States Vs Central Government: Farm Laws In Court
Crowds gather for a protest rally against the new farm laws, in Sirsa, Haryana, on Oct. 6, 2020. (Photograph: Swaraj India/Twitter)

States Vs Central Government: Farm Laws In Court

The recently passed farm laws have seen a bitter political divide leading to the resignation of a Union Minister and protests in large parts of the country, especially Punjab. Now, two sitting Members of Parliament and one farmer leader have approached the Supreme Court setting the stage for a showdown between the central government and states. Chhattisgarh and Punjab are likely to knock at the doors of apex court soon.

On Monday, the Supreme Court issued notice on these petitions directing the centre to respond within six weeks.

At the heart of the case is the assertion that the centre has encroached upon the domain of states. Those contesting the legality of the new farm laws argue that agriculture is a subject over which states have exclusive jurisdiction and that the centre had no power to introduce and pass laws on it in Parliament.

The two laws at the centre of the argument are the Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020 and Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020. The first provides farmers with a framework to enter into agreements with buyers of produce and the second enables them to sell their produce outside the designated Agricultural Produce Market Committees (APMCs).

Soon after the bills received the President’s assent, several petitions were filed before the Supreme Court. While some lawyers opined that pro-state arguments have merit on grounds that the centre has violated the federal structure under the Constitution; others told BloombergQuint that the laws which’ve passed have nothing to do with agriculture.

Also read: Why Modi’s Laws to Liberalize Farming Worry Farmers

Farm Acts Encroach Upon States
Rights: Petitioners

Two MPs - RJD’s Manoj Jha and DMK’s Tiruchi Siva- have approached the apex court arguing constitutional violation by the central government.

Federalism, they’ve said, is recognised as part of the basic structure of the Constitution and any law which violates the basic structure is considered unconstitutional by courts. The crux of their argument revolves around the subjects over which states and the centre can make laws.

The division is done through three lists namely List 1 (Union), List 2 (State) and List 3 (Concurrent). The concurrent list includes those subjects on which both the centre and states can legislate, but in the event of a clash between the two, the central law will prevail.

The federal structure of our democracy cannot be permitted to be destroyed by the Union Legislature blatantly encroaching into matters purely within the domain of the State Legislatures
DMK MP Tiruchi Siva’s petition

Advocate Vikram Hegde agreed with this view. He explained that agriculture is clearly covered under entry 14 of the State List under the Seventh Schedule of the Constitution, and markets are covered under entry 28.

The two Farm Acts are clearly violative of both insofar as they go into great detail including i) model form of farming contracts, ii) farm produce marketing, iii) electronic marketing of farm produce etc.
Advocate Vikram Hegde

Also read: Government Reaches Out To Stakeholders On Farm Bills; Rajnath Singh Meets Farmers, Policy Experts

He also pointed to more amicable approaches which the central government could’ve taken to avoid a legal battle with states.

First, the Rajya Sabha could’ve passed a special resolution as per Article 249 which would’ve made way for the central government to legislate on issues that fall under the State list, Hegde explained. Article 249 gives the Parliament power to legislate on a matter in the State List in the national interest.

The second route could’ve been Article 252 of the Constitution, Advocate Sanjoy Ghose added. This allows the Parliament to frame laws for two or more states who pass a resolution requesting it to legislate on that specific State subject.

‘’The government could have gotten 4 or 5 BJP-ruled states to pass a resolution in their assembly saying that we request the central government to frame a model law and then could’ve implemented in their respective states. If then the benefits of the law would have been demonstrated, other states would have come around. 
Advocate Sanjoy Ghose

That is how you deal with the federalism argument, he added.

What Could Be The Centre’s Defense?

The central government should argue that issues which fall under the State list are not the substance of the farm laws, Senior Advocate Rakesh Dwivedi pointed out.

It is correct to say that agriculture, land and market are ‘state’ subjects but in pith and substance, the farm laws do not deal with those subjects at all, Dwivedi explained.

The doctrine of pith and substance is used by courts while interpreting laws which may appear to be falling under different lists. The court examines the law passed by the Parliament as a whole and if, in substance, it deals with a subject in the Union or Concurrent list, then it passes muster.

In the case of farm laws, Dwivedi opined, the Parliament derives its ability to legislate from entry 33 in the Concurrent List. This allows the central government to pass laws relating to trade, commerce, production, supply, distribution of any product in an industry.

Parliamentary enactment of the farm laws only enlivens the choice which earlier, through state enactments, was limited to the market yards. The real aspect is that these laws deal with how farmers can sell. It enlivens the choice and in pith and substance deals with trade and commerce and production. It has nothing to do with agriculture. 
Senior Advocate Rakesh Dwivedi

Further, once you recognise and apply the doctrine of pith and substance, then some incidental overlap is permissible, Dwivedi added.

The apex court will next hear the matter after six weeks.

Also read: Separating The Wheat From The Chaff In India’s Farm Policy

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