial production, in the concurrent list, but Parliament in fact encroached upon the 'agriculture' and 'markets and fairs'. This is misinterpreting the language to suit the Centre and businessmen. Centre is campaigning that farmers' income will be doubled with these laws.

Parliament has no power

Parliament has no power to make any law on agriculture. If Centre makes law conceding the farmers demand to make law on MSP or marketing, they also will be unconstitutional, because of the same reason. Legally, it must be left to the States. The Centre can issue a model legislation, convene, and convince the states to follow.

Calling 'Aadhaar bill' as money bill, was considered fraud on Constitution, in a dissent judgment of Justice D Y Chandrachud. Using concurrent List to deny the States exclusive, plenary legislative domain of States List (II) is against the original scheme of distribution of powers in Indian Federal Constitution. Three lists (Union, States and Concurrent) are crucial for securing the sovereign powers of States. In fact, Concurrent List is innovation of Indian Constitution makes that reduced the rigour of strict mutual exclusion of States and Centre's powers. The three Ordinances made in Covid-19 pandemic were passed during pandemonium in Parliament. Rajya Sabha's support to these laws is 'half-truth' as Deputy Chairman refused to count votes.

Parliament, despite its Constituent power under Article 368 to amend the Constitution, cannot legislate on state subjects, even if two-thirds of its members and half of states agree. Leaving agriculture to States is substantive part of federal character which is basic feature of the Constitution. The doctrine of basic structure laid down by Supreme Court in 1973 prevents Parliament to tamper with share of states sovereignty.

Several laws are made by states using Entries 14, 18, 28 of List III for facilitating the support to small and marginal farmers, which the centre cannot abrogate calling farm produce as 'food stuff'. Even after these three farm laws, Constitutional powers of states do not vanish. The states can develop a policy, or law and enforce it.

Encroaching on State subjects

Entry 14, 18 & 28 of List II are: "14. Agriculture, including agricultural education and research, protection against pests and prevention of plant diseases".

18. Land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization.

28. Markets and fairs".

'Agriculture" in entry 14 etc, includes all aspects of agriculture in its wide scope such as land, the agricultural operations, seeds etc., as well as the produce and 28 includes Markets and Fairs". It will be obnoxious to say 'agriculture' will not include 'farm produce'. The APMC laws define "farm produces" as "produce of Agriculture".

The 'Entry 26 and 27 of List II are subject to entry 33 of list III which says:

Entry 33. Trade and commerce in, and the production, supply and distribution of, — (a) the products of any industry where the control of such industry by the Union is declared by Parliament by law to be expedient in the public interest, and imported goods of the same kind as such products;

(b) foodstuffs, including edible oilseeds and oils;

The expression 'industry' only covers manufacturing but not its product. Similarly, under Entry 26 and 27, trade and commerce, supply and distribution are separately specified. Unlike "industry", the Entry 14 of List II 'agriculture' is comprehensive and includes the agricultural produce. The sale and purchase of agricultural produce will squarely fall under Entry 28 list II – "markets and fairs". This Entry 28 is not subject to any other Entry of the Concurrent List or the Union List. The states draw all independent and plenary legislative power from this entry.

When centre said that MSP was never law, it is true, it was all through a strong policy separately implemented by all the states and centre facilitated the fixation of MSP. Restrictions on inter-state trade in farm produce are lifted now, which will harm the local farmers and liberate traders to deny the state and even the centre from having stocks of food grains. Facilitating big farmers or giant corporates may lead to export of grain threatening the food security of states and nation as a whole. Telangana has 90 per cent of small farmers holding below 5 acres while they are 80 per cent in country, for whom these three are harm laws, with trader-friendly formulas.

The Constitution under Article 246 say the Centre's law will prevail over contradictory provisions of state law on subjects in concurrent list. But there is an important exception to this rule of repugnancy, if the State's bill is assented by the President, State's law will prevail and override the Centres law in that particular state [Hoechst Pharm Ltd. v. State of Bihar, (AIR 1983 SC 1019, https://indiankanoon.org /doc/703764/)]. The three Bills which are made under concurrent list can be effectively surpassed by the States.

Another power, the States are ignoring is that their law on List II subjects will not attract doctrine of repugnancy at all. If states are courageous enough to make the policies and laws using these provisions, the three laws could become ineffective. However, outcome depends on the legal battle and possibility of objective judicial interpretation of these profound Constitutional principles of equal plenary powers to two tiers of Governments.

Why States surrendered?

The States surrendered and agreed to the Constitution 101st Amendment Act 2016, which added 246A to empower Centre to make GST law covering the States also. This is a major assault on the powers of States and the fiscal federalism of the nation, consequences of which were witnessed when state finances dwindled because of mounting dues, some of states were 'permitted' by centre to take loans for compensating shares of states left unpaid.

The State Agriculture Market laws were primarily intended to support and protect the farmers realizing their weaker positions in the profit-manipulative commercial market. The lambs are left in competition before the wolfs. For instance, section 7 of the Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020. removes the welfare/support 'umbrella' over the farmers, offered by the State Acts. This Farmer's Empowerment (so called) Act gives overriding effect to the farm agreements. The agreement between farmer and trader, if conflicts with state law, agreement will prevail and not the law, which means the States are surrendering their power not only to the Centre, but also to the corporate dominated agreements.

Tobacco Board case

The Bihar Act rightly listed tobacco as Agriculture produce and APTMC Monghyr levied heavy market fee which ITC Ltd has challenged. The Supreme Court's constitution Bench of CJI G B Pattanaik, YK Sabharwal, Ruma Pall, Brijesh Kumar, held in ITC vs APMC & others: "The State legislatures are competent to enact legislation providing for the levy and collection of a market fee on the sale of tobacco in a market area. Consequently, the Market Acts enacted by the States are valid. The State legislations and the Tobacco Board Act, 1975, to the extent that they relate to the sale of tobacco in market areas, cannot co-exist and the former prevail over the latter".(https://indiankanoon.org/doc/1783658/). The states should take lead in making better laws for the welfare of farmers, which is their fundamental duty under Article 37 and 39.

(The writer is Professor of Law, Bennett University and former Central Information Commissioner)